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Professor of Law in the University of Illinois 







Entered according to act of Congress in the years 1881, 

1882, and 1883, by 


In the office of the Librarian of Congress, at Washington, 

Entered according to act of Congress in the year 1892, by 

In the office of the Librarian of Congress, at Washington. 

Copyright, 1905, 



Copyright, 1918, 




San Francisco 

The Filmer Brothers Electrotype Company 

Typographers and Stereotypers 











In preparing this edition, the editor has found no occasion to 
depart from the plan and method of the third edition, save in one 
particular. A consolidated Index and Table of Cases to the original 
work and the editor's supplement, now form the final volume of 
the series. This has necessitated the inclusion of the author's brief 
Part Fourth (Equitable Remedies) in the first of the editor's sup- 
plementary volumes, — Vol. IV. of the series. It is believed that 
both of these changes will serve the reader's convenience. No addi- 
tions have been made to the author's text. The additions to the 
editor's notes, however, are greater than in either of the previous 
editions, and have increased the size of these three volumes by nearlv 
six hundred pages. As the editor has obtained his material directly 
from the original sources, by the laborious process of reading the 
reports of the last thirteen years from end to end, he trusts that 
no Equity case of general interest, within that period, has escaped 
attention. It is hoped that this edition, the cumulative result of 
twenty-nine years of editorial research, may meet from the pro- 
fession the same cordial reception that hsis been accorded to its 
predecessors. J. N. P., Jr. 

Beekeley, Cal,, September, 1918. 



An edition of a standard text-book in double the number of 
volumes of the first edition appears to call for some explanation, 
if not apology. The motives which induced the present editor to 
add to his father's work, by way of an attempt to carry out and 
complete the original scheme of that work, the two volumes on 
"Equitable Remedies," are stated in the preface to those volumes. 
It was found, when the editing of the remaining parts of the work 
was taken up, that an adequate statement of the twelve years' 
growth of their many topics would swell the three volumes, already 
bulky, to an inconvenient size; and it further appeared that in a 
large range of these topics a treatment less general and elementary 
than the author.'s limits of space allowed would more truly repre- 
sent their present relative importance. The editor has therefore, 
— while supplying all portions of the book with citations much 
more numerous than those added in the second edition, — under- 
taken to annotate at considerable length, drawing upon the older 
as well as the latest cases, such subjects as, e. g. the Equity Juris- 
diction of the United States Couiis ; many topics in the chapters 
on Notice, Priorities, and Bona Fide Purchase; and many in the 
law of Trusts. The subject of the Jurisdiction to avoid Multi- 
plicity of Suits, which the author was the first to treat in a man- 
ner and to an extent adequate to its intrinsic importance, has had 
an astonishing growth under the impetus given by his well known 
chapter; in presenting, in some detail, the result of this growth, 
the editor has ventured to add two paragraphs (§§ 25114, 251%) 
to the text, for the purpose of emphasizing and illustrating an 
important limiting principle, which had, indeed, been recognized 
by the author, but has only come into prominence in recent years. 
With this one exception no new paragraphs have been interpolated ; 
the author's text and notes have been left as they were written, 
the editor believing that the peculiarly authoritative character con- 
ceded by the courts to that text required that no chance should 
be afforded of confusing the author's language with his own. The 
results of the editor's labor — which has included a careful re- 


viii Preface to the Third Edition. 

examination of all the cases added in the second edition, — have, 
therefore, been cast into a series of separate notes, distinguished 
from the author's notes by reference letters instead of numerals. 
The reader's attention has been called to several thousands of eases 
citing or quoting the text ; from the number of these some notion 
may be obtained of the extent to which the author's statements 
have been accepted as authority. 

An editorial task involving the reading of tens of thousands of 
cases can rarely be accomplished single handed. The editor desires 
to acknowledge his indebtedness to his painstaking assistants, Mr. 
F. W. Doan, now of Tucson, Ariz., and Mr. E. S. Page, of Oak- 
land, Cal. The chapter on Trusts (excepting Charitable Trusts) 
was for the most part annotated by Mr. Doan ; as to the rest of the 
editorial notes, it may be said in general that those in Vol. Ill 
are chiefly Mr. Page's work, those in Vols. I and II, and all those 
Btating the results of English cases, are chiefly the editor's. 

Pomeroy's Equity Jurisprudence was written at a fortunate 
time, — a time almost coincident with the completion of the labors 
of Jessel and others of that brilliant group of English Chancery 
Judges of the seventh and eighth decades of the last century, whose 
restatements of the doctrines and principles of Equity amounted 
almost to a re-creation. It is hardly too much to say, that the 
author accomplished the same result for large parts of the equity 
jurisprudence in this country. Few law boote in any fleld have 
been relied on by American Courts in the last twenty years with 
anything like the same frequency. The instances are rare in 
which the author's conclusions on debatable questions have not been 
accepted, almost without dispute. The hope earnestly expressed 
in his preface, that his work "may maintain the equity jurispru- 
dence in its true position as a constituent part of the municipal 
law ' ' appears to have been abundantly fulfilled. 

J. N. P., Jr. 

San Fkancisco, March, 1905. 


The author of this treatise departed this life so soon after the 
publication of the first edition, that he had no opportunity to do 
anj^thing in the way of preparation for this edition. By a testa- 
mentary request, he charged that work upon the present editors. 
This duty the editors, with filial reverence, have performed to the 
best of their ability, and now submit the result of their labors to 
the profession. 

In the preparation of this edition, a careful examination has 
been made of all the cases — English and American — which have 
appeared since the publication of the first edition, involving matters 
falling within the scope of this work. These cases are upwards of 
eight thousand in number. In gathering this large mass of mate- 
rial, the editors have not, in any instance, made use of the often 
fallible assistance of the digests, but have gone directly to the 
reports. A considerable proportion of the material thus gathered 
has, of course, been discarded, as involving merely the enunciation 
of familiar doctrines ; but the nearly universal desire among mem- 
bers of the legal profession to be guided by the latest authority 
has generally been respected. While it has not been found neces- 
sary or desirable to add to or alter the text, except for the purpose 
of correcting a few typographical errors, the editors have not con- 
fined their labors to the mere enumeration of recent decisions. 
Without attempting to enlarge the general scope of the work, whose 
contents are so well known, it has been found possible to give a 
treatment considerably more in detail of many important topics. 
It is also hoped that the insertion of numerous cross-references 
will prove to be a material convenience in the use of the book. In 
order that those who make use of this edition may be able to dis- 
tinguish between the work of the author and that of the present 
editors, all the new matter inserted in this edition has been inclosed 
within brackets. 


X Peeface to the Second Edition. 

In submitting this result of their labors to the legal profession, 
the editors desire to express the hope that they will be found to 
have done nothing to impair the original character of their father's 
work, or to lower the high place which it has found in the estimation 
of the Bench and Bar. 


J. N. P., Jr. 
San Fkancisco, April, 1892, 


The author herewith submits to the legal profession a text-bonk 
which treats, in a somewhat comprehensive manner, of the equitable 
jurisdiction as it is now held by the national and state tribunals, 
and of the equitable jurisprudence as it is now administered by 
the courts of the United States, and of all those states in which the 
principles of equity, originally formulated by the English Court 
of Chancery, have been adopted and incorporated into the municipal 
law. It is proper that he should, in a few words, explain the 
motives which led to the preparation of such a work, and describe 
the plan which he has pursued in its composition. 

While the supreme court of judicature act was pending before 
the British Parliament, there appeared in the Saturday Review 
a series of articles written by one of the ablest lawyers and most 
profound thinkers of the English bar, which pointed out a grave 
danger threatening the jurisprudence of England in the plan, as 
then proposed, for combining legal and equitable rights and 
remedies in the same action, and administering them by the same 
tribunal. The writer showed, as the inevitable result of the system, 
that equitable principles and doctrines would gradually be sup- 
pressed and disappear in the administration of justice; that they 
would gradually be displaced and supplanted by the more inflex- 
ible and arbitrary rules of the law; until in time equity would 
practically cease to be a distinctive branch of the national juris- 
prudence.! The reasoning of these remarkable articles was so 

1 The reality of the clanger, and the importance of the legislative enact- 
ment by which it was averted, are most unmistakably shown in the current 
series of English reports. Able common-law judges, taking a part in the 
decision of equity causes, are frequently represented as attacking, and even 
denouncing, equitable principles and doctrines which have for centuries 
been treated by the court of chancery as fundamental and elementary, — 
principles which have been most fruitful in results, and have been applied 
in numberless forms to the equity jurisprudence. Can there ba a doubt 
that equity, exposed to such judicial attacks from members of the highest 
court, would gradually have succumbed, and finally ceased to be a dis- 
tinctive part of the English municipal law? 


xii Preface. 

cogent and convincing that it produced a deep impression, not 
only upon the English bench and bar, but even upon Parliament, 
and it ultimately led to an amendment of the act by the addition 
of the following clause, which has undoubtedly averted the antici- 
pated danger: "Generally, in all matters in which there is any 
conflict or variance between the rules of equity and the rules of the 
common law with reference to the same matter, the rules of equity 
shall prevail." 

I have referred to this incident simply for the purpose of indi- 
cating its application, under like circumstances, to the law of our 
own country. The arguments of the English essayist were purely 
a priori, and were confined to the judicial system of England. 
They would apply with equal force to a large portion of the Amer- 
ican states ; and the correctness of his conclusions is established by 
the judicial experience of those commonwealths during the past 
thirty years. Since the first New York Code of Practice in 1848, 
about one half of the states and territories have adopted the Re- 
formed Procedure. As the central conception of this system is 
the abolition of all external distinctions between actions at law 
and suits in equity, the union of legal and equitable rights and 
remedies in one proceeding, and the substitution of many important 
equitable in place of legal methods, it was confidently supposed 
that in progress of time the doctrines of equity would obtain a 
supremacy over those of the law in the administration of justice, 
and that the entire jurisprudence of a state would gradually become 
more equitable, more informed with equitable notions. It must be 
confessed, I think, that the experience of the past thirty years 
in these states points to a directly contrary result. Every careful 
observer must admit that in all the states which have adopted the 
■Reformed Procedure there has been, to a greater or less degree, a 
weakening, decrease, or disregard of equitable principles in the 
administration of justice. I would not be misunderstood. There 
has not, of course, been any conscious intentional abrogation or 
rejection of equity on the part of the courts. The tendency, how- 
ever, has plainly and steadily been towards the giving an undue 
prominence and superiority to purely legal rules, and the ignoring, 
forgetting, or suppression of equitable notions. The correctness 
of this conclusion cannot be questioned nor doubted; the consent- 
ing testimony of able lawyers who have practiced under both 
systems corroborates it; and no one can study the current series of 

Pkeface. xiii 

state reports without perceiving and acknowledging its truth. In 
short, the principles, doctrines, and rules of equity are certainly 
disappearing from the municipal law of a large number of the 
states, and this deterioration will go on until it is checked either 
by a legislative enactment, or by a general revival of the study of 
equity throughout the ranks of the legal profession. 

I would not be understood as condemning the Reformed Pro- 
cedure on this account. The tendency which I have mentioned 
may be checked; the danger is incidental, and can easily be pre- 
vented. A brief legislative enactment, substantially the same as 
that added to the English Judicature Act, would render the system 
perfect in theory, and would secure to equity the life and prom- 
inence which properly belong to it, and which should be preserved. 
The state of Connecticut has incorporated the clause into its recent 
reformatory legislation ; that it should not have been added to all 
the Codes of Procedure is very surprising. 

I need not dwell upon the disastrous consequences of the tend- 
ency above described, if it should go on to its final stage. Even 
a partial loss of equity would be a fatal injury to the jurisprudence 
of a state. So far as equitable rules differ from those of the law, 
they are confessedly more just and righteous, and their disappear- 
ance would be a long step backward in the progress of civilization. 

It is of vital importance, therefore, that a treatise on equity 
for the use of the American bar should be adapted to the existing 
condition of jurisprudence throughout so large a part of the 
United States. It should be based upon, and should present in the 
clearest light, those principles which lie at the foundation of equity, 
and which are the sources of its doctrines and rules. In this re- 
spect, the plan of the present work wa^ deliberately chosen, and 
has been steadily pursued, even when it has led to amplifications 
which might, perhaps, be regarded by some readers as unneces- 
sary. It has been my constant endeavor to present the great under- 
lying principles which sustain the whole superstructure of equity, 
and to discuss, explain, and illustrate them in the most complete 
manner. Some of these principles are so comprehensive and fruit- 
ful, that one who has grasped them in their fullness of conception 
has already mastered the system of equity; all else is the mere 
application of these grand truths to particular circumstances. 

Such a treatise, designed for the American profession, if it would 
at all meet and satisfy the needs of the bench and bar, must also 

xiv Preface. 

be based upon and adapted to the equitable jurisdiction which is 
actually possessed by the state and national courts, and the equi- 
table jurisprudence which is actually administered by them. It 
must recognize the existing condition, both of law and equity, the 
limitations upon the chancery jurisdiction resulting from varying 
statutes, and the alterations made by American legislation, institu- 
tions, and social habits. Many departments of equity, many doc- 
trines and modes of applying the jurisdiction which were important 
at an earlier day, and are perhaps still prominent in England, have 
become practically obsolete in this country ; while others have risen 
in consequence, and are constantly occupying the attention of the 
courts. It has been my purpose and endeavor to discuss and de- 
scribe the equity jurisprudence as viewed in this light, and to pre- 
sent the actual system which is now administered by the courts of 
the United States and of all the states. As an illustration, I have 
attempted to ascertain and determine the amount of jurisdiction 
held by the different state tribunals, as limited and defined by 
statutes, and established by judicial interpretation; and have not 
confined the treatment of this subject to a mere account of the gen- 
eral jurisdiction possessed by the English Court of Chancery. It 
is true that the fundamental principles are the same as those which 
were developed through the past centuries by the English chancery ; 
but the application of these principles, and the particular rules 
which have been deduced from them, have been shaped and deter- 
mined by the modern American national life, and have received 
the impress of the American national character. It has been my 
design, therefore, to furnish to the legal profession a treatise which 
should deal with the equity jurisdiction and jurisprudence as they 
now are throughout the United States; with their statutory modi- 
fications and limitations, and under their different types and forms 
in various groups of states; and thus to prepare a work which 
would be useful to the bench and bar in all parts of our country. 
During its composition I have constantly had before me a high 
ideal. The difficulty in carrying out this conception has been very 
great; the labor which it has required has been enormous. . That 
I may have fallen short of this ideal in all its completeness and 
perfection, I am only too conscious ; its full realization was perhaps 
impossible. If the book shall be of any help to the courts and the 
profession in administering equitable doctrines and rules ; if it shall 
be of any assistance to students in disclosing the grand principles 

Preface. xv 

of equity; if it shall to any extent maintain the equitable juris- 
prudence in its true position as a constituent part of the municipal 
law, — then the time and labor spent in its composition will be 
amply repaid. 

The internal plan, the system of classification and arrangement, 
the modes of treatment, and especially the reasons for departing 
from the order and methods which have usually been followed by 
text-writers, are described at large in the third, fourth, and fifth 
sections of the Introductory Chapter. To that chapter I would 
respectfully refer any reader who may at the outset desire a full 
explanation of these matters, which are so important to a full un- 
derstanding of an author's purposes, and to a correct appreciation 
of his work. The book is submitted to the profession with the hope 
that it may be of some aid to them in their judicial and forensic 
duties, and may accomplish something for the promotion of justice, 
righteousness, and equity in the legal and business transactions and 
relations of society. J. N. P. 

Hastings (College of the Law. 
San Feancisco, May, 1&81. 





§ 1. Object of this Introduction, 

§§ 2-9. Mquitas in the Roman Law. 

§§ 10-42. Origin of Equity in the English Law. 

§§ 10-13. Primitive condition of the law and the courts. 

§§ 14, 15. Early influences of the Roman Law. 

§§ 16-29. Causes which made a court of equity necessary. 

§§ 21-23. The earliest common-law actions and procedure. 

§ 24. Statute of Edward I. concerning new writs. 

§§ 25-29. Limited results of this legislation. 

§§ 30-42. Commencement and progress of the chancery jurisdiction. 

§ 31. Original powers of the King's Council. 

§32. Original common-law jurisdiction of the Chancellor. 

§§33-35. Jurisdiction of grace transferred to the Chancellor; Statute 24 

Edward III. 

§§ 36-39. Development of the equitable jurisdiction. 

§ 40. Abolition of the court in England and in many American statea. 

§§ 41, 42. Equity jurisdiction in other American states. 



§ 43. Importance of a correct notion of equity. 
§§44,45. Various meanings given to the word. 
§§46,47. True meaning as a department of our jurisprudence, 
§§ 48-54. Theories of the early chancellors concerning equity as both supply- 
ing and correcting the common law. 
§§55-58. Sources from which the early chancellors took their doctrines; theii 

notions of "conscience" as a ground of their authority. 
§§ 59-61. Equity finally established upon a basis of settled principles. 

§ 62. How the equitable jurisdiction is determined at the present day. 
§§63-67. Recapitulation: Nature of equity stated in four propositions. 





§ 68. Importance of correctly understanding these present relations. 

§ 69. Changes in the relations of equity to the law effected partly by 
statute and partly by decisions. 

§§ 70-88. Important instances of such changes in these relations. 

§ 70. In legal rules concerning the effect of the seal. 

§ 71. iji'ifo suits on lost instruments. 

§ 72. Ditto forfeitures and penalties. 

§§ 73, 74. Ditto mortgages of land. 

§ 75. In statutes concerning express trusts. 

§ 76. Ditto recording and doctrine of prioritiea. 

§ 77. Ditto administration of decedents' estates. 

§ 78. Ditto jurisdiction over infants. 

§§ 79, 80. Ditto married women's property. 

§ 81. . In statutory restrictions upon the equitable jurisdiction. 

§§ 82, 83. In the practical abolition of the "auxiliary" jurisdiction. 

§§ 84-88. In the Reformed Procedure combining legal and equitable methods. 



§ 89. Object of this section. 
§§ 90, 91. Rights are either "primary" or "remedial"; each described. 

§92. Divisions of "primary" rights, viz: 1. Those concerned with per- 
sonal status; 2. Those concerned with things. 
§§ 93-9'5. Two general classes of rights concerned with things, viz.: "real" 

and "personal" ; each described. 
§§ 96, 97. What of these kinds of rights are embraced within equity; both 
"primary" and "remedial." 
§§ 98-107. I. Equitable primary rights, kinds and classes of. 
§§ 108-116. II. Equitable remedial rights, kinds and classes of. 

§ 112. General classes of equitable remedies. 
§§ 113-116. Mode of administering them. 

§ 116. How far legal and equitable modes can be combined. 
§ 117. Recapitulation. 



§ 118. Importance and difficulty of a correct classification. 
§§ 119, 120. Different grounds which might be taken for a classification. 
§§ 121-125. Ordinary mode of classification according to the nature of the 

§ 121. In the three divisions of exclusive, concurrent, and auxiliary. 


§§122, 12.S. DilTcront modes of carrying out this system by various writers. 
§§]24, 125. I\indaniental objections to this system of classification. 
§§ 126, 127. The true principles of classification in the present condition of 
§ 128. Plan and order of arrangement adopted in this treatise. 






§ 129. Equity jurisdiction defined. 

§ 130. Eequisitea in order that a case may come within it. 

§ 131. Distinction between the existence of equity jurisdiction and the 
proper exercise of it. 

§ 132. . Inadequacy of legal remedies, how far the test. 

§133, Equity jurisdiction depends on two facts: the existence of equi- 
table interests, and the inadequacy of legal remedies. 
§§ 134, 135. How far the jurisdiction is i/n personam, how far ih rem. 

§ 136. Equity jurisdiction threefold, — exclusive, concurrent, and aux- 
§§ 137, 138. What embraced in the exclusive jurisdiction. 
§§ 139, 140. What embraced in the concurrent jurisdiction. 

§ 141. Cases may fall under both. 
§§ 142-144. What embraced in the auxiliary jurisdiction. 

§ 145. Order of subjects. 



§ 146. Equitable primary rights and "equities" defined. 

§§ 147-149. Equitable estates described. 

§ 150. Certain distinctive equitable doctrines forming part of equity 

§§ 151-155. Trusts described. 

§ 156. Executors and administrators. 

§§157,158. Fiduciary relations. 

§§ 159, 160. Married women's separate property. 

§ 161. Estates arising from equitable conversion. 


§§162,163. Mortgages of land. 

§ 164. Mortgages of personal property. 
§§ 165-167. Equitable liens. 
§§ 168, 169. Estates arising from assignment' of things in action, possibilities, 

etc., and from an equitable assignment of a fund. 
§§ 170-172. Exclusive equitable remedies described. 


§§ 173, 174. What embraced in the concurrent jurisdiction; inadequacy of 
legal remedies defined. 
§ 175. The remedies given must be legal in their nature. 
§§ 176-179. General principle; when no concurrent jurisdiction exists. 
§§177,178. Examples of such cases. 

§ 179. Where a law court has first taken cognizance of a case. 
§ 180. General principle; where concurrent jurisdiction does exist. 
§ 181. Eule Urst. Where equity has jurisdiction for any partial pur- 
pose, it may retain the cause for all purposes. 
§ 182. Eule second. Where equity originally had jurisdiction, and the 
law subsequently acquires jurisdiction over the same matter, 
the equity jurisdiction still continues. 
§ 183. Effect of the reformed procedure upon the equity jurisdiction. 
§§ 184^189. Enumeration of the principal matters over which the concurrent 
jurisdiction ordinarily extends. 
§ 185.^ Suits for the recovery of lands and of chattels. 
§§ 186-188. Suits for pecuniary recoveries. 

§ 188. Suits arising from accident^ mistake, or fraud. 
§ 189. Other special eases. 


§ 190. The auxiliary jurisdiction defined. 
§§ 191-209. Of discovery. 

§ 191. Definition and kinds of discovery, 
§ 192. Origin of, in English and in Roman law. 
§§193,194. Effect of modern legislation; how far discovery proper has been 
abolished by statutes. 
§ 195. General doctrine; when discovery will or will not be enforced. 
§§ 196, 197. I. What judicial proceedings, in what courts, will be aided by 

discovery in equity. 
§§ 198-200. II. The parties; their situation and relations to each other, in 
order that a discovery may be granted. 
§ 198. The plaintiff. 
§ 199. The defendant. 
§ 200. A l}ona fide purchaser. 


§§ 201-207. III. The nature, subject-matter, and objects of the discovery 
itself; of what the plaintiff may compel discovery, and the 
defendant must make discovery. 
§201. General doctrine; of what facts discovery will be compelled. 
§ 202. Of what kinds of facts discovery will not be compelled. 
§ 203. What is privileged from discovery. 

§ 204. The manner in which the defendant must make discovery. 
§§ 205-207. Production and inspection of documents. 

§ 208. IV. When, how far, and for whom may the answer in the dis- 
covery suit be used as evidence. 
§ 209. How far the foregoing rules have been altered by statute. 
§§ 210-215. Of the examination of witnesses. 

§ 210. This branch of the jurisdiction described. 
§§211,212. I. Suit to perpetuate testimony. 

§ 212. Statutory modes substituted. 
§§ 213-215. II. Suits to take the testimony of witnesses de bene esse, and of 
witnesses in a foreign country. 
§ 215. Statutory modes substituted. 




§ 216. Questions to be examined stated. 

§ 217. Inadequacy of legal remedies is the very foundation of the con- 
current jurisdiction. 

§ 218. Is only the occasion for the rightful exercise of the exclusive 

§ 219. Operation of the principle upon the exclusive jurisdiction ; does 
not affect the first branch, which deals with equitable estates 
and interests. 
g§ 220, 221. Is confined to the second branch, which deals with equitable 

§ 222. Summary of the equity jurisdiction as affected by the inade- 
quacy of remedies. 



§ 223. General doctrine as to discovery as a source of concurrent and 
an occasion for exclusive jurisdiction. 
§§224,225. Early English rule. 

§ 226. Present English rule. 


§§ 227-229. Broad rule established in some American states. 

§ 229. The limitations of this rule. 

§ 230. The true extent and meaning of this rule examined. 



§ 231. The doctrine as applied in the concurrent jurisdiction. 

§ 232. As applied in the exclusive jurisdiction. 

§ 233. Limitations on the doctrine. 

6§ 234-241. Illustrations of the doctrine. 

§ 234. In cases of discovery. 

§ 235. In cases of administration. 

§ 236. In cases of injunction. 

§ 237. In cases of waste, nuisance, damages. 

§§ 238-241. In various other cases. 

§ 242. Effect of the reformed procedure on the doctrine. 



§ 243. The doctrine applies to both kinds of jurisdiction. 
§ 244. The questions to be examined stated. 

§ 245. Four possible classes of cases to which the doctrine may apply. 
§§ 246-248. "Bills of peace," rationale of, and examples. 

§ 248. Bills "to quiet title" explained. 
§§ 249-251. Eationale of the doctrine examined on principle. 

[§25114. Jurisdiction not exercised when that would be ineffectual; sim- 
plifying of the issues essential. 
§ 251%. There must be a practical necessity for the exercise of the juris- 
§§ 252-261. Examination of the doctrine upon judicial authority. 

§ 252. First class. 
§§ 253, 254. Second class. 
§§ 255-261. Third and fourth classes. 

§256. Community of interest: "Fisheries Case"; "Case of the Duties." 
§ 257. Where proprietors of distinct tracts of land have been injured 

by one wrong. 
§ 258. Where proprietors of distinct tracts of land have been relieved 
from illegal local assessments. 
§§ 259, 260. General rule as to relief from illegal taxes, assessments, and 
public burdens, on the ground of multiplicity of suits. 
§ 261. Other special cases of the third and fourth classes. 


§§ 262-266. Examination of opposing decisions; conclusions reached by such 

§ 263. In the first and second classes. 

§§ 264-266. In the third and fourth classes. 

§§ 265, 266. In cases of illegal taxes and other public burdens. 

§§ 267-270. Conclusions derived from the entire discussion. 

§§ 268-270. Ditto as to the third and fourth classes. 

§§ 271-274. Enumeration of cases in which the jurisdiction to avoid a multi- 
plicity of suits has been exercised. 

§ 271. Cases of the first class. 

§ 272. Cases of the second class. 

§ 273. Cases of the third class. 

§ 274. Cases of the fourth class. 

§ 275. The jurisdiction based upon statute. 



§ 276. The doctrine is applied to both kinds of jurisdiction. 

§§277,278. "Where the jurisdiction at law has been enlarged entirely by the 
action of the law courts. 

§ 278. Ditto, examples. 

§§ 279-281. "Where the jurisdiction at law has been enlarged by statutes. 

§ 280. Ditto, examples. 

§ 281. "Where such statute destroys the previous equity jurisdiction. 





§ 2S2. Source of jurisdiction, both legal and equitable, of the courts in the 

American states. 
§ 283. Division of the states into four classes with respect to the amount of 

equity jurisdiction given to their courts. 
§ 284. The first class of states. 
§ 285. Tlie second class of states. 
§ 286. The third class of states. 
§ 287. The fourth class of states. 
§ 288. Summary of conclusions. 





§ 289. The questions to be examined stated. 

§ 290. Diversity of statutory interpretation in different states. 
§§ 291-298. United States courts, equity jurisdiction of. 

§ 292. First principle: Uniformity of jurisdiction. 

§ 293. Second principle: Identity of jurisdiction. 

§294, Third principle: Extent of tlie jurisdiction. 

§ 295. Fourth principle : Inadequacy of legal remedies. 
§§ 296, 297. Illustrations. 

§297. Ditto; effect of state laws on the subject-matter of the juris- 

§ 298. Territorial limitations on the jurisdiction. 
g§ 299-341. States in which only a special and partial jurisdiction has been 

given by statute. 
§§ 299-310. New Hampshire. 
§§ 311-321. Massachusetts, 
§§ 322-337. Maine. 
§§ 338-341. Pennsylvania. 
§§ 342-352. The other states in wWch a general jurisdiction has been given. 

§ 342. "What states are included in this division. 

§ 343. Questions to be examined stated. 

§ 344. Interpretation of statute limiting the jurisdiction to eases for 
which the legal remedy is inadequate. 

§345. General extent of the statutory jurisdiction; the states arranged 
in the foot-note. 
§§ 346-352. How far this equity jurisdiction extends to the administration 
of decedents' estates. 

§ 347. Probate courts, jurisdiction and powers of. 

§ 348. Class first: The ordinary equity jurisdiction over administrations 
expressly abolished. 

§ 349. Class second : Such jurisdiction practically abrogated or obsolete. 

§350. Class third: Such jurisdiction still existing and actually con- 
§§ 351, 352. Special subjects of equity jurisdiction connected with or grow- 
ing out of administrations. 
§§ 353-358. States which have adopted the reformed system of procedure. 

§ 354. General effect of this procedure on the equity jurisdiction. 
§§ 355-358. Its particular effects upon equity. 

§ 356. On certain equitable interests and rights. 

§ 357. On certain equitable remedies. 

§ 358. On the doctrine as to inadequacy of legal remedies. 





§ 359'. Objects, questions, and divisions, stated. 

§ 360. Equitable principles, described. 

§ 361. Equitable doctrines, described. 

§ 362. Occasions of equitable rights. 






§ 363. List of equitable maxims. 

§364. Equity regards as done what ought to be done; its importance. 

§§ 365-377. Its true meaning, and its effects upon equitable doctriues. 

§§ 366-369. Is the source of equitable property and estates. 

§ 366. Sources of legal property or titles described. 

§ 367. Effect of an executory contract at law. 

§ 368. Effect of an executory contract in equity. 

§ 369. Sources of aU kinds of equitable property described. 

§§ 370-376. The equitable estates which are derived from this principle. 

§ 371. Conversion. 

§ 372. Contracts for the purchase and sale of lands. 

§373. Assignments of possibilities; sale of chattels to be acquired in 
the future; assignments of things in action; equitable assign- 
ments of moneys; and equitable liens. 

§ 374. Express trusts. 

§ 375. Trusts arising by operation of law. 

§ 376. Mortgage; equity of redemption. 

§ 377. Conclusions. 


§ 378. Its meaning and effect. 

§ 379. Legal requirements of mere form. 


§§ 380-384. Is the source of equitable doctrinea. 

§ 380. Of equitable property. 

§381. Of penalties and forfeitures. 

§ o82. Of mortgages. 

§ 383. Effect of the seal. 

§ 384. Other special instances. 


§ 385. General meaning of the principle. 

§§386,387. In what eases applicable. 

§ 388. Is a general rule regulating the administration of reliefs. 

§§ 389-393. Illustrations of the principle. 

§ 389. The wife's equity. 

§ 390. Equitable estoppel. 

§ 391. Relief against usury. 

§§ 392, 393. Other special instances. 

§§ 394-396. Is also the source of certain equitable doctrines. 

§ 395. Of election. 

§ 396. Of marshaling securities. 




§ 397. General meaning of this principle. 

§ 398. Is based upon conscience and good faith. 

§ 399. Limitations upon it. 
§§ 400-403. Illustrations of its application. 

§ 400. In specific performance. 

§ 401. In cases of fraud. 

§ 402. In cases of illegality. 

§403. Limitation in cases of fraud and illegality; parties not in pari 

§ 404. Conclusion. 



§ 405. Its general meaning. 
§§ 406-411. Its effects upon certain equitable doctrines. 
§§ 406, 407. Of pro rata distribution and contribution. 

§ 408. Ownership in common. 

§ 409. Joint indebtedness; liability of estate of deceased joint debtor. 

§410. Settlement of insolvent estates; marshaling of assets. 

§411. Abatement of legacies; apportionment of liens; appointment un- 
der trust powers; contribution among co-sureties and co-con- 

§ 412. Conclusion. 




§ 413. Its application. 

§ 414. Its true meaning; opinion in Rice v. Bice. 

§ 415. Its eifect upon equitable doctrines. 


§ 416. its appHeation. 

§ 417. Its meaning and eifects. 



§ 418. Its meaning; is a rule controlling the administration o£ remedies. 
§ 419. Its application and effects. 



§ 420. Its meaning and application. 

§§421,422. Is the source of certain equitable doctrines. 

§ 421. Performance of covenants. 

§ 422. Trust resulting from acts of a trustee. 



■ § 423. Its general meaning and effects. 
§ 424. Limitations upon it. 


§§ 425, 426. Twofold meaning of the principle. 

§ 425. First, in obeying the law : Heard v. Stamford, per Lord Chan- 
cellor Talbot. 

§426. Second, in applying certain legal rules to equitable estates: Cow- 
per V. Cowper, per Sir J. Jckyll, M. R. 

§ 427. Operates within very narrow limits. 





§ 428. Origin and original meaning of this principle. 
§ 429. In what sense equitable remedies do operate in rem. 
§§ 430,431. The principle that courts of equity act upon the conscience of a 
party explained. 
§ 431. The same, per Lord Westbury. 






435, 436. 












Questions stated. 

Penalties; equitable relief against. 

General ground and mode of interference. 

Form of relief; when given at law. 

What are penalties. 

To secure the payment of money alone. 

Stipulations not penalties. 

Stipulations in the alternative. 

Ditto, for the reduction of an existing debt upon prompt payment. 

Ditto, for accelerating payment of an existing debt. 

Ditto, for "liquidated damages." 

"Liquidated damages" described in general. 

Rules determining between liquidated damages and penalties. 

1. Payment of a smaller sum secured by a larger. 

2. Agreement for the performance or non-performance of a single 


3. Agreement for the performance or non-performance of several 

acts of different degrees of importance. 

4. The party liable in the same amount for a partial and for a 

complete default. 

5. Stipulation to pay a fixed sum on default in one of several 


Specific performance of a contract enforced, although a penalty 
is attached; party cannot elect to pay the penalty and not per- 

Otherwise as to stipulation for liquidated damages. 

Of forfeitures. 

When equity will relieve against forfeitures. 

General ground and extent of such relief. 



§ 451. Relief when forfeiture is occasioned by accident, fraud, mistake, 
surprise, or ignorance. 

§ 452. No relief wlien forfeiture is occasioned by negligence, or is willful. 

453, 454. Relief against forfeitures arising from covenants in leases. 

§ 455. Ditto, from contracts for the sale of lands. 

§ 456. Ditto, from other special contracts. 

§ 457. Ditto, of shares of stock for non-payment of calls. 

§ 458. Ditto, when created by statute. 

459, 460. Equity will not enforce a forfeiture. 



§ 461. Questions stated. 

§§ 462-465. Batio7iale of the doctrine discussed. 

§ 463. In the Roman law. 

§ 464. Foundation, the presumed intention of the donor. 

§ 466. The true foundation is the principle, He who seeks equity muat 
do equity. 

§§466-470. Meaning, extent, and effects of the doctrine. 

§ 466. Election in conformity with instrument of donation. 

§§467,468. Election in opposition thereto; rules; compensation. 

§ 469. No election unless compensation can be made. 

§ 470. Applies to all instruments of donation. 

§§471-505. Applications; classes of cases in which the necessity for an elec- 
tion does or does not arise. 

§ 472. Fundamental rule; what creates the necessity for an election. 

§§ 473-475. Subordinate rules of interpretation. 

§§473,474. Donor has only a partial interest; evidence of intention not ad- 
missible; a general gift raises no election. 

§ 475. Other special rules of interpretation. 

§§ 476—486. First class: Donor gives property wholly another's. 

§ 477. Ordinary case, gift of specific property. 

§§ 478-480. Under appointments in pursuance of powers. 

§§ 481-486. Where testator has attempted to give property by a will which 
is ineffectual. 

§ 482. Infancy or coverture of testator. 

§ 483. Will valid as to personal, invalid as to real, estate. 

§ 484. Will invalid as to property in another state or country. 

§ 485. Will devising after-acquired lands. 

§ 486. Will of copyholds. 

§§ 487-505. Second class: Donor gives property in which he has a partial 

§ 488. The general doctrine. 

§ 489. Donor owns only an undivided share. 

§ 490. Donor owns only a future interest. 

§ 491. Devise of lands encumbered. 


§§492-502. Dower; widow's election between dower and gifts by her hus- 
band's will. 
§ 493. The general rule. 
§ 494. Contrary legislation in various states. 
■*§§ 495-502. Classes of testamentary dispositions. 
§ 496. Express declaration. 
§ 497. Devise of a part of testator's land to the widow, and the rest to 

§ 498. Devise to the widow for life. 
§ 499. Devise in trust' to sell, or with a power of sale. 
§ 500. Gift of an annuity, etc., to widow, charged upon the lands devised 

to others. 
§ 501. Devise with express power of occupying, leasing, etc. 
§ 502. Devise to widow and others in equal shares. 
§§ 503-505. Election in devises of community property. 

§ 506. The remaining questions stated. 
§§507-510. Who may elect; married women; infants; lunatics. 
§§511,512. Eights and privileges of persons bound to elect. 

§ 513. Time of election; state statutes. 
§§514,515. Mode of election, express or implied; conduct amounting to an 

§§ 516, 517. Effects of an election. 
§§518,519. Equitable jurisdiction in matters of election. 




§ 520. Questions stated. 

§ 521. Definition. 

§§ 522-525. Various conditions of fact. 

§ 523. Eationale of the doctrine. 

§ 524. Ademption and satisfaction. 

§ 525. Extrinsic evidence. 

§ 526. Divisions of the subject. 

§§ 527-543. I. Satisfaction of debts by legacies. 

§§ 527-540. Legacy by a debtor to his creditor, 

§§ 528-536. Various circumstances which prevent the presumption of satis- 

§ 537, Direction in will to pay debts, 

§ 538, Legacy in pursuance of agreement, or in express payment. 

§ 539. Debt owing to a child or wife. 

§ 540. Debt to child satisfied by an advancement. 

§§ 541, 542. Legacy by a creditor to his debtor. 

§ 543. Satisfaction of debt, how enforced. 

§§ 544—552. II. Satisfaction of legacies by subsequent legacies. 

§ 545. Kule first : Specific legacies. 

§§546-548, Eule second: Legacies of quantity by different instruments. 

§ 549. Kule third: Legacies of equal amounts by the same instrument. 

§§550,551. Eule fourth: Legacies of unequal amounts by the same instru- 

§ 552. Extrinsic evidence. 

§§ 553-564, III, Satisfaction of legacies by portions and advancement's. 

§ 554, Presumption of satisfaction. 

§ 555. Subsequent gift less than the legacy. 

§ 556. Person in loco parentis. 

§§ 557-560. Circumstances which do or do not prevent the presumption. 

§ 559. Payment to husband of a female legatee. 

§ 560. What prevents the presumption. 

§ 561. Effect of a codicil. 

§ 562, Satisfaction of legacies between strangers. 

5§ 563, 564, Satisfaction, when not presumed, but expressed, 

§§565-568, IV, Satisfaction of portions by subsequent legacies, or other sim- 
ilar provisions. 

§§ 566, 567. Differences between the gifts which do not and which do defeat 
the presumption. 

8 568. Election by the beneficiary. 


§§ 5&9-577. V. Admissibility and effect of extrinsic evidence. 

§ 570. General principles discussed and explained. 
§§ 571-575. When the subsequent benefit is given by a writing. 

§ 572. The writing expressly states the donor's intention. 

§ 573. The writing silent as to donor's intention, and no presumption 
arises from it 

§ 574. The writing silent as to donor's intention, but a presumption of 
satisfaction arises from it. 

§ 575. Cases to which the foregoing rules apply. 

§ 576. When the subsequent benefit is given verbally. 

§ 577. Amount of evidence. 


§ 678. EationcUe. 

§ 579. Definition. 

§§ 580-583. I. Covenant to purchase and settle or convey. 

§ 580. General rule : Lechmere v. Earl of Carlisle. 

§ 581. Forms of covenant to which the rule applies. 

§ 582. Special rules. 

§ 583. Such covenant creates no lien. 

§§ 584-586. II. Covenant to bequeath personal property. 

§ 584. General rule: Blandy v. "W^idmore; Goldsmid v. Goldsmid. 

§ 585. Limitations on the rule; covenant must not create a debt in life- 
time of deceased. 

§586. A legacy not a performance; distinction between "performance" 
and "satisfaction of legacy." 

§ 687. Presumption of performance by trustees. 

§§ 588-590. Meritorious or imperfect consideration; theory of. 

§§589,590. Defective execution of powers; relief of. 

§ 590. Requisites for such relief; a partial execution necessary. 



§ 591. Questions stated: Le Neve v. Le Neve. 

§ 592. Knowledge and notice distinguished. 

§ 593. Kinds; actual and constructive. 

§ 594. Definition. 

§§ 595-603. Actual notice. 

§ 596. When shown by indirect evidence. 

§597. What constitutes; rumors; putting on inquiry, etc. 

§§ 598-602. Special rules concerning actual notice. 

§ 603. Effect of knowledge instead of notice. 

§§ 604-609. 

§ 605. 



§ 609. 

§§ 610-613. 

§§ 614-625. 



§§ 619-622. 



§§ 626-631. 


§§ 627-631. 

§§ 632-640. 


§§ 633, 634, 



§§ 639,640. 

§§ 641-643. 

§§ 644-665. 

§§ 645,646. 

§§ 647-649. 

§§ 650-654. 

§ 655. 

§§ 656-658. 



§§ 659, 660. 

§§ 661-665. 


§§ 663, 664. 


§§ 666-676. 

§§ 666-669. 


§ 670. 

8§ 671.672. 


§§ 674, 675. 

§ 676. 


Constructive notice in general. 

Jones V. Smith, opinion of Wigram, V. C 

When the presumption is rebuttable; due inquiry. 

When it is conclusive. 

Species of constructive notice. 

1. By extraneous facts; acts of fraurl, negligence, or mistane; 
general rule as to putting on inquiry; visible objects, etc. 

2. By possession or tenancy. 
General rules, English and American. 
Extent and effect of the notice. 
Nature and time of the possession. 
Whether the presumption is rebuttable or not. 
Possession by a tenant or lessee. 

3. By recitals or references in instruments of title. 
General rules. 

Nature and extent of the notice; limitations; instances, etc. 

4. By lis pendens. 
Bationale: Bellamy v. Sabine. 
General rules ; requisites. 

To what kind of suits the rule applies. 
What persons are affected. 
Statutory notice of lis pendens. 

5. By judgments. 

6. By recording or registration of instruments. 

(1) The statutory system; abstract of statutes. 

(2) General theory, scope, and object of the legislation. 

(3) Requisites of the record, in order that it may be a notice, 

(4) Of what the record is a notice. 

(5) To whom the record is a notice. 
Not to prior parties. 

To subsequent parties holding under the same source of title; 
effect of a break in the record. 

(6) Effect of other kinds of notice, in the absence of a record. 

(7) What kinds of notice will produce this effect. 
English rule. 

Conflicting American rules; actual or constructive notice. 
True rationale of notice in place of a record. 

7. Notice between principal and agent. 
Scope and applications. 

Requisites of the notice. 

(1) Notice must be received by agent during his actual employ- 

(2) And in the same ttansaction; when in a prior transaction. 

(3) Information must be material; presumption that it was com- 
municated to the principal. 

Exceptions; agent's own fraud. 
True rationale of this rule. 



§ 677. Questions stated. 

§§ 678-692. First. The fundamental principles. 

§§ 679-681. I. Estates and interests to which the doctrine applies. 

§ 682. II. Equitable doctrine of priority, in generaL 

§§ 683-692. in. Superior and equal equities. 

§ 683. When equities are equal. 

§§ 684-692. Superior equities defined and described. 

§ 685. 1. From their intrinsic nature. 

§§686,687. 2. From the effects of fraud and negligence. 

§§ 688-692. 3. From the effects of notice. 

§ 688. General rules and illustrations. 

§ 689. Notice of a prior covenant. 

§§ 690-692. Time of giving notice, and of what it consists. 

§§ 693-734. Second. Applications of these principles. 

§§ 693-715. Assignments of things in action. 

§ 693. Dearie v. Hall. 

§§ 694-696. I. Notice by the assignee. 

§ 694. Notice to debtor not necessary as between assignor and assignee, 

§§ 695-697. English rule, notice to debtor necessary to determine the priority 

among successive assignees. 

§§ 698-702. II. Diligence of the assignee. 

§ 698. General rules : Judson v. Corcoran. 

§§ 699-701. Assignment of stock as between assignee and assignor and tha 
company, judgment creditors of assignor, and subsequent pur- 

§ 702. Notice to the debtor necessary to prevent his subsequent acts. 

§§ 703-715. m. Assignments of things in action subject to equities. 

§§ 704-706. 1. Equities in favor of the debtor, 

§ 704. General rule: assignments of mortgages; kinds of defenses. 

§§ 705, 706. Provisions in codes of procedure. 

§§ 707-713. 2. Equities bet-ween successive assignors and assignees. 

§ 707. Conflicting decisions; mode of reconciling. 

§§708,709. General rule: assignment subject to latent equities; illustrations. 

§§ 710,711. When the rule does not apply; effect of estoppel; true limits of 
the estoppel as applied to such assignments. 

§ 712. Subsequent assignee obtaining the legal title protected as a 
bona fide purchaser. 

§ 713. Successive assignments by same assignor to different assignees. 

§§ 714, 715. 3. Equities in favor of third persons. 

§ 714. General rule: assignments subject to such equities. 

§ 715. Contrary rule: assignments free from all latent equities. 

,?§ 716-732. Equitable estates, mortgages, liens, and other interests. 

§ 717. Doctrine of priorities modified by recording acts, 

§§ 718, 719. I. Priority of time among equal equities. 

§ 719. Illustrations: simultaneous mortgages, substituted liens, etft. 


§§ 720-726. II. One equity intrinsically the superior. 

§ 720. Prior geTieral and subsequent specific lien. 

§§ 721, 722. Prior unrecorded mortgage and subsequent docketed judgment. 

§ 723. Same, where judgment creditor had notice. 

§ 724. Prior unrecorded mortgage and purchase at execution sale under 
a subsequent judgment. 

§ 725. Purchase money mortgages. 

§ 726. Other illustrations. 

§§ 727-729. III. A subsequent equity protected by obtaining the legal title. 

§ 728. Legal estate obtained from a trustee. 

§ 729. Legal estate obtained after notice of prior equity. 

§ 730. IV. Notice of existing equities. 

§§731,732. V. Effect of fraud or negligence upon priorities. 

§§ 733, 734. Assignments of mortgages, rights of priority depending upon 



§ 735. General meaning and scope of the doctrine. 

§ 736. General effect of the recording acts. 
§§ 737-744. First. Bationaie of the doctrine. 

§ 738. Its purely equitable origin, nature, and operation. 

§ 739. It is not a rule of property or of title. 
§§740,741. General extent and limits; kinds of estates protected. 
§§742,743. Phillips v. Phillips; formula of Lord Westbury. 
§§ 745-762. Second. What constitutes a bona fide purchase. 
§§ 746-751. I. The valuable consideration. 

§ 747. 1. What is a valuable consideration ; illustrations. 
§§ 748, 749. Antecedent debts, securing or satisfying; giving time, etc 
§§750,751. 2. Payment; effect of part payment; giving security. 
§§ 752-761. II. Absence of notice. 

§ 753. 1. Effects of notice in general. 

§ 754. Second purchase without notice from first purchaser with, also 
second purchaser ivith from first purchaser without notice. 

§755. 2. Time of giving notice; English and American rules. 

§ 756. Effect of notice to a hoiia fide purchaser of an equitable interest 
before he obtains a deed of the legal estate. 
§§ 757-761. 3. Eecording in connection with notice. 

§ 758. Interest under a prior unrecorded instrument. 

§ 759. Requisites to protection from the first record by a subsequent 

§ 760. Purchaser in good faith with apparent record title from a 
grantor charged with notice of a prior unrecorded conveyance. 

§761. Break in the record title; when purchaser is still charged with 
notice of a prior instrument. 

§ 762. III. Good faith. 


§§ 7G3-778. Third. Effects of a bona fide puiclmse as a defense. 

§ 764. I. Suits by holder of legal estate under the auxiliary jurisdic- 
tion of equity, discovery, etc. 

§ 765. Same: exceptions and limitations. 
§§ 766-774. II. Suits by holder of an equitable estate or interest against a 
purchaser of the legal estate. 

§ 767. Legal estate acquired by the original purchase. 

§ 768. Purchaser first of an equitable interest subsequently acquires 
the legal estate; tabula in naufragio. 

§ 769. Extent and limits of this rule. 

§ 770. Purchaser acquires the legal estate from a trustee. 
§§ 771-773. The rule as applied in the United States. 

§ 774. Other instances; purchase at execution sale; purchase of things 
in action. 
§§ 775-778. IIT. Suits by holders of an "equity." 

§ 776. For relief against accident or mistake. 
§§ 777, 778. For relief from fraud, upon creditors, or between parties. 
§§ 779-783. Fourth. Affirmative relief to a bana fide purcliaser. 

§ 779. General rule. 
§§ 780-782. Illustrations. 

§ 783. Kemoving a cloud from title. 
§§ 784, 785. Fifth. Mode and form of the defense. 

§ 784. The pleadings. 

§ 785. Necessary allegations and proofs. 



§ 786. Origin and nature of the doctrine. 

§§ 787, 788. First. Merger of estates. 

§ 787. I. The legal doctrine. 

§ 788. II. The equitable doctrine. 

§§ 789-800. Second. Merger of charges. 

§ 790. I. The owner of the property becomes entitled to the charge. 

§ 791. Same. Intention prevents a merger. 

§ 792. Time and mode of expressing the intention. 

§793. Conveyance to the mortgagee; assignment to the mortgagor or 
to his grantee. 

§ 794. Merger never prevented when fraud or wrong would result. 

§ 795. Life tenant becomes entitled to the charge. 

§ 796. II. The owner of the land pays off a charge upon it. 

§ 797. Owner in fee personally liable for the debt pays off a charge. 

§ 798. Owner who is not liable for the debt pays off a charge. 

§ 799. Life tenant pays off a charge. 

§ 800. Priorities affected by merger. 

TABLE 01-' C0^TE2sTS. XXXVll 



§ 801. Nature of the rights created by estoppel. 

§ 802. Origin of equitable estoppel. 

§ 803. How far fraud is essential in equitable estoppels. 

§ 804. Definition. 

§ 805. Essential elements constituting the estoppel. 

§ 806. Theory that a fraudulent intent is essentinl. 

§ 807. Fraudulent intent necessary in an estoppel affecting the legal 
title to land. 

§§ 808-812. Ecquisites further illustrated. 

§ 808. The conduct of the party estopped. 

§ 809. Knowledge of the truth by the party estopped, 

§ 810. Ignorance of the truth by the other party. 

§ 811. Intention by the party who is estopped. 

§ 812. The conduct must be relied upon, and be an inducement for the 
other party to act. 

§ 813. Operation and extent of the estoppel. 

§ 814. As applied to married women. 

§ 815. As applied to infants. 

§§ 816-821. Important applications in equity. 

§ 816. Acquiescence. 

§ 817. Same: as preventing remedies. 

§ 818. Same: as an estoppel to rights of property and contract. 

§ 819. As applied to corporations and stockhclders. 

§ 820. Other instances of acquiescence. 

§ 821. Owner estopped from asserting his legal title to land. 


§ 822. Introductory paragraph. 



§ 823. Definition. 

§ 824. Eationale of the jurisdiction. 

§ 825. General limitations on the jurisdiction. 

§§ 826-829. Instances in which the jurisdiction does not' exist. 

§ 826. Non-performance of contracts. 

§ 827. Supplying lost or destroyed records. 




§§ 830-837. 









Other special instances. 

Parties against whom the jurisriiction is not exercised* 

Particular instances of the jurisdiction. 

1. Suits on lost instrument's. 
Same; instruments not under seal. 

2. Accidental forfeitures. 

3. Defective execution of powers. 
Powers held in trust will be enforced, 

4. Belief against judgments at law. 

5. Other special instances. 



§ 838. Origin and purpose of this jurisdiction, 
§ 839. I. Definition. 
§§ 840-856. II. Various kinds of mistakes which furnish an oeeasiO'n for 

§§ 841-851. First. Mistakes of law. 

§ 842. The general rule and its limitations. 

§ 843. Mistake as to the legal import or effect of a transaction. 
§§ 844-851. Particular instances in which relief will or will not be granted. 
§ 845. Eeformation of an instrument on account of a mistake of law. 
§846. Mistake common to all the parties: mistake of a plain rule. 
§ 847. Mistake of law accompanied with inequitable conduct of the 

other party. 
§ 848. Same : between parties in relations of trust. 
§ 849. Belief where a party is mistaken as to his own existing legal 

rights, interests, or relations. 
§ 850. Compromises and voluntary settlements made upon a mistake as 

to legal rights. 
§ 851. Payments of money under a mistake of law, 
§§ 852-856. Second, Mistakes of fact. 

§ 853. How mistakes of fact may occar. 
§ 854. In what mistakes of fact may consist. 
§ 855. Compromises and speculative contracts. 

§856. Eequisites to relief; mistake must be material and free from 
culpable negligence. 
§§857-867. III. How mistake may be shown: when by parol evidence. 

§ 858. Parol evidence in general in cases of mistake, fraud, or surprise. 
§ 859. In suits for a reformation or cancellation: character and effect of 

the evidence. 
§ 860. Parol evidence in defense in suits for a specific performance. 
§ 861. Parol evidence of mistake on the plaintiff's part in suits for a 

specific performance: English rule. 
§862. Same: American rule : evidence admissible. 
§ 863. Evidence of a parol variation which has been part performed. 


§§ 864-867. Effect of the statute of frauds upon the use of parol evidence in 

equitable suits. 
§ 865. Two classes of cases in which the use of parol evidence may be 

affected by the statute. 
§ 866. General doctrine: parol evidence of mistake or fraud admissible 

in both these classes of cases. 
§ 867. Glass v. Hulbert : examination of proposed limitations upon this 

general doctrine. 
§§ 868-871. rv. Instances of equitable jurisdiction occasioned by mistake. 
§ 868. When exercised by way of defense. 

§ 8'69. By way of affirmative relief : recovery of money paid by mistake. 
§870. Affirmative relief: reformation and cancellation. 
§ 871. Ck)uditions of fact which are occasions for affirmative relief. 



§ 872. Objects and purposes. 

§873. Description; essential elements. 

§ 874. Four forms and classes of fraud in equity. 

§ 875. Nature of actual fraud. 

§§ 876-899. First. Misrepresentations. 

§ 877. I. The form ; an affirmation of fact. 

§ 878. Misrepresentation of matter of opinion. 

§ 879. II, The purpose for which the representation is made. 

§ 880. Presumption of the purpose to induce action. 

§ 881. False prospectuses, reports, and circulars. 

§ 882. III. Untruth of the statement. 

§§ 883-889. IV. The intention, knowledge, or belief of the party making the 

§ 884. The knowledge and intention requisite at law. 

§ 885. The knowledge or intention requisite in equity. 

§§ 886-888. Six forms of fraudulent misrepresentations in equity. 

§ 889. Eequisites of a misrepresentation as a defense to the specifle 
enforcement of contracts in equity. 

J§ 890-897. V. Effect of the representation on the party to whom it is made. 

§ 890. He must rely on it. 

§ 891. He must be justified in relying on it. 

§ 892. When he is or is not justified in relying on it. 

§ 893. Information or means of obtaining information possessed by the 
parties receiving the representation. 

§894. Knowledge possessed by him; patent defects. 

§ 895. When the knowledge or information must be proved and not 

§ 896. Words of general caution. 

S 897. Prompt disaffirmance necessary. 


§ 898. VI. Materiality of the misrepresentation. 

Effects of a misrepresentation. 

Second. Fraudulent concealments. 

General doctrine; duty to disclose. 

When duty to disclose exists. 

Concealments by a vendee. 

Concealments by a vendor. 

Non-disclosure of facts a defense to the specijBc enforcement of 
contracts in equity. 

Concealments by buyers on credit. 

Contracts and transactions essentially fiduciary; suretyship. 

Liability of principals for the fraud of their agents. 

Third. Jurisdiction of equity in cases of fraud. 

Fundamental principles of the jurisdiction. 

The English doctrine. 

Exception : fraudulent wills. 

The American doctrine. 

Incidents of the jurisdiction and relief. 

The same; plaintiff particeps doli; ratification. 

The same; promptness; delay through ignorance of the fraud. 

Persons against whom relief is granted; tona fide purchasers. 

Particular instances of the jurisdiction; judgments; awards; 
fraudulent devises and bequests; preventing acts for the bene- 
fit of others; suppressing instruments. 

The same; appointment under powers; marital rights; trusts. 

The statute of frauds not an instrument for the accomplishment 
of fraud. 



§ 922. Definition : essential elements. 
§ 923. Three principal classes. 
§§ 924-942, First. Constructive fraud apparent from the intrinsic nature and 

subject of the transaction itself. 
§ 925. I. Inadequacy of consideration. 
§ 926. Inadequacy pure and simple. 
§ 927. Gross inadequacy amounting to fraud. 
§ 928. Inadequacy coupled with other inequitable incidents. 
§§ 929-936. II. Illegal contracts and transactions. 

§ 930. 1. Contracts illegal because contrary to statute: usury, gaming, 

§§ 931-935. 2. Transactions illegal because opposed to public policy. 

§ 931. A. Contracts interfering with the freedom of marriage ; marriage 

brokerage; in restraint of marriage; rewards for marriage; 

secret contracts in fraud of marriage; secret contracts to 

marry ; rewards for procuring wills. 
§ 932. Agreements for a separation. 










908, 909. 






§ 915. 








§ 933. B. Conditions and limitations in restraint of marriage. 

§ 934. C. Contracts directly belonging to and affecting business rela- 
tions; restraint of trade; interfering with bidding at auctions 
and governmental lettings; puflfers; fraudulent trade-marks; 
violating policy of statutes prescribing business methods; 
trading with alien enemies. 

§ 935. D. Contracts affecting public relations; interfering with the 
election or appointment of officers; interfering with legislative 
proceedings; ditto, executive proceedings; ditto, judicial pro- 

§936. 3. Contracts illegal because opposed to good morals; for illicit 
intercourse; champerty and maintenance; compounding with 
a felony or preventing a prosecution. 
§ 937-942. III. Equitable jurisdiction in case of illegal contracts. 

§ 937. In usurious contracts; usurious mortgages. 

§ 938. In gaming contracts. 

§939. In other illegal contracts; explanation of maxim, In pari, etc. 

§ 940. In pari delicto, general rules. 

§ 941. In pari delicto, limitations on general rules. 

§ 942. Not in pari delicto. 
i 943-965. Second. Constructive fraud inferred from the condition and rela- 
tions of the immediate parties to the transaction. 

§ 943. General description and divisions. 
I 944-954. 1. Transactions void or voidable with persons wholly or partially 

§ 945, Coverture ; infancy. 

§ 946. Insanity. 

§ 947. Mental weakness. 

§ 948. Persons in vinculis; ditto, illiterate or ignorant. 

§ 949. Intoxication. 

§ 950. Duress. 

§ 951. Undue influence. 

§ 952. Sailors. 

§ 953. Expectants, heirs, reversioners. 

§ 954. Post ohit contracts. 
955-965. II. Transactions presumptively invalid between persons in fidu- 
ciary relations. 

§ 955. Circumstances to which the principle applies. 

§ 956. The general principle. 

§ 957. Two classes of cases in which it operates. 

§ 958. Trustee and beneficiary. 

§ 959. Principal and agent. 

§ 960. Attorney and client. 

§ 961. Guardian and ward. 

§ 962. Parent and child. 

§963. Other relations: executors and administrators; physician and 
patient; spiritual advisers; husband and wife; partners, etc. 


§964, Confirmation or ratification. 

§ 965. Acquiescence and lapse of time. 

5§ 966-974. Third. Frauds against third persons who are not parties to the 

§ 967. Secret bargains accompanying compositions with creditors, 

§ 968. Conveyances in fraud of creditors. 

§ 969. The consideration. 

§ 970. The fraudulent intent. 

§ 971. Modes of ascertaining the intent. 

§ 972. Existing creditors. 

§ 973. Subsequent creditors. 

S 974. Conveyances in fraud of subsequent purchasers. 





§ 975. Preliminary paragraph. 




§ 976. The testament in the Roman law. 

§ 977. Fidei commissa in the Boman law. 

§ 978. Origin of uses. 

§ 979. The use at law. 

§ 980. The use in equity. 

§981. Resulting uses; equitable theory of. consideration. 

§ 982. Double nature of property in land, the use and the seisin. 

§ 983. The "statute of uses." 

§ 984. Kinds of uses not embraced within the statute. 

§ 985. A use upon a use not executed by the statute. 

S 986. Trusts after the statute; eflfect of the statute in the American 



§ 987. Classes of trusts. 

5§ 988-990. Express passive trusts. 

§ 989. Estates of the two parties ; liability for beneficiary's debts, etc. 

§ 990. Rules of descent, succession, and alienation. 

§§ 991-995. Express active trusts. 

§ 992. Classes of active trusts. 

§ 993. Voluntary assignments for the benefit of creditors; English 

§ 994. The same; American doctrine. 

§ 995. Deeds of trust to secure debts. 

6§ 996-999. Voluntary trusts. 

§ 997. The general doctrine ; incomplete voluntary trusts not enforced. 

xIjv table of contents. 

§ 908. When the donor is the legal owner. 

§ 999. When the donor is the equitable owner. 

§§1000,1001. Executed and executory trusts. 

§ 1001. Definition and description. 

§ 1002. Powers in trust. 

§§ 1003-1005. Legislation of various states. 

§ 1004. Judicial interpretation; validity of trusts. 

§ 1005. Interest, rights, and liabilities of the beneficiary. 



§ 1006. Trusts of real property; statute of frauds; writing necessary. 
§ 1007. Written declaration by the grantor; ditto, by the trustee; 

§ 1008. Trusts of personal property may be created verbally; what 
trusts are not within the statute. 
Words and dispositions sufficient to create a trust ; examples. 
Express trusts inferred by construction, sometimes improperly 
called "implied trusts." 

1. From the powers given to the trustee. 

2. Provisions for maintenance; examples. 

3. To carry out purposes of the will. 

4. From "precatory" words; Knight v. Knight; examples. 
Modern tendency to restrict this doctrine; in the United States. 
What intention necessary to create the trust; the general 

criterion ; examples. 
§ 1017. Objections to the doctrine. 



§ 1018. General description. 

§ 1019. A public, not a private, benefaction requisite. 

§ 1020. What are charitable uses and purposes: "Statute of charitable 


1021-1024. Classes of charitable uses. 

§ 1021. 1. Religious purposes. 

§ 1022. 2. Benevolent purposes. 

§ 1023. 3. Educational purposes. 

§ 1024. 4. Other public purposes. 

§1025. Creation of the trust: certainty or uncertainty of the object 

and of the bene"ficiaries. 

§ 1026. Certainty or uncertainty of the trustees. 

§ 1027. The doctrine of cy-pres. 

§ 1028. Origin and extent of the equitable jurisdiction. 

§ 1029. Charitable trusts in the United States. 

§ 1009. 



§ 1012. 

§ 1013. 

§ 1014. 

§ 1015. 

§ 1016. 




§ 10'30. General nature and kinds. 

§§ 1031-1043. First. Kesulting trusts. 

§§1032-1036. First form: trusts resulting to donor. 

§ 1032. 1. Property conveyed on some trust which fails. 

§ 1033. Same; essential elements. 

§ 1034. 2. A trust declared in part only of the estate conveyed. 

§ 1035. 3. In conveyances without consideration. 

§ 1036. Parol evidence, 

§§ 1037-1043. Second form: conveyance to A, price paid by B. 

§ 1038. Special rules. 

§ 1039. Purchase in name of wife or child. 

§ 1040. Admissibility of parol evidence. 

§ 1041. The same; between family relatives. 

§ 1042. Legislation of several states. 

§ 1043. Interest and rights of the beneficiary. 

§§ 1044-1058. Second. Constructive trusts. 

§ 1045. Kinds and classes. 

§ 1046. 1. Arising from contracts express or implied. 

§ 1047. 2. Money received equitably belonging to another. 

§ 1048. 3. Acquisition of trust property by a volunteer, or purchaser 
with notice. 

§ 1049. 4. Fiduciary persons purchasing property with trust funds. 

§ 1050. 5. Renewal of a lease by partners and other fiduciary persons. 

§ 1051. 6. Wrongful appropriation or conversion into a different form 
of another's property. 

§ 1052. 7. Wrongful acquisition of the trust property by a trustee or 
other fiduciary person. 

§ 1053. 8. Trusts ex maleficio. 

§ 1054. (1) A devise or bequest procured by fraud. 

§ 1055. (2) Purchase upon a fraudulent verbal promise. 

§ 1056. (3) No trust from a mere verbal promise. 

§ 1057. 9. Trust in favor of creditors. 

§ 1058. Eights and remedies of the beneficiaries, 


§ 1059. Divisions. 

§ 1060. First. Powers and modes of acting. 

§§ 1061-1083. Second. Duties and liabilities. 

§§ 1062-1065. I. To carry the trust into execution. 

§ 1062. 1. The duty to conform strictly to the directions of the trust. 

§ 1063. 

§ 1064. 

§ 1065. 

§§ 106&-1074. 

§ 1067. 

§ 1068. 

§ 1069. 

§ 1070. 

§ 1071. 

1 1072. 

§ 1073. 

§ 1074. 

fiS 1075-1078. 

§ 1075. 

§ 1076. 

§ 1077. 


2. The duty to account. 

3. The duty to obey directions of the court. 

4. The duty to restore the trust property at the end of th« 

II. To use care and diligence. 

1. The duty of protecting the trust property. 

2. The duty not to delegate his authority. 

3. The duty not to surrender entire control to a eo-trustee. 

4. The amount of care and diligence required. 

5. The duty as to investments. 
The necessity of making investments. 
Kinds of investments: When particular securities are expresslj 

The same: When no directions are given. 

III. To act with good faith. 

1. The duty not to deal with the trust property for his own 

2. The duty not to mingle trust funds with his own. 

3. The duty not to accept any position, or enter into any re- 
lation, or do any act inconsistent with the interests of th«e 

§ 1078. 4. The duty not to sell trust property to himself, nor to buy 
from himself. 

§S 1079-1083. rv. Breach of trust, and liability therefor. 

§ 1080. Nature and extent of the liability. 

§ 1081. Liability among co-trustees. 

§ 1082. Liability for co-trustees. 

§ 1083. The beneficiary acquiescing, or a party to the breach of trust. 

5 1084. Third. The trustee's compensation and allowances. 

§ 1085. Allowances for expenses and outlays; lien therefor. 

§ 1086. Fourth. Removal and appointment of trustees. 

S 1087. Appointment of new trustees. 



§ 1088. Quasi trustee; fiduciary persons. 

§ 1089. Corporation directors and officers. 

§ 109O. Trust relations in stock corporations. 

§ 1091. Liability of directors for a violation of their trust. 

§ 1092. First class: Directors guilty of fraudulent misrepresentations, 


§ 1093. Second class: Ultra vires proceedings of directors. 

§ 1094. Third class : Wrongful dealing vdth corporate property. 

§ 1095. Fourth class: The same; the corporation refuses to sue. 

§ 1096. Special classes. 

§ 1097. Guardians. 






§ 1098. Origin and general nature. 

§ 1099. Statutory legal separate estate in the United States. 

§ 1100. How the separate estate is created; trustees not necessary. 

§ 1101. The same: By what modes and instruments. 

§ 1102. The same: What words are sufficient. 

§ 1103. What property is included. 

§ 1104. Her power of disposition. 

§ 1105. The same in the United States. 

§ 1106. Her disposition under a power of appointment, 

§ 1107. Eestraints upon anticipation. 

§ 1108. What words are' sufficient to create a restraint. 

§ 1109. Effect of the restraint. 

§ 1110. End of the separate estate; its devolution on the wife's ^eatk. 

§ 1111. Pin-money. 

§ 1112. Wife's paraphernalia. 

§ 1113. Settlement or conveyance by the wife in fraud of the marriage. 



§ 1114. General nature. 

§1115. Extent of the wife's equity: to what property and agaiBst 

what person. 

§ 1116. When the equity does not arise. 

§ 1117. Amount of the settlement. 

§ 1118. Form of the settlement. 

§ 1119. Maintenance of wife. 

§ 1120. Alimony. 



§ 1121. The general doctrine. 

§ 1122. Eationale of the doctrine. 

§ 1123. Extent of the liability. 

§ 1124. For what contracts her separate estate is liable. 

§ 1125. The same; the American doctrine. 

§ 1126. To what contracts the American doctrine applies. 







§ 1127. Jurisdiction of equity. 

§ 1128. The same: where originally exclusive. 

§ 1129. The same: in the United States. 

§§ 1130-1134. Kincis of legacies. 

§ 1130. Specific legacies. 

§ 1131. Ademption of specific legacies. 

§ 1132. General legacies. 

§ 1133. Demonstrative legacies. 

§ 1134. Annuities. 

§§ 1135-1143. Abatement of legacies. 

§ 1135. Abatement in general: order of appropriating assets. 

§ 1136. Nature of abatement. 

§ 1137. Abatement of specific legacies. 

§ 1138. Abatement of demonstrative legacies. 

§ 1139. Abatement of general legacies. 

§ 1140. Limitations; intention of testator. 

§1141. Exceptions; legacies to near relatives. 

§ 1142. The same; legacy for a valuable consideration. 

§ 1143. Appropriation of a fund. 

§ 1144. Lapsed legacies. 

§ 1145. The same; statutory changes. 



§ 1146. General nature. 

§ 1147. Is not testamentary. 

§ 1148. The subject-matter of a valid gift. 

§ 1149. Delivery. 

§ 1150. Eevocation. 

§ 1151. Equitable jurisdiction. 


§ 1152. Equitable jurisdiction in the United StatM. 
§ 1153. The same; fundamental principle; Eosenburg v. Frank. 
§ 1154. The jurisdiction as administered in the several states; general 
resume — the states alphabetically arranged in foot-note. 



§ 1155. Origin of the jurisdiction. 

§ 1156. Extent of the jurisdiction; a branch of that over trusts. 
§ 1157. The same; a broader jurisdiction in some states. 
§ 1158. Suit to establish a wiU. 




§ 1159. Definition and general nature. 

§ 1160. I. What words are suflScient to work a conversion. 
§ 1161. The same; under a contract of sale, 
§ 1162. II. Time from which the conversion takes effect. 
§ 1163. The same; in contracts of sale with option. 
§ 1164. III. Effects of a conversion; land directed or agreed to be 

§ 1165. The same; money directed or agreed to be laid out in land. 
§ 1166. Limitations on these effects. 
§1167. Conversion by paramount authority; compulsory sale of land 

under statute; sale by order of court. 
§ 1168. Conversion as between life tenant and remainder-man. 


§ 116&. The questions stated; object and extent of the doctrine. 
§ 1170. A total failure of the purpose. 

§ 1171, Partial failure; wills directing conversion of land into money. 
§ 1172. The same; wills directing the conversion of money into land. 
§ 1173. The same; deeds directing the conversion of land into money. 
§ 1174. The same; deeds directing the conversion of money into land. 


§1175. Definition: Rationale of the doctrine. 
§ 1176. Who may elect to have a reconversion. 
§ 1177. Mode of election. 
§ 1178. Double conversion. 





§ 1179. The common-law doctrine: Statute of 7 Geo. II., c. 20. 

§ 1180. Origin and development of the equity jurisdiction; the 

"equity of redemption." 

§ 1181. The equitable theory. 

§ 1182. The double system at law and in equity. 

§ 1183. The legal and the equitable remedies. 

§ 1184, Peculiarities of the English system. 

S 1185. Subsequent mortgages equitable, not legaL 


§1186. In general: Two methods prevailing. 

§1187. First method: Both the legal and the equitable theories; 

states arranged alphabetically in foot-note. 
8 1188. Second method: The equitable theory alone; states arranged 

in foot-note. 
§ 1189. The same : The mortgagee in possession. 
§ 1190. The same: Equitable remedies of the parties. 
S 1191. Definition of mortgage. 



S 1192. In equity a mortgage is a security for a debt. 

§ 1193. Once a mortgage always a mortgage. 

§ 1194. Mortgage and conveyance with an agreement of repurchase, 

§ 1195. The general criterion: the continued existence of a debt. 

§ 1196. A conveyance absolute on its face may be a mortgage. 

1197-1199. Mortgage to secure future advances. 

§ 1197. As between the immediate parties. 

§ 1198. As against subsequent incumbrancers and purchasers. 

§ 1199. As affected by the recording act. 

1200-1203. Mortgages to secure several different notes. 

§ 1200. As between the original parties. 

§ 1201. Assignees of the notes; order of priority among them, 

§ 1202. Effect of an assignment of the notes. 

§ 1203. Priority between an assignee and the mortgagee. 




§ 1204. General interests of the mortgagor and the mortgagee. 
§§ 1205-1208. I. Conveyance by the mortgagor. 

§ 1205. Conveyance "subject to" the mortgage; effect of, 

§ 1206. Grantee "assumes" the mortgage; effect of. 

§ 1207. Eationale of the grantee's liability. 

§ 1208. Assumption by a mortgagee. 
§§ 1209-1214. II. Assignment of the mortgage. . 

§ 1209. Assignment at law and in equity. 

§ 1210. Assignment of the debt is, in equity, an assignment of the 
mortgage; what operates as such assignment. 

§ 1211. Equitable assignment by subrogation. 

§ 1212. In whose favor such equitable assignment exists. 

§ 1213. In whose favor such equitable assignment does not exist. 

§ 1214. Eight to compel an actual assignment. 
§§ 1215-1218. III. Eights and liabilities of mortgagee in possession. 

§ 1215. To whom the doctrine applies in different states. 

§ 1216. With what he is chargeable; rents and profits, willful default. 

§ 1217. His allowances and credits, disbursements, repairs, improve- 
ments, compensation. 

§ 1218. Liability to account. 
§§ 121^-1226. rv. Eedemption from the mortgage. 

§ 1219. By the mortgagor; suit to redeem. 

§ 1220. By other persons. 
§§ 1221-1226. Eights of contribution and of exoneration upon redemption. 

§ 1221. General doctrine; classes of eases; equities equal or unequal. 

§ 1222. (1) Where their equities are equal; titles simultaneous. 

§ 1223. (2) Where their equities are unequal, although the titles are 
simultaneous; tenants for life or for years and remainder- 
men; dowress and reversioner. 

§ 1224. (3) Inequality of equities where titles are not simultaneous; 
between mortgagor and his grantee of a parcel; between 
successive grantees; inverse order of alienation. 

§ 1225. The same ; what circumstances disturb these equities, and de- 
feat this rule. 

§ 1226. (4) A release by the mortgagee of one or more parcels. 

§ 1227. V. Foreclomre; foreclosure proper or "strict foreclosure.** 

§ 1228. Foreclosure by judicial sale. 



§ 1229. General nature of, at law. 
§ 1230. Jurisdiction and remedies in equity. 
§ 1231. Pledges: Equitable jurisdiction and remedies. 
§ 1232. Chattel mortgages in California. 



§ 1233. What are included in this term; what is an equitable lien. 
§ 1234. Origin and rationale of the doctrine. 

§ 1235. The general doctrine; requisites of the contract. 
§ 1236. On property to be acquired in future. 

§ 1237. The form and nature of the agreement; illustrations of par- 
ticular agreements; agreements to give a mortgage; defec- 
tive mortgages; assignments; bills of exchange, etc. 



I 1238. Nature of "implied contract" in equity. 

§ 1239. General doctrine as to liens arising ex CBquo et hono. 

§ 1240. Expenditure by one joint owner. 

§ 1241. Expenditure for the' benefit of the true owner. 

§ 1242. Expenditure by a life-tenant. 

§ 1243. In other special cases. 

§ 1244. General doctrine; nature of a charge. 
§ 1245. What amounts to a charge creating such a lien. 
§ 1246. The same; express charge. 
§ 1247, The same; implied charge; English and American rules stated 

in foot-note. 
§ 1248. Observations upon the rules adopted by American courts. 



§§ 1249-1254. The ordinary grantor's lien for unpaid purchase price. 

§1249. General doctrine; in what states adopted or rejected; states 
classified in foot-notes. 

§ 3250. Origin and rationale; Ahrend v. Odiorne discussed. 

§1251. Requisites, extent, and effects of this lien; great uncertainty 
and conflict in the results of judicial opinion. 

§ 1252. How discharged or waived; effect of taking other security, etc. 

§ 1253. Against whom the lien avails. 

§ 1254. In favor of whom the lien avails; whether or not assignaBle. 

§§ 1255-1259. Grantor's lien by reservation. 

§ 1255. General description. 

§ 1256. "What createsi a lien by reservation. 

§ 1257. Essential nature of the lien. 

§ 1258. Its operation and effect. 

§ 1259. The grantor's dealing with this lien; waiver; assignment. 



§§ 1260-1262. Vendor's lien under contract of sale. 

§ 1260. General doctrine; vendor's lien and grantor's lien distin- 

§ 1261. Essential nature and effects; vendor's interest determined by 
doctrine of equitable conversion. 

§ 1262. How enforced. 

§ 1263. Vendee's lien for purchase money paid. 



§ 1264. The English doctrine. 

§ 1265. The doctrine in the United States. 

§ 1266. Distinction suggested, as a conclusion from American cases. 

§ 1267. How this lien is enforced. 



§ 126S. General nature and tendency of American legislation on this 

subject ; various examples. 
§ 1269. How such liens are enforced. 






§ 1270. Original doctrines at law and in equity. 

§ 1271. Rationale of the equitable doctrine. 

§ 1272. Assignment of things in action at common law. 

§ 1273. The same; under statutory legislation. 

§ 1274. Interpretation of this legislation as contained in the Eeformed 


§ 1275. What things in action are or are not thus legally assignable. 

§ 1276. Assignments forbidden by public policy. 

§ 1277. The equitable jurisdiction; under the Reformed Procedure. 

§1278. The equitable jurisdiction; under the common-law procedure. 

§ 1279. Incidents of an assignment. 



§1280, The general doctrine; its requisites, scope, operation, and 

§ 1281. Notice to the creditor-assignee, essential. 
§ 1282. A mere mandate to a depositary or agent, is not an equitable 

assignment, but is revocable; an appropriation is necessary. 
§ 1283. Funds not yet in existence. 
§ 1284. Operation of bills of exchange and checks. 



§ 1285. Equitable jurisdiction under modern legislation. 

§ 1286. Essential elements and grades of contingencies, expectancies, 

and possibilities. 
§ 1287. Assignment of possibilities. 
§ 1288. Assignment of personal property to be acquired in the future; 

rationale of the doctrine: Holroyd v. Marshall. 
§ 1289. Assignment of future cargo or freight. 
§ 1290. Eequisites of an assignment of property to be acquired m the 

§ 1291. Extent of the doctrine, to what property and persons it appGea. 






§ 1292. Object of this chapter, 

§ 1293. What constitutes a contract. 

§ 1294. Equitable contract by representations and acta. 

§ 1295. ETflEects of a contract in equity; covenajit creating an equitable 


§1296. Effects of contracts in general. 

S 1297. Enforcement of contracts in equity. 



§ 1298. General nature. 

§ 1299. Husband's liability for wife's necessaries. 
§ 1300. Liability for money advanced to pay debts of a person in- 
capable of contracting. 
§ 1301. On death of one joint debtor. 
S 1302. On death of a joint surety. 





S 1303. Questions stated. 

§ 1304. Origin of the equitable jurisdiction over infanta. 

§ 1305. How jurisdiction is acquired; infant made a "ward of 

§§ 1306-1307. Extent of the jurisdiction. 

§ 1306. Appointment of guardians. 

§ 1307. Custody of infants; custody of parents when controlled. 

§§ 1308-1310. How the jurisdiction is exercised. 

§ 1308. Supervision of the guardian. 

§ 1309. Management of property. 

§ 1310. Marriage of infant ward. 



§ 1311, Orifrin of this jurisdiction. 
§ 1312. Mode of exercising the jurisdiction in England. 
§ 1313. Jurisdiction in the United States. 
8 1314. Jurisdiction in cases of weak or unsound mind. 







§ 1315. General object. 

§ 1316. Classification. 

§ 1317. Remedies acting in rem or in personam. 

§ 1318. Eemedies in personam beyond tlie territorial jurisdiction. 




§ 1319. Description of this group. 

§ 1320. General nature and objects of interpleader. 

§ 1321. The claims legal or equitable. 

§ 1322. Essential elements. 

§ 1323. First. The same thing, debt, or duty. 

§ 1324. Second. Privity between the opposing claimants. 

§ 1325. TMrd. Plaintiff a mere stakeholder. 

§ 1326. Fourth. No independent liability to one claimajit. 

§ 1327. By bailees, agents, tenants, and parties to contracts. 

§ 1328. Pleadings and other procedure. 

§ 1329. Interpleader in legal actions by statute. 



§ 1330. Definition, general nature, and objects. 

§ 1331. The appointment discretionary. 

§§ 1332-1335. Oases in which a receiver may be appointed. 

§ 1332. First class. 

§ 1333. Second class. 

§ 1334. Third class. 

§ 1335. Fourth class. 

§ 1336. Their powers, rights, duties, and liabilities. 






§ 1337. General nature and objects: Interdicts. 
§ 1338. Fundamental principle. 
§ 1339. To protect purely equitable estates or interests, and in aid of 

purely equitable remedies. 
§ 1340. The same : Particular instances. 
§§ 1341-1344. To prevent the violation of contracts. 
§ 1341. General doctrine. 

§ 1342. (1) Restrictive covenants creating equitable easements. 
§ 1343. (2) Contracts for personal services or acts. 
§ 1344. (3) Other agreements, generally negative in their nature. 
§ 1345. Miscellaneous cases: Corporations and their officers; between 
mortgagor and mortgagee; public officers; cloud on title; 
married women's property; partners, etc. 



§ 134&. The estates and interests generally legal. 

§ 1347. Kinds and classes of torts restrained. 

§ 1348. Waste. 

§ 1349. Nuisance: Public. 

§ 1350. Nuisance: Private; when restrained. 

§1351. Same: Instances; violations of easements. 

§ 1352. Patent rights and copyrights. 

§ 1353. Literary property as distinct from copyright. 

§ 1354. Trade-marks. 

§ 1355. Good-will. 

§ 1356. Trespasses. 

§ 1357. General doctrine; cases in wMcli trespass may te engoined. 

§ 1358. Slander of title; libels; wrongful use of name. 


1 1359. Nature and object; when granted. 



§ 1360. Origin of the jurisdiction, 

§1361. When the jurisdiction is not exercised; General doctrine. 

§ 1362. When the jurisdiction may be exercised: First class; exclu- 
sive equitable interests or rights involved. 

§ 1363. The same : Second class ; legal remedies inadequate. 

§ 1364. The same: Third class; fraud, mistake, or accident in the trial 
at law. 

§ 1365. Jurisdiction to grant nev? trials at law in the United States. 



§ 1366. General object. 

§ 1367. Equitable pleas under the common-law procedure. 

§ 1368. Equitable defenses under the reformed procedure. 

§ 1369. Meaning and nature of an equitable defense. 

§ 1370. General effect: Injunction against actions at law unnecessary. 

§ 1371. Cases in which an injunction may still be necessary: First 

class; to avoid multiplicity of suits. 

§ 1372. The same: Second class; new parties needed. 

§1373. The same: Third class; no affirmative relief. 

§ 1374. Some illustrations of equitable defenses. 





§ 1375. General nature and object. 

5 1376. Reformation and re-cxecution of instruments. 

S 1377. Cancellation, surrender up, or discharge of instrument!. 






§ 1378. General nature and object of this group. 

§ 1379. Nature and object of the first class. 

§§ 1380-1383. Assignment of dower. 

§ 1380. Legal remedies. 

§ 1381. Origin and grounds of the equitable jurisdiction. 

§ 1382. The jurisdiction now concurrent. 

§ 1383. Exclusive jurisdiction over dower in equitable estates. 

§ 1384. Establishment of disputed boundaries. 

§ 1385. The same; equitable incidents and grounds, 

§§ 1386-1390. Partition of lands. 

§ 1386. Common-law remedy. 

§ 1387. Equitable jurisdiction and remedies. 

§ 1388. The title of the plaintiff. 

§ 1389. Mode of partition. 

§ 1390. Partition by means of a sale. 

§ 1391. Partition of personal property. 

§ 1392. The same: issue of title. 



§ 1393. Nature and object. 

§ 1394. Bill? of peace; bills quia timet; quieting title. 




§ 1395. Nature and object. 

§ 1396. Statutory suit to quiet title; legislation. 

§ 1397. The same; essential features and requisites; possession; title. 

§ 1398. Suit to remove a cloud from title; to prevent a cloud. 

§ 1399. The same; when the jurisdiction is exercised; general doctrine. 





§ 1400. Nature and object. 

§ 1401. Specific peTformanee of contracts; grounds of the jurisdiction. 

§ 1402. Extent of the jurisdiction; inadequacy of damages; various 

kinds of contracts. 

§1403. The same: Impracticability of the legal remedy. 

§ 1404. The jurisdiction discretionary. 

§ 1405. Essential elements and incidents. 

§ 1406. Rights under the contracts; effect of events without the agency 

of the parties. 

§ 1407, Performance by plaintiff a condition precedent. 

§ 1408. Time as affecting the right to a performance. 

§ 1409. Enforcement of verbal contracts part performed. 

§ 1410. Damages in place of a specific performance. 



§ 1411. General nature, kinds, and classes. 

§ 1412. Suits against corporations to compel the transfer or issue of 






§ 1413. Nature, kinds, and classes. 

§ 1414. Suits for marshaling of securities. 

§ 1415. Creditors' suits. 





§ 1416. General nature, kinds, and classes. 

§ 1417. Exoneration; rights of suretj against the principaL 

§ 1418. Contribution. 

§ 1419. Subrogation. 



§ 1420. Origin of the equitable jurisdiction. 

S 1421. Extent of the equitable jurisdiction; when exercised. 





Appointment of Keceivers. 

The Eeeeiver's Possession; and Conflicting Appointmeutt. 

Action Against the Receiver. 

Suits by the Receiver. 

Receiver's Relation to Pending Suits; and When He ia 
a Necessary Party. 

Receivers; Management and Disposition of Property. 

Receivers; Claims and Allowances. 

Removal and Discharge of Receiver. 

Foreign Receivers; Ancillary Receivers. 

Injunctions; General Principles; Injunction to Protect 
Equitable Estates and Interests. 

Injunctions to Prevent the Violation of Contracts. 

Injunctions Against Corporations and Their Officers. 

Injunctions Relating to Voluntary Associations and Non- 
stock Corporations. 

Injunctions Between Mortgagor and Mortgagee. 

Injunctions Against Public Officers. 

Injunctions Against Municipal Corporations and Their 

Injunction Against Taxation; and Against Special or Local 
















































XX rv. 






Injunction Against Exercise of the Power of Eminent 

Injunctions to Prevent or Restrain the Commission of 

Torts in General; to Restrain Criminal Acts. 
Injunction Against Waste. 
Injunction Against Trespass. 
Injunction Against Nuisance. 
Injunctions to Protect Easements. 
Injunctions for the Protection of Water Rights. 



Cliapter XXVII. 

Chapter XXVIII. 

Chapter XXIX. 

Chapter XXX. 

Chapter XXXI. 

Chapter XXXII. 

Chapter XXXIII. 

Chapter XXXIV. 

Chapter XXXV. 

Chapter XXXVI. 

Chapter XXXVII. 

Chapter XXXVIU. 

Chapter XXXIX. 

Chapter XL. 

Chapter XLI. 

















Injunctions to Protect Patents; Copyrights and Literary 

Property; Trade-marks and Trade Names; Exclusive 

Injunction Against Interference With Freedom of Trade 

or Employment; Combinations, Strikes, Boycotts, etc. 
Injunctions; Miscellaneous Torts. 
Mandatory Injunctions. 

Equitable Relief Against Actions, Judgments, and Exe- 
cutions at Law. 
Reformation and Cancellation. 
Assignment of Dower; and Establishment of Disputed 

Bills of Peace. 
Suit to Prevent or Remove Cloud on Title — Statutory 

Suit to Quiet Title. 
Specific Performance of Contracts — Ground and Extent 

of the Jurisdiction. 
Elements and Incidents of the Contract Essential to 

Specific Performance. 
Specific Performance; Default and Delay by Plaintiff. 
Specific Performance of Parol Contracts, Part Performed. 
Partial Performance With Compensation — Damages in 

Place of a Specific Performance. 
Equitable Estates and Interests Under the Contract of 

Sale and Purchase of Land. 
Suits to Compel Transfer ui Issue of Stock. 
Marshaling of Securities. 
Creditors' Suits. 

Creditors' Bills Against Stockholders. 
Suits for Reimbursement, Contribution^ Exoneration, and 

Suits for an Accounting. 
Partnership Bills. 











§ 1. Object of this Introduction. 

§§ 2-9. Mquitas in the Roman Law. 

§§ 10-42. Origin of Equity in the English Law. 

§§ 10-13. Primitive condition of the law and the courts. 

§§ 14, 15. Early influences of the Roman Law. 

§§ 16-29. Causes which made a court of equity necessary. 

§§ 21-23. The earliest common-law actions and procedure. 

§ 24. Statute of Edward I. concerning new writs. 

§§ 25-29. Limited results of this legislation. 

§§ 30-42. Commencement and progress of the chancery jurisdiction. 

§ 31. Original powers of the King's Council. 

§32. Original common-law jurisdiction of the Chancellor. 

§§ 33-35. Jurisdiction of grace transferred to the Chancellor; Statute 24 

Edward III. 

§§ 36-39. Development of the equitable jurisdiction. 

§ 40. Abolition of the court in England and in many American states. 

§§ 41, 42. Equity jurisdiction in other American states. 

§ 1. Object of This Introduction. — It is not my purpose 
to attempt a complete and detailed history of equity as it 
exists in England and in the United States. That work 
has already been done by Mr. Spence, in his Equitable 
Jurisdiction of the Court of Chancery. Some general ac- 
i-i (1) 


count, however, of the origin of the equitable jurisdiction, 
of the sources from which the principles and doctrines of 
the equity jurisprudence took their rise, and of the causes 
which led to the establishment of the Court of Chancery, 
with its modes of procedure separate and distinct from the 
common-law tribunals, with their prescribed and rigid, 
forms of action, is absolutely essential to an accurate con- 
ception of the true nature and functions of equity as it 
exists at the present day. I shall therefore preface this 
introductory chapter with a short historical sketch, exhibit- 
ing the system in its beginnings, and describing the early 
movements of that progress through which its principles 
have been developed into a vast body of doctrines and rules 
which constitute a most important department of the 
municipal law. 

§ 2. ^quitas in the Roman Law. — The growth and func- 
tions of equity as a part of the English law were anticipated 
by a similar development of the same notions in the Roman 
jurisprudence. In fact, the equity administered by the 
early English chancellors, and the jurisdiction of their 
court, were confessedly borrowed from the cequitas and 
judicial powers of the Eoman magistrates; and the one 
cannot be fully understood without some knowledge of the 
other. This intimate connection between the two systems 
is a sufficient reason or excuse for the following brief state- 
ment of the mode in which cequitas was introduced into the 
Eoman law, and of the important part which it performed, 
under the great jurists and magistrates of the empire, in 
shaping the doctrines of that wonderful jurisprudence. 
The researches of modern juridical scholars have exposed 
the falsity of much that has been written by English 
authors, such as Blackstone and Coke, with respect to the 
origin of their law, and have demonstrated the existence of 
the closest relations between the Roman jurisprudence and 
the early English common law. These relations with the 
growing common law were disturbed, and finally broken, 


from political motives and considerations; but with the 
equity jurisprudence they became, for that very reason, 
even more intimate, and have so continued until the present 

§ 3. In the earliest period of the Roman law of which 
there is any certain trace remaining, and thenceforward 
for a considerable time after the epoch of the legislation 
known as the Twelve Tables, there were five actions {legis 
actiones) for the enforcement of all civil rights. Nothing 
could exceed the arbitrariness and formalism of these 
judicial proceedings. Absolute accuracy was required in 
complying with the established phrases and acts; any 
omission or mistake of a word or a movement was fatal. 
Gains, who wrote long after they were abolished, says of 
them: ''But all these actions of the law fell gradually 
into great discredit, because the over-subtlety of the an- 
cient jurists made the slightest error fatal."! These ac- 
tions finally became obsolete and disappeared, except one 
of them, which under a modified form was retained for 
certain very special cases until a late period of the empire. 
The analogy between them and the old "real actions" of 
the English common law is striking and complete. Their 
place, in all ordinary controversies, was supplied by a 
species of judicial proceedings much more simple and 
natural, to which the generic name "formula" was given.2 

§ 2, 1 See Bracton and his relations with the Roman law, by C. Giiter- 
bock; translated by Brinton Coxa. 

§ 3, 1 Institutes, b. iv., § 30. 

§ 3, 2 As to "formulas," see Gaius's Institutes, b. iv., §§ 30-52; Poste's 
ed. of Gaius, pp. 423-441; Sandars's Institutes of Justinian, pp. 63-67. 
It should be remembered that the formula was drawn up by or under the 
direction of the magistrate. I add, as an illustration, one of the most 
simple kinds of formulas, as given by Gaius, with a brief explanation of 
its various parts. It is a simple action to recover the price of a thing 
sold. "Judex esto, Quod Aulus Agerius Numerio Negidio hominem ven- 
diditj si paret Numerium Negidium Aulo Agerio sestertium X milUa dare 


§ 4. These formulas were the regular steps or processes 
in a cause prior to the trial, reduced to writing, but always 
carefully regulated by fixed rules, and conducted in accord- 

oportere, judex Numerium Negidium Aulo Agerio sestertium X niillia 
condemnato, si non paret, absolvito. 

The judex esto, "let there be a judex," is merely the order for tlie 
appointment of a judex. The formula consists of three distinct parts. 
From quod to vendidit is the demonstratio , from si paret to dare oportere 
is the intentio; and from judex to the end is the condemnatlo. The 
formula ordinarily contained only these three parts. 

The demonstratio is the general statement of facts which are the cronnd 
of plaintiff's claim to recover. As in this case Aulus Agerius, the i Inin^ 
tiff says "that Aulus Agerius sold a slave to Nuraerius Negidius." The 
demonstratio varied, of course, in each particular ease. The intentio is 
the most important part. It is the precise statement of the legal demand 
made by the plaintiff; it presents and embodies the exact question of law 
involved in the case, and depending upon the facts as they shall, be 
established one way or the other. It must, therefore, exactly meet the 
law which would govern the facts alleged by the plaintiff, if true. 
Whether in this case the plaintiff sold the slave to the defendant at the 
price alleged, and whether the debt is still owing, is the matter to be 
decided by the judex. If it appear to the judex {si paret) that Numei-ius 
Negidius ought to pay to Aulus Agerius ten thousand sesterces, then the 
judex is to pronounce judgment against him; if it does not so appear to 
the judge, then he is to acquit. The condemnatio is the direction to the 
judex to condemn or to acquit, according to the true circumstances of the 

The condemnatio was always pecuniary, a direction to condemn the 
defendant to pay a sum of money. The various modifications in the 
actions by the praetors largely consisted in their adding other kinds of 
specific reliefs, which might be awarded. Thus in three actions, to par- 
tition a family inheritance, to divide the property of partners, and to 
settle boundaries, the judex was directed "to adjudicate" the thing, in 
the sense of distributing it among the litigants entitled to portions. In 
these actions there was a fourth part of the formula containing such 
direction, and called the adjudicatio. Where the action was brought to 
recover a thing, and not a sum of money, the condemnatio sometimes left 
the sum to be paid by defendant to be fixed by the judex, at his discre- 
tion; and sometimes inserted the words nisi restituat, so that the defend- 
ant was only ordered to pay the sum of money, if lie refused or neglected 
to restore or deliver up the thing to the plaintiff. See Pomeroy's Intro- 
duction to Municipal Law, §§ 183, 184. 


ance with prescribed forms. The parties appeared before 
the magistrate, and the formula was prepared by him, or 
under his direction. It contained, as the most important 
elements, what we would call the "pleadings," namely, a 
statement of the plaintiff's cause of action, bearing different 
names in different actions, which was expressed in certain 
technical language, varying with the nature of the action, 
of the claim, and of the relief asked; the defendant's an- 
swer, also varying according to the action and the defense ; 
it also contained the appointment of the lay person who was 
to try the issue and render judgment, the judex or the 
arbiter ; the rule of law which was to govern him, not stated, 
however, as an abstract proposition, but simply as a direc- 
tion, in short and technical terms, to render such a judg- 
ment if the plaintiff proved the case stated in the pleading, 
otherwise to dismiss the suit. The whole formula was con- 
tained in a few brief sentences, and the technical words or 
phrases used indicated clearly the nature of the action, the 
relief to be given, the defenses to be admitted, and the legal 
rule to be followed. The contrast between its brevity^ 
simplicity, and at the same time comprehensiveness, and 
the repetitions, redundancy, verbiage, and obscurity of 
the later common-law special pleadings, is very striking 
and instructive. The formula being thus prepared before 
the magistrate (the cause being at that stage in jure), the 
parties then went before the "judex," or "arbiter," and 
proceeded with the trial (the cause being then in judicio). 
He heard the testimony and the arguments of counsel, and 
rendered the judgment ; but the cause was thereupon taken 
before the magistrate a second time, who enforced the 
judgment and also possessed a revisory authority over the 
decision of the judex. It is plain that the functions of the 
"judex" corresponded closely with those of our jury; 
and even his power in rendering the judgment was not 
essentially different from that of the jury in giving their 
verdict, since the judgment itself, which ought to be ren- 
dered, was prescribed in the direction of the formula, and 


the judex had no more authority than the jury has in deter- 
mining the rule of law whioh should govern the rights of the 
parties.! The functions of the magistrates were more 

§ 5. The most important magistrates, after the develop- 
ment of the Roman law had fairly commenced, and down 
to the period under the empire at which the administration 
was entirely remodeled, were the praetors Urban and Pere- 
grine {Prcctor IJrhanus, Prcetor Peregrinus). The praetor, 
in the totality of his juridical functions, corresponded both 
to the English common-law courts and the Chancellor. As 
the English courts, by means of their legislative function, 
have built up the greater part of the law of England, so 
did the praetors, by the exercise of the same function, con- 
struct the largest part of the Roman jurisprudence, which 
was afterwards put into a scientific shape by the great 
jurists of the empire, and was finally codified in the Pan- 
dects of Justinian. This legislative work of theirs was 
done in a manner and form so outwardly different from 
that of the English judges, that many writers, and espe- 
cially the German commentators, who seem utterly unable 
to comprehend in its fullness the legislative attributes, both 
of the English and the Roman judicial magistrates, have 
failed to perceive the identity. The identity, however, ex- 
ists, and the differences are wholly formal. The legislative 
work of the English and American courts has been and still 
is done in the judgments and opinions rendered upon the 
decision of cases after the events have happened which 

§ 4, 1 Of course it is not claimed by me that tbe "judex." or "arbiter," 
was identical with our jury, nor that he was the historical source of the 
jury. AH that I assert is, that there are striking analogies between the 
two; and of this no unprejudiced student of jurisprudence can, for a 
moment, doubt. I make this remark because the teachings of some Ger- 
man professors indicate an entire incapacity on their part to understand 
the development of the Roman jurisprudence under the light thrown 
upon it by the historical progress of the English law. See Pomeroy's 
Introduction to Municipal Law, §§ 315, 316, 317. 


called for such official utterances. The same work of the 
Roman prretors was done in the edicts (edicta) which they 
issued upon taking office, and which in process of time be- 
came one continuous body of law, each magistrate taking 
what had been left by his predecessors, and altering, amend- 
ing, or adding to the same, as the needs of an advancing 
civilization required. The form of this edict was peculiar. 
Instead of laying down abstract propositions defining pri- 
mary rights and duties, or publishing formal commands 
similar to modern statutes, the magistrates announced that 
under certain specified circumstances a remedy would be 
granted by means of a designated action, where the prior 
law gave no such remedy; or that under certain circum- 
stances, if a person attempted to enforce a rule of the prior 
law by action, a defense which had not existed before would 
be admitted and sustained. 

§ 6. The jurisdiction of the praetors, which was exer- 
cised by means of formulas, and in which a judex or other 
lay person was called in to decide the issues of fact, was 
called his ''ordinary" jurisdiction. In the later periods 
of the republic, there arose another jurisdiction termed 
the "extraordinary" {extra ordinem). In causes coming 
under this jurisdiction, the magistrate himself decided both 
the law and the facts, without the intervention of any 
judex, and unhampered by any technical requirements as 
to the proper formula or kind of action. The plaintiff al- 
leged the facts making out his cause of action, the defend- 
ant set forth his defense, and the magistrate decided. By 
this method remedies could be given which were not pro- 
vided for in any of the existing forms of action, and equi- 
table notions could be more freely applied, and thus 
incorporated into the growing mass of the national juris- 
prudence. In this extraordinary jurisdiction we can 
plainly see the prototype of English chancery procedure; 
while the ordinary methods by formulas were as certainly 
the analogues of the common-law forms of action. The 


extraordinary jurisdiction continued for a long time side 
by side with the ordinary, growing in extent and importance 
until it became the only mode in common use. By a con- 
stitution of the Emperor Diocletian (A. D. 294), all causes 
in the provinces were required to be tried in this manner; 
and finally the same rule was made universal throughout 
the empire. Here, again, we may see another of the repeti- 
tions which history exhibits under the operation of like 
social forces. This event in the Eoman jurisprudence was 
in all its essential elements similar to the recent legislation 
of Great Britain and of the American states, by which all 
distinction between suito in equity and actions at law has 
been abolished, and the two jurisdictions have been com- 
bined in the same proceeding and conferred upon the same 

§ 7. As has been already stated, the legislative work of 
the praetors was accomplished by the introduction of new 
actions, whereby a right could be enforced, which the law 
prior to that time did not recognize, or which it perhaps 
absolutely denied. The number of particular actions thus 
invented or allowed by the praetorian law was large, and 
they have been separated by the commentators into many 
classes, according to various lines of division. It will be 
sufficient for my purposes of description to arrange them 
in three groups. The early law of Rome which existed 
prior to the time when the praetorian development fairly 
commenced, and the external form or shell of which was 
preserved through a large part of that development, — the 
jus civile, — was exceedingly stern, rigid, formal, and arbi- 
trary, pajdng little attention to abstract right and justice, 
reflecting in every part the character and customs of the 
primitive Romans. It admitted certain prescribed actions 
and defenses appropriate for certain facts and circum- 
stances, but for other facts and circumstances differing 
from those to which the existing actions or defenses were 
exactly adapted, it furnished no remedy. In their work of 


building up a broader jurisprudence upon the narrow basis 
of this ancient jus civile, the praetors, in the first place, 
introduced a class of actions which were substantially the 
same as those provided by the existing law, unaltered in 
any of their essential features, but enlarged in the scope 
of their operation. In other words, the magistrates em- 
ployed the old-established actions of the jus civile, with- 
out changing the technical words, phrases, and parts of 
their formulae, but extended their application to new cases, 
facts, and circumstances. These new facts and circum- 
stances did not differ widely from the subject-matter to 
which the actions had been originally adapted by the 
former law ; they necessarily came within the same general 
principle which had furnished the rule of decision before 
the scope of the actions was thus enlarged. In a similar 
manner, the English law courts have, in later times, used 
the ancient actions of debt, covenant, and trespass, without 
altering their technical forms, for the decision of issues 
which had not arisen in the earlier periods of the common 
law. The second of the three groups or classes contained 
a large number of new actions first allowed by the praetors, 
which, though not substantially the same, were analogous 
or similar in their nature and objects to those which ex- 
isted in the ancient jus civile. The formulas of these new 
actions bore a general resemblance to those of the old, and 
were indeed patterned after them, but still differed from 
them in various important particulars. Necessary changes 
were made in the statement of the plaintiff's cause of ac- 
tion, of the defendant's defense, or of the direction for 
the judgment addressed to the judex or the arbiter. New 
cases were thus provided for; new rules of law were intro- 
duced, old ones were modified or repealed. The number of 
particular actions embraced in this class was large, and in 
the course of the legal development from age to age, the 
praetors were enabled by their means to soften the rigor 
of the old law, to remove its arbitrariness, and to mold its 
doctrines into a nearer conformity with the principles of 


right and justice. The actions comprised in this class, and 
the service which they rendered in improving the Homan 
law, were strictly analogous to the actions of ejectment, 
case, trover, and especially assumpsit, and the work which 
they have performed in expanding and ameliorating the 
common law. The third class consists of the new actions 
introduced from time to time, which were wholly different, 
both in principle and form, from any that had existed under 
the old law. In their invention the magistrate dissevered 
all connection with the ancient methods, and by their use, 
more than by any other means, he constructed a jurispru- 
dence founded upon and interpenetrated by equitable doc- 
trines which finally supplanted the old jus civile, and be- 
came the Roman law as it was scientifically arranged by the 
great jurists of the empire, and is known to us as the 
Pandects and Institutes of Justinian.^ 

§ 8. In their work of improving the primitive jus civile, 
the magistrates who issued edicts (who possessed the jus 
edicendi), and the jurisconsults who furnished authorita- 
tive opinions (respo7isa) to aid the praetors (those who 
possessed the jus respondendi),^ obtained their material 

§7, 1 Pomeroy's Introduction to Municipal Law, §§ 185-1 92 ; San- 
dars's Institutes of Justinian, pp. 67-71; Poste's Institutes of Gains, 
pp. 368, 400-406; Phillimore's Private Law among the Romans, 
pp. 150-159. 

§ 8, 1 I have not, in the foregoing paragraphs, discussed the peculiar 
functions of the jurisconsults, and the effect of their "responses," because 
it was my object, not to describe the Roman law at large, but simply to 
point out the analogies between its modes of development, and those of 
our own law. I will, however, state the conclusion readied by the ablest 
modern scholarship : That although the responses of the jurisconsults 
always had a high authority, and although during a long period of time 
the magistrates were bound under certain limitations to adopt their official 
opinions as precedents, yet the magistrate alone possessed the creative 
function of legislating^ of making law. He went to the opinions of the 
official jurisconsults for his material, for the sources of his legislation ; 
but those opinions did not obtain the compulsive efficacy of laio^ until 
they had been adopted by the judicial magistrate, and reissued by him 


from two sources, namely : At first, from what they termed 
the jus gentium, the law of nations, meaning thereby those 
rules of law which they found existing alike in the legal 
systems of all the peoples with which Rome came into con- 
tact, and which they conceived to have a certain universal 
sanction arising from principles common to human nature ; 
and at a later day, from the Stoic theory of morality, which 
they called lex nahirce, the law of nature. The doctrines 
of this jus gentium and of this lex naturce were often iden- 
tical, and hence arose the conception, generally prevalent 
among the juridical writers of the empire, that the ''nat- 
ural law" {lex naturce) and the ''law of nations" {jus gen- 
tium) were one and the same; or in other words, that the 
doctrines which were found common to all national systems 
were dictated by and a part of this natural law. The par- 
ticular rules of the Roman jurisprudence derived from this 
morality, called the law of nature, were termed ^'cequitas,^^ 
from cequum, because they were supposed to be impartial 
in their operation, applying to all persons alike. The lex 
naturcB was assumed to be the governing force of the 
world, and was regarded by the magistrates and jurists 
as having an absolute authority. They felt themselves, 
therefore, under an imperative obligation to bring the juris- 
prudence into harmony with this all-pervading morality, 
and to allow such actions and make such decisions that no 
moral rule should be violated. Whenever an adherence to 
the old jus civile would do a moral wrong, and produce a 
result inequitable {inmquum), the praetor, conforming his 
edict or his decision to the law of nature, provided a remedy 
by means of an appropriate action or defense. Gradually 
the cases, as well as the modes in which he would thus in- 
terfere, grew more and more common and certain, and thus 
a body of moral principles was introduced into the Roman 

through the means of his edict or his decisions. The theory long main- 
tained, that the jurisconsults possessed the power of legislating, and (hat 
they created the Roman jurisprudence, has been abandoned. See Pom- 
eroy's Introduction to Municipal Law, § § 315-317. 


law, which constituted equity {(Equitas) .^ This resulting 
equity was not a separate department; it penetrated the 
entire jurisprudence, displacing what of the ancient system 
was arbitrary and unjust, and bringing the whole into an 
accordance with the prevailing notions of morality. In its 
original sense, cequitas, cequum, conveyed the conception 
of universality, and therefore of impartiality, a having 
regard for the interests of all whose interests ought to be 
regarded, as contrasted with the having an exclusive or 
partial regard for the interests of some, which was the 
essential character of the old jus civile. At a later period, 
and especially after the influence of Christianity had been 
felt, the signification of cequitas became enlarged, and was 
made to embrace our modern conceptions of right, duty, 
justice, and morality. 

§ 9. There are certainly many striking analogies be- 
tween the growth of equity in the Roman and in the Eng- 
lish law; the same causes operated to make it necessary, 
the same methods were up to a certain point pursued, and 
in principle the same results were reached. The differ- 
ences, however, are no less remarkable. No separate tri- 
bunal or department was made necessary in the Eoman 
jurisprudence, because the ordinary magistrates were will- 
ing to do what the early English common-law judges ut- 
terly refused to perform; that is, to promote and control 
the entire legal development as the needs of an advancing 
civilization demanded. While these common-law judges 
resisted every innovation upon their established forms, and 
shut up every way for the legal growth, the Eoman magis- 
trates were the leaders in the work of reform, and 
constantly anticipated the wants of the community. The 
English judges made a new court and a separate depart- 
ment indispensable; the Eoman prsetors accomplished 

§ 8, 2 See Sandars's Institutes of Justinian, pp. 13, 14 ; Phillimore's 
Private Law among the Romans, pp. 21, 22; 2 Austin on Jurisi:)rudence, 
pp. 240-267. 


every reform by means of their own jurisdiction, and pre- 
served in the jurisprudence a unity and homogeneity 
which the English and American law lacks, and which it 
can perhaps never acquire. Both these resemblances and 
these contrasts are exhibited in the following paragraphs, 
which describe the introduction of equity into the English 
system of jurisprudence. 

§ 10. Origin of Equity in the English Law — Primitive 
Condition of the Law and the Courts. — During the Anglo- 
Saxon and early Norman periods, the law of England was, 
like that of all peoples in the first stages of their develop- 
ment, to a large extent consuetudinary. The primitive 
Saxon Codes, except so far as they re-enacted certain pre- 
cepts taken from the Holy Scriptures, or borrowed a few 
provisions from the then known remains of the Roman law, 
were chiefly redactions of prior existing customs. The 
Saxon local folk courts, and even the supreme tribunal of 
the Witana-gemote, not being composed of professional 
judges, were certainly guided in their decisions of particu- 
lar controversies by customs which, when established and 
certain, were considered as having the same obligatory 
character which we give to positive law.i 

§ 11. In the reign of William the Conqueror the local folk 
courts of the Saxon polity were left in existence ; and they, 
together with the manor courts of the Norman barons, con- 
tinued to be the tribunals of first resort (to use a modern 
term) for the trial of ordinary disputes, through several 
succeeding reigns; but they gradually lost their functions 
and sunk into disuse as the more strictly professional tri- 
bunals grew in importance and extended their jurisdiction, 
until they were finally superseded by the itinerant justices 
appointed by the crown or by the King's Court as repre- 
sentative of the crown. William, however, made some 

§ 10, 1 As to the apccount in following paragraphs, see 1 Speuce's Eq. 
Jur., pp. 87-128. 


most important innovations. In the Curia Regis, King's 
Court, which then, and for a considerable time afterwards, 
was a body composed of barons and high ecclesiastics with 
legislative, judicial, and administrative functions as yet un- 
separated, he appointed a Chief Justiciary to preside over 
the hearing of suits. This creation of a permanent judicial 
officer was the germ of the professional common-law tri- 
bunals having a supreme jurisdiction throughout England, 
which subsequently became established as a part of the 
government, disti:' t from the legislative and the executive. 
He also appointed, from time to time, as occasion required, 
itinerant justices to travel about and hold "pleas" or pre- 
side over the Shire Courts in the different counties. These 
officers were temporary, and ceased when their special 
duties had been performed, but they were the beginning of 
a judicial system which still prevails in England, and which 
has been adopted in many of the American states. 

§ 12. The organization thus made or permitted by "Will- 
iam continued without any substantial change, but yet with 
gradual modifications and progressive improvements, 
through several of the succeeding reigns. The business of 
the King's Court steadily and rapidly increased; under 
Henry II. its judicial functions were finally separated from 
the legislative, and from that time until its abolition in 
1874, it has continued to be the highest common-law tribu- 
nal of original jurisdiction, under the name of the Court 
of King's Bench. In the reign of Henry I. itinerant justices 
were sometimes appointed, as by William the Conqueror, 
and under Henry II. their office and functions were made 
permanent; but during the reign of Edward III. their 
places were filled and their duties performed by the jus- 
tices of the Superior Courts, acting under special commis- 
sions empowering them to hold courts of oyer and 
terminer and of nisi prius. These itinerant justices — 
*' justices in eyre" — went from county to county, holding 
pleas civil and criminal, and as a consequence the old local 


courts of the shire, hundred, and manor were abandoned as 
means of determining controversies between litigant ])ar- 
ties. The King's Court, even after it became a purely judi- 
cial bod}^, was attached to the person of the King, and fol- 
lowed him in his journeys and residences in different parts 
of the realm. The great inconvenience to suitors resulting 
from this transitory quality of the court was remedied Ijv 
Magna Charta, which provided in one of its articles that 
* ' Common Pleas shall no longer follow the King. ' ' In obe- 
dience to this mandate of the Charter, justices were ap- 
pointed to hear controversies concerning lands, and other 
matters purely civil, — known as ''common" pleas, — and 
the new tribunal composed of these judges was fixed at 
Westminster. Thus commenced the Court of Common 
Bench. The third superior common-law tribunal acquired 
its powers in a much more irregular manner. In arran- 
ging his government, William the Conqueror had estab- 
lished a board of high officials to superintend and manage 
the royal revenues, and a number of barons, with the chief 
justiciary, were required to attend the sittings of this 
board, in order to decide the legal questions which might 
arise. These judicial assessors, in the course of time, be- 
came the Court of Exchequer, a tribunal whose authority 
originally extended only to the decision of causes directly 
connected with the revenue, but its jurisdiction was subse- 
quently enlarged, through the use of legal fictions, and 
thus made, to a certain extent, concurrent with that of the 
two other Superior Law Courts. The office of Chancellor 
was very ancient. It had existed before the conquest, and 
was continued by William. Under his successors, the 
Chancellor soon became the most important functionary 
of the King's government, the personal adviser and repre- 
sentative of the crown, but, in the very earliest times, 
without, as it seems, any purely judicial powers and duties 
annexed to the position. How these functions were ac- 
quired, it is the main purpose of this historical sketch to 
describe. The three superior law courts whose origin has 


thus been stated have remained, with some statutory modi- 
fication, through the succeeding centuries, until, by the 
Judicature Act of 1873, which went into operation Novem- 
ber 2, 1875, they and the Court of Chancer}^, and certain 
other courts, were abolished as distinct tribunals, and were 
consolidated into one ' * Supreme Court of Judicature. ' ' ^ 

§ 13. The local folk courts left in existence at the con- 
quest, and even the itinerant justices and the central King's 
Court, for a while continued to administer a law which was 
largely customary. The progress of society, the increase in 
importance of property rights, the artificial system which 
we call feudalism, with its mass of arbitrary rules and 
usages, all demanded and rapidly produced a more com- 
plete, certain, and authoritative jurisprudence for the 
whole realm than the existing popular customs, however 
ancient and widely observed. This work of building up a 
positive jurisprudence upon the foundation of the Saxon 
customs and feudal usages, this initial activity in creating 
the common law of England, was done, not by parliamentary 
legislation nor by royal decrees, but by the justices in their 
decisions of civil and criminal causes. The law which had 
been chiefly customary and therefore unwritten, preserved 
by tradition, lex non scripta, was changed in its form by 
being embodied in a series of judicial precedents preserved 
in the records of the courts, or published in the books of 
reports, and thus it became, so far as these precedents ex- 
pressed its principles and rules, a written law, lex scripta^ 

§ 12, 1 36 & 37 Vict., chap. 66, § 3 : "From and after the time ap- 
pointed for the commencement of this act, the several courts hereinafter 
mentioned (that is to say), the High Court of Chancery of England, the 
Court of Queen's Bench, the Court of Common Pleas at Westminster, the 
Court of Exchequer, the High Court of Admiralty, the Court of Probate, 
the Court for Divorce and Matrimonial Causes, and the London Court of 
Bankruptcy, shall be united and consolidated together, and shall consti- 
tute, under and subject to the provisions of this Act, one Supreme Court 
of Judicature in England." 

§ 13, 1 The division of "written" and "unwritten" law made by Black- 
stone, and writers "who have copied his notions, which makes the "written" 


§ 14. Early Influences of the Roman Law. — In this 
work of constructing a jurisprudence, the early common- 
law judges, as well as the Chancellor at a later day, drew 
largely from their own knowledge of the Eoman law. The 
evidence, both internal and historical, is conclusive that 
the common law of England, in the earliest formative 
period, was much indebted to that Roman jurisprudence 
which enters so largely into the judicial systems of all the 
western nations of the European continent. Besides the 
proof furnished by the law itself, several important facts 
connected with the external history of its primitive stages 
point to this conclusion. The clergy, who possessed all the 
learning of the times, were students of the Roman law. 
The earliest justices of the common-law courts, as well as 
the chancellors, were generally taken from the higher or- 
ders of ecclesiastics ; and on all occasions where it was 
necessary for them to legislate in the decision of particular 
cases, to create new rules for relations hitherto undeter- 
mined, they naturally had recourse to the code with which 
they were familiar, borrowed many of its doctrines, and 
adopted them as the ground of their judgments. Nor was 
a knowledge of the Roman law confined to the courts; its 
study became a part of what would now be called the higher 
education. When the spirit of free inquiry was suddenly 
awakened at the commencement of the twelfth century, one 
of its most remarkable manifestations was shown in the 
scientific study of the Roman law which began at the Uni- 
versity of Bolog-na in 1120, and soon extended over western 
Europe. In 1143, Archbishop Theobald, who had himself 
studied at Bologna, brought a distinguished civilian, Vaca- 

ideutical with the statutory, and describes the entire portion embodied in 
judicial decisions as "unwritten," is simply absurd. This definition is 
another instance of Blackstone's mistaking the meaning of Roman law 
terms. The lex non scripta is customary, traditional, preserved in the 
popular memory; a law expressed in judicial records or in statutes is 
written. The Roman prgetorian edicts formed a part of the lex scripta 
as much as the leges or the imperial "constitutions." 


rius, into England, and this jurist in 1149 established a 
school of the Roman law at the University of Oxford, which 
soon rose to an eminence second only to those of Paris and 
of Bologna. King Stephen afterwards prohibited Vaca- 
rius from public teaching, but this act, instead of stopping 
the study in England, produced the contrary effect of stim- 
ulating and promoting it. Bracton's celebrated work, De 
Legibus et Consuetudinibus Anglige, written between A. D. 
1256 and 1259,^ and which is an epitome or systematic in- 
stitute of the common law as it then existed, exhibits in the 
plainest manner the results of the judicial labor and scien- 
tific study which had preceded it. A considerable portion 
of its doctrines, and even of the terms in which its rules 
are stated, is taken directly from standard treatises of the 
day upon the Roman jurisprudence. In the language of a 
recent writer: ''As Roman legal matters obtained recep- 
tion, although the written sources of the Roman law were 
not at all received as having a legislative authority, Brac- 
ton properly included such Roman legal matter among the 
leges et consuetudines AnglicB." ^ 

§ 15. Had it not been for several powerful causes, partly 
growing out of the English national character, or rather, 
the character of the Norman kings and barons who ruled 
over England, and partly arising from external events con- 
nected with the government itself, it is probable that this 
work of assimilation and of building up the common law 
with materials taken from the never-failing quarries of the 
Roman legislation, would have continued throughout its 
entire formative period. As the corpus juris civilis con- 
tains the results of the labors of the great philosophic 
jurists who brought the jurisprudence of Rome to its high- 
est point of excellence, and as its rules, so far as they are 
concerned with private rights and relations, are based upon 

§ 14, 1 Braetou and his relations with the Roman law, by Carl Guter- 
bock; translated by Brinton Coxe, p. 24. 
§ 14, 2 Ibid, p. 62. 


principles of justice and equity, it is also certain that if 
this work of assimilation had thus gone on, the common law 
of England would from an early day have been molded into 
the likeness of its original. Through the decisions of its 
own courts the principles of justice and equity would every- 
where have been adopted, and would have appeared 
throughout the entire structure. All this would have been 
accomplished in the ordinary course of development, by the 
ordinary common-law tribunals, without any necessity for 
the creation of a separate court which should be charged 
with the special function of administering these principles 
of right, justice, and equity. The growth of the English 
law would have been identical in its external form with that 
of Rome; it would have proceeded in an orderly, unbroken 
manner through the instrumentality of the single species of 
courts, and the present double nature of the national juris- 
prudence — the two great departments of ''Law" and 
** Equity" — would have been obviated. This result, how- 
ever, was prevented by several potent causes which checked 
the progress of the law towards equity, narrowed its devel- 
opment into an arbitrary and rigid form, with little regard 
for abstract right, and made it necessary that a new juris- 
diction should be erected to administer a separate system 
more in accordance with natural justice and the rules of a 
Christian morality. These causes I proceed to state. 

§ 16. Causes Which Made a Court of Equity Necessary. 
The one which was perhaps the source and explanation of 
all the others consisted in the rigid character, external and 
internal, which the common law soon assumed after it began 
to be embodied in judicial precedents, and the unreasoning 
respect shown by the judges for these decisions merely as 
precedents. There was, of course, a time, before the char- 
acter of the law as a lex scripta became well established, 
when this rigidity and inflexibility was not exhibited. ^ The 

§ 16, 1 Thus Bracton, who wrote during this formative period, before 
the law had entirely assumed its rig^id character, adopting the maxim 


history of civilized jurisprudence can show nothing of the' 
same kind comparable with the blind conservatism with 
which the common-law judges were accustomed to regard 
the rules and doctrines which had once been formulated by 
a precedent, and the stubborn resistance which they inter- 
posed to any departure from or change in either the spirit 
or the form of the law which. had been thus established. 
The most that was ever allowed was the extension of a doc- 
trine to facts and circumstances presenting some points 
of difference from those which had already formed the 
subject-matter of adjudication, but in which this difference 
was not so great as to require a substantial modification 
of the principle. The frequent occurrence of cases in which 
the rules of the law produced manifest injustice, and of 
cases to which the legal principles as settled by the prece- 
dents could not apply, and the unwillingness of the common- 
law judges to allow any modification of the doctrines once 
established by their prior decisions, furnished both the 
occasion and the necessity for another tribunal, which 
should adopt different methods and exhibit different ten- 

which he found in the Roman law, In omnibus, maxime tamen in jure, 
eequitas spectanda est, asserts that the common-law courts should be 
guided by equity even in questions of strict law: Lib. 2, chap. 7, fol. 23 b; 
Lib. 4, fol. 186. But this doctrine was soon abandoned. 

§ 16, 2 This position of resistance, so soon assumed by the common- 
law judges, is well desci'ibed by Mr. Spence in the following passage: 
"It has always been held by the great oracles of the law that the prin- 
ciples of the common law are founded on reason and equity; and as 
long as the conmion law was in the course of formation, and therefore 
continued to be a lex non scripta, it was capable, as indeed it has ever 
continued to be to some extent, of not only being extended to cases not 
expressly provided for, but which were within the spirit of the existing 
law, but also of ha^'ing the principles of equity applied to it by the 
judges in their decisions, as circumstances arose which called for the 
application of such principles. But in the course of time a series of 
precedents was established by the decisions, or responsa, as Bracton calls 
them, of the judges, which were considered of almost equally binding 
authority on succeeding judges as were the acts of the legislature; and it 


§ 17. When the same difficulty of rigidness, arbitrari- 
ness, and non-adaptation to the needs of society began to 
be severe!}^ felt in the administration of the law at Rome, 
the magistrates, as I have before shown, supplied the 
remedy by means which they already possessed. The praB- 
tors constantly invented new actions and defenses, which 
preserved, however, a resemblance to the old ; and at length 
they boldly freed the jurisprudence from the restraints 
of the ancient methods, and introduced the notion of 
ccquitas by which the whole body of judicial legislation be- 
came in time reconstructed. All the process of develop- 
ment was completed without any violent or sudden change 
in the judicial institutions, and the Roman law thus pre- 
served its unity and continuity. The English common-law 
judges, on the other hand, set themselves with an iron de- 
termination against any modification of the doctrines and 
rules once established by precedent, any relaxation of the 
settled methods which made the rights of suitors to depend 
upon the strictest observance of the most arbitrary and 
technical forms, any introduction of new principles which 
should bring the law as a whole into a complete harmony 
with justice and equity. I would not be understood as as- 
serting that the conservatism of the courts was so absolute 
as to prevent any improvement or progress in the law from 
age to age. I only describe the general attitude and tend- 
ency during the period in which the court of chancery took 
its rise and for a long time thereafter. The improvement 

became difficult to make new precedents without interfering with those 
which had already been established. Hence (though new precedents have 
ever continued to be made) the common law soon became to a great ex- 
tent a lex scripta positive and inflexible; so that the rule of justice could 
not accommodate itself to every case according to the exigency of right 
and justice" : 1 Spence's Eq. Jur., pp. 321, 322. The description of the 
text is not intended to apply to the entire history of the common law. 
Another spirit has animated its judges since the example set by Lord 
Mansfield, and its inherent power of development, when freed from the 
narrow and obstructive notions of the earlier judges, has been fully ex- 
hibited both in England and in the United States. 


which an advancing civilization effected in the nation itself 
was to a partial extent reflected in the law. It is certain, 
however, beyond the possibility of dispute, that the English 
common law was always far behind the progress of the 
English people, and in very many particulars retained the 
impress of its primitive barbarism down to the present 
century. By the continental jurists contemporary with 
Coke, Lord Hale, or Blackstone, it was regarded with min- 
gled feelings of wonder and contempt as a barbarous code ; 
and except in its provisions securing the personal and 
political rights of the individual, and in its antagonism to 
the slavish doctrine of the Roman jurisprudence. Quod 
placuit principi legis vigorem hahet, it was a barbarous 
code. Parliamentary legislation occasionally interfered 
and effected a special reform; and the principles of equity 
as administered by the Court of Chancery reacted to a 
slight degree upon the law; but still the common-law judges 
as a body exhibited the blind conservatism which I have 
described down to a period wholly modern. With the par- 
tial exception of Lord Holt, whose masculine intellect some- 
times broke away from the trammels,^ Lord Mansfield was 

§ 17, 1 Lord Holt was never thoroughly emancipated from a fanatical 
devotion to the ancient law, and sometimes resisted innovations which 
even his inferior associates on the bench could see were demanded by 
the necessities of society and of business. A remarkable instance may be 
seen in his refusal to adopt the customs of merchants in regard to promis- 
sory notes, a refusal which compelled Parliament to interfere by statute 
and place these contracts upon the same basis as inland bills of exchange. 
On the other hand, his celebrated opinion in Coggs v. Bernard was an 
unprecedented departure from the ordinary modes of the court, and 
opened the way for subsequent judges to follow into the rich mines of 
the Roman jurisprudence. And his no less celebrated judgment in Ashby 
V. White exhibited, more clearly than has perhaps been done by any 
other judge, the unlimited power of development inherent in the common 
law where its essential principles are freely carried out and its bondage 
to form and established precedent is broken. Among the recent English 
judges who have represented the ancient rather than the modern ten- 
dencies of the law, and who have exalted its rules of form, Baron Parke ■ 
stands the foremost, and has actually obtained the reputation of a 


the first great English judge who consciously, and with sys- 
tematic and persistent purpose, adopted the policy of the 
Eoman praetors, endeavored to impart a new life and give 
a new direction to the growth of the common law, and by 
means of equitable principles in combination with its own 
methods to reform the law from within. As a reward for 
these innovations. Lord Mansfield was charged in his own 
day — and the accusation has been handed down as a part 
of judicial history — with ignorance of the English law. 
Although the work which Lord Mansfield began was inter- 
rupted by his narrow-minded successor. Lord Kenyon, it 
has been taken up and carried on in the same spirit by 
many of the able judges who have adorned the English 
bench within the present century, and by the state and 
national courts of this country, until the common law has 
now become a truly scientific and philosophical code. 

§ 18. A second cause which prevented a development of 
the national jurisprudence in harmony with and by the aid 
of the equitable notions contained in the Roman codes, and 
which therefore tended to the creation of a separate court 
of chancery, was the fact that the rules concerning real 
property and, to a considerable extent, those concerning 
personal status and relations, were feudal in their origin 
and nature. From whatever source the ultimate notion of 
feudal tenure was derived, whether from the Roman em- 
phyteusis or from German tribal customs, it is certain that 
there was nothing in common between the institutions of 
feudalism as they existed under the Norman kings, and the 
doctrines of the Roman law. As long, therefore, as these 
institutions continued to flourish there was of necessity a 

jurist, because he was able to discuss and state these arbitrary dogmas 
in a scientific manner, and to clothe them with some appearance of a 
philosoi^hie system. But in no series of English reports are the rights 
of suitors made to depend upon a compliance with mere forms, and the 
decisions made to turn upon mere technicalities, more than in the volumes 
of Meesou and Welsby. 


large and most important part of the English law which 
could receive no accession or improvement from doctrines 
of the Roman jurisprudence; no combination of the two 
w^as possible. Roman principles were subsequently intro- 
duced by the Court of Chancery in its enforcement of uses 
as a special kind of property in lands ; but there was even 
then no combination. Feudal dogmas were maintained by 
the courts of law, and Roman notions by the court of 
equity; and the two systems ran on, confronting and even 
hostile to each other, until the Parliament interposed in the 
reign of Henry VIII., and by the celebrated Statute of Uses 
effected a partial union. 

§ 19. Although the feudal institutions in their integrity 
were undoubtedly an obstacle to the introduction of Roman 
law principles, and the development of one homogeneous 
jurisprudence for the English people, still the obstacle was 
not insuperable. The same institutions existed on the con- 
tinent, and in Germany, especially, they have largely modi- 
fied the law down to the time when the present system of 
codes was adopted. Notwithstanding this fact, the Roman 
law has entered as the principal element into the juris- 
prudence of every western continental nation, and through 
it the doctrines of equity have been everywhere accepted, 
not as constituting a separate department, but as pervading 
and influencing the whole. 

§ 20. The third cause which I shall mention, and it was 
an exceedingly important one in its effects upon the juris- 
diction of chancery, which had already become quite exten- 
sive, arose from the position and policy of the kings, the 
Parliament, and the nation towards the church of Rome. 
The English kings had maintained a long and bitter 
struggle with the Pope and his emissaries among the higher 
ecclesiastics to maintain the independence of the crown and 
of the Anglican branch of the church. In the reign of 
Edward III., the exactions of the Papal See became pecu- 
liarly hateful to the King and to the nation. Having the 


support of his Parliament, Edward refused payment of the 
tribute which had been demanded by the Pope, and meas- 
ures were taken to prevent any further encroachments. 
A general hostility, or at least a sentiment of opposition, 
to the Papal court and to everything connected with it had 
sprung up and spread among all ranks of the laity. The 
Eoman law fell under this common aversion. Partly from 
its name, partly because it was supported by the Papal See, 
both on account of its connection with the canon law, and 
on account of its doctrines favorable to absolutism, and 
partly because a knowledge of it prevailed most extensively 
among the ecclesiastics, so that it was popularl}^ regarded 
as an instrument of the church, the Roman law, which had 
been treated with favor by Henry II., Henry III., and Ed- 
ward I., and by the judges themselves in former reigns, 
became an object of general dislike, and even antipathy. 
In the reign of Henry III. the barons formally declared 
that they would not suffer the kingdom to be governed by 
the Roman law ; ^ and the common-law judges prohibited it 
from being any longer cited in their courts. This action 
of the barons and judges was certainly a mistake, and it 
produced an opposite effect from the one intended. The 
Roman law, instead of being banished, was simply trans- 
ferred to another court, which was not governed by com- 
mon-law doctrines. As the law courts intentionally cut 
themselves off from all opportunity of borrowing equitable 
principles from this foreign source, the necessity arose for 
a separate tribunal, in which those principles could be 

§ 20, 1 "Quod noluerunt leges Angliaj mutare, quae usque ad illud tem- 
pus usitatae fuerunt et approbatce." The occasion upon which this 
memorable declaration was made, at the Parliament of Merton, A. D. 
1236, was the attempt of the ecclesiastics to introduce the doctrine that 
illegitimate children are made legitimate by the subsequent marriage of 
their parents. This doctrine was peculiarly distasteful to the English 
barons, since it interfered Avith the feudal rules of inheritance. For a 
full account of the controversy in all its stages, see Bracton and his 
relations with the Roman Law, p. 129. Blackstone states the time and 
place to have been the Parliament of Tewksbuiy, A. D. 1234. 


recognized. It therefore followed, immediately upon this 
prohibition, that the hitherto narrow jurisdiction of the 
Court of Chancery was greatly increased, and extended 
over subject-matters which required an ample and constant 
use of Roman law doctrines. To the same cause was chiefly 
due the selection, which was really a necessity, of chancel- 
lors from among the ecclesiastics, during the period while 
the jurisdiction of the court was thus enlarged and 
established. 2 

§ 20, 2 In confirmation of the text, I quote the following passages 
from Mr. Spence. Speaking of the prohibition by the common -law 
judges mentioned in the text, he says: "Perhaps one object of the judges 
might have been to exclude the doctrine as to fidei-commissa, or trusts, 
which first came distinctly into notice during this reign (Richard II.). 
The effect, however, of the exclusion of the Roman law from the com- 
mon-law tribunals was that a distinct code of laws was formed and 
administered in the Court of Chancery, by which the enjoyment and 
alienation of property were regulated on principles varying in many 
essential particulars from the system which those who originated and 
carried into effect the exclusion of the Roman law were so anxious to 
preserve. Nor were these united endeavors for the exclusion of the 
Roman law less important in fixing the appointment of the office of 
Chancellor in the members of the clerical body. Notwithstanding all the 
efforts that were made to repress them, trusts soon became general. Some 
rules for their regulation were absolutely necessary. It was from the 
Roman law they had sprung up; who so proper to introduce and system- 
atize the rules necessary for their regulation as those who were now ex- 
clusively conversant with this law, and who alone, as it was excluded 
from the common-law courts, could resort to it for their guidance? Ac- 
cordingly, from this time, with some exceptions, none but clerical chan- 
cellors were appointed, down to the twenty-first year of Henry VIII. It 
may be well doubted whether but for the last circumstance the system 
of equitable jurisprudence which we find established in the reign of 
Henry VIII., on which the doctrine of uses and much of the modem 
jurisdiction of the court is founded, would then have existed. The antip- 
athy to the Roman law which in the reign of Elizabeth was extended, as 
regards a considerable portion of the community, to everything Roman, 
and the intensity of which has scarcely yet subsided, broke forth in the 
latter end of the reign of Elizabeth, and in that of James I., in a way 
that leaves little doubt as to what would have become of the equitable 
principles of the Court of Chancery, if that court in its infancy had been 
permanently committed to common-law judges as chancellors. I cannot 


§ 21. The Earliest Common-law Actions and Procedure. 
The last cause which I shall mention, and practically the 
most immediate and efficient one in its operation fo prevent 
any expansion of the common law, so as to obviate the 
necessity of a separate equitable jurisdiction, was the pecu- 
liar procedure which was established by the courts at a 
very early day, and to which they clung with a surprising 
tenacity. This procedure furnished a fixed number of 
**forms of action." Every remedial right must be en- 
forced through one of these forms; and if the facts of a 
particular case were such that neither of them was appro- 
priate, the injured party was without any ordinary legal 
remedy, and his only mode of redress was by an application 
made directly to the King. The initial step in every action 

but here notice, as some confirmation of the conjecture which is hazarded 
above, that a writer of the reign of James I., who, if not, as he styles 
himself, a sergeant, was evidently speaking the sentiments of that order, 
says : 'The common law commandeth all that is good to be done' ; 'The suit 
by subpoena is against the common weal of the realm.' The whole of the 
system which fonnerly prevailed in the Court of Chancery as to uses, 
and which was then applied to trusts, is also denounced by him in terms 
which show that under chancellors taken from the professors of the 
common law merely, the modern system of equitable jurisprudence would 
never have been reared, at least in the Court of Chancery. One of his 
complaints is, that relief was given where the amount secured by a bond 
or recognizance had been paid, and no release obtained." (It was one of 
the absurd doctrines of the old common law, that a sealed instrument 
could only be discharged by another instrument of as high a character. 
If the debtor on a bond paid the full amount, and failed to obtain an 
acquittance under seal, or a surrender up of the instrument, even though 
he took a written receipt in full, he was still liable, and could have no 
defense to an action on the bond ! One of the first measures of equity 
was to overthrow this iniquitous rule by enjoining the action at law 
brought under such circumstances against the debtor, and it is of this 
interference that the writer in question bitterly complains. He says:) 
"When a bill has been made to the Chancellor that such a man should 
have great wrong to be compelled to pay two times for one thing, the 
Chancellor, not knowing the goodness of the common law ( !), has timor- 
ously directed a subpoena to the plaintiff (in the action at law) ; and the 
Chancellor, regarding no law, but trusting to his own wit and wisdom, 
giveth judgment as it pleaseth him" : 1 Spence's Eq. Jur., p. 347. 


was a written document issued in the name of the King, 
called a writ, which was both the commencement and the 
foundation of all subsequent proceedings. This document 
gave a brief summary of the facts upon which the right of 
action was based, and contained certain technical formulas 
indicating what form of action was brought and what 
remedy was demanded. If it had been possible for suitors 
or the officers of the court to multiply these writs indefi- 
nitely, so as to meet all possible circumstances and social 
relations, there would have been no difficulty, and the proce- 
dure could have been expanded so as to embrace every 
variety of wrong and every species of remedial right which 
might subsequently arise in the course of the national de- 
velopment. But there was absolutely no such possibility, 
and herein was the essential vice of the system. The nature 
of these writs was fixed, and could not be substantially 
changed. A writ had been settled, not only for each of the 
different ''forms of action," but for the facts, circum- 
stances, and events which could constitute the subject- 
matter of the particular actions embraced within each one 
of these several "forms of action." The precedents of all 
the writs which had been thus established were kept in an 
office connected with the chancery, called the Registra Bre- 
vium. Certain officers of the chancery were charged with 
the duty of issuing the writs to plaintiffs, and this they did 
by selecting and copying the one which agreed with the 
facts of the applicant's case. If no writ could be found in 
the collection which substantially corresponded with the 
facts constituting the ground of complaint, then the plain- 
tiff could have no action. The chancery clerks could not 
draw up entirely new writs, nor alter the existing ones in 
any substantial manner; it is probable, however, that they 
assumed to make some slight changes, so as to accommo- 
date the recitals to the facts of special cases, but this power 
could only be exercised within the narrowest limits. There 
were, however, certain kinds of facts connected with every 
cause of action, which might be varied. The statements in 


the writs were somewhat general in their terms, some ap- 
plying to land, some to chattels, others to persons, debts, 
torts ; and, of course, the particulars of quantity, size, value, 
time, place, amount of damage, and the like, were not mate- 
rial, and could be varied without limit. One other fact of 
the utmost importance remains to be mentioned. Although 
the chancery clerks decided in the first place upon the form 
and kind of writ in every case, and thus determined the 
species of action to be brought, this decision did not in 
the least protect or secure the plaintiff after he had com- 
menced his action. When the action came before the com- 
mon-law courts, the judges assumed and constantly exer- 
cised the power of determining the sufficiency of the writ; 
and if they held that it was not the proper one for the case, 
or that its recitals of facts or formulas were imperfect or 
mistaken, no attention was given to the prior decision of 
the chancery officials, the writ and action were dismissed, 
and the plaintiff thrown out of court. 

§ 22. The ancient actions of the common law, prior to 
the statutory legislation hereafter mentioned, as described 
by Bracton, were of two general classes : 1. Those which 
concerned lands and all estates or interests therein; and 
2. Those which concerned persons, chattels, contracts, and 
torts. The former class, the Real Actions, included a con- 
siderable number of particular actions, adapted to various 
estates and rights, some for determining the title, others 
for the recovery of possession merely; and were all techni- 
cal and arbitrary in their modes of procedure. The action 
of ejectment by which they were superseded was a growth 
of later times. The second class, the Personal Actions, con- 
tained two actions ex contractu, ''Debt" and ''Covenant," 
and two ex delicto, "Trespass" and "Detinue." "Ee- 
plevin," which was one of the most ancient judicial pro- 
ceedings known to the English law, was so restricted in its 
use to special circumstances and inferior courts that it was 
not classified among the ordinary common-law forms of 


action. The functions of these four personal actions are 
so well known that no description of them is necessary. 

§ 23. From this enumeration it is plain that the common 
law furnished a verj- meager system of remedies, utterly 
insufficient for the needs of a civilization advancing beyond 
the domination of feudal ideas. The appliances. for main- 
taining rights over land were perhaps sufficient in num- 
ber and in variety, but they were excessively cumbrous, 
and the rights of suitors were liable to be defeated by some 
failure in technical matters of form. The lack of remedial 
instruments was chiefly felt in the class of personal actions. 
No contract could be enforced unless it created a certain 
debt, or unless it was embodied in a sealed writing. No 
means was given for the legal redress of a wrong to 
person or property, unless the tortious act was accom- 
panied with violence, express or implied. The injuries and 
breaches of contract which now form the subject-matter of 
so much litigation were absolutely without any legal rem- 
edy. It is true, the ancient records show a few instances 
in which the action of trespass was extended to torts with- 
out violence, such as defamation, but these cases were 
exceptional and governed by no legal rule. The chief de- 
fect, however, of the legal procedure, which rendered it 
incomplete as a means of administering justice, and wholly 
insufficient for the needs of a people whose social relations 
were constantly growing more complex, consisted in its in- 
ability to adapt its actual reliefs to the varying rights and 
duties of litigants. Whatever might be the form of action 
used, the remedy conferred by its judgment was either a 
recovery of the possession of land, a recovery of the pos- 
session of chattels, or a recovery of money. Although 
these simple species of relief might be suited to a primitive 
society, the necessity of other and more specific forms, 
adapted to various circumstances and relations, was felt 
as soon as the progress of the nation towards a higher 
civilization had fairly begun. From the causes which I 


have thus brie% described, the common-law courts were 
closed against a large and steadily increasing class of 
rights and remedies, and a distinct tribunal, with a broader 
and more equitable jurisdiction and mode of i^rocedure, 
became an absolute necessity, or else justice would be 

§ 24. Statute of Edward I. Concerning New Writs. — Par- 
liament at length interposed with a reformatory measure 
which was intended to be radical, and which perhaps might 
have checked the growing jurisdiction of chancery if the 
common-law judges had treated the statute in the same 
liberal spirit with which it was enacted. As all writs for 
the commencement of actions were drawn up by the clerks 
in chancery, the legislature attempted to remove all the 
existing difficulties by enlarging the powers of these offi- 
cials, and conferring upon them a wide discretion in the 
invention of new forms of writs, suitable to new condi- 
tions of fact, and providing for remedial rights hitherto 
without any means of" enforcement. In the reign of Ed- 
ward I. the following statute was passed: ^ ''Whensoever 
from henceforth it shall fortune in chancery that in one 
case a writ is found, and in a like case falling under like 
law and requiring like remedy is found none, the clerks of 
the chancery shall agree in making the writ, or the plain- 
tiff may adjourn it into the next Parliament, and let the 
cases be written in which they cannot agree, and let them 
refer themselves to the next Parliament, and by consent 
of men learned in the law a writ shall be made, lest it should 
liappen after that the court should long time fail to minister 
justice unto complainants." 

§ 25. Limited Results of This Legislation. — The general 
intent of this enactment is perfectly clear, and it should 
have been liberally and largely construed in accordance 
with that intent. The common-law judges, however, ap- 

§ 24, 1 13 Edw. I., chap. 1, § 24. 


plied to it a strict and narrow construction, a literal and 
verbal interpretation, wholly foreign to its design and 
meaning. Although by its means the new common-law 
forms of action known as ''Case," ''Trover," and "As- 
sumpsit" were invented, which in later times have been 
the most potent instruments for the development and im- 
provement of the common law itself,^ yet so far as the 
legislature proposed to enlarge the scope of the law by 
the introduction of equitable principles and remedies, and 
thereby to stop the growth of the equitable jurisdiction of 
chancery, that purpose was wholly frustrated by the action 
of the law judges in construing and enforcing the statute. 
The main points in which this restrictive interpretation was 
made effective, so as to defeat the ultimate object of the 
statute, were the following: — 

§ 26. 1. The act permitted the framing of new writs in 
cases "falling under like law and requiring like remedy" 
with the existing ones. Upon this permissive language the 
courts put a highly restrictive meaning. As the common- 
law forms of action gave only three different kinds of reme- 
dies, every remedy obtained through the means of the new 
writs must be like one of these three species. Thus at one 
blow all power was denied of awarding to suitors any spe- 
cial equitable relief which did not fall within one or the 
other of these three classes, and parties who required such 
special forms of remedy were still compelled to seek them 
from another tribunal. The same was true, irrespective of 
the particular kinds of relief, of all cases which might arise, 
quite dissimilar in their facts and circumstances from those 
to which the existing forms of action applied; not falling 
under "like law," they were held to be without the scope 
of the statute, and the complainants could obtain no redress 
from the common-law courts. 

§ 25, II have elsewhere described the manner in which these new ac- 
tions were invented, — one of the most interesting events in the history of 
the English law. See Pomeroy's Introduction to Municipal Law, §§ 200- 


§ 27. 2. The statute only provided for new writs on bo- 
half of plaintiffs. As civilization progressed, and the rela- 
tions of men g-rew more intricate from increase of com- 
merce, trade, and other social activities, new defenses as 
well as new causes of action constantly arose. Although 
these were not within the letter of the act, they were fairly 
within its spirit. But the law courts adhered to the letter, 
and ignored the spirit. If, therefore, the new matter of 
defense did not fall within the prescribed formulas of the 
legal actions, and did not conform to the established rules 
defining legal defenses, the party must seek relief in some 
manner from the jurisdiction of the chancellor.^ 

§ 28. 3. Although the statute authorized the ' ' clerks of 
chancery" to frame the new writs, and seemed by implica- 
tion to confer upon them the absolute powers with respect 
to the matter which, it was conceded, were held by Parlia- 
ment, still the common-law judges assumed for themselves 
the same exclusive jurisdiction to pass upon the propriety 
and validity of the new writs which they had always exer- 
cised over those issued by the clerks prior to the statute. 
They did not regard the action of the chancery officials in 
sanctioning a writ which would give a new remedial right 
to the plaintiff as at all binding, and in fact rejected all the 
new writs contrived in pursuance of the statute, which did 
not closely conform to some one of the existing precedents. 
The chancery clerks, being ecclesiastics and acquainted with 
the Roman law, seem to have fashioned most of their new 
writs in imitation of the Roman formulm; but all these 
innovations upon the established methods the law courts 
refused to accept. 

§ 29. This legislation, however, produced in the course 
of time the most beneficial effects upon the development 

§ 27, 1 This jurisdiction, to be effective, would generally be exercised 
by means of enjoining the legal action brought against the party apply- 
ing to the chancellor, and in which his attempted defense had been 



of the common law itself, independently of the chancery 
jurisdiction. Upon the basis of certain new writs con- 
trived by the chancery clerks and adopted by the law 
judges, three additional legal actions were invented, "Tres- 
pass on the Case," and its branches or offshoots, "Trover," 
and "Assumpsit," which have been the most efficient and 
useful of all the forms of legal actions in promoting the 
growth of an enlightened national jurisprudence. With- 
out the action of ' ' Case ' ' applicable to an unlimited variety 
of wrongs, and affording an opportunity for enforcing the 
maxim, Ubi jus ihi remedium, and the action of "Assump- 
sit," by which the multiform contracts growing out of 
trade and commerce could be judicially enforced, it is safe 
to say that the common law of England would have re- 
mained stationary in the condition which it had reached 
at a time not later than the reign of Edward III. These 
two actions resembled the actiones bonce fidei of the Roman 
law, in admitting motives of natural right and justice for 
the decision of causes, instead of purely technical and arbi- 
trary rules of form. When at a still later day the prin- 
ciples of equity began to react upon the law, and the 
common-law judges freely applied these equitable doctrines 
in adjudicating upon legal rights, it was chiefly through 
these actions of Case and Assumpsit that the work of re- 
forming and reconstructing the common law was accom- 
plished. The actions of Trespass, Covenant, and Debt 
have remained, even to the present day, technical in their 
modes and arbitrary in their rules; but the actions of 
Case, Trover, and Assumpsit have been free from for- 
mal restraints, flexible in their adaptability, capable of 
being administered in conformity with equitable doctrines. 
Through their means, many of the rules which were origi- 
nally established by the Chancellor have been incorporated 
into the law, and are now mere legal commonplaces. i 

§ 29, 1 For au account of the origin and progress of these actions, see 
1 Spence's Eq. Jur., pp. 237-254; Pomeroy's. lutroduetion to Municipal 
Law, §§ 200-204. 


§ 30. Commencement and Progress of the Chancery Ju- 
risdiction. — I have thus far described the causes existing 
in the early condition of the common law, and in the 
attitude of the law courts, which rendered necessary a 
separate tribunal with an equitable jurisdiction, and a 
procedure capable of being adapted to a variety of cir- 
cumstances, and of awarding a variety of special remedies. 
I now proceed to state the origin of this tribunal, and the 
principal events connected with the establishment of its 

§ 31. Original Powers of the King's Council. — Under 
the early Norman kings, the Crown was aided by a Coun- 
cil of Barons and high ecclesiastics, which consisted of 
two branches, — the General Council, was was occasionally 
called together, and was the historical predecessor of the 
Parliament, and a Special Council, very much smaller in 
number, which was in constant attendance upon the King, 
and was the original of the present Privy Council. It was 
composed of certain high officials, as the Chancellor, the 
Treasurer, the Chief Justiciary, and other members named 
by the King. This Special Council aided the Crown in the 
exercise of its prerogative, which, as has been stated, em- 
braced a judicial function over matters that did not or 
could not come within the jurisdiction of the ordinary 
courts. The extent of this judicial prerogative of the 
King was, from its nature and from the unsettled condi- 
tion of the countr}^, very ill defined. It appears from an 
ancient writer that in the time of Heniy I. the Select 
Council generally took cognizance of those causes which 
the ordinary judges were incapable of determining. 
From later records it appears that the council acted on 
all applications to obtain redress for injuries and acts of 
oppression, wherever, from the heinousness of the offense, 
or the rank and power of the offender, or any other cause, 
it was probable that a fair trial in the ordinary courts 
would be impeded, and also wherever, by force and vio- 


leiice, the regular administration of justice was hindered. 
The council also seems to have had a jurisdiction in cases 
of fraud, deceit, and dishonesty, which were beyond the 
reach of common-law methods. It is evident, however, 
that this extraordinary^ jurisdiction of the King and coun- 
cil was not always exercised without opposition, especially 
when the matters in controversy fell within the authority 
of the common-law courts. 

§ 32. Original Common-law Jurisdiction of the Chan- 
cellor. — Side by side with this extraordinary or preroga- 
tive judicial function exercised by the King, or by the 
Select Council m his name and stead, there grew up a 
jurisdiction of the Chancellor. This is not the place to 
detail the numerous special powers of that officer, for we 
are only concerned with those which were judicial. It is 
certain that the Chancellor possessed and exercised an im- 
portant ordinary — that is, common-law — jurisdiction, simi- 
lar to that held by the common-law courts, and wholly 
independent of the extraordinary prerogative jurisdic- 
tion originally possessed by the King and council, and 
afterwards delegated to the Chancellor himself. The 
proceedings in causes arising before the Chancellor, under 
this, his ordinary jurisdiction, were commenced by com- 
mon-law process, and not by bill or petition; he could not 
summon a jury, but issues of fact in these proceedings 
were sent for trial before the King's Bench. When this 
ordinary common-law jurisdiction of the Chancellor com- 
menced is not known with certainty; it had risen in the 
reign of Edward III. to be extensive and important, and 
it had probably existed through several reigns. i^ 

§ 32, 1 Many of the cases appearing by the earliest records to have 
been decided by the Chancellor, and which have been regarded h\ some 
writers as showing that his equitable powers were then ill defined, and 
included matters of purely legal cognizance, should undoubtedly be re- 

§32, (a) This paragraph is cited Aliceville Lumber Co. (Ala.), 74 
in Alabama, T. & N. Ey. Co. v. South. 441. 


§ 33. Jurisdiction of Grace Transferred to the Chan- 
cellor. — In addition to this ordinary function as a com- 
mon-law judge, the Chancellor began at an early day to 
exercise the extraordinary jurisdiction — that of Grace — 
by delegation either from the King or from the Select 
Council. The commencement of this practice cannot be 
fixed with any precision. It is probable that the judicial 
power of the Chancellor as a law judge, and his conse- 
quent familiarity with the laws of the realm, and expe- 
rience in adjudicating, were the reasons why, when any 
case came before the King which appealed to his judicial 
prerogative, and which for any cause could not be prop- 
erly examined by the council, such case was naturally 
referred either by the Crown or by the council to the 
Chancellor for his sole decision. Wliatever may have 
been the motives, it is certain that the Chancellor's ex- 
traordinary equitable jurisdiction commenced in this 
manner. At first it was a tentative proceeding, governed 
by no rule, the reference being sometimes to the Chan- 
cellor alone, sometimes to him in connection with another 
official, and even occasionally to another official without 
the Chancellor. In the reign of Edward I., such refer- 
ences of cases coming before the King and council to the 
Chancellor, either alone or in connection with others, were 
very common, although the practice of selecting him alone 
had not yet become fixed. 

§ 34. The practice of delegating the cases which came 
before the prerogative judicial function of the Crown and 
its council to the Chancellor, for his sole decision, having 
once commenced, it rapidly grew, until it became the com- 
mon mode of dealing with such controversies. The fact 
that the attention of the King and of his high officials was 
constantly engaged in matters of state administration 

ferred to this his common-law, and not to his equitable, jurisdiction. He 
was, in fact, during this early period, and before the equitable jurisdiction 
became established, a common-laiv judge. 


rendered this method natural and even necessary. In the 
reign of Edward III., the Court of Chancery was in full 
operation as the ordinary tribunal for the decision of 
causes which required an exercise of the prerogative juris- 
diction, and the granting of special remedies which the 
common-law courts could not or would not give. Edward 
III. established this jurisdiction, which hitherto had been 
merely permissive, upon a legal and permanent founda- 
tion. In the twenty-second year of his reign, by a general 
writ, he ordered that all such matters as were of Grace 
should be referred to and dispatched by the Chancellor, or 
by the Keeper of the Privy Seal. The Court of Chancery, 
as a regular tribunal for the administering of equitable 
relief and extraordinary remedies, is usually spoken of as 
dating from this decree of King Edward III. ; but it is 
certain that the royal action was merely confirmatory of 
a process which had gone on through many preceding 

§ 35. The delegation made by this order of the King 
conferred a general authority to give relief in all matters, 
of what nature soever, requiring the exercise of the pre- 
rogative of Grace. This authority differed wholly from 
that upon which the jurisdiction of the law courts was 
based. These latter tribunals acquired jurisdiction in 
each case which came before them by virtue of a delega- 
tion from the Crown, contained in the particular writ on 
which the case was founded, and a writ for that purpose 
could only be issued in cases provided for by the positive 
rules of the common law. This was one of the funda- 
mental distinctions between the jurisdiction of the English 
common-law courts, under their ancient organization, and 
that of the English Court of Chancery. ^ The principles 

§ 35, 1 This distinction has never existed in the United States. The 
highest courts of law and of equity, both state and national, derive their 
jurisdiction either from the constitutions or from the statutes. There is 
no such thing as a delegation of authority from the executive or the 


upon whicli the Chancellor was to base his decision in con- 
troversies coming within the extraordinary jurisdiction 
thus conferred upon him were Honesty, Equity, and Con- 
science. 2 The usual mode of instituting suits in chancery 
became, from this time, that by bill or petition, without 
any writ issued on behalf of the plaintiff. 

§ 36. Development of the Equitable Jurisdiction. — 
Having thus shown the historical origin of the chancery 
as a court distinct from the common-law tribunals, I shall 
now describe the growth of the equitable jurisdiction until 
it became settled upon the certain basis of principles which 
has continued without substantial change to the present 
time. In the earliest periods the jurisdiction was ill de- 
fined, and was in some respects even much more extensive 
than it afterwards became when the relations between the 
equity and the common-law tribunals were finally adjusted. 
This was chiefly due to the troublous times, the distuii^ed 
condition of the country, while violence and oppression 
ever^^where prevailed, and the ordinary courts could give 
but little protection to the poor and the weak; when the 
powerful landowners were constantly invading the rights 
of their inferiors and overawing the local magistrates. In 
the reign of Richard II. the Chancellor actually exercised 
some criminal jurisdiction to repress violence, and re- 
strain the lawlessness of the great against the poor and 
helpless. He also entertained suits concerning land, for 

legislature to these courts; for the authority of the courts and of the 
other branches of the government is directly derived from the same 
source, — the organic body politic composing the state or the nation. 

§ 35, 2 The following ease illustrates the kind of matters brought be- 
fore the King and referred to the Chancellor : Lady Audley, without join- 
ing her husband, sued her father-in-law to obtain a specific performance 
of certain covenants in her favor in the deed of settlement made on her 
marriage. Nothing could be more opposed to common-law doctrines. 
This was in 35 Edward III., and it shows that two most important heads 
of equity jurisprudence were then known, — the protection of the wife's 
separate interests, and specific performance of contracts. See Sir F. Pal- 
grave's History of the Council, pp. 64, 67. 


the recovery of possession or the establishment of title, 
and even actions of trespass, when there had been dispos- 
session with great violence. ^ A strong opposition nat- 
urally arose to these alleged usurpations by the Chancel- 
lors; but they persevered as long as was necessary, and 
were supported by the King and council. 

§ 37. There were other reasons, inhering in the nature 
of its procedure and extent of its remedial functions, which 
operated to extend the authority and increase the business 
of the chancery court. It possessed and exercised the 
power, which belonged to no common-law court, of ascer- 
taining the facts in contested cases by an examination of 
the parties under oath, — the ''probing their consciences,'^ 
• — a method which gave it an enormous advantage in the 
discovery of truth, and which has only within our own 
times been extended to all other tribunals. Again, the 
Chancellor was able to grant the remedy of prevention, 
which was wholly beyond the capacity of the law courts; 
and he seems to have used this kind of relief with great 
freedom, unrestrained by the rules which have since been 
settled with respect to the injunction. As the business of 
the court increased and became regular and constant, the 
practice was established in the reign of Eichard II. of 
addressing the suitor's bills or petitions directly to the 
Chancellor, and not to the King or his council. During 
the same reign a statute was passed by Parliament for the 
purpose of regulating the business of the court and re- 
straining its action, which enacted that when persons were 
compelled to appear before the council or the chancery on 
suggestions found to be untrue, the Chancellor should have 
power to award damages against the complainant, in his 

§ 36, 1 The instances of the kind mentioned in the text are probably 
all referable to the notion, which seems to have been entertained by the 
early chancellors, that one important head of their jurisdiction, founded 
upon the principle of conscience, was the protection of the poor, weak, 
helpless, and oppressed against the rich and powerful. This early notion 
has left some traces in the subsequent equity jurisprudence. 


discretion.^ This statute was a solemn recognition by 
Parliament of the court as a distinct and permanent tri- 
bunal, having a separate jurisdiction and its own modes 
of procedure and of granting relief; and the enactment 
was an important event in the legal history of the chancery. 

§ 38. In the reign of Richard II., Uses first came dis- 
tinctly into notice and were brought under judicial cog- 
nizance. This species of interest in land was utterly un- 
known to the common law, and foreign to the feudal 
notions ; it was therefore ignored by the law courts, and fell 
under the exclusive control of chancery. As uses were de- 
rived, with much modification, from the Eoman law, the 
doctrines of that jurisprudence were naturally resorted to 
in deciding controversies respecting them, and in settling 
the rules for their government. The action of the law 
judges in banishing the Roman law from their courts, 
which has already been described, ^ also operated very 
powerfully to throw the consideration of these matters into 
the chancery, and greatly augmented and strengthened 
its authority. No one subject has contributed so much 
to enlarge and perfect the jurisdiction of the Court of 
Chancery as the uses thus surrendered to its exclusive cog- 
nizance. The principles which underlie them and the 
trusts which succeeded them have been extended to all de- 
partments of equity, and have been more efficient than any 
other cause in building up an harmonious system of equi- 
table jurisprudence in conformity with right and justice. 
These flexible principles have been applied to almost every 
relation of life atfecting property rights, and have been 
molded so as to meet the exigencies of the infinite variety 
of circumstances which arise from modern civilization. 
They have even reacted upon the common law, and have 
been recognized by the law judges in their settlement of 
the rules which govern the rights and obligations grow- 
ing out of contract. 

§ 37, 1 17 Rich. 11., chap. 6. 

g 38, 1 See ante, § 20. 


§ 39. In the reigns of Henry IV. and Henry V., the Com- 
mons, from time to time, complained that the Court of 
Chancery was usurping powers and invading the domain 
of the common-law judges. It is a very remarkable fact, 
however, that this opposition never went to the extent of 
denouncing the equity jurisdiction as wholly unnecessary; 
it was always conceded that the law courts could furnish 
no adequate remedy for certain classes of wrongs, and that 
a separate tribunal was therefore necessary. As the re- 
sult of these complaints, statutes were passed which for- 
bade the Chancellor from interfering in a few specified 
instances of legal cognizance, but did not abridge his gen- 
eral jurisdiction. In the reign of Edward IV. the Court 
of Chancery was in full operation; the mode of procedure 
by bill filed by the complainant, and a subpoena issued 
thereon to the defendant, was settled; and the principles 
of its equitable jurisdiction were ascertained and estab- 
lished upon the basis and with the limitations which have 
continued to the present time. No more opposition was 
made to the court by the Commons, although the law judges 
from time to time, until as late as the reign of James I., 
still denied the power of the Chancellor to interfere with 
matters pending before their own courts, and especially 
disputed his authority to restrain the proceedings in an 
action at law, by means of his injunction. This contro- 
versy between the law and the equity courts, with respect 
to the line which separates their jurisdictions, has in fact 
never been completeh^ settled; and perhaps it must neces- 
sarily continue until the two jurisdictions are blended into 
one, or at least are administered by the same judges in the 
same proceeding. ^ 

§ 39, 1 Wherever the distinctions between suits in equity and actions at 
law have been abolished, and equitable and legal rights may be enforced, 
and equitable and legal remedies may be obtained, in the same proceeding, 
we might suppose this contest would necessarily have disappeared, and it 
necessarily would have disappeared if the courts had carried out the 
plain intent of the legislation; unfortunately, however, in some of the 
states where this legislation has been adopted, the distinction between the 


§ 40. Abolition of the Court in England and in Many 
American States. — The court of equity, having existed as 
a separate tribunal for so many centuries, has at length 
disappeared in Great Britain and in most of the American 
states, and the reforming tendency of the present age is 
strongly towards an obliteration of the lines which have 
hitherto divided the two jurisdictions. By the recent 
legislation of England and of many of the states in this 
country, the separate tribunals of law and of equity have 
been abolished ; the two jurisdictions have been so far com- 
bined that both are administered by the same court and 
judge; legal and equitable rights are enforced and legal 
and equitable remedies are granted in one and the same 
action ; and the distinctions which hitherto existed between 
the two modes of procedure are as far as possible abro- 
gated, one kind of action being established for all judicial 
controversies. 1 

legal and equitable jurisdictions is kept up as sharply as though there 
were the separate tribunals, and the different systems of procedure. 

§ 40, 1 The English Judicature Act of 1873, already quoted, after unit- 
ing all the higher tribunals into one Supreme Court of Judicature, enacts 
that "in every civil cause or matter, law and equity shall be concurrently 
administered" by this court according to certain general rules; and that 
generally in all matters not particularly mentioned in other provisions of 
the act, in which there is any conflict or variance between the rules of 
equity and the rules of the common law, with reference to the same mat- 
ter, the rules of equity shall prevail: 36 & 37 Vict., chap. 66, §§ 24, 25. 
This great reform, which was inaugurated by New York in 1848, has 
been adopted by the states of Ohio, Kentucky, Indiana, Wisconsin, Iowa, 
Minnesota, Missouri, Kansas, Nebraska, Nevada, California, Oregon, 
North Carolina, South Carolina, Arkansas, Connecticut, Colorado, and 
by the territories of Washington, Montana, Idaho, Dakota, Wyoming, 
Arizona, Utah. The form of legislation which has generally been adopted 
is substantially the following: "The distinction between actions of law 
and suits in equity, and the forms of all such actions and suits heretofore 
existing, are abolished; and there shall be in this state hereafter but one 
form of action for the enforcement or protection of private rights and 
the redress of private wrongs, which shall be denominated a civil action." 
In two or three of the states a slight external distinction between legal 
and equitable actions is still preserved. Their codes of procedure contain 


§ 41. Equity Jurisdiction in Other American States. — 
In the national courts of the United States, and in most of 
the states which have not adopted the reformed procedure, 
the two departments of law and equity are still maintained 
distinct in their rules, in their procedure, and in their 
remedies; but the jurisdiction to administer both systems 

the following provision : "All forms of action are abolished ; but the pro- 
ceedings in a civil action may be of two kinds, 'ordinary' or 'equitable.' 
The plaintiff may prosecute his action by equitable proceedings in all 
cases where courts of equity had jurisdiction, and must so proceed in all 
cases where such jurisdiction was exclusive. In all other cases the plain- 
tiff must pi'osecute his action by ordinary proceedings. An error of the 
plaintiff as to the kind of proceedings adopted shall not cause the abate- 
ment or dismissal of the action, but merely a change into the proper pro- 
ceedings, and a transfer of the action to the proper docket. The provi- 
sions of this code concerning the prosecution of a civil action apply to 
both kinds of proceedings, whether ordinary or equitable." As one court 
has jurisdiction over both kinds of proceedings, it is plain that the dis- 
tinction here preserved is wholly superficial; it really goes no further 
than the designation to be put at the commencement of the plaintiff's 
pleading, and the placing the cause on the proper docket or trial list of 
the court. In 1879 Connecticut adopted a Practice Act, which contains 
the fundamental and essential features of the reformed system of pro- 
cedure, although it rather resembles the English Judicature Act than the 
Codes of Procedure in the various states, since it only enacts these funda- 
mental and essential principles, and leaves the details of practice to be 
regulated by rules established by the courts. It provides, in section 1, 
that there "shall be but one form of civil action" ; and in section 6 ; "All 
courts which are vested with jurisdiction, both at law and in equity, may 
hereafter, to the full extent of their respective jurisdictions, administer 
legal and equitable rights, and apply legal and equitable remedies, in 
favor of either party, in one and the same suit, so that legal and equi- 
table rights of the parties may be enforced and protected in one action; 
provided, that wherever there is any variance between the rules of equity 
and the rules of the common law, in reference to the same matter, the 
rules of equity shall prevail." It will be noticed that this last clause is 
the same in effect as one contained in the English Judicature Act, and 
this alone gives the Connecticut system a supei'iority over that prevailing 
in the other American states. It is remarkable that the codes of all the 
other states have not been amended hy the introduction of this most 
admirable provision. Equitable and legal defenses and counterclaims are 
also permitted. 


is possessed and exercised by the same tribunal, which in 
one case acts as a court of law, and in the other as a court 
of equity. The organization of the judiciary differs widely 
in the states of this class, and no attempt need be made to 
describe it. The procedure at law is based, although in 
most instances with extensive modifications, upon the old 
common-law method, and retains in whole or in part the 
ancient forms of action. The equity procedure is the same 
in its essential principles with that which long prevailed in 
the English Court of Chancery, but is much simplified in 
its details and rules. ^ 

§ 42. In a very few of the states the policy of separa- 
tion is still maintained. Law and equity are not only dis- 
tinct departments, but they are administered by different 
tribunals, substantially according to the system, both in 
respect to jurisdiction and procedure, which existed in 
England prior to the recent legislation. There is a court 
of general original jurisdiction at law, and another court 
of equity, consisting of one or more chancellors, and the 
two are entirely distinct in the persons of the judges, and 
in the judicial functions which they possess. Even in 
these states, however, there is generally but one appellate 
tribunal of last resort, which reviews on error the judg- 
ments of the law courts, and on appeal the decrees of the 

§ 41, 1 This mode of judicial organization and of maintaining the two 
jurisdictions with one tribunal has been adopted by the United States for 
the national judiciai-y, and by the following States : Connecticut, Florida, 
Georgia, Illinois, Maine, Maryland, Massachusetts, Michigan, New Hamp- 
shire, Pennsylvania, Rhode Island, Texas, Vermont, Virginia, West Vir- 
ginia. Connecticut no longer belongs to this class. By a statute of 1879 
the reformed procedure was, in its essential features, adopted : See ante, 
note to § 40. 

§ 42, 1 This system exists in Alabama, Delaware, Mississippi, New 
Jersey, Tennessee. 




§§ 48-54. 

§§ 55-58. 

§§ 59-61. 


§§ 63-67. 





Importance of a correct notion of equity. 

Various meanings given to the word. 

True meaning as a department of our jurisprudence. 

Theories of the early chancellors concerning equity as both supply- 
ing and correcting the common law. 

Sources from which the early chancellors took their doctrines; their 
notions of "conscience" as a ground of their authority. 

Equity finally established upon a basis of settled principles. 

How the equitable jurisdiction is determined at the present day. 

Eecapitulation : Nature of equity stated in four propositions. 

§ 43. Importance of a Correct Notion of Equity. — I pur- 
pose in this section to ascertain the nature of equity as it 
now exists in one of the great departments into which the 
law of the United States and of England is divided, and 
to fix its exact relations with the other department, which, 
by a most confusing use of terms, is called the "Law" or 
the "Common Law." This inquiry is not purely theo- 
retical; it is, on the contrarj^, in the highest degree prac- 
tical. An accurate conception of equity is indispensable 
to the due administration of justice. If a certain theory 
of its nature, which now prevails to some extent, should 
become universal, it would soon destroy all sense of cer- 
tainty and security which the citizen has, and should have, 
in respect to the existence and maintenance of his juridical 
rights. Since the combination of legal and equitable reme- 
dies in one judicial proceeding which has been effected in 
many of the states, the notion seems to have been revived, 
somewhat vague and undefined perhaps, but still widely 
diffused among the legal profession, that equity is noth- 
ing more or less than the power possessed by judges — 
and even the duty resting upon them — to decide every case 
according to a high standard of morality and abstract 
right; that is, the power and duty of the judge to do jus- 


tice to the individual parties in each case. This concep- 
tion of equity was known to the Roman jurists, and was 
described by the phrase, Arbitrium honi viri, which may 
be freely translated as the decision upon the facts and 
circumstances of a case which would be made by a man of 
intelligence and of high moral principle; and it was un- 
doubtedly the theory in respect to their own functions, 
commonly adopted and acted upon by the ecclesiastical 
chancellors during the earliest periods of the English 
Court of Chancery. It needs no argument to show that if 
this notion should become universally accepted as the true 
definition of equity, every decision would be a virtual arbi- 
tration, and all certainty in legal rules and security of legal 
rights would be lost.* 

§ 44. Various Meanings Given to the Word. — ^Before 
proceeding to examine the nature of English and American 
equity, as above stated, I shall briefly mention some of the 
meanings which have been given to the word, taken in its 
general sense, and not as designating a particular depart- 
ment of the municipal law. The original or root idea of 
the word, as first used by the Roman jurists, universality, 
and thence impartiality, has already been explained. 
From this fundamental notion, equity has come to be em- 
ployed with various special significations. It has been 
applied in the interpretation of statutes, when a legislative 
enactment is said to be interpreted equitably; or, as the 
expression often is, according to the equity of the statute. 
This takes place when the provisions of a statute, being 
perfectly clear, do not in terms embrace a case which, in 
the opinion of the judge, would have been embraced if the 
legislator had carried out his general desig-n. The judge, 
supplying the defective work of the legislator, interprets 
the statute extensively, or according to its equity, and 
treats it as though it actually did include the particular 

§ 43, (a) The text is quoted in L. E. A. 1917E, 633, 162 N. W. 399, 
Wade V. Major, 36 N. D. 331, dissenting opinion. 


case. The word was sometimes used in this sense by the 
Roman jurists, when applied to modes of interpretation, 
and also by the earlier English text-writers and judges; 
but is not often employed with such a meaning by writers 
of the present day. 

§ 45. Another signification sometimes given to equity is 
that of judicial impartiality ; the administration of the law 
according to its true spirit and import, uninfluenced by 
any extrinsic motives or circumstances ; the application of 
the law to particular cases, in conformity with the special 
intention or the general design of the legislator.^ A third 
meaning makes equity synonjTiious with natural law as 
that term is used by modern writers, or morality; so that 
it practically becomes the moral standard to which all law 
should conform. It is in this sense that the epithet 
''equitable" is constantly used, even at the present day, 
by judges and text-writers, in order to describe certain 
doctrines and rules which, it is supposed, will tend to pro- 
mote justice and right in the relations of mankind, or be- 
tween the litigant parties in a particular case.^ The only 
other signification which I shall mention does not greatly 
differ from the one last given. In that use of the term, 
equity is the unchangeable system of moral principles to 
which the law does or should conform; but in this use it 
rather describes the power belonging to the judge — a 
power which must, of course, be exercised according to 

§ 45, 1 In accordance with this conception, the following definitions have 
been given : "The application of the statute law to a given case, agreeably 
to the specific intention or the general design of the legislator." "^quitas 
nihil est quam benigna et humana juris scripti interpretation non ex verbis, 
sed a mente legislatoris facta." (Equity is nothing but the liberal and 
humane interpretation of the written law, made, not according to its words, 
but in conformity with the intent of the legislator.) "Benignius leges 
interpretandoe sunt, quo voluntas earum conservaretur." (Positive laws 
ought to be interpreted liberally, so that their design will be preserved.) 

§ 45, 2 It is with this meaning of the word that French jurists have said : 
"L'equite est V esprit de non lois"; and a Roman jurist said: ''JSquitas est 


liis own standard of right — to decide the cases before him 
in accordance with those principles of morality, and so us 
to promote justice between suitors, even though in thus 
deciding some rule of positive law should be violated or 
at least disregarded. This conception of equity regards 
it, not as a system of juridical principles and rules based 
upon morality, right, and justice, but rather as a special 
function or authority of the courts to dispense with fixed 
legal rules, to limit their generality, or to supplement their 
defects in particular cases, not in obedience to any higher 
and more comprehensive doctrines of the same positive 
iiational jurisprudence, but in obedience to the dictates 
of natural right, or morality, or conscience. ^ 

§ 46. True Meaning as a Department of Our Jurispru- 
dence. — I am now prepared to examine, and if possible de- 
termine, the true nature of equity considered as an estab- 
lished branch of our American as well as of the English 
jurisprudence. We are met at the very outset by numer- 
ous definitions and descriptions taken from old writers 
and judges of great ability and high authority, many of 
which are entirely incorrect and misleading, so far at 
least as they apply to the system which now exists, and 
has existed for several generations. These definitions 
attribute to equity an unbounded discretion, and a power 
over the law unrestrained by any rule but the conscience 
of the Chancellor, wholly incompatible with any certainty 
or security of private right. For the purpose of illus- 
trating these loose and inaccurate -conceptions, I have 

§45, 3 This theory was known to the Roman juridical writers; it was 
the notion constantly maintained by Cicero, who says : "^quitas est laxi- 
mentum juris," and traces of it are found throughout the Digest. It was 
universally adopted by the clerical chancellors in the earliest stages of the 
chancery jurisdiction; and the English equity commenced, and for a con- 
siderable period continued, its growth as a direct result of this conception : 
See 2 Austin on Jurisprudence, pp. 272-280. 


placed in the foot-note a number of extracts taken from 
the earlier writers.^ 

§46, 1 In the Doctor and Student (Dial. 1, cbap. 16), equity is thus 
described: "In some cases it is necessary to leave the words of the law, 
and to follow Avhat reason and justice requireth, and to that intent equity is 
ordained; that is to say, to temper and mitigate the rigor of the law. . . . 
And so it appeareth that equity taketh not away the very right, but only 
that that seemeth not to be right by the general words of the law. . . . 
Efjuity is righteousness that considereth all the particular circumstances of 
the deed, which is also tempered with the sweetness of mercy." In Grounds 
and Rudiments (pp. 5, 6) it is said: "As summum jus summa est injuria 
since it cannot consider circumstances, and as equity takes in all the circum- 
stances of the case, and judges of the whole matter according to good' 
conscience, this shows both the use and excellency of equity above any pre- 
scribed law. . . . Equity is that which is commonly called equal, just, and 
good, and is a mitigation and moderation of the common law in some cir- 
cumstances, either of the matter, person, or time; and often it dispenseth 
with the law itself. . . . The matters of which equity holdeth cognizance 
in its absolute power are such as are not remediable at law; and of them 
the sorts may be said to be as infinite almost as the different affairs con- 
versant in human life. . . . Equity is so extensive and various that every 
particular case in equity may be truly said to stand upon its own particular 
circumstances; and therefore, under favor, I apprehend precedents not 
of that great use in equity as some would contend, but that equity thereby 
may possibly be made too much a science for good conscience." In Finch's 
Law (p. 20) it is said: "The nature of equity is to amplify, enlarge, and 
add to the letter of the law"; and in the treatise called Eunomus (Dial. 3, 
§ 60) it was called "the power of moderating the summum jus." Lord 
Bacon adds the weight of his authority to this view, saying in one place : 
"Habent similiter Curias Praetorise potestatem tam subveniendi contra 
rigorem legis, quam supplendi defectum legis" (the court of chancery in 
like manner has the power as well of relieving against the rigor of the law 
as of suppljdng its defects); and in another: "Chancery is ordained to 
supply the law, and not to subvert the law." Lord Kames states the 
same theory without any limitation (Kames's Eq., Introd., pp. 12, 15) : 
"It appears now clearly that a court of equity commences at the limits 
of the common law and enforces benevolence where the law of nature makes 
it our duty. And thus a court of equity, accompanying the law of nature 
in its general refinements, enforces every natural duty that is not provided 
for at the common law. ... A court of equity boldlj^ undertakes to correct 
or mitigate the rigor, and what in a proper sense may be termed the injus- 
tice, of the common law." In the well-known treatise called Fonblanque 


§ 47. It is very certain that no court of chancery juris- 
diction would at the present day consciously and inten- 
tionally attempt to correct the rigor of the law or to supf)ly 
its defects, by deciding contrary to its settled rules, in any 
manner, to any extent, or under any circumstances beyond 
the already settled principles of equity jurisprudence.* 

on Equity, the author says (b. 1, chap. 1, § 3) : "So there will be a neces- 
sity of having recourse to natural principles, that what is wanting to the 
finite may be supplied out of that which is infinite. And this is properly 
what is called equity, in opposition to strict law. . . . And thus in chancery 
every particular case stands upon its own particular circumstances; and 
although the common law will not decree against the general rule of law, 
yet chancery doth, so as the example introduce not a general mischief. 
Every matter, therefore, that happens inconsistent with the design of the 
legislator, or is contrary to natural justice, may find relief here. For no 
man can be obliged to anything contrary to the law of nature ; and indeed, 
no man in his senses can be presumed willing to oblige another to it. But 
if the law hath determined a matter with all its circumstances, equity cannot 
intermeddle." The same large view of equity has sometimes been taken 
by the earlier judges, but not to any 'considerable extent since the Reforma- 
tion. The following example will suffice : In Dudley v. Dudley, Prec. Ch. 
241, 244, Sir John Trevor, M. R., said: "Now, equity is no part of the 
law, but a moral virtue which qualifies, moderates, and reforms the rigor, 
hardness, and edge of the law, and is a universal truth. It does also assist 
the law where it is defective and weak in the constitution, which is the 
life of the law; and defends the law from crafty evasions, delusions, and 
new subtleties invented and contrived to evade and delude the common 
law, whereby such as have undoubted right are made remediless. And 
this is the office of equity, to protect and support the common law from 
shifts and contrivances against the justice of the law. Equity, thei-efore, 
does not destroy the law, nor create it, but assists it." I shall end these 
citations by a quotation from Chancellor D'Aguesseau, the great French 
jurist (GEuvres, vol. 1, p. 138) : "Premier objet du legislateur, dopositaire 
de son esprit, compagne inseperable de la loi, I'equite ne pent jamais etre 
contraire a la loi meme. Tout ce que blesse cette equite, veritable source 
de toutes les lois, ne resiste pas moins a la justice." 

§ 47, (a) The text is quoted in in Sell v. West, 125 Mo. 621, 46 Am. 

Harper v. Clayton, 84 Md. 356, 57 St. Eep. 508, 28 S. W. 969; also in 

Am. St. Eep. 407, 35 L. K. A. 211, Wade v. Major, 36 N. D. 331, L. R. A. 

35 Atl. 1083; Henderson v. Hall, 134 1917E, 633, 162 N. W. 399, dissenting 

Ala. 455, 32 South. 840; and cited oinuiou. 


Those principles and doctrines may unquestionably be ex- 
tended to new facts and circumstances as they arise, which 
are analogous to facts and circumstances that have already 
been the subject-matter of judicial decision, but this pro- 
cess of growth is also carried on in exactly the same 
manner and to the same extent by the courts of law. Nor 
would a chancellor at the present day assume to decide 
the facts of a controversy according to his own standard 
of right and justice, independently of fixed rules, — he 
would not attempt to exercise the arhitrium honi viri; on 
the contrary, he is governed in his judicial functions by 
doctrines and rules embodied in precedents, and does not 
in this respect possess any greater liberty than the law 

§ 48. Theories of the Early Chancellors Concernini^ 
Equity. — It is nevertheless true that there was much in 
the proceedings of the early clerical and some of the lay 
chancellors which furnished a ground for the theories 
given in the foregoing note. In the commencement of the 
jurisdiction, and down to a time when the principles of 
equity as they now exist had become established, every 
decision made by chancery, every equitable doctrine which 
it declared, every equitable rule which it announced, was 
of necessity an innovation to a greater or less extent upon 
the then existing common law, sometimes supplying de- 
fects both with respect to primary rights and to remedies 
which the law did not recognize, and sometimes invading, 
disregarding, and overruling the law by enforcing rights 
or conferring remedies with respect to which the law was 
not silent, but which it actually denied and refused. The 
very growth of equity, as long as it was in its formative 
period, was from its essential nature an antagonism to 
the common law, either by way of adding doctrines and 
rules which the law simply did not contain, or by way of 
creating doctrines and rules contradictory to those which 
the law had settled and would have applied to the same 


facts and circumstances. It would be a downright absurd- 
ity, a flat contradiction to the plainest teachings of his- 
tory, to deny that the process of building up the system 
of equity involved and required on the part of the chan- 
cellors an invasion, disregard, and even open violation of 
many established rules of the common law; in no other 
way could the system of equity jurisprudence have been 
commenced and continued so as to arrive at its present 

§ 49. Nor can it be denied that the early clerical and 
even lay chancellors, in their first processes of innovating 
upon the law, and laying the foundations of equity, were 
constantly appealing to and governed by the eternal prin- 
ciples of absolute right, of a lofty Christian morality; 
that in these principles they sought and found the mate- 
rials for their decisions ; that they were ever guided in 
their work by Conscience, not by what has since been aptly 
termed the civil or judicial conscience of the court, but by 
their own individual consciences, by their moral sense 
apprehending what is right and wrong, by their own con- 
ceptions of bona fides. The very ground of the delegated 
authority required them to do so, and the function which 
they possessed and exercised was literally the arbitrium 
boni viri. In this manner the first precedents were made, 
and undoubtedly for a considerable space of time the de- 
cisions in chancery varied and fluctuated according to the 
personal capacity and high sense of right and justice pos- 
sessed by individual chancellors. In the lapse of time, 
however, the precedents had multiplied, and from the uni- 
versal conservative tendency of courts to be controlled by 
what has been already decided, a system of doctrines had 
developed and assumed a comprehensive shape; and 

§ 48, (a) The text is quoted in following paragraphs are cited, to 

Eoberson v. Eoehester Folding Box the effect that modern equity is a 

Co., 171 N. Y. 538, 546, 89 Am. St. system of settled rules, in McElroy 

Eep. 828, 59 L. R. A. 478, 64 N. E. v. Mastcrson (Miss.), 156 Fed. 36, 84 

442, by Parker, C. J. This and the C. C. A. 202. 


finally, when it Lad attained a reasonable completeness 
with respect to fundamental principles and general rules, 
this accumulation became the storehouse whence the chan- 
cellors obtained the material for their decisions, and both 
guided and restrained their judicial action. Wlien this 
time arrived, all "assumption that the Chancellor was to 
be governed by his own standard and conception of nat- 
ural justice disappeared from the court of equity, and 
individual conscience was no longer the motive power in 
that tribunal; The accuracy of this general account will 
appear from a brief review of what the early chancellors 
actually did during the formative period of their jurisdic- 
tion, and of the principles which they adopted in the prose- 
cution of their reformatory work. 

§ 50. In the original delegation of general authority by 
the Crown to the Chancellor, over matters falling under 
the King's judicial prerogative of grace, such authority 
was to be exercised according to Conscience, Equity, Good 
Faith, and Honesty. It was undoubtedly a maxim, even 
in the earliest times, that the equitable jurisdiction of 
chancery only extended to such matters as ivere not reme- 
diable by the common law. At the same time great lati- 
tude was used in determining what matters were not thus 
remediable. The chancellors therefore exercised a juris- 
diction which was supplementary to that of the law courts, 
and to this there was never any real opposition. At the 
same time they exercised a jurisdiction which was correc- 
tive of the law, and this was undoubtedly the most impor- 
tant part of their functions. It is absolutely certain from 
all the existing records, and from the result itself of their 
work, that they did not refrain from deciding any par- 
ticular case, according to their views of equity and good 
conscience, merely because the doctrine which they fol- 
lowed or established in making the decision was inconsis- 
tent with the rule of law applicable to the same facts, nor 
because the law had deliberately and intentionally refused 


to acknowledge the existence of a primary right, or to give 
a remedy under those facts and circumstances.^ * That 
this corrective authority was possessed by the chancellors, 
and freely exercised by them in the periods of which I am 
speaking, is recognized by the ancient writers. ^ 

§ 51. How far the early chancellors went in recognizing 
and upholding primary rights and granting remedies, 
which were not only overlooked, but were expressly denied, 
refused, and prohibited by positive and well-settled rules 
of the common law, is seen from a brief summary of a 
few instances in which such equitable doctrines were estab- 
lished in contradiction to legal dogmas. One executor or 
joint tenant might sue his coexecutor or cotenant in the 
Court of Chancery in respect to their joint interests, 
although forbidden to do so by the law.^ When an 
obligee, by reason of loss or other accident, could not pro- 
duce the bond, he was prohibited by an express rule of the 
law from maintaining an action upon it; but the Court of 
Chancery, upon proof of such facts, would grant him full 
relief, by enforcing the obligation. Conversely, if an 
obligor or other debtor upon a sealed instrument had paid 

§ 50, 1 Thus in a case before Chancellor Morton, Archbishop of Canter- 
burj^ in the reign of Henry VII., it was argued that he should grant no 
relief, because upon the facts in the case the common law admitted no 
right and gave no remedy. The Chancellor replied to this argument: "It 
is so in all cases where there is no remedy at the common law and no right, 
and yet a good remedy in equity." "Et per ceo nul remedy per comen 
ley, ergo ne per conscievs, issit est in tout cases nul remedy per comen ley 
ne nid droit et imcore bon remedy per consciens" : Yeai*-Book, 7 Hen. VII., 
fol. 12. 

§ 50, 2 Thus in Doctor and Student, which was written in the early part 
of the reign of Henry VIII., it is stated: "Conscience (i. e., equity) never 
resisteth the law nor addeth to it, but only when the law is directly in itself 
against the law of God or law of reason." 

§ 50, (a) The text is cited, to this § 51, (a) The text is cited in 

effect, in Fagan v. Troutman, 25 Peterson v. Vanderburgh, 77 Minn. 

Colo. App. 251, 138 Pac. 442, dissent- 218, 77 Am. St. Rep. 671, 79 N. W. 

ing opinion. 828. 


the debt in full, but had neglected to take a release or a 
surrender of the bond, the law held him still liable, and 
gave him no defense in an action brought to recover pay- 
ment of the debt a second time ; but chancery admitted and 
enforced this conscientious defense by restraining the 
creditor from prosecuting his legal action. Again, the 
Court of Chancery, acting upon its equitable principles, re- 
lieved parties in many instances from forfeitures which 
had been clearly incurred according to express rules of the 
law, and which courts of law still enforced according to 
the strictest letter of the provisions from which they re- 
sulted. Notwithstanding statutes wliich prohibited the 
Court of Chancery from reviewing judgments rendered by 
the courts of law, the Chancellor gave relief, where it was 
demanded by equity and good conscience, against, the 
operation of such judgments. He avoided the express 
prohibitory language of the statutes by not assuming to 
act directly upon the judgment itself, but upon the parties 
personally, by restraining the one who had recovered the 
judgment from taking or prosecuting any measures for its 
enforcement, and even by compelling him to restore the 
property which he had acquired by its means. There is 
no higher example of the equity jurisdiction than this, nor 
one which more directly interferes with the administration 
of the law, since the legal right controverted and over- 
thrown by chancery no longer existed in the form of an 
abstract rule, but had been established in a concrete form 
as the right existing between the parties. 

§ 52. In another class of cases, notwithstanding the 
general maxim that chancery should only have jurisdiction 
of such matters as were not remediable by the common law, 
the Chancellor interfered, and extended his authority over 
facts and circumstances for which a legal remedy was pro- 
vided, and gave a ditferent and more efficient remedy 
wholly unknown to the common law. The equitable rem- 
edy of specific performance of contracts, although the law 


gave the remedy of damages, is an illustration of this 
class. The whole doctrine of equity concerning uses, and 
afterwards concerning trusts, exhibits in the clearest light 
the action of the Chancellor, not only in supplementing 
but in evading and contradicting legal rules of the most 
positive and mandatory character. An estate was recog- 
nized and treated as the real, essential interest, which the 
law ignored; an owner was protected, and his rights of 
property were enforced, whom the law declared not to be 
the owner; and as a consequence, the feudal dogmas, the 
feudal incidents of landed proprietorship, and the right of 
the feudal lords, all of which the law upheld, were over- 
ruled and destroyed. Still another most remarkable illus- 
tration of the extent and manner in which the Court of 
Chancery invaded the rules and contradicted the policy of 
the common law was exhibited by its doctrine concerning 
the separate estate of married women, and their power to 
deal therewith as though they were unmarried. Nothing 
was more diametrically opposed to the principles of the 
ancient common law than this capacity to be a separate 
proprietor conferred upon the wife ; ^ and no equitable 
doctrine perhaps interfered with a greater number of legal 
rules concerning the status of marriage, and the proprie- 
tary rights of the husband which it created. The fore- 
going instances, which have been selected merely as 
examples, show beyond all possible doubt that the juris- 
diction of equity, while passing through its period of 
growth, was constantly exercised in relaxing, contradict- 
ing, and defeating legal rules which were deemed too 
harsh, unjust, and unconscientious in their practical opera- 
tion, as well as in supplying omissions, and granting reme- 
dies which the law courts were unable to administer. 

§ 52, 1 This equitable doctrine not only interfered with the legal rules 
as to property : it contradicted one of the principles which the common law 
regarded as the foundation of society, — the unity of the family produced 
by the absolute headship of the husband. Fleta (b. iii., chap. 3) expressly 
states the doctrine that conveyance to a stranger for the benefit of a mar- 
ried woman is void as being against the policy of the law. 


§ 53. While tlie early chancellors did much, they 
stopped very far short of consummating the work of re- 
form by extending it to the entire body of the common law. 
They left untouched, in full force and operation, a great 
number of legal rules which were certainly as harsh, un- 
just, and unconscientious as any of those which they did 
attack ; and their successors upon the chancery bench have 
never assumed to complete what they left unfinished. 
That task has since been accomplished, if at all, either by 
the legislature, or by the common-law courts themselves. 
Among these legal rules with which equity did not inter- 
fere, the following may be mentioned as illustrations : The 
doctrine by which the lands of a delator were generally 
exempted from all liability for his simple contract debts ;i 
the entire doctrine of collateral warranty, which was con- 
fessedly most unjust and harsh in its operation, and rest- 
ing wholly upon that kind of verbal reasoning which really 
had no meaning; 2 and in fact, most of the particular rules 
concerning real estate, which had been logically derived 
by the courts of law from the feudal institutions and cus- 
toms. There might, perhaps, have been a sufficient reason 
for leaving this latter mass of rules, as such, untouched. 
The introduction of uses, and afterwards of trusts, and the 
invention of the married woman's separate estate, with- 
drew the greater part of the land, so far as its actual en- 
joyment and control were concerned, from the operation 
of the common-law dogmas, and placed it under the do- 
main of equity; and as the Court of Chancery had an 
exclusive jurisdiction over these new species of estates, 
and treated them as the true ownerships, and in dealing 
with them disregarded the most objectionable of the feudal 

§ 53, 13 Black Com., p. 430. 

§ 53, 2 Lord Cowper said of this doctrine, in Earl of Bath v. Sherwin, 
10 Mod. 4: "A collateral wai-ranty was certainly one of the harshest and 
most cruel parts of the eomimon law, because there was no such pretended 
recompense (as in the case of a lineal warranty) ; yet I do not find that 
the court (of chancery) ever gave satisfaction." 


incidents, tlie cliancellors probably thought that these rules 
of the common law had been practically abrogated, or at 
least evaded en masse, and that there was therefore no 
necessity for any further attack upon them in detail. 

§ 54. Sir William Blackstone, citing these and some 
other instances in which the Court of Chancery refrained 
from interfering with legal doctrines, and using them as 
the basis of his argument, goes to the extent of denying 
that equity has or ever had any power to correct the com- 
mon law or to abate its rigor.^ This is one example among 
many of Blackstone 's utter inability to comprehend the real 
spirit and workings of the English law. That equity did 
to a large extent interfere with and prevent the practical 
operation of legal rules, and did thus furnish to suitors a 
corrective of the harshness and injustice of the common 
law, history and the very existing system incontestably 
show; and that the chancellors, from motives of policy or 
otherwise, refrained from exercising their reformatory 
function in certain instances, is not, in the face of the his- 

§ 54, 13 Blark. Com., p. 430. His lang^iage is : "It is said that it is 
the business of a court of equity in England to abate the rigor of the 
common law. But no such power is contended for. Hard was the case 
of a bond creditor whose debtor devised away his real estate ; rigorous and 
unjust the rule which put the devisee in a better condition than the heir; 
yet a court of equity had no power to interfere. Hard is the common law 
still subsisting that land devised or descending to the heir should not be 
liable to simple contract debts of the ancestor or devisor, although the 
money was laid out in the purchase of the very land; and that the father 
shall never immediately succeed as heir to the real estate of the son. But 
a court of equity can give no relief, though in both these instances the 
artificial reason of the law, arising from feudal principles, has long since 
ceased." The statement in this quotation, that "equity had no power to 
interfere," is merely a gratuitous assumption ; it certainly had the same 
power to interfere which it possessed and exercised in the case of an 
obligor who had paid the debt secured by his bond but had neglected to 
take a release. The most that can be truthfully said is, that "equity did 
not interfere." Blackstone, being purely a common-law lawyer, had little 
knowledge of equity, and his authority concerning its principles and juris- 
diction was never great. 


torical facts, any arg-ument against the existence of tlie 
power. And even in the present condition of equity as 
an established department of the national jurisprudence, 
whenever a court determines the rights of parties by en- 
forcing an equitable doctrine which differs from and per- 
haps conflicts with the legal rule applicable to the same 
facts, such court does still, in very truth, exercise a cor- 
rective function, and wield an authority by which it relieves 
the rigor and often the injustice of the common law. It is 
undoubtedly true that a court of equity no longer inaug-u- 
rates new attacks upon legal doctrines, and confines itself 
to the application of principles already settled; but it is 
none the less true that a large part of the equity which is 
daily administered consists in doctrines which modify and 
contradict as well as supplement the rules of the law.2 

§ 55. Sources from Which the Early Chancellors Took 
Their Doctrines. — Having thus described the action of the 
early chancellors in the formative period of their juris- 
diction, I shall now endeavor to explain the motives by 
which they were governed, and the speculative sources 
whence they drew their principles and constructed their 
doctrines. They were directed in their original delega- 
tion of authority, and they assumed, in compliance with the 
direction, to proceed according to Equity and Conscience. 
There can be no doubt that they took their conception of 
equity from the general description of it given by the 
Roman jurists, understood and interpreted, hoiuever, ac- 
cording to their oivn theory of morality as a Divine laiu, 
and also borrowed many of the particular rules by which 
this equity was applied from the Roman law. As the great 
Roman jurists, disciples of the Stoic philosophy, conceived 
of jEquitas as synonymous with the *' natural law," or ''lex 
naturce/' the governing spirit or reason of the universe 
{ratio mundi), and regarded it as a constituent part of 

§ 54, 2 See dictum of Sir George Jessel, M. R., in Johnson v. Crook, 
L. R. 12 Ch. Div. 639, 649, quoted jmst, in note to § 62. 


their national system, so the clerical chancellors, interpret- 
ing the language of the Roman jurists according to their 
own Christian philosophy, conceived of equity as synony- 
mous with the Divine law of morality, and therefore as 
compulsory upon human tribunals in their work of adjudi- 
cating upon the civil rights and regulating the personal 
conduct and relations of individuals. In this view, the 
authority and duty to decide according to equity (as dis- 
tinguished from conscience) seems to have embraced all 
those cases in which a party, without having committed 
any act which would be considered as contrary to conscience 
or good faith, might yet, by the rigorous provisions of the 
positive law, or by its silence, — the particular case not hav- 
ing been provided for at all, — have obtained an advantage 
which it was contrary to the principles of equity that he 
should be permitted to enforce or to retain. In such cases, 
the general principles of equity, which were found in the 
rules of morality, and were superior to all merely human 
law, were invoked. If the rigor of the law favored the 
position of a party who had committed any unconscientious 
act or breach of good faith, the one who had suffered 
thereby would be relieved under the head of ''conscience" 
as well as of ''equity." ^ 

§ 56. The conception of "Conscience" as an element in 
determining jural relations was wholly due to the clerical 
courts. In its practical operation and results, however, 
conscience, considered as a source of the equity jurisdic- 
tion, was synonymous with the "good faith," ''bona fides," 
which forms so important a feature in the later and philo- 
sophical Roman jurisprudence. It embraced all those obli- 
gations which rested upon a person who, from the circum- 
stances in which he was placed towards another and the 
relations subsisting between them, was bound to exercise 
good faith in his conduct and dealings with that other per- 
son. Under the head of conscience as thus understood, a 

§ 55, 1 See 1 Spence's Eq. Jur., pp. 412, 413. 


wide field of jurisdiction was opened, wliicli included all 
departures from honesty and uprightness.^ 

j § 57. The question is naturally suggested, whether this 
** conscience" was interpreted as the personal conscience 
of the individual chancellor, or whether it was a kind of 
judicial conscience, limited by and acting according to 
definite rules, and constituting a fixed and common stand- 
ard of right recognized and followed by all the equity 
judges. Beyond a doubt, during the infancy of the juris- 
diction, the former of these conceptions was the prevailing 
one, and each Chancellor was governed in his judicial work 
by his own notions of right, good faith, and obligation, by 
his own interpretation of the Divine code of morality. 
Even during the reigns of Henry VIII. and of Elizabeth, 
some of the chancellors seem to have taken a view of their 
authority which freed them from the restraints of prece- 
dent and even of principle, and enabled them to decide 
according to their private standard of right. It was this 
mistaken theory, so satisfying to an ambitious and self- 
reliant judge, but so dangerous to the equable and certain 
administration of justice, which provoked the sarcastic 
criticism of Selden so often quoted, and so often applied, 
in complete ignorance either of the subject or the occasion, 
to the equity jurisdiction in general. ^ After the period of 
infancy was passed, and an orderly system of equitable 
principles, doctrines, and rules began to be developed out 
of the increasing mass of precedents, this theory of a per- 

§ 56, 1 See 1 Spence's Eq. Jur., p. 411. 

§ 57, 1 Table Talk, tit. Equity : "Equity is a rogaiish thing. For law 
we have a measure, and know what we trust to. Equity is according to 
the conscience of him that is Chancellor; and as that is larger or naiTower, 
so is equity. 'T is all one as if they should make his foot the standard 
for the measure we call a Chancellor's foot. What an uncertain measure 
would this be! One Chancellor has a long foot, another a short foot, a 
third an indifferent foot. 'T is the same thing in the Chancellor's con- 
science." Mr. Spence very truly remarks: "Selden, better than any man 
living, perhaps, knew what equity really was." 


sonal conscience was abandoned; and tlie ''conscience" 
which is an element of the equitable jurisdiction came to 
be regarded, and has so continued to the present day, as 
a metaphorical term, designating the common standard 
of civil right and expediency combined, based upon gen- 
eral principles and limited by established doctrines, to 
which the court appeals, and by which it tests the conduct 
and rights of suitors, — a juridical and not a personal con- 
science.^- This theory was at length announced by Lord 
Nottingham as the one which regulated the equity jurisdic- 
tion: ''"With such a conscience as is only naturalis and in- 
terna, this court has nothing to do; the conscience by which 
I am to proceed is merely civilis and politica, and tied to 
certain measures. "^ 

§58. After "conscience" became thus defined as a 
common civil standard, it was practically the same as 
"equity"; the distinctions between them had disappeared, 
and both terms were and have since been used interchange- 
ably. From the time of Henry VI., precedents of decisions 
made in the Court of Chancery were recorded in the Year- 
Books, and special collections of them were made in the 
reigns of Elizabeth, James I., and Charles I. By the time 
of Charles I. the number of precedents had so accumulated, 
either in published or in private collections, or handed 
down traditionally, that they substantially contained the 
entire principles of equity, and the chancellors yielded 
almost wholly to their guidance. In fact, they sometimes 
fell into the mistake of refusing relief in a case plainly 
within the scope of established principles, because there 
was no precedent which exactly squared with the facts in 

§ 57, 2 Cook V. Fountain, 3 Swanst. 585, 600 (1676). 

§57, (a) The text is quoted in N. E. 442, by Parker, C. J. This 

Eoberson v. Rochester Folding Box paragraph is cited in International 

Co., 171 N. Y. 538, 546, 89 Am. St. Paper Co. v. Bellows Falls Canal Co., 

Eep. 828, 832, 59 L. R. A. 478, G4 SS Vt. 93, 90 Atl. 943. 


§ 59. Equity Finally Established upon a Basis of Settled 
Principles. — The result of this review is very clear, and 
enables us to define with accuracy the general character 
of 'the English and American equity. After its growth had 
proceeded so far that its important principles were all de- 
veloped, equity became a system of positive jurisprudence, 
peculiar indeed, and differing from the common law, but 
founded upon and contained in the mass of cases already 
decided. The Chancellor was no longer influenced by his 
own conscience, or governed by his own interpretation of 
the Divine morality. He sought for the doctrines of equity 
as they had already been promulgated, and applied tliem 
to each case which came before him. No doubt (and this 
is a point of the highest importance) the system was, and 
is, much more elastic and capable of expansion and exten- 
sion to new cases than the common law. Its very central 
principles, its foundation upon the eternal verities of right 
and justice, its resting upon the truths of morality rather 
than upon arbitrary customs and rigid dogmas, necessarily 
gave it this character of flexibility, and permitted its doc- 
trines to be enlarged so as to embrace new cases as they 
constantly arose. It has, therefore, as an essential part 
of its nature, a capacity of orderly and regular growth, — 
a growth not arbitrary, according to the will of individual 
judges, but in the direction of its already settled principles. 
It is ever reaching out and expanding its doctrines so as 
to cover new facts and relations, but still without any break 
or change in the principles or doctrines themselves. It 
is certainly, therefore, a mistaken theory which is main- 
tained by many writers like Blackstone, and even by those 
of a later day and higher authority, and which represents 
the English and American equity as entirely an artificial 
system, embodied wholly in unyielding precedents, and 
incapable of further development. It is true that there 
can be no more capricious enlargement according to the 
will of individual chancellors; but the principles of right, 
justice, and morality, which were originally adopted, and 


have ever since remained, as tlie central forces of equity, 
gave it a necessary and continuous power of orderly ex- 
pansion, which cannot be lost until these truths themselves 
are forgotten, and banished from the courts of chancery.^ * 

§ 60. The general language of some writers, and par- 
ticularly of Blackstone, presents an erroneous theory as 
to the office of precedents in equity, and if followed, would 
check and abridge the beneficent operation of its jurisdic- 

§ 09, 1 Tlie dootrine of the text was clearly stated by Lord Redesdale, 
in Bond v. Hopkins, 1 Sehoales & L. 413, 429 : "There are eertam prin- 
ciples on wliich courts of eqnity act, which are very well settled. The cases 
which occur are various, but they are decided on fixed principles. Coui'ts 
of equity have in this respect no more discretionary power than courts of 
common law. They decide new cases as they arise, by the principles on 
which former eases have been decided, and may thus illustrate or enlarge 
the operation of these principles, but the principles are as fixed and certain 
as the principles on which the courts of common law proceed." In Gee 
v. Pritchard, 2 Swanst. 402, 414, Lord Eldon states the same theory : "The 
doctrines of this court ought to be as well settled and made as uniform 
almost as those of the common law, laying down fixed principles, hut talcing 
care that they are to he applied according to the circumstances of each 
particular case." The old case of Fry v. Porter, 1 Mod. 300, 307 (22 Car. 
II.), exhibits the strange notions concerning equity then held by the 
common-law judges. On the hearing, Chief Justice Keylinge, Chief Jus- 
tice Vaughan, and Chief Baron Hale wei-e called in to assist. During 
the argument C. J. Keylinge cited an old case; at which C. J. Vaughan 
said : "I wonder to hear of citing precedents in matter of equity, for if 
there be equity in a case, that equity is a universal truth, and there can 
be no precedent in it, so that in any precedent that can be produced, if it 
be the same with this case, the reason and equity is the same in itself; 
and if the precedent be not the same case with this, it is not to be cited." 
To this Lord Keeper Bridgman replied: "Certainly, precedents ai'e very 
necessary and useful to us, for in them we may find the reasons of the 
equity to guide us; and besides, the authority of those w4io made them 
is much to be regarded. We shall suppose that they did it upon great 
consideration and weighing of the matter, and it would be veiy strange and 
very ill if we should disturb and set aside what has been the course for a 
long series of time and ages." 

§ 59, (a) The text is cited in 251, 138 Pac. 442, dissenting opin- 
Fagan T. Troutman, 25 Colo. App. ion. 


tion. The true function of precedents is that of illustrat- 
ing principles ; they are examples of the manner and extent 
to which principles have been applied; they are the land- 
marks by which the court determines the course and direc- 
tion in which principles have been carried. But with all 
this guiding, limiting, and restraining efficacy of prior de- 
cisions, the Chancellor always has had, and always must 
have, a certain power and freedom of action, not possessed 
by the courts of law, of adapting the doctrines which he 
administers. He can extend those doctrines to new rela- 
tions, and shape his remedies to new circumstances, if the 
relations and circumstances come within the principles of 
equity, where a court of law in analogous cases would be 
powerless to give any relief. In fact, there is no limit to 
the various forms and kinds of specific remedy which he 
may grant, adapted to novel conditions of right and obli- 
gation, which are constantly arising from the movements 
of society.^ "While it must be admitted that the broad and 
fruitful principles of equity have been established, and can- 
not be changed by any judicial action, still it should never 
be forgotten that these principles, based as they are upon 
a Divine morality, possess an inherent vitality and a capa- 
city of expansion, so as ever to meet the wants of a pro- 
gressive civilization. Lord Hardwicke, who was, I think, 
the greatest of the English chancery judges, and who, far 
more than Lord Eldon was penetrated by the genius of 
equity, indicated the true theory in a letter to Lord Karnes : 
''Some general rules there ought to be, for otherwise the 
great inconvenience of jus vaguni et incertum will follow. 
And yet the Praetor [Chancellor] must not be so absolutely 
and invariably bound by them as the judges are by the 
rules of the common law. For if he were so bound, the 

§ 60, (a) This paragraph ia cited, boldt Savings Bank V: McCleverty, 

to the effect that equity may so mold 161 Cal. 285, 119 Pac. 82; and in 

and adjust its decree as to award Fagan v. Troutman, 25 Colo. App. 

substantial justice according to the 251, 138 Pac. 442, dissenting opinion, 
requirements of the case, in Hum- 


consequence would follow that lie must sometimes pro- 
nounce decrees which would be materially unjust, since no 
rule can be equally just in the application to a whole class 
of cases that are far from being the same in every cir- 

§ 61. I have thus far described the growth of equity, 
and the shape which it finally assumed in the English Mu- 
nicipal Law, and as it was thence borrowed by the Ameri- 
can states, with but little reference to judicial opinions. I 
have supplied this intentional omission by collecting in the 
foot-note a number of extracts in which eminent judges 
have expressed their conceptions of its nature. Some of 
these judges have attempted to place the subject upon a 
broad and secure foundation. While there is a general 
unanimity in their views, it is still impossible to reconcile 
all the judicial opinions, and some of them maintain a 
theory of the jurisdiction which is certainly too partial 
and restricted.^ 

§ 60, 1 Parke's Histoi-y of Chancery, pp. 501, 506. Judge Story severely 
criticises this language, pronounces it very loosely said, and virtually 
repudiates it. But with all deference to Judge Story, these few sentences, 
although undoubtedly not written in a scientific form, contain the central 
truth of the system, the truth which must always be recognized and acted 
upon in the administration of equity. Lord Hardwicke does not deny the 
existence nor the necessity of general principles, — no other Chancellor was 
ever more governed in his judicial work by principles, — but he would 
guard against the theoi-y which locks these principles up in the already 
existing precedents, and limits their free application to facts, circum- 
stances, and relations similar to those which had been the subject-matter 
of former adjudications. In other words. Lord Hardwicke in this short 
passage states the same view which I had given in the text. Although 
equity is and long has been in eveiy sense of the word a system, and 
, although it is impossible that any new general principles should be added 
to it, yet the truth stands, and always must stand, that the final object of 
equity is to do right and justice. 

§ 61, 1 In Cowper v. Cowper, 2 P. Wms. 720, 753, Sir Joseph Jekyl, 
M. R., defined the scope and powers of equity as follows: "The law is 
clear, and courts of equity ought to follow it in their judgments concerning 
titles to equitable estates; othenvise great uncertainty and confusion would 


§ 62. How the Equitable Jurisdiction is Detennined at 
the Present Day. — Although the jurisdiction of chancery 
was originally based in great measure upon the omissions 
of the common law, the injustice of many of its rules, and 
its inabilit}", from its modes of procedure, to grant the 
variety of remedies adequate to the wants of society and 
the demands of justice, yet since the equitable system has 
become fully established, and its principles settled, this 
origin of the jurisdiction is no longer regarded as furnish- 
ing the real criterion. The whole question by which the 

ensue. And though proceedings in equity are said to be secundum discre- 
tionem boni viri, yet when it is asked, Vir bonus est quis? the answer is, 
Qui consulta patrum, qui leges juraque servat. (Who is the good man? 
He who maintains the opinions of his predecessors, and the laws and 
decisions.) And it is said in Rook's Case, 5 Coke, 99b, that discretion is a 
science not to act arbitrarily, according to men's wills and private affections. 
So the discretion which is executed here is to be governed by the rules 
of law and equity, which are not to oppose, but each in its turn to be 
subservient to, the other. This disci'etion, in some cases, follows the law 
implicitly ; in others, assists it and advances the remedy ; in others, again, it 
relieves against the abuse, or allays the rigor of it; but in no case does it 
contradict or overturn the grounds or principles thereof, as has been some- 
times ignorantly imputed to this court. That is a discretion ai*y power 
which neither this nor any other court, not even the highest, acting in 
a judicial capacity, is by the constitution entrusted with." This language 
was expressly adopted and approved by Sir Thomas Clarke, M. R., in 
Burgess v. Wheate, 1 W. Black. 123, 152. The general propositions at 
the beginning of this extract are undoubtedly correct; but it is strange 
that, in the face of the equitable doctrines concerning uses and trusts, 
or the separate estates of married women, or the enforcing of contracts 
void by the statute of frauds, or the relief anciently given to an obligor 
who had paid the debt without taking a release, and numerous other 
instances, some of which have been mentioned in the text, — it is strange, 
I say, in the face of all these facts, that an equity judge could lay down 
a proposition so palpably untrue as the one just quoted, that in no case 
does equity contradict or overturn the grounds and principles of the 
law; a gi-eat part of its doctrines being in direct contradiction to the 
rules of law governing the same circumstances at the time when these 
doctrines were first enunciated. Lord Hardwicke, who always looked at 
the reality, and not at mere conventional formulas, stated the true relation 
between equity and the law in a short but pregnant proposition. It 


extent of the equity jurisdiction is practically determined 
is no longer, whether the case is omitted by the law, or 
the legal rule is unjust, or even the legal remedy is in- 
adequate, — although the latter inquiry is still sometimes 
made and treated as though it were controlling, — the ques- 
tion is, rather, whether the circumstances and relations 
presented by the particular case are fairly embraced within 
any of the settled principles and heads of jurisdiction 
which are generally acknowledged as constituting the 

being argued in a case before him that equity follows the law, JEquitas 
sequitur legem, he replied: "When the court finds the rules of the law 
right it will follow them ; but then it will likewise go bej'ond them" : Paget 
V. Gee, Ambl. App. 807, 810. In the ease of Manning v. Manning, 1 
Johns. Ch. 530, Chancellor Kent explained his own position as an Amer- 
ican chancellor, and his conception of equity as a whole : "I take this 
occasion to observe that I consider myself bound by these principles, 
which were known and established as law in the courts of equity in 
England at the time of the institution of this court, and I shall certainly 
not presume to strike into any new path with visionary schemes of inno- 
vation and improvement; Via antiqua via est tuta. . . . This court ought 
to be as much bound as a court of law by a course of decisions applicable 
to the ease, and establishing a ri;le. As early as the time of Lord Keeper 
Bridgman, it was held that precedents were of authority (1 Mod. 307. 
See the citation ante, in the note under §59). The system of equity 
principles which has grown up and become matured in England, and 
chiefly since Lord Nottingham was appointed to the custody of the gi-eat 
seal, is a scientific system, being the result of the reason and the labors 
of learned men for a succession of ages. It contains the most enlarged 
and liberal views of justice, with a mixture of positive and technical 
rules founded in public policy, and indispensable in every municipal 
code. It is the duty of this court to apply the principles of this system 
to individual cases as they may arise, and by this means endeavor to 
transplant and incorporate all that is applicable in that system into the 
body of our own judicial annals, by a series of decisions at home." The 
propositions here quoted are undoubtedly true, and yet the feeling can- 
not be avoided that they do not represent the entire truth. The character 
of Chancellor Kent's mind was eminently conservative; and this con- 
servative tendency has led him to suppress, or at least to refrain from 
expressing, the element of vitality and expansion which inheres in the 
system, and the power of the court in its fullness to enlarge the equitable 
])rinciples, to extend them over new facts and relations, and to render 
them fruitful in the constant production of new rules. 


department of equity.^^ Two results therefore follow: 
First, a court of equity will not, unless perhaps in some 
very exceptional case, assume jurisdiction over a contro- 
versy the facts of which do not bring it within some general 
principle or acknowledged head of the equitable jurispru- 
dence; and secondly, if the circumstances do bring the case 
within any of these principles or heads, a jurisdiction over 
it will be maintained, although the law may have been so 
altered by judicial action or by positive legislation that it 
has supplied the original omission, or has brought the legal 

§ 62, 1 The position which I maintain is well illustrated by a dictum 
of Jessel, M. R., — one of the most clear-headed and able judges of this 
generation, — in the recent ease of Johnson v. Crook, L. R. 12 Ch. Div. 
639, 649. He is discussing the question whether a certain rule of equity 
jurisprudence had been established, and has cited a series of decisions 
to show that it had not been established, but that the contrary rule had 
been acted upon. He then adds : "Having examined all the authorities, 
I cannot find a trace of it (i. e., the rule in question) before the case 
I am about to mention, and therefore if there is such a law it must have 
been made in the year 1866. Now, it could only have been made in the 
year 1866 by statute, because in the year 1866 equity judges did not 
profess to make new law, and when they state what the law is, they do 
not mean, as might have been said two or three centuries before, that 
that was law which they thought ought to be law." To avoid a mis- 
understanding of this position, it must be remembered that I am speaking 
of the equity system as a whole, as it exists in England, and in those 
American states which have clothed their courts with the entire equitable 
jurisdiction of the chancery. In several of the states, a partial jurisdic- 
tion only has been gi-anted, and it is by the express language of the 
statutes restricted to those cases in which an adequate remedy cannot be 
obtained at law. In giving a construction to this legislation, the ques- 
tion whether the legal remedy is adequate becomes of great practical 
importance. This subject, as to the extent of the jurisdiction, which is 
here merely alluded to, will be fully examined in a subsequent chapter. 

§ 62, (a) The text is quoted and peal, 72 N. J. E'q. 910, 14 L. K. A. 

followed in the interesting case of (N. S.) 30-1, 67 Atl. 97; quoted, also, 

Vanderbilt v. Mitchell, 71 N. .J. Eq. in Wagner v. Armstrong, 93 Ohio St. 

632, 63 Atl. 1107 (no jurisdiction to 443, 113 N. E. 397. See, also, Earle 

cancel or correct a birth certificate v. American Sugar Refining Co., 74 

in which the plaintiff is falsely N, J. Eq. 751, 71 Atl. 391, 395. 
named as father), reversed on ap- ' 


rule into a conformity with justice, or has furnished an 
adequate legal remedy. This latter proposition is true as 
the general doctrine concerning the extent of the equity 
jurisdiction, but its operation has sometimes been pre- 
vented, and the jurisdiction itself denied, in such cases by 
express statute.^ ^ 

§ 63. Recapitulation: Nature of Equity Stated in Four 
Propositions. — I shall bring this examination into the gen- 
eral nature of equity to an end by formulating four dis- 
tinct propositions : 1. The moral law, as such, is not an 
element of the human law. Whatever be the name under 
which it is described, — the moral law, the natural law, the 
law of nature, the principles of right and justice — this code, 
which is of divine origin, and which is undoubtedly compul- 
sory upon all mankind in their personal relations, is not 
per se or ex propria vigore a part of the positive jurispru- 
dence which, under the name of the municipal law, each 
independent state has set for the government of its own 
body politic. This truth, so simple and so plain, and yet 
so often forgotten by text-writers and judges, removes at 
once all doubt and difficulty from a clear conception of the 
positive human law, and of its relations with the higher 
and divine law which we call morality. Speculative writers 
upon the natural law may well see in it the foundation of 
all perfected human legislation, and it is not surprising 
that they should confound the two. It is surprising that 
those who treat of the human jurisprudence alone, and 

§ 62, 2 In support of tlie general doctrine, see Shotwell v. Smith. 20 
N. J. Eq. 79 ; Segar v. Parish, 20 Gratt. 672 ; Pratt v. Pond, 5 Allen, 59 ; 
King V. Baldwin, 2 Johns. Ch. 554; Cannon v. McNab, 48 Ala. 99; 
Collins V. Blantern, 2 Wils. 341; Bromley v. Holland, 7 Ves. 19, 21; 
Atkinson v. Leonard, 3 Brown Ch. 218. But, per contra, see Ainsley 
V. Mead, 3 Lans. 116; HaU v. Joiner, 1 Rich. (N. S.) 186; Riopelle v. 
Doellner, 26 Mich. 102. 

§ 62, (b) The text is cited in quoted in Wagner v. Armstrong, 93 
Wheeler v. Ocker & Ford Mfg. Co., Ohio St. 443, 113 N. &. 397 (parti- 
162 Mich. 204, 127 N. W. 332; and tion is still an equitable remedy). 


especially, those who administer that jurisprudence, should 
confound the commands uttered by the divine Law-giver 
with those issued by human law-makers. It is true that 
many of the precepts of this moral code relate to man- 
kind considered as members of an organized society, — the 
state, — and prescribe the obligations which belong to them 
as component parts of a national body ; and therefore these 
precepts are jural in their nature and design, and the 
duties which they impose upon individuals are of the same 
kind as those imposed by the human authority of the state. 
It is also true that human legislation ought to conform it- 
self to and embody these jural precepts of the moral code ; 
every legislator, whether he legislate in a Parliament or 
on the judicial bench, ought to find the source and mate- 
rial of the rules he lays down in these principles of mor- 
ality; and it is certain that the progress towards a per- 
fection of development in every municipal law consists in 
its gradually throwing off what is arbitrary, formal, and 
unjust, and its adopting instead those rules and doctrines 
which are in agreement with the eternal principles of right 
and morality. But it is no less true that until this work 
of legislation has b'^en done, until the human law-giver has 
thus borrowed the rules of morality, and embodied them 
into the municipal jurisprudence by giving them a human 
sanction, morality is not binding upon the citizens of a 
state as a part of the law of that state. In every existing 
municipal law belonging to a civilized nation, this work of 
adaptation and incorporation has been performed to a 
greater or less degree. 

§ 64. 2. Another very large portion of the precepts of 
morality are not jural in their nature; they do not relate 
to mankind considered as forming a society, as organized 
into a state, but only to individuals, prescribing their per- 
sonal duties towards each other and towards God. These 
moral precepts create obligations resting upon separate 
persons, which the state and human law do not and cannot 


recognize or enforce; and they are left to be enforced solely 
by the divine sanction, acting in and upon the conscience 
of each person. Such obligations are often called "im- 
perfect," which is in every point of view a very incor- 
rect and misleading designation. Eegarded as parts of 
the divine code of morals, and as enforced by the divine 
sanction, they are as ''perfect" and binding as any others; 
considered as parts of human jurisprudence to be en- 
forced by human sanction, they are not simply imperfect, 
but are absolutely non-existent; they are no obligations 
at all. With this entire class of moral rules and pre- 
cepts the law of the state does not and cannot deal; they 
do not act within the sphere of human legislation ; they are 
not jural principles. The question then arises, Does the 
system of equity established in the United States and in 
England contain all the jural principles of morality which 
have been borrowed and incorporated into the municipal 
jurisprudence? The answer to this inquiry is contained 
in the two following propositions. 

§65. 3. "Equity" alone does not embrace all of the 
jural moral precepts which have been made active prin- 
ciples in the municipal jurisprudence. The "law," even 
the "common law," as distinct from statutory legislation, 
has in the course of its development adopted moral rules, 
principles of natural justice and equity, notions of abstract 
right, as the foundation of its doctrines, and has infused 
them into the mass of its particular rules. Unquestionably 
at an early day the common law of England had compara- 
tively little of this moral element; it abounded in arbitrary 
dogmas, as, for example, the effect given to the presence 
or absence of a seal; but this was the fault of the age, 
and the sin was chiefly one of omission; the ancient law 
was, after all, rather unmoral than immoral. But this 
has been changed, and at the present day a large part of the 
"law" is motived by considerations of justice, based upon 
notions of right, and permeated by equitable principles, 


as truly and to as great an extent as the complementary 
department of the national jurisprudence which is tech- 
nically called ''equity." This work of elevating the law 
has been accomplished by two distinct agencies, judicial 
legislation and parliamentary legislation. At the present 
day the latter agency is the most active and by far the most 
productive; but prior to the epoch of conscious legal re- 
form, which began in England about 1830, and at a con- 
siderably earlier day in this country, the great work of 
legislation within the domain of the private law, except in 
a few prominent instances, such as the Statute of Uses, of 
Wills, etc., was done by the law courts. In expanding the 
law, the judges in later times have designedly borrowed 
the principles from the moral code, and constructed their 
rules so as to be just and righteous. The legislature also 
has conformed the modern statutes to the precepts of a 
high morality, and their legislation has tended to correct 
any mistakes and to supply any omissions in the body of 
rules constructed by the legislative function of the courts. 

§ 66. While the foregoing description is true of a large 
portion of the "law," it is also true that from the very 
necessities of the case there is another large part of the 
law which is and must be founded upon expediency rather 
than upon morality. The influence of ancient institutions, 
the motives of policy, the primary importance of certainty, 
the necessity of rules which shall correspond with the aver- 
age conduct of men, — such, for example, as many rules of 
presumption which may produce great wrong in particular 
cases, — these and other facts of equal importance must 
exist in every society, and must prevent a determinate part 
of its law from being constructed upon a basis of morality, 
and from admitting the creative force of purely moral prin- 
ciples. This inherent necessity of a constituent part which 
is arbitrary and expedient, rather than just and righteous, 
is a most important distinction between the ''law" and 
** equity." The element, however, of the English and 


American law, which has operated by far the most power- 
fully to retard its development in the direction of morality, 
which has placed an insuperable barrier to its perfected 
growth, which has rendered it incomplete as an embodiment 
of jural rights, unable to administer justice to the citizen 
in all his relations, and unequal to the needs of society, has 
been and is its mode of procedure, its remedial system as 
a whole. This narrow, technical, arbitrary procedure, ad- 
mitting growth in only one direction, granting but few 
remedies, and incapable of enlarging their number or 
changing their nature, was the fact which more than all else 
made it impossible for the "law" to borrow all the jural 
precepts of the moral code, incorporate them into its own 
rules, and administer the full remedial justice which these 
equitable principles demanded. The legal growth was 
stunted, its development was checked, its tendencies to do 
justice in all the private relations of society were thwarted 
by its partial remedies and its imperfect means of admin- 
istering them. From this cause the necessity of a distinct 
department of equity, with its own mode of procedure, and 
with absolute freedom and elasticity in the forms of its 
remedies, and their adaptation to the rights and duties of 
parties, has continued to the present day, and must con- 
tinue until the principles and rules of the common-law 
remedial system are utterly abandoned.^ 

§ 66, II quote the following passage from Mr. Snell's Principles of 
Equity (Introd., pp. 2, 3), which expresses substantially the same theory 
as that given in the text: "Are we, then, to infer that the equity of our 
Court of Chancery represents the residue of natural equity, or, to put it 
conversely, the whole of that portion of natural equity which may be 
enforced by legal sanctions, and administered by legal tribunals'? The 
slightest acquaintance with English jurisprudence will show us that were 
we to arrive at this conclusion, we should ignore the claims of the common 
law and the statute law. Although, when we make use of the term 
'common law/ we use it as contradistinguished from equity, technically 
so called, that circumstance should by no means blind us to the fact 
that in the main the common law is a system as much founded on the 
basis of natural justice and good conscience as our equity system ; that 


§67. 4. As the expansive tendencies of the common 
law are thus confined within certain limits, and as its power 
to administer justice and to grant the variety of remedies 
needed in the manifold relations of society is incomplete, 
the English and American system of equity is preserved 
and maintained to supply the want, and to render the na- 
tional jurisprudence as a whole adequate to the social 
needs. It is so constructed upon comprehensive and fruit- 
ful principles, that it possesses an inherent capacity of ex- 
pansion, so as to keep abreast of each succeeding genera- 
tion and age. It consists of those doctrines and rules, pri- 
mary and remedial rights and remedies, which the common 
law, by reason of its fixed methods and remedial system, 

if it has fallen short in its operation, its failure is rather to be attributed 
to defects in the modes of administering those principles than to any 
inherent weakness or deficiency of the principles themselves. Clearly, 
therefore, another large portion of enforceable equity, often enfeebled 
though it be by a defective mode of administration, is to be found in 
the common law. And finally, we must look to the enactments of the 
legislature, the statute law, as embodying and giving legal sanction to 
many of those principles of natural equity Vv'hieh, though capable of 
being administered by courts, have been omitted to be recognized as such, 
— an omission arising from that tendency of all human institutions 
founded on a body of principles to assume a defined and solidified mass, 
refusing to receive further accessions even from a cognate source, and 
thus to become after a time incapable of expansion. Having thus mapped 
out the whole area of what is termed natural justice, — having seen tliat 
a large portion of it cannot be enforced at all by civil tribunals, that 
another large section of it is administered in courts of common law, and 
a third part enforced by legislative enactments, — we are in a position to 
indicate approximately the province of equity, technically so termed. 
Putting out of consideration all that part of natural equity sanctioned 
and enforced by legislative enactments, equity may then be defined as 
that i^ortion of natural justice which, though of such a nature as prop- 
erly to admit of its being judicially enforced, was, from circumstances, 
omitted to be enforced by common-law courts, — an omission which was 
supplied by the Court of Chancery. In short, the whole distinction be- 
tween equity and law may be said to be, not so much a matter of sub- 
stance or principle as of form and histoi-y." These concluding sentences 
hardly contain an adequate conception of the English and American equity. 


was either unable or inadequate, in the regular course of 
its development, to establisli, enforce, and confer, and 
which it therefore either tacitly omitted or openly rejected. 
On account of the somewhat arbitraiy and harsh nature 
of the common law in its primitive stage, these doctrines 
and rules of equity were intentionally and consciously 
based upon the precepts of morality by the early chancel- 
lors, who borrowed the jural principles of the moral code, 
and openly incorporated them into their judicial legisla- 
tion. This origin gave to the system which we call equity 
a distinctive character which it has ever since preserved. 
Its great underlying principles, which are the constant 
sources, the never-failing roots, of its particular rules, are 
unquestionably principles of right, justice, and morality, 
so far as the same can become the elements of a positive 
human jurisprudence; and these principles, being once in- 
corporated into the system, and being essentially unlimited, 
have communicated their own vitality and power of adap- 
tation to the entire branch of the national jurisprudence of 
which they are, so to speak, the substinicture. It follows 
that the department which we call equity is, as a whole, 
more just and moral in its creation of right and duties 
than the correlative department which we call the law. It 
does not follow, however, that the equity so described is ab- 
solutely identical with natural justice or morality. On the 
contrary, a considerable portion of its rules are confessedly 
based upon expediency or policy, rather than upon any no- 
tions of abstract right. 





§ 68. Importance of correctly understanding these present relations. 

§ 69. Changes in the relations of equity to the law effected partly by 
statute and partly by decisions. 

§§ 70-88. Important instances of such changes in these relations. 

§ 70. In legal rules concerning the effect of the seal. 

§ 71. Ditto suits on lost instruments. 

§ 72. Ditto forfeitures and penalties. 

§§ 73, 74. Ditto mortgages of land. 

§ 75. In statutes concerning express trusts. 

§ 76. Ditto recording and doctrine of priorities, 

§ 77. Ditto administration of decedents' estates. 

§ 78. Ditto jurisdiction over infants. 

§§ 79, 80. Ditto married women's property. 

§ 81. In statutory restrictions upon the equitable jurisdiction. 

§§ 82, 83. In the practical abolition of the "auxiliary" jurisdiction. 

§§ 84-88. In the Reformed Procedure combining legal and equitable methods. 

§ 68. Importance of Correctly Understanding These 
Present Relations. — In accounting for the historical origin 
of equity, and in describing its general nature, it is neces- 
sary to go back to the period of its infancy and early 
growth, when the common law was also in its primitive and 
undeveloped condition. We thus naturally form a picture 
of the two systems standing in marked contrast and even 
opposition, acknowledging different sources, controlled by 
different principles, exhibiting different tendencies, each 
complete in itself and independent of the other. The im- 
pression which is thus obtained of their relations is too 
apt to be retained in describing the equity as it has existed 
at subsequent times, and even as it exists at the present 
day. The effect of such a tendency to confuse different 
epochs and conditions is shown in some of the treatises 
upon equity jurisprudence, which tacitly assume that all 
of the original antagonism still prevails, and which, ignor- 


ing the great and often radical changes made in the law, 
discuss their subject-matter as though the relations be- 
tween law and equity continued to be the same as they were 
in the reign of Charles IL, or even later, in the reigns of 
George III. and George IV., and under the chancellorships' 
of Lord Thurlow and Lord Eldon, — as though all the harsli, 
arbitraiy, unjust rules which then disgraced the law re- 
mained unmodified. Such neglect to appreciate the actual 
condition of the law will lead to the useless discussion of 
equitable doctrines which have become obsolete, since all 
occasion for their application has been removed, and will 
produce, almost as a matter of course, a distorted repre- 
sentation of equity as a whole. In order, therefore, to form 
an accurate notion of equity, its present relations with tlie 
law must be carefully observed, and to that end the changes 
which have been made in the law itself, and which have 
modified those relations, must be pointed out at every stage 
of the discussion. Without undertaking to give an ex- 
haustive enumeration, or any detailed description, I shall 
simply mention some of the most important classes of al- 
terations which have been made in the law since the prin- 
ciples and doctrines of equity were definitely settled. 

§ 69. Changes in the Relations of Equity to the Law. — 

These changes have certainly been very great. They have 
been effected, first, by the legislative work of the common- 
law courts; and secondly, "by statutory legislation. Since 
thft doctrines of equity began to react upon the law, and 
especially since the impulse given by the brilliant career of 
Lord Mansfield, the common-law courts have consciously 
adopted and applied, as far as possible, purely equitable 
notions — not so much the technical equity of the Court of 
Chancery, but the principles of natural justice — in their 
decision of new cases, and in the development of the law, 
until a large part of its rules are as truly equitable and 
righteous in their nature as those administered by the 


Chancellor.^ From time to time, the legislature has inter- 
posed, and by occasional statutes has aided this work of 
reform. During the past generation, since about 1830 in 
England, and an earlier date in the United States, this 
legislative process of amendment has been more constant, 
more systematic, and more thorough, extending to all parts 
of the law, and has been the chief agency in the work of 
legal reform. The result is, that many doctrines and rules 
which were once exclusively recognized and enforced by 
chancery have become incorporated into the law, and are 
now, and perhaps long have been, administered by the law 
courts in the decision of cases. In this manner, the law 
has been brought at many points into a coincidence with 
equity. . Nor has the legislative work been confined to the 
law; it has largely acted upon the system of equity, and 
has brought that system into a closer resemblance, external 
at least, with the law. These changes have naturally gone 
much further in the United States than in England; the 
law has been more essentially altered, and equity itself has 
been subjected to more limitations. The following in- 
stances are taken from the legislation, statutory or judicial, 
of this country. 

§ 70. 1. Effect of a Seal. — One of the earliest instances 
of equity breaking in upon the common law was the relief 
which it gave to a debtor on a sealed instrument who had 
paid the debt in full, but had neglected to obtain a release 
or a surrender up of the contract. The legal rule was, that 
a sealed instrument could only be discharged by another 
instrument of as high a character, or else by a surrender 
of it, so that the creditor could not ''make profert" of it 
in an action at law.* Equity justly regarded the debt as 

§ 69, (a) Adoption of Equitable § 70, (a) Quoted and cited in 

Principles l)y Common-law Courts. Lacey v. Hutchinson, 5 Ga. App. 865, 

This sentence of the text is quoted 64 S. E. 105. The opinion in this 

in McCreary v. Coggeshall, 74 S. C. case contains an interesting histori- 

42, 7 Ann. Gas. 693, 7 L. R. A. cal review of the subject. 
(N. S.) 433, 53 S. E. 978 (doctrine 
as to merger of estates). 


the real fact, its payment as a satisfaction, and the seal as 
a mere form. It therefore relieved the debtor who had 
thus paid, and against whom an action at law was brought 
on the obligation, by restraining this action; and the debtor 
was thus practically safe, although technically his legal lia- 
bility still subsisted. Generalizing this particular rule, 
equity never gave the consequence to a seal which the com- 
mon law gave ; it always looked below this mere form into 
the real relations of the parties, and rejected the dogma 
that a seal can only be discharged by an act of equal de- 
gree. These equitable doctrines have been transferred 
into the ''law" of the United States. The special head of 
equitable relief first mentioned has become utterly obso- 
lete, since the defense of payment in such cases has long 
been admitted by the common-law courts. In most of the 
states all distinction between sealed and unsealed instru- 
ments is abolished, except so far as the statute of limita- 
tions operates to bar a right of action ; in others, the only 
effect of the seal upon executory contracts is to raise a 
prima facie presumption of a consideration, while it is still 
required on a conveyance of land ; in a very few, the com- 
mon-law rule is retained, which makes the seal conclusive 
evidence of a consideration.^ By this legislation, all the 
distinction between the legal and the equitable doctrines 
concerning contracts and other rights, except those grow- 
ing out of a conveyance of land, founded upon the presence 

§ 70, 1 In some states the seal is only presumptive e^ddence of a con- 
sideration: See New York, 2 R. S. 406, § 77; Alabama, Rev. Code (1867),- 
p. 526, § 2632; Michigan, Comp. Laws (1871), vol. 2, p. 1710, § 90; 
Oregon, Gen. Laws (1872), p. 258, § 743; Texas, Paseh. Dig., vol. 1, § 228. 
In many states all distinction between sealed and unsealed instruments is 
abolished, and a seal is never essential; See California, Civ. Code, § 1629; 
Indiana, 2 R. S. (G. & H.), p. 180, § 273; Iowa, Rev. Code (1873), p. 383, 
§§2112-2114; Kansas, Gen. Stats. (1868), p. 183, §§6-8; Kentucky, 
1 R. S. (Stanton's), p. 267, §§ 2, 3; Nebraska, Gen. Stats. (1873), 
p. 1001; Tennessee, Gen. Stats. (1871), §§ 1804, 1806; Texas, Pasch. 
Dig., vol. 1, § 5087 (on contracts and conveyances "respecting real or 
personal property"). 


or absence of the seal, has been abrogated. The equitable 
doctrines, of course, remain, but they have become a part 
of the law, and no necessity remains of applying to courts 
of equity for their enforcement. Even the equitable rule 
permitting a sealed agreement to be modified or replaced 
by subsequent parol contract is generally adopted by the 
law courts, except in cases where the statute of frauds 
prevents its operation.^ 

§ 71. 2. Lost Instruments. — By another ancient doctrine 
of the common law, the creditor on a sealed instrument 
which had been lost or accidentally destroyed was prohib- 
ited from maintaining an action upon it, because he could 
not make the ^^profert" which the inflexible rules of the 
legal procedure required. Equity, disregarding this form, 
gave him relief by enforcing the demand.^- At a latter 
day, when negotiable paper came into use, the owner of a 
bill or note so drawn that it could be negotiated by delivery, 
who had lost it, was debarred from suing upon it at law, 
because the common-law courts had no means, according to 
theii' rigid forms of procedure, of compelling him to indem- 
nify the defendant against a second claim made by any 
bona fide holder into whose hands the paper might have 
come. As the Court of Chancery has such power, through 
its ability to shape its remedial processes so as to meet any 
new emergency, it acquired jurisdiction in this class of 
cases, and for a long time all suits upon such lost negotia- 
ble paper were necessarily brought in equity. Both of 

§ 70, 2 See notes to Rees v. Berrington, 2 Eq. Lead. Cas. 18G7, 1S96 
(4th Am. ed.); Hurlbut v. Phelps, 30 Conn. 42; Headley v. Goundry, 
41 Barb. 279 ; Clark, v. Partridge, 2 Pa. St. 13 ; 4 Pa. St. 166 ; Keissel- 
brach v. Livingston, 4 Johns. Ch. 114; Kidder v. Kidder, 33 Pa. St. 268. 

§ 71, (a) The text is cited to the cil, Eoyal Arcanum, 70 N. J. Eq. 607, 

point that equity takes jurisdiction 61 Atl. 982. This paragraph is also 

to give relief on a sealed instrument cited in Lacey v. Hutchinson, 5 Ga. 

■which is lost or destroyed or which App. 865, 64 S. E. 105; Eeeves v. 

has come into the hands of the de- Morgan, 48 N. J. Eq. 415, 21 Atl. 

fendant: Hoagland v. Supreme Coun- 1040. 


these legal rules have been changed. The courts of law 
have long been able to entertain actions upon lost or de- 
stroyed bonds and other sealed instruments, since the an- 
cient requirement of a profert by the plaintiff has been ab- 
rogated. Statutes have generally been enacted in the 
American states which permit actions at law on lost nego- 
tiable paper to be brought by the owner, who is simply re- 
quired, as a preliminary step, to execute and file a bond 
of indemnity to the defendant. ^ In this manner the neces- 
sity for equitable interference has been removed, and all 
such actions to recover a money judgment upon lost obliga- 
tions or negotiable instruments are brought in courts of 
law according to the legal modes of procedure.^ 

§72. 3. Penalties. — Another most important class of 
changes in the law consists in the adoption, to a consider- 
able extent, of the equitable doctrines concerning penalties 
and forfeitures. The ancient common law rigidly exacted 
all penalties and enforced all forfeitures if the act which 
should prevent them was not done at the very time and in 
the precise manner stipulated. Equity from the earliest 
period of its growth adopted the policy of relieving against 
penalties and forfeitures, by generally treating the time 
of performance as immaterial, and a substantial conform- 
ity to the stipulated manner of it as sufficient, and by giving 
to the creditor what was justly and equitably his due, and 
compelling him to forego the surplus which he had exacted, 
and which the law permitted him to retain. These equi- 
table doctrines have to a great extent been transferred into 
the law of the American states. Law courts give judgment 
for the amount really due, and not for the penalty, and 
often accept a subsequent performance without exacting 
the forfeiture. The most familiar example is that of a 

§71, 1 Examples of such statutes are, 3 N Y. R. S., p. 691, §§ 106, 
lOS (5th ed.) ; Civil Code of Cal., § 3137. 

§ 71, (b) This paragraph of the text is cited in Beeves v. Morgan, 48 
N. J. Eq. 415, 21 Atl. 1040. 


bond with penalty, conditioned for the payment of a 
smaller sum which represents the real debt. The equitable 
doctrine restricting the recovery to the sum constituting the 
actual debt, with interest for the delay, has been every- 
where accepted as a settled rule of the law. This modifica- 
tion of the common law has generally been extended so as 
to include, all cases where a penalty or forfeiture has been 
agreed- upon as security for the payment of a certain or 
ascertainable sum of money. 

§ 73. 4. Mortgages. — Intimately connected with the 
equitable doctrine relating to forfeiture is the remarkable 
change which has been made in the law of the American 
states concerning mortgages of land. Without attempting 
to describe either the common law or the equity doctrine as 
to mortgages, it is sufficient for my present purpose to 
,state very briefly their results. Under the common law 
and equity in combination, two different kinds of interests 
or estates, the legal and the equitable, are simultaneously 
held in the mortgaged premises by the two parties. The 
mortgagee is the legal owner, and after a default is entitled 
to the possession of the land ; he can convey his estate, not 
by an assignment of the mortgage, but by a deed of the land 
itself ; on his death it descends to his heirs or passes to his 
devisees, and does not go to his administrators or execu- 
tors; in short, he is at law clothed with all the rights and 
powers of legal ownership. ^ On the other hand, the estate 
of the mortgagor, after default, is purely an equitable one, 
a right to redeem the land from the mortgagee, his heirs, 
devisees, or grantees, and therefore very properly denomi- 
nated ''an equity of redemption." Equity regards this 
interest of the mortgagor as the real beneficial estate in the 
land, subject, however, to the lien and encumbrance of the 
mortgage, and as such it can descend to his heirs, pass to 
his devisees, or be conveyed by deed to his grantees. Ac- 

§ 73, II have assumed in this description that the mortgage is in fee, 
which is the common case in the United States. 


cording to the equitable theory, the interest of the mort- 
gagee is simply a lien and encumbrance on the premises, 
and not an estate in the land itself. These legal rules, and 
this double ownership resulting therefrom, prevail in Eng- 
land, and are still retained in most of the New England 
states and in a few of the other commonwealths; but 
throughout the greater part of the country a radical change 
has been made in the law, and its doctrines as to the re- 
spective rights and interests of the mortgagor and mort- 
gagee have been substantially conformed to those of equity. 
I shall take the law of New York as the type. 

§ 74. In New York — and its legislation has been sub- 
stantially followed in so many of the states that it may 
fairly be said to express the American doctrine — there is 
no longer any double ownership nor any equitable estate 
in the land; there is one legal estate only, and that belongs 
to the mortgagor until it is cut off by foreclosure and sale. 
The interest of the mortgagee, under ordinary circum- 
stances, is not an estate of any kind in the land ; he is sim- 
ply a creditor holding a lien upon the mortgaged premises 
as security for his debt, which lien he must enforce by a 
foreclosure and sale.^ He is not entitled to possession, and 
cannot maintain ejectment either against the mortgagor or 
a stranger. On his death his interest is wholly personal 
assets, and goes to his administrator or executor. He can- 
not convey the land, and his deed of it could operate (if at 
all) only as an assignment of the mortgage. He can assign 
the mortgage by mere delivery; but so completely is the 
debt the principal thing and the mortgage an incident, that 
an assignment of the debt carries with it the mortgage 
as a collateral, while an assignment of the mortgage with- 

§74, (a) The text is cited in also cited, to the same point, in First 

Tapia v. Demartini, 77 Cal. 383, 11 State Bank of Le Sueur v. Sibley 

Am. St. Rep. 288, 19 Pae. 641, to the County Bank, 96 Minn. 456, 105 

point that a trust may be declared N. W. 485, 489, following Tapia v. 

in a mortgage by parol, since it is Demartini, and reviewing cases. 
not an estate in land. The text is 


out the debt is a nullity. On the other hand, the mortgagor 
is the owner of the entire legal estate, subject to the lien 
and encumbrance of the mortgage, until his title is divested 
by a foreclosure and sale; the term ''equity of redemp- 
tion," when used to designate his interest, is therefore a 
complete misnomer, productive only of confused and mis- 
taken notions. As such owner, the mortgagor can convey, 
mortgage, or devise the land, and if he dies intestate, it 
descends to his heirs. These rules no longer form a part of 
the equitable doctrine merely ; they are, partly as the results 
of statutes and partly of judicial decision, rules of the law, 
constantly recognized and enforced in all the courts of com- 
mon-law jurisdiction.! The effect of these alterations in 
the law upon the equity jurisdiction has certainly been very 

§ 75. 5. Express Trusts. — Another important change in 
the relations between law and equity has been effected by 
the statutes of many states concerning express trusts in 
land. By the English law, in the absence of any statutory 
restriction, express active trusts may be created for all pos- 
sible purposes, and express passive trusts corresponding 
with all the various legal estates, in fee, for life, for years, 
in possession, and in remainder, as the case may be. In 
the latter class of trusts the naked legal title only is vested 
in the trustee, while the equitable interest of the beneficiary 
is the one which possesses all the attributes of real owner- 
ship. The field of equity jurisdiction which these trust 
estates presented has been greatly narrowed by the policy 
of American legislation. The statutes of New York and of 
many other states have at one blow abolished all express 

§ 74, 1 For example, every court of law will recognize and enforce an 
assignment of the debt and mortgage made by the mortgagee; and in 
every such court, as well as in courts having jurisdiction of probate 
matters, the interest of the mortgagee, upon his death, is recognized as 
devolving upon his personal representatives, while that of the mortgagor 
is treated as descending to his heirs or as passing to his devisees. 


passive trusts, and have restricted express active trusts to 
a very few specified objects, ^ declaring void all those at- 
tempted to be created for other purposes. Even in the iaw. 
cases where these trusts are permitted, the entire estate is 
vested in the trustee; the beneficiary has no ownership, 
legal or equitable, in the land; his sole interest is simply a 
right in equity to compel a performance by the trustee of 
the obligations created by the trust, — a right of action 
merely, and not an equitable estate of any kind in the 
subject-matter. This great alteration in the relations of 
the law and equity with respect to trusts in land has neces- 
sarily produced an important effect upon the extent and 
scope of the equity jurisdiction throughout a great part of 
the United States. 

§ 76. 6. Recording and Priorities. — The system of re- 
cording conveyances and mortgages of land which univer- 
sally prevails throughout this country has greatly modified 
and simplified the doctrines of equity concerning notice 
which affect titles to real estates. While the fundamental 
principles with respect to notice are unchanged and form 
a part of our own equitable jurisprudence, it is not too 
much to say that most of the particular rules relating to 
titles which have been developed from these principles by 
the English Court of Chancery have little or no application 
in the United States. 

§ 77. 7. Administration. — ^Equity, in the exercise of its 
unrestricted powers, has jurisdiction in the matter of set- 

§ 75, 1 The following are the objects for which express active trusts 
are generally permitted in the states which have adopted this legislation, 
namely: 1. To sell the land for the purpose of paying debts; 2. To sell, 
mortgage, or lease the land for the purpose of paying legacies or other 
charges upon it; 3. To hold and manage the land for the purpose of 
receiving its rents and profits and applying them to the use of a bene- 
ficiary; 4. To hold and manage the land for the purpose of receiving 
its rents and profits and accumulating them during the minorities of 
infant beneficiaries. 


tliiig the personal estates of deceased persons; and in 
England this is undoubtedly the most important branch of 
the equitable jurisprudence, — a very large proportion of 
the suits brought in the Court of Chancery are administra- 
tion suits. The jurisdiction may theoretically remain in 
some of the states which have conferred full equity powers 
upon their courts ; it does not even nominally exist in the 
others ; and it is practically unknown throughout the entire 
country. As administered in England, this head of juris- 
diction includes everything pertaining to the settlement of 
decedents' estates, except the probate of wills, and the 
issue of letters testamentary and of administration;^ and 
there is a considerable discrepancy between the legal and 
the equitable rules concerning the nature, distribution, and 
marshaling of assets. In the American states these mat- 
ters are all governed by statutes, which determine the na- 
ture and regulate the application and distribution of assets 
by fixed and certain rules binding alike upon all tribunals. 
Probate courts are established for the settlement of dece- 
dents' estates, and all questions arising in the course of ad- 
ministration are decided by them, to the practical exclusion 
of the equity jurisdiction.^ Equitable suits growing out of 
pending administrations are still frequent, but they are 
brought for some special and partial relief, for the con- 
struction of a will, the determination of a controversy aris- 
ing with respect to a particular legacy, the adjustment of 
conflicting claims to a particular fund, and the like. It is 
true that the statutory rules for the settlement of estates 
are largely based upon the principles which had been set- 
tled in equity, and that equitable doctrines are constantly 
enforced by the courts of probate ; but it is no less true that 

§77, (a) The text is quoted in Cilley, 58 Fed. 977, 986 (proceeding 

Moulton V. Smith, 16 R. I. 126, 27 to establish a will is not a "suit in 

Am. St. Eep. 728, 12 Atl. 891; cited, equity"). The text is cited, also, 

Toland v. Earl, 129 Cal. 148, 79 Am. in Cabin Valley Min. Co. v. Hall 

St. Rep. 100, 61 Pac. 914. (Old.), 1.55 Pac. 570 (jurisdiction 

§ 77, (b) The text is cited in In re over guardians). 


this important head of equity jurisdiction has been greatly 
restricted, or even practically abandoned, in all the states. 

§ 78. 8. Infants. — ^Another branch of the jurisdiction 
equally familiar to the English lawyer, and equally un- 
known in the United States, is that over Infants. When- 
ever an infant succeeds to property, the English chancery 
takes the management of his person and his estate. A 
proper suit having been commenced, the court appoints a 
guardian (in the absence of a testamentary appointment), 
and the infant is thenceforward a ''ward of the court," 
under its actual paternal care. In some of the states, the 
courts possessing full equitable jurisdiction have theoreti- 
cally the power to appoint a guardian; but even if this 
power should be exercised, the court does not make the 
infant its ward and extend a personal oversight over him. 
In this matter, however, as in the administration of dece- 
dents' estates, the legislature has intervened, and the pro- 
bate courts practically appoint all guardians, and control 
their official actions. Under their general power in cases 
of trust and of accounting, the American courts of equity 
may give all proper relief to wards against their guard- 
ians; but the peculiar jurisdiction over the persons and 
estates of infants possessed by the English chancery does 
not, to any extent, exist in the American equity jurispru- 

§ 79. 9. Married Women. — One of the most important 
of the alterations made in the relations between law and 
equity is that caused by the legislation concerning married 
women's property and capacity to contract. The follow- 
ing outline will give a general notion of this legislation ; its 
details must be postponed for a subsequent examination. 
In nearly all the states the common-law rules giving the 
husband an ownership or interest in his wife's property 
have been abrogated; the wife is clothed with a full legal 

§78, (a) The text is cited in New- 679, 6S0, 118 C. C. A. Ill; Messner 
berry v. Wilkinson, 199 Fed. 673, v. Giddings, 65 Tex. 301. 


estate in and riglit to all the property, real and personal, 
which she has at the time of the marriage, or which she 
may acquire by inheritance, by will, conveyance, grant, or 
gift, during its continuance; and she has generally the 
entire power of its management and disposition, as though 
she were unmarried. This is the prevailing type of statute, 
but in some of the states the husband must join in a deed 
or mortgage of her land, and in a very few he is still en- 
titled to its possession. In addition to the foregoing, there 
are certain special forms of legislation prevailing over 
large portions of the country. A number of the western 
and southwestern states have substantially adopted the 
French system of ''community of assets," whereby the two 
spouses are co-owners of the community property, which is 
under the husband's exclusive management during their 
joint lives. With reference to the wife's capacity of en- 
tering into contracts, there are two general types or classes 
of the legislation. By the first, which is confined to a 
comparatively few states, she is clothed with full power 
to contract in any business, trade, or profession which she 
carries on, and also with reference to her own property, 
and the latter embraces all agreements made for the bene- 
fit of her property, and all agreements made for any pur- 
pose which are expressly charged upon such property. 
All these contracts are legal in every sense of the term, 
and not equitable. "When once made, they become per- 
sonally binding upon her, and are enforced by ordinary 
legal actions, legal pecuniary judgments, and executions. 
By the second class, which prevails in most of the states, 
the wife's capacity is limited to agreements made with 
reference to her property; these contracts are wholly 
equital3le in their nature and obligation, and can only be 
enforced by an equitable action against the property itself, 
and not against the wife personally. 

§ 80. The effect of this legislation upon the equity ju- 
risdiction in the United States must be veiy great. In the 


first place, the married woman's equitable separate estate, 
and the doctrines of equity directly concerned with its 
maintenance, are, for the future at least,^ superseded. The 
fabric constructed by the chancellors with so much acumen 
and skill, in order to protect the natural rights of wives 
which the law ignored, is virtually overthrown. The law, 
by conferring full legal ownership upon married women, 
has done for them much more than family settlements or 
nuptial contracts can do, even when enforced by courts of 
equity. Equity in the United States is thus at one blow 
relieved of a subject-matter which in England occasions a 
very large part of its actual jurisdiction. With respect to 
the contracts of married women, the effect of the modern 
legislation has been directly the opposite in different states. 
In those commonwealths where wives have been clothed 
with the large capacity to contract, and their contracts have 
been made legal, the equitable jurisdiction over their agree- 
ments has been virtually abrogated. Whatever kind of con- 
tract is within the power of a married woman falls under 
the ordinary jurisdiction of the law courts, and a suit in 
equity to enforce it as a charge upon any specific property 
belonging to her would be useless, even if it could now be 
maintained. In all the other states where the wife's con- 
tracts are not yet made legal, the equitable jurisdiction 
is to a certain extent enlarged. It is no longer confined in 
its operation to her separate equitable estate held in trust 
for her by an express or implied trustee ; it reaches to and 

§ 80, 1 These statutes, of course, do not affect existing estates held in 
trust for wives ; but in many of the 'states they authorize the wife, by 
means of an order of court, to convert such equitable interests into legal 
estates; that is, to compel a conveyance of the land directly to themselves 
by the trustees. Nor do these statutes forbid the creation of trusts in 
favor of married women in future, and such trusts are even now occa- 
sionally created; but all necessity for them, in order to protect wives 
against the acts or defaults of husbands, is removed, and the only ad- 
vantage of such a trust is the protection of the land against the acts of 
the wives themselves, by so arranging the ownership that they can neither 
aUenate nor encumber it. 


operates upon all her property of which she holds the full 
legal title and interest. While the wife's power to make 
contracts which shall be a charge upon her property is 
not increased, the property thus affected, and which can be 
reached by a court of equity, is all which the wife holds in 
her own name and right by a legal title. 

§ 81. 10. Statutory Limitations of Equity. — The changes 
in the relations of law and equity described in the fore- 
going paragraphs are chiefly those resulting from altera- 
tions made in the law itself^ by which it has assumed more 
of an equitable character; those to be hereafter described 
have resulted from modifications of equity jurisdiction or 
jurisprudence. In several of the states the full equitable 
jurisdiction exercised by the English chancery has never 
been conferred upon any tribunal, A partial jurisdiction 
only is possessed by some designated court, derived from 
and measured by statute, defined, limited, confined to cer- 
tain enumerated classes of subject-matters. This fact, 
which is most important to members of the profession 
practicing in all parts of the counti^^, should not be over- 
looked in a treatise upon equity as it is administered in the 
United States. 

§ 82. 11. The Auxiliary Jurisdiction.^ — A distinct de- 
partment of equity jurisdiction which arose at an early 
day from the imperfection of the legal procedure was 
termed Auxiliary, since it was exercised, not to obtain any 
equitable remedy, nor to establish any equitable right or 
estate, but to aid in maiiitaining a legal right, and in 
prosecuting actions pending or to be brought in a court 
of law. This ancillary function of chancery was the neces- 
sary result of certain inflexible legal rules — especially 
those concerning the examination of witnesses and the ob- 
taining of evidence — which interfered with the administra- 
tion of justice in the common-law courts. The most 

§ 82, (a) Sections 82 and 83 are cited in Chapman v. Lee, 45 Ohio St. 356, 
13 N. E. 736. 


important and common instances of this auxiliary juris- 
diction were ''Suits for Discovery" and ''Suits for Per- 
petuations of Testimon}^," or for taking testimony "r/e 
bene esse." A brief description of these proceedings — 
once so essential for the attainment of justice — will suf- 
fice for my present purpose. An action at law affecting 
property rights is pending between A and B. Eitlier one 
of the parties, — I will assume it to be the defendant, B, — 
fearing that he cannot succeed without the help of facts 
within the personal knowledge of his adversary, com- 
mences a suit in equity against A, setting forth in his bill 
all the facts of the case, and adding thereto such inter- 
rogatories as he thinks will elicit the truth from A. A 
is thereupon obliged to answer this bill under oath, fully, 
and without reservation or evasion. No further relief is 
asked by the plaintiff, no decree is made, and as soon 
as the answer is complete, the function of the equity court 
is ended. Having thus obtained the written statements of 
his adversary under oath, B can, if he please, use them as 
evidence on the trial of the action at law ; and under certain 
circumstances the same privilege may be enjoyed by A to 
use his answer as evidence in his own behalf. Such was 
the nature and ofifice of the ''Bill of Discovery"; and for 
a long time it was the only means of obtaining the evidence 
of the parties for use on the trial of legal actions. The 
"Suits to Perpetuate Testimony" or to take testimony 
de bene esse were special modifications of this contrivance. 
Wliere a dispute with respect to property rights existed 
between A and B, and in the one case no action had yet 
been brought, and could not yet be brought, while in the 
other case an action had already been commenced, and im- 
portant evidence is within the knowledge of persons who, 
from age, sickness, or other sufficient cause, may not be 
able to testify upon the expected trial, either of the con- 
testants may bring a suit in equity against the other, not 
for the purpose of trying and deciding the matters in con- 
troversy, but for the purpose merely of eliciting the facts 


through the answer and of taking the testimony of the wit- 
nesses. The answer and depositions, being preserved in 
the offices of the chancery, can then be nsed npon the trial, 
of the legal action, whenever it shall take place. In other 
words, a court of equity entertained jurisdiction of the 
matter to the extent of taking the evidence and putting it 
into a permanent form, so that it might be '' perpetuated' ' 
for future use in a court of law.^ 

§ 83. These instances of auxiliary jurisdiction have 
wholly disappeared from the English system under the 
late reorganization of the courts and the procedure,^ and 
have almost entirely disappeared from the equity as ad- 
ministered in the United States. 2 In England, in the 
states of this country generally, and in the United States 
courts, parties are permitted to testify in their own behalf, 
and are required to testify in behalf of their adversaries, in 
all actions and proceedings of a civil nature, so that every 
ground or reason for a "bill of discovery" has been re- 
moved, by the far more efficient means of an oral and per- 
sonal examination conducted by counsel in open court. In 
the states which have adopted the reformed American pro- 
cedure, suits for mere discovery have been expressly 
abolished, since the defendant in all actions, with certain 
exceptions, can be compelled to answer under oath and to 

§82, 1 See pos^, §§ 238-242, where these proceedings are more fully 

§ 83, 1 See Judicature Act, Rules of Procedure, 25-27. 

§ 83, 2 It should be carefully observed that this proposition is confined 
to "bills of discover^'," properly so called, as described in the test. The 
term "discovery" is often applied, but very improperly applied, to the 
statements and admissions made by the defendant in his answer, which 
may be useful to the plaintiff as evidence in the same suit in which the 
answer is filed. There is nothing m either the English or the American 
procedure which prevents the plaintiff in any action from taking advan- 
tage of all such admissions and disclosures of fact which the defendant in 
^tiiat action may make by his answer; on the contrai'y, such disclosures in 
the pleadings are favored and sometimes required. But this is not "dis- 
covery," teehnieaUy and properly so called. 


testify as a witness. In other states wliich keep up tlie 
two jurisdictions of law and equity administered l)y the 
same tribunal, discovery as an auxiliary to trials at law is 
no longer necessary; and is, I believe, practically o])solete 
even where not formally abrogated.^ ^ In the few states 
which still retain a separate Court of Chancery, this juris- 
diction may be "nominally preserved. The jurisdiction to 
perpetuate testimony has generally been supplanted by 
simple, inexpensive, and more summary and efficient 
methods prescribed by statute, which can be applied to all 
actions for the purpose of obtaining and preserving any 
species of evidence. It seems to be still retained, however, 
upon the statute-books of several of the states. 

§ 84. 12. The Reformed Procedure. — The most radical 
and extensive alteration in the relations between law and 
equity has been wrought by the Reformed American Pro- 
cedure, which prevails in more than half the common- 
wealths of this country, and all the essential features of 
which are enacted by the recent English Judicature Act.^ 
The grand underlying principle of this system consists 
in the abolition of all the forms of legal actions, the aboli- 
tion of all distinctions between actions at law and suits in 
equity, and the establishment of one Civil Action for the 
enforcement of all remedial rights. In and by this one 
civil action, legal and equitable causes of action, legal and 
equitable defenses, and legal and equitable remedies may 
be united, and may be determined by the same judgment. 
It has been settled by numerous decisions, wherever this 
system exists, that the legislative changes, being confined 

§ 83, 3 In several of the states which have not adopted the reformed 
procedure, "bills of discovery" are expressly abolished. 
§ 84, 1 See ante, § 40, note. 

§ 83, (a) The text is cited to this The text is cited, also, in Becker v. 

effect in Chapman v. Lee, 45 Ohio Frederick W. Lipps Co. (Md.), 101 

St. 356, 13 N. E. 736; Turnbull v. Atl. 783. 
Crick, 63 Minn. 91, 65 N. W. 135. 


to procedure, have not affected the substantial doctrines 
either of law or of equity, — those doctrines which define 
and declare the primary rights and duties of individuals, 
and the remedies or reliefs to which they may be entitled. 
This proposition must, however, be accepted and under- 
stood with its proper and necessary limitations. The legis- 
lation has done much more than alter the mere external 
forms and modes of procedure ; it has necessarily affected 
to a certain extent the equity jurisdiction in the granting 
of its remedies, and has in some instances rendered the 
exercise of that jurisdiction unnecessary, by removing the 
ground and occasion for the remedies. In other words, the 
legislation has made it unnecessary, under certain circum- 
stances, to bring a suit in equity and to obtain specific equi- 
table relief. The most important of these results I shall 
point out in a very brief manner.a 

§ 85. In the first place, the permission to set up an equi- 
table defense against a legal cause of action has in a great 
number of instances removed all occasion for bringing a 
suit in equity by which the equitable right of the defend- 
ant constituting his defense may be established and the 
prosecution of the legal action may be restrained. I take 
a simple example of a very large class of cases. A, the 
vendor in a contract for the sale of land, brings an action of 
ejectment against B, the vendee, who is in possession, and 
having the legal title, must of course recover at law. B 
was therefore obliged to file a bill in equity against A, and 
obtain thereby a decree of specific performance, and in the 
meantime an injunction restraining the further prosecu- 
tion of the action at law. Having obtained a conveyance of 
the legal title under his decree, B would be in a position to 
defend the action of ejectment, or any subsequent one which 
might be brought against him. By the reformed procedure, 
when the vendor commences a legal action to recover pos- 
session of the land from the vendee, the latter need not 

§ 84, (a) See post, § 354, and note. 


resort to a second equitable suit, nor obtain an injunction. 
The whole controversy is determined in the one proceedinj^. 
B's equitable estate and right to a conveyance is not only 
a negative defense to A's legal cause of action, but entitles 
B in the same action to assume the position of an actor, 
and to obtain the full affirmative relief which he would 
formerly have obtained by his separate bill in equity, — a 
decree for a specific performance and a conveyance of the 
legal estate. Although no substantial doctrines of equity 
have been altered, still, the vendee is no longer compelled 
in such circumstances to sue in equity, nor to demand the 
ancillary remedy of an injunction. 

§ 86. This familiar example may be generalized into 
the following universal proposition: Whenever, under the 
former procedure, one party. A, had a legal estate or 
right which entitled him to recover in an action at law 
brought against B ; and where B, having no legal defense 
to this action, was still possessed of an equitable estate or 
right which entitled him to some particular affirmative 
equitable remedy, — as, for example, a specific performance. 
a reformation or correction, a cancellation, a rescission, etc., 
— which remedy when obtained would clothe him with the 
legal estate or right, and enable him thereby to defeat 
the plaintiff A's action at law; and where, under these cir- 
cumstances, B would be obliged to go into a court of equity 
jurisdiction, and file a bill therein against A, and obtain a 
decree granting the desired equitable relief, and, as an in- 
cident thereto, procure an injunction restraining A's action 
at law, — in all such cases, the necessity, and even the pro- 
priety, of bringing the separate equity suit and enjoining 
the legal action are completely obviated, since B can set 
up all his equity by way of defense or counterclaim, recover 
a judgment for the affirmative relief which he seeks, and 
defeat the action brought against him by A, in that very 
action itself. It would not be correct to say that the equity 
jurisdiction has been abrogated in this class of cases, since 



the defendant B might possibly follow the former method, 
and bring a separate action instead of setting up his equi- 
table rights as a defense and counterclaim; .but this cir- 
cuitous mode of proceeding is seldom adopted, and will 
ultimately, perhaps, be prohibited by the courts, so that 
this direct equity jurisdiction will doubtless, in time, be- 
come obsolete. 1 ^ 

§ 87. One other equally important change produced by 
the reformed procedure should be mentioned. Under the 
system of separate jurisdiction, when a person possesses 
an equitable right or estate entitling him to some particular 
equitable remedy which, when obtained, would, in turn, 
confer upon him a legal right or estate in respect to the 
subject-matter, and enable him therewith to maintain an 
action at law, he is obliged (except in a few special cases) 
first to bring a suit in equity and procure a decree estab- 
lishing his right and granting him the needed equitable 
remedy, which clothes him with the legal title or estate. 
Having thus acquired a legal basis for his demand, he must 
go into a court of law and enforce his newly perfected legal 

§ 86, 1 The following cases illustrate the operation of equitable de- 
fenses: Dobson V. Pearee, 12 N. Y. 156, 62 Am. Dec. 152; Pitcher v. 
Hennesey, 48 N. Y. 415; Heermans v. Robertson, 64 N. Y. 332; Crary 
V. Goodman, 12 N. Y. 266, 268, 64 Am. Dec. 506; Hoppough v. Struble, 
60 N. Y. 430; Bartlett v. Judd, 21 N. Y. 200, 203, 78 Am. Dec. 131; 
Cavalli V. Allen, 57 N. Y. 508, 514; Andrews v. Gillespie, 47 N. Y. 487, 
490; McClane v. White, 5 Minn. 178; Richardson v. Bates, 8 Ohio St. 
257, 264; Petty v. Malier, 15 B. Mon. 604; Harris v. Viuyard, 42 Mo. 568; 
Onson V. Cown, 22 Wis. 329; Talbot v. Singleton, 42 Cal. 390, 395, 396; 
Bruek v. Tucker, 42 Cal. 346, 352; Lombard v. Cowham, 34 Wis. 486, 
492. There may still be cases in which the defendant in the action at law 
cannot obtain full relief by means of an equitable defense, and is obliged 
to bring a separate suit in equity, and to obtain his equitable remedy by 
an affirmative decree, and in the mean time an injunction restraining the 
action at law. See this question quite fully discussed by Folger, J., in 
Erie Railway Co. v. Ramsey, 45 N. Y. 637. 

§86, (a) The text is cited to the such judgment, under the reformed 
effect that fraud in obtaining a procedure: Hogg v. Link, &0 Ind. 
judgment is an equitable defense to 346, 350. 


demand by means of a legal action. As familiar illustra- 
tions, if a person holds an equitable estate under a land eon- 
tract, he must compel a specific performance in equity be- 
fore he can recover possession of the land at law; if he 
holds the equitable estate under an implied trust, he must 
in general obtain a transfer of the legal title from the trus- 
tee before he can maintain ejectment for the possession; 
if the instrument under which he claims is infected with 
mistake, and his full rights under it depend upon a correc- 
tion of the mistake, he must obtain the remedy of reforma- 
tion or re-execution in equity, and may then enforce his per- 
fected legal right by the proper action at law; if his estate 
in land is purely an equitable one because a deed voidable 
through fraud has conveyed the legal title to another per- 
son, the equitable remedy of cancellation or rescission must 
be granted before a legal action for the possession can be 
successful. Wherever the reformed procedure has been 
administered according to its plain intent, the necessity of 
this double judicial proceeding has been obviated; indeed, 
if the true spirit of the new procedure is accepted by the 
courts, siich a separation of equitable and legal rights and 
remedies, and their prosecution in distinct actions, will not 
perhaps be allowed. The plaintiff brings one civil action 
in which he alleges all the facts showing himself entitled 
to both the equitable and the legal reliefs needed to com- 
plete his legal right, and asks and obtains a double judg- 
ment, granting, first, the proper equitable, remedy, and 
secondly, the legal remedy, by which his juridical position 
with respect to the subject-matter is finally perfected ;ia 

§87, 1 As illustrations, see Laub v. Buckmiller, 17 N. Y. 620, 626; 
Lattin V. ]\IcCarty, 41 N. Y. 107, 109; N. Y. lee Co. v. N. W. Ins. Co., 23 
N. Y. 357; Cone v. Niagara Ins. Co., 60 N. Y. 619; Turner v. Pierce, 34 
Wis. 658, 665; Gray v. Dougherty, 25 Cal. 266; Henderson v. Dickey, 50 
]\ro. 161, 165; Guernsey v. Am. Ins. Co., 17 Minn. 104, 108. But see 
Supervisors v. Decker, 30 Wis. 624. 

§87, (a) The text is quoted and Wash. 74, 70 Pac. 264, for the facts 
followed in Browder v. Phinney, 30 of which see post, § 183, note. 


or he may simply demand and recover a judgment confer- 
ring only the final legal remedy, the preliminary equitable 
relief being assumed as an essential prerequisite to the 
recovery, but not being in terms awarded by the court.^ 
It follows, as an incident of this union of rights and reme- 
dies in one action, that all occasion for the ancillary or 
provisional equitable remedy of injunction to restrain the 
defendant from proceeding at law is often, and indeed gen- 
erally, avoided in this class of cases. 

§ 88. The results of this reform in the procedure might 
be described with much more detail; but I have already 
accomplished my purpose, which was to indicate some of 
the great changes made by judicial decisions and by acts 
of the legislatures in the relations formerly subsisting be- 
tween law and equity, and in the body itself of equity juris- 
prudence. The foregoing sketch, mere outline as it is, also 
shows very plainly that a treatise which would accurately 
represent to the reader the equity jurisprudence of the 
United States, must conform to modem facts, rather than 
follow ancient traditions. It must recognize the. existing 
condition, both of the law and of equity, the limitations 
upon the chancery jurisdiction, the alterations made by 
American legislation, institutions, and social habits. Many 
doctrines and modes of applying the jurisdiction which 
were important at an earlier day, and are perhaps still 
prominent in England^ have become practically obsolete 
in this country, while others have risen in consequence, and 
are constantly occupying the attention of the courts. It is 
my purpose to discuss and describe the equity jurispru- 
dence as viewed in this light, and to present the system 
which is now administered by the state and national courts 
of the United States. It is true that the fundamental prin- 
ciples are the same as those which were developed through 

§87, 2 See BidweU v. Astor Ins. Co., 16 N. Y. 263, 267; Phillips v. 
Gorham, 17 N. Y. 270 ; Caswell v. West, 3 Thomp. & C. 383 ; McNeady v. 
Hyde, 47 Cal. 481, 483 ; Sternberger v. McGovem, 56 N. Y. 12, 21. 


the past centuries by the English chancery; but the appli- 
cation of these principles, and the particular rules which 
have been deduced from them, have been shaped and deter- 
mined by modern American national life, and have received 
the impress of the American national character. 



§ 89. Object of this section. 
§§90,91. Eights are either "primary" or "remedial"; each described. 

§92. Divisions of "primary" rights, viz: 1. Those concerned with per- 
sonal status; 2. Those concerned with things. 
§§93-95. Two general classes of rights concerned with things, viz.: "real" 

and "personal"; each described. 
§§ 96, 97. What of these kinds of rights are embraced within equity; both 
"primary" and "remedial." 
§§98-107. I. Equitable primary rights, kinds and classes of. 
§§ 108-116. II. Equitable remedial rights, kinds and classes of. 

§ 112. General classes of equitable remedies. 
§§ 113-116. Mode of administering them. 

§ 116. How far legal and equitable modes can be combined. 
§ 117. Recapitulation. 

§ 89. Object of This Section. — I have thus far described 

the historical origin of equity, and its general nature con- 
sidered simply as a separate department of the national ju- 
risprudence, and in its relations with the other department 
called the ''law." It is necessary now to make a closer 
investigation into the internal elements and features of 
equity, and to determine its constituent parts, — the char- 
acter of the rights and duties created by its doctrines and 

§ 90. Classes of Rights. — ^Laying out of view the rules 
which form the ''public law" and the "criminal law," all 
the commands and rules which constitute the ' ' private civil 
law" create two classes of rights and duties, the "pri- 
mary" and the "remedial." The primary rights and du- 


ties form tlie body of the law; tliey include all the rights 
and obligations of property, of contract, and of personal 
status; they are the very end and object of all law. If 
mankind were so constituted that disobedience to legal 
rules was impossible, then the law would be entirely made 
up of the rules which create these primary rights and 
duties. But since all these primary rights and duties may 
be violated, another branch of the law becomes necessar}^, 
which may enforce obedience by means of the "Remedies" 
which it provides. All possible remedies are either substi- 
tutes or equivalents given to the injured party in place of 
his original primary rights which have been broken, or they 
are the means by which he can maintain and protect his 
primarj^ rights in their actual form and condition. Reme- 
dial rights are those which a person has to obtain some 
appropriate remedy when his primary rights have been vio- 
lated by another. Remedial duties are those devolving 
upon the wrong-doer in such case to give the proper remedy 
prescribed by law. 

§ 91. Primary and remedial rights and duties stand 
towards each other in the following relations : Every com- 
mand or rule of the private civil law creates a primary 
right in one individual, and a primary duty corresponding 
thereto resting upon another person or number of persons. 
These rights and duties are, of course, innumerable in their 
variety, nature, and extent. If a person upon whom a pri- 
mary duty rests towards another fails to perform that duty, 
and thereby violates the other's primary right, there at 
once arise the remedial right and duty. The one whose 
primary right has been violated immediately acquires a 
secondary right to obtain an appropriate remedy from the 
wrong-doer, while the wrong-doer himself becomes sub- 
jected to the secondary duty of giving or suffering such 
remedy.^ It is the function and object of courts, both of 

§91, 1 See 2 Austin on Jurisprudence, pp. 450, 453; vol. 3, p. 1G2; 
Pomeroy on Specific Performance of Contracts, § 1; Pomeroy on Reme- 
dies and Remedial Rights, §§1, 2. 


law and of equity, to directly enforce these remedial rights 
and duties by conferring the remedies adapted to the in- 
jury, and thus to indirectly maintain and preserve inviolate 
the primary rights and duties of the litigant parties. It is 
plain from this anal^^sis that the nature and extent o:^ reme- 
dial rights and duties, and of the remedies themselves, must 
depend upon two distinct factors taken in combination, 
namely, the nature and extent of the primary rights which 
are violated, and the nature and extent of the wrongs in 
and by which the violation is effected. The same primary 
right may be broken by many kinds of wrong-doing; and 
the same wrongful act or default may invade many differ- 
ent rights. The wrongs which are breaches of primary 
rights may be either positive acts of commission or nega- 
tive omissions; their variety, form, and nature are prac- 
tically unlimited, and no classification of them is necessary 
for the purposes of this discussion. 

§ 92. Primary Rights. — ^A very general analysis and 
classification of Primary Eights and Duties will, however, 
be essential to an accurate notion of the constituent parts 
of equity. The rules and their resulting primary rights 
and duties which make up the private municipal law — 
omitting, as before stated, the public and the criminal law 
— fall by a natural line of separation into two grand divi- 
sions, namely: 1. Those directly and exclusively concerned 
with or relating to Persons; 2, All the remaining portions, 
which, in a broad sense, relate to or are concerned with 
Things. The first of these divisions, under a natural and 
logical system of arrangement, comprises only those rules 
the exclusive object of which is to define the status of per- 
sons ; or in other words, those which determine the capaci- 
ties and incapacities of persons to acquire and enjoy legal 
rights, and to be subject to legal duties.^ In the United 
States, where nearly all distinctions of class have been 

§ 92, 1 See 2 Austin on Jurisprudence, pp. 10, 382, 386, note, 412; 
vol. 3, pp. 170-172. 


abolished, and all persons sui juris stand upon an equality 
with respect to their capacity of enjoying civil rights, and 
of being subject to civil duties, this division contains but a 
very small part of the law, as compared with the corre- 
spondijig department in the Eoman law, or even in the 
existing law of many European countries. It also follows, 
as a necessary consequence of this principle of classifica- 
tion, that most of the matter which Blackstone, and after 
him Kent and other institutional writers, have treated as 
belonging to the so-called ''Eights of Persons," has been 
misplaced. Such matter has no connection whatever with 
personal status or capacity, and if any scientific or consis- 
tent system of arrangement is pursued, it plainly belongs 
among those rules which relate to Things.^ 

§ 93. The primary^ rights embraced in the second grand 
division of the law — those concerned with or relating to 
Things — are naturally separated into two principal 
classes, namely, Eights in rem, or Eeal rights, and Eights 
in personam, or Personal rights. Eights in rem, or real 
rights, are those which, from their very nature, avail to 

§ 92, 2 Simply as illustrations of this improper classification, and with- 
out attempting to enumerate all the cases, I mention the following: All 
the rules concerning the property and contracts of married women, and 
the contracts actually made by infants, have no proper place in the diW- 
sion which treats of the "Law as to Persons"; they form a part of the 
law concerning Things, in exactly the same manner, and for exactly the 
same reason, that the rules regulating the property and contracts of adult 
men or of single women belong to the law of things. The same is true 
of the rules defining rights which Blackstone calls "absolute rights of 
persons," but which are no more absolute than their rights of property, or 
rights growing out of contract. The rules defining the rights and duties 
existing between husband and wife, parent and child, guardian and ward, 
master and servant, also come within the law concerning things, as truly 
as do those which define the rights and duties existing between the parties 
to any and every contract. The subject of corporations, with all of its 
ramifications involving every department of the private Municipal Law, 
has not even the semblance of belonging to the division which comprises 
the "Law concerning Persons." 


their possessor against all mankind, and a correlative duty 
rests alike upon every person not to molest, interfere with, 
or violate the right. Rights in personam, or personal 
rights, are those which avail to their possessor against a 
specified, particular person, or body of persons only, and 
the correlative duty not to infringe upon or violate the 
right rests alone upon such specified person or body of 

§ 94. Real Rights. — The first of these classes, the rights 
in rem, embraces three distinct genera, which differ from 
each other in the subject-matter over which the rights ex- 
tend, but not in the essential nature of the rights them- 
selves. These three genera are: 1. Rights of property of 
every degree and kind over lands or chattels, things real 
or things personal; 2, The rights which every person has 
over and to his own life, body, limbs, and good name; 3. 
The rights which certain classes of persons, namely, hus- 
bands, parents, and masters, have over certain other per- 
sons standing in domestic relations with themselves, 
namely, wives, children, and servants and slaves. In all 
kinds and degrees of property the right plainly avails to 
its possessor over the subject-matter — the land or the 
chattel — against all mankind, and a corresponding duty 
rests upon every human being not to interfere with or 
molest him in the enjoyment of the property. The right 
which every person has over his own life, body, limbs, or 
good name is of the same general nature. It imposes an 
equal duty upon every one not to injure, or in any manner 
disturb or molest, the possessor of the right in the free use 
and enjoyment of his own life, body, limbs, or good name. 
The rights of the husband, parent, or master over the wife, 
child, or servant are in our law very meager and limited, 
but so far as they exist at all, they resemble the more com- 
plete rights of property, because they avail against all man- 
kind, and impose an equal duty upon every human being. 
Thus the husband is, by virtue of this right, entitled to the 


society of his wife, and the father is entitled to the services 
of his infant children, while a duty rests upon every person 
not to violate these rights by enticing away, seducing, or 
injuring the wife or child. This latter group of rights must 
not be confounded with those which the husband and wife, 
parent and child, master and servant, hold against each 
other, and which resemble in their nature the rights arising 
from contract. 

§ 95. Personal Rights. — The second class, rights in per- 
sonam, personal rights (caUed by the Roman law ''Obliga- 
tions") includes two distinct genera, namely: 1. Rights 
arising from contract ; and 2. Rights arising, not from con- 
tract, but from some existing relation between two specific 
persons or groups of persons, which is generally created by 
the law. In every case of contract the right is held by one 
of the contracting parties and avails to him against the 
other party alone, while the corresponding duty rests only 
upon that other party, and not upon every human being. 
As contracts must of necessity be made between specified 
determinate persons, it follows that the rights and duties 
arising from contract must always avail against and rest 
upon some particular, definite person or number of persons. 
The same is true of the rights and duties arising from 
special relations existing between particular persons, cre- 
ated, not by contract, but by the law. The legal effect of 
these special relations is so similar to that produced by 
contract, that the rights flowing from them were said by 
the Roman law to arise from quasi contract (quasi ex con- 
tractu). The important and ordinary examples of this 
genus are the rights and duties against each other subsist- 
ing between husband and wife, parent and child, guardian 
and ward, executors or administrators and legatees, dis- 
tributees, or creditors, and in many cases between trustees 
and cestuis que trustent. This general classification em- 
braces all primary rights and duties, both legal and equi- 
table, which belong to the private civil law. 


§ 96. Equitable Rights. — The foregoing analysis will aid 
us in forming a clear and accurate conception of the con- 
stituent elements which make up the equity jurisprudence. 
Comparing the two great divisions of the private municipal 
law, law and equity, are they antagonistic, or simply com- 
plementary to each other? or does one merely occupy a 
sphere which the other does not? Are the rules creating 
the primary rights and duties embraced in the law different 
from the same class of rules, rights, and duties embraced 
in equity? Or does the distinction lie solely in the remedial 
rights and remedies which arise from the violation of rules 
common to both, and in the judicial modes by which these 
remedies are obtained? Equity does certainly deal largely 
in remedies and rights to them, and the opinion has been 
maintained by some modern writers, that it consists in 
nothing else ; that all the rights peculiar to it and which it 
confers are remedial rights, — rights to obtain certain forms 
of remedy unknown to the law. That this opinion is a 
mistaken one is clearly demonstrated by an examination of 
the doctrines and rules of equity as now established, and 
the results which they have produced. 

§ 97. Equity, as a branch of the national jurisprudence, 
and so far as it differs from the law, consists in fact of two 
parts, two different kinds of rules and rights. First, it 
contains a mass of rules which create primary rights and 
duties, — entirely irrespective of the remedies, — which are 
different from the corresponding rules, rights, and duties, 
with respect to the same subject-matter, contained in and 
enforced by the law. Secondly, it contains another mass of 
rules defining and conferring a variety of special remedies 
and remedial rights, both of which are to a very great 
extent unknown to the law. These remedies and rights 
to them are peculiarly ''equitable," in contradistinction to 
those of the law, and irrespective of any difference in the 
primary rights for the violation of which they are granted. 
There may be four kinds of cases arising in the administra- 


tion of tlie equity jurisdiction. 1. The primary right of 
the complaining party which has been broken may be purely 
legal, — that is, a right which the rules of law confer, — 
while his remedial right and the remedy which he obtains 
may be entirely equitable, recognized, and given by equity 
alone. 1 2. His primary right which has been violated may 
be one which the rules of equity alone create, while his 
remedial right and remedy may also be only known to 
equity. 2 3. His primary right broken may be entirely equi- 
table, but his remedial right and remedy may be legal, such 
as are recognized, enforced, and granted by the law.3 
4. In some cases, few in number, his primary right may 
be legal, while his remedial right and remedy are also 

§ 97, II give simple illustrations of these four classes. Of the first 
class is a suit by one who holds the legal title to land, — his primary right, 
of course, being legal, — to restrain the commission of waste upon it, or of 
trespasses doing irreparable damage; also the suit by the owner in fee 
of land in possession, to declare his own title against other claimants not 
in possession, whether their claims be legal or equitable. This latter kind 
of remedy is given by statute in many states. It is very plain in these 
eases that the plaintiff's estate and right are wholly legal, and the remedies 
are clearly equitable. The instances of this class are very numerous. 

§ 97, -2 As simple illustrations : A suit by the vendee in a parol contract 
for the sale of land part performed, to obtain a specific performance. The 
right and estate under the contract are recognized by equity alone, and the 
remedy is purely equitable. Also a suit brought by a mortgagor of land 
who has made default, to redeem. According to the original legal and 
equitable doctrines, the estate of such mortgagor is purely equitable. Ac- 
cording to the doctrine prevailing generally in this country, the estate of 
the mortgagor is legal, and the case would fall within the first class. Suits 
by which a plaintiff's equitable title is turned into a legal estate, by the 
remedy of reformation, cancellation, and the like, also belong to this 
second class. 

§ 97, 3 In this class are some suits for accounting, the plaintiff's claim 
or interest in the fund or other subject-matter being equitable, and the 
accounting and pecuniary recovery being a legal remedy ; also many suits 
in which the plaintiff's interest is equitable, and he recovers damages; also 
suits, by an equitable assignee of a fund in the hands of a third person, 
to recover the amount thereof, where the plaintiff's ownership is wholly 
equitable, but his relief is simply a recovery of a certain sum of money. 


legal, such as are administered by courts of law."* The 
peculiar feature which distinguishes equity from the law 
does not therefore consist solely in the fact that it pos- 
sesses remedies which the law does not admit, nor solely 
in the fact that it creates and confers primary rights and 
duties different from any which the law contains, but in 
both these facts combined. These two elements will be 
examined separately. 

§ 98. I. Equitable Primary Rights. — Equity consists in 
part of rules creating primary rights and duties differing 
from those relating to the same subject-matter, which are 
purely legal. Kecurring to the classification given in a 
former paragraph (§ 92), it will enable us to fix the limits 
of these primary rights, and to determine the classes in 
which they are all found, with great ease and precision. 
No equity primary rights belong to the first grand division 
of rights relating to or concerned with the status of per- 
sons. All the rules which define the capacities and incapa- 
cities of persons to acquire rights or to be subject to duties 
are strictly legal. The only apparent exceptions to this 
proposition are the statutory special proceedings for de- 
termining whether a person is a lunatic, or non compos 
mentis, or a confirmed drunkard, and the statutory suits 
for divorce, which in many of the states are confided to 
the Chancellor, or to a judge or court possessing equity 
powers. But in the first place, these proceedings are 
wholly statutory, and do not belong to the equity jurisdic- 
tion as such; and in the second place, they are wholly 
remedial.^ All the primary rights, therefore, which form 

§ 97, 4 The suits of this class are generally, if not always, actions for 
accounting, in which the rights and interests in the subject-matter are 
purely legal, and the action is brought in equity merely for convenience. 
The accounting and recoveiy of money are of course a legal remedy. The 
case of an ordinary suit to settle accounts among partners, where neither 
of them is insolvent, and no equitable liens or claims to marshal the assets 
arise, is a familiar example. 

§ 98, 1 These proceedings are in truth remedies ; they are intended to 
ascertain and establish the status of lunacy, unsoundness of mind, etc., 


a part of equity are referable to the second division of 
Eights relating to Things. 

§ 99. From this division, also, there must be a process 
of elimination. In the department of Real rights, Rights 
in rem, very important and broad limitations are to be 
made. No equitable primary rights are contained in the 
second of the three genera into which real rights are 
divided, — or those which a person possesses over his own 
life, body, limbs, or good name. All the rights of this kind 
are purely legal ; they are the very flower and fruit of the 
common law, — its highest excellence; and equity does not 
intrude upon this peculiar field of the law. Nor are any 
equitable primary rights contained in the third of these 
genera, — the rights held by certain classes of persons over 
certain other persons occupying special domestic relations 
to\Yards themselves. The rules which define these rights, 
and determine the powers of husbands over their wives, 
parents over their children, guardians over their wards, 
masters over their servants, belong exclusively to the do- 
main of the law ; equity does not interfere with these purely 
personal relations. It is only when some property rights 
or questions concerning property arise between husband 
and wife, parent and child, guardian and ward, that equity 
can possibly have jurisdiction, and even in such cases 
the jurisdiction does not extend to the merely personal 

§ 100. We are now prepared by this process of elimina- 
tion to define with exactness the classes of primary rights 
and duties which alone come within the domain of equity, 

or to dissolve the status of marriage; but they do not determine the 
capacities or incapacities of hmatics, etc., — all the rules which detennine 
who are lunatics, insane, married, etc., and their capacities, are wholly 
legal, and not equitable. 

§ 99, (a) The text is cited to this bilt v. Mitchell, 71 N. J. Eq. 632, 63 

effect in Lombard v. Morse, 155 Atl. 1107; reversed on appeal, 72 

Mass. 136, 14 L. R. A. 273, 29 N. E. N. J. Eq. 910, 14 L. R. A. (N. S.) 

205. The text is quoted in Vander- 304, 67 Atl. 97. 


and thus form a part of its jurisprudence. Among the 
rights in rem, real rights, it is only those of the first genus, 
the rights of property, which do or can come within the 
scope of equity. Among the rights in personam, personal 
rights, both of the genera, those arising from contract and 
those arising from particular relations subsisting between 
two or more specific persons, may come within the domain 
of equity. The rights and duties of the parties growing 
out of contracts, and especially those. growing out of cer- 
tain determinate relations not based upon contract, but 
directly concerned with property, such as trustee and cestui 
que trust in all its forms, guardian and ward, executor or 
administrator and legatees, distributees, or creditors, and 
the like, constitute a large and important part of the pri- 
mary rights falling under the equitable jurisdiction. Hav- 
ing thus referred the primary rights which equity creates 
to their general classes, I shall now describe with more of 
detail their essential nature and qualities. 

§ 101. It must be premised that in most instances the 
legal primary right, and the corresponding but different 
equitable primary right, arise from the same facts, circum- 
stances, acts, or events which are the occasion of both. 
But in some instances, facts, circumstances, or events 
which are not the occasion of any legal right at all give 
rise to a primary right in equity.^ With respect to the 
equitable primary rights taken as a whole, it is proper to 
say that most of them are simply different from or addi- 
tio7ial to those which exist at law; they do not contradict 
any rules upon the same subject-matter which the common 

§ 101, 1 A familiar example will illustrate both of these cases. From 
the same fact, namely, a valid written contract for the sale of land, there 
arise the legal right of the vendee, and also his very different equitable 
right. From a verbal contract for the sale of land when part performed, 
there arises no legal right whatever; but these facts, the verbal contract 
together with the part performance, are the occasion of an equitable right 
in the vendee which is even a right of property, an equitable estate in 
the land itself. 


law provides; but they are supplementary, touching. upon 
particulars in relation to which the law is silent. Between 
this class of equitable rights and the corresponding legal 
rights there is, therefore, no conflict; each is absolutely 
true at all times and in all places ; equity courts recognize 
and administer the one, and law courts the other, without 
clashing or discord. With respect to another portion of 
these primary equitable rules and rights, it must be said 
that they are not merely additional to, but they are in 
actual conflict with, the legal rules and rights concerning 
the same subject-matter, or arising from the same circum- 
stances; between the kind of equitable rules and rights and 
the corresponding portions of the law, there is, therefore, 
an antagonism ; the equity courts admit and uphold a par- 
ticular right as resulting from a certain state of facts, 
which the law courts not only refuse to recognize, but which 
they would deny and oppose. This contrariety existed to 
a much larger extent in the infancy of the system than it 
does now; it has gradually become less as the law itself 
has grown more liberal and equitable. That there should 
be any such conflict between two departments of a mu- 
nicipal law is undoubtedly a blemish upon the national 
jurisprudence; but this condition had a strictly historical 
origin, and the very progress towards perfection largely 
consists in the elimination of these instances of antagonism. 
It should be remembered, also, that equity sometimes fur- 
nishes its remedies for the violation of primary rights* 
which are strictly legal, as, for example, in many cases of 

§ 102. A few examples will serve to illustrate the fore- 
going description of equitable rules and rights, and will 
exhibit its correctness in the clearest manner. Although 
the first of the cases selected no longer exists, it is none 
the less appropriate for the purpose of showing the exact 
nature of equitable doctrines in their relations with the 
law. As has already been mentioned, at an early day the 


law declared that when a debtor on a sealed obligation 
had paid the debt, but had failed to take an acquittance 
under seal, or a surrender of the instrument, he was still 
liable, and the creditor could recover the amount a second 
time by action. Equity interfered and gave the debtor the 
remedy of a perpetual injunction against any action at law, 
and perhaps the delivery up or cancellation of the bond. 
It is not the form of the remedy to which I now call atten- 
tion, but the primary equitable right for the maintenance 
of which the remedy was given. Compare the rights and 
duties of the two parties at law and in equity. The law 
said that notwithstanding the payment already made, the 
primary right of the creditor arising from the contract to 
demand the money, and the primary duty of the debtor to 
pay it, still existed in full force, and it therefore gave the 
remedial right of an action to collect the debt. Equity said 
the exact opposite of this. It declared that the primary 
right of the creditor and the primary duty of the debtor had 
been ended; that the obligation of the debtor to pay had 
been destroyed, and in its place there had arisen a right to 
have the evidence of that obligation canceled or to have 
evidence of the payment created in a formal manner. It 
therefore gave to the debtor the remedial right and the 
remedy of an injunction and of a cancellation. It is an 
entirely mistaken and even absurd explanation of this and 
other analogous cases, to assert that equity simply granted 
a remedy which the law did not give. Remedies are not 
conferred by equity courts, any more than by law courts, 
unless a primary right and duty exist, which have been 
violated, so that a remedial right arises from such viola- 
tion. Equity did not, in this case, interpose its remedy 
in favor of the debtor for the violation of any legal right; 
for the law most peremptorily affirmed that the primary 
right of the creditor, which it gave him on the occasion 
of the sealed contract being executed, was in full force, 
and that the primary duty which it imposed upon the debtor 



remained unaffected. Equity as empliatically denied all 
this, and asserted that no such primary right and duty 
were left existing, but that the position of the two parties 
had been exactly reversed. There was a plain and direct 
conflict in the primary rights and duties flowing from the 
same facts and events. It is true, this particular instance 
of antagonism no longer exists, since the absurd rule of 
the law has long been changed, so as to harmonize with 
the equitable doctrine ; but I have thus dwelt upon the case 
at large, because it is a most admirable illustration of the 
class of equitable primary rights which are in conflict with, 
and not merely supplementary to, the legal primary rights 
resulting from the same circumstances. 

§ 103. I give another example of the same class. Under 
the prohibition of the Statute of Frauds, a contract for 
the sale of land, when not in writing, cannot be enforced in 
law, even though part performed. It makes no difference 
whether the statute says, as in England and in some of the 
states, that no action can be maintained on such an agree- 
ment, or says, as in the other states, that the agreement 
is void ; the result is practically the same in either form of 
the statute : the verbal contract is no contract at law, but is 
simply a nullity. ^ Equity speaks a very different language. 
It says that such a verbal contract, if part performed in a 
proper manner, shall be enforced. The processes of rea- 
soning through which courts of equity have reached this 

§ 103, 1 1 am, of course, aware of the theory so often stated by courts, 
that the statute only affects the evidence, and not the right. But a right 
which cannot under any possible circumstances be enforced is certainly 
no right. This purely technical doctrine in relation to the statute was 
invented in order to admit a legal basis for certain collateral results flow- 
ing from a verbal contract; it has never been carried to the extent of 
maintaining that any legal right arose from such an agreement. It is 
strictly correct, therefore, to say that with either form of the statute no 
legal primary right results from a verbal contract within the statute ; for 
if there were any such right, its violation would give rise to a legal 
remedy, which is impossible. 


conclusion, and the theory which they have adopted to 
reconcile their judicial action with the prohibitions of the 
statute, are wholly immaterial; the result is patent upon 
any theory, that equity from certain acts and events creates 
primary rights and duties in the parties .diametrically op- 
posed in their nature to those which the law creates on the 
occasion of the same facts. The law declares that from 
the verbal contract, although part performed, no primary 
right arises in favor of either party, and no corresponding 
duty devolves upon either; and if either refuses to do 
what he has thus verbally promised, the law admits no 
remedial right in the other, and gives him no remedy! 
Very different is the result in equity. Whatever be the 
grounds of its action, the plain fact is, that when such a 
verbal agreement has been properly part performed, say 
by the purchaser, equity recognizes in him exactly the same 
primary right which would have existed if the contract 
had been written, — the right to have the very thing done 
which was agreed to be done, — and devolves upon the 
vendor exactly the same duty which would then have 
rested upon him ; and if this primary right or duty is vio- 
lated by the vendor's refusal to perform, equity gives to 
the vendee its remedy of a specific enforcement. The 
same is true when the part performance has been by the 
vendor. In this instance, also, the primary rights and 
duties created by equity are not only additional to, but 
in direct conflict with, those created by the law between 
the same parties under the same circumstances.^ In both 
the foregoing examples the equitable rights and duties 
belong to the class of ''Personal," — Rights m personam, 
being against a specific or determined person. 

§ 103, (a) Equitable primary Sanguinetti v. Eossen, 12 Cal. App 

rights, arising from part perform- 623, 107 Pae. 560; in Miller v. Jack 

ance of parol contract for sale of son Township, 178 Ind. 503, 99 N. E 

land, in direct conflict with legal 102. Cited, also, in D'Elissa v 

primary rights. This paraiiraph is D'Amato, 85 N. J. Eq. 466, 97 Atl 

cited, by way of illustration, in 41. 


§ 104. Anotlier remarkable example of equitable primary 
lights, in direct conflict with those created by the law under 
the same facts, is shown in those contracts of married 
women which are treated as valid and enforced by equity. 
At the common la^w every agreement of a married woman 
was simply a nullity, not merely voidable, but absolutely 
void. Equity did not in a direct manner abolish this legal 
dogma. It did, however, in the cases reached by its doc- 
trine, create a primary right and duty from the contract, 
which, being violated, it enforced in its own manner and by 
its own peculiar remedy; it even enforced an agreement 
between the husband and wife, if beneficial to her rights of 
property. So far as equity went, there was thus a direct 
antagonism between its rules and those of the law. The 
law said most peremptorily that no right or duty arose 
from the transaction. Equity said that the contract was 
the occasion of a full right and duty of performance, and 
although in deference to the common law it did not enforce 
the duty against the wife personally, it enforced it against 
her separate estate, upon which it was a charge. And in 
agreements made by the married woman for the benefi^t 
of her separate estate, equity gave her its remedy of 
specific performance.! * 

§ 104, 1 I add one more striking illustration. When there are two or 
more joint promisors and debtors, — A, B, and C, — and one of them, C, 
dies, then at the common law all his liability ceases absolutelj'. The cred- 
itor can maintain no action at law, under any circumstances, against his 
personal representatives to recover the debt or any portion thereof; the 
creditor's sole primary right growing out of the original contract, and his 
sole remedy by action, are against the survivors, A and B. Equity, how- 
ever, has altered these relations. Equity regards the original demand of 
the creditor as still subsisting against the estate of the deceased joint 
debtor, C, and such estate as still remaining bound by the obligation; and 
therefore enables the creditor to maintain a suit against the representa- 
tives of C, for the purpose of recovering the amount due. Here the 
antagonism is plain and direct; and it makes no difference whether we 

§ 104, (a) This paragraph is cited, arguendo, in Miller v. Jackson Town- 
ship, 178 Ind. 503, 99 N. E. 102. 


§ 105. I pass to examples of other kinds. Wherever the 
books or the courts speak of ''equitable estates," either 
in land or in chattels, as held by a person, there are in 
reality equitable real rights, rights in rem, rights of prop- 
erty, in the land or chattels, different from or additional 
to the rights arising from the same facts which the law con- 
fers upon the same party. The kinds and degrees of these 
equitable rights of property are numerous, ranging from 
the most complete, beneficial ownership, simply wanting the 
legal title, through various grades to mere liens; the spe- 
cial rules concerning them constitute an important part of 
equity jurisprudence. I shall mention a few examples for 
purposes of illustration. The most familiar case in this 
country is that of the ordinary executory contract for the 
sale of land. The law recognizes from this transaction 
nothing but "personal" rights and duties. As long as 
the agreement remains executory, the vendee acquires no 
right of property in the land, nor the vendor in the pur- 
chase-money; each party has the right against the other 
that the contract shall be fulfilled according to its terms; 
but for the violation of this primary right the only legal 
remedy is a pecuniary compensation. The view which 
equity takes of the juridical relations resulting from the 
transaction is widely different. Applying one of its fruit- 
ful principles, that what ought to be done is regarded as 

adopt the English rule that the creditor may sue the representatives of 
the deceased at his election, or the rule prevailing in some of our states, 
that the creditor can only sue C's representatives, when he is unable to 
enforce his demand against the survivors. In either form of the rule, 
equity regards the primary right of the creditor gi-owing out of Ihe 
original contract, and the obligation of the deceased debtor, as still exist- 
ing, and therefore gives its remedy by suit; while the law regards such 
right and obligation as wholly gone, and therefore refuses any remedy. 
It is true that the legislature, in some states, has abrogated this legal 
doctrine, and has made the estate of the deceased joint debtor liable at 
law. Similar remarks might be made concerning the case of two or more 
joint creditors, where one of them dies, and the contrasting doctrines of 
law and of equity applicable thereto. 


done, equity says that from the contract, even while yet 
executory, the vendee acquires a ''real" right, a right of 
property in the land, which though lacking a legal title, and 
therefore equitable only, is none the less the real, beneficial 
ownership, subject, however, to a lien of the vendor as se- 
curity for the purchase-price as long as that remains un- 
paid. This property in the land, upon the death of the 
vendee, descends to his heirs, or passes to his devisees, and 
is liable to the dower of his widow.* The vendor still holds 
the legal title, but only as a trustee, and he in turn acquires 
an equitable ownership of the purchase-money; his prop- 
erty, as viewed by equity, is no longer real estate, in the 
land, but personal estate, in the price, and if he dies be- 
fore payment, it goes to his administrators, and not to his 
heirs. In short, equity regards the two contracting parties 
as having changed positions, and the original estate of each 
as having been "converted," that of the vendee from per- 
sonal into real property, and that of the vendor from real 
into personal property.^ Although these primary rights 
which equity thus creates are very different from those 
which the law recognizes, there is still no conflict or antag- 
onism between the two.<^ While equity gives to the pur- 
chaser a property in the land, and furnishes him with its 
specific remedies to maintain and enforce that ownership, 
at the same time it does not deny nor interfere with his 
legal primar}'' right against the vendor personally arising 
from the contract. The vendee in fact has an election. 
Relying upon the mere personal primary right of contract, 
he or his executors or administrators may sue in a court 

§ 105, (a) The text is quoted in Pac. 732. The language of the text 

Parks V. Sraoot's Admrs., 105 Ky. 63, is stated, in substance, in Ayles- 

48 S. W. 146; Walker v. Goldsmith, worth v. Aylesworth (Ind. App.), 

14 Or. 125, 12 Pac. 537. 106 K E. 907. 

§ 105, (b) The text is quoted in § 105, (c) See, further, as to the 

Parks V. Smoot's Admrs., 105 Ky. 63, equitable estates arising from the 

48 S. W. 146; Clapp v. Tower, 11 executory contract for the sale of 

N. D. 556, 93 N. W. 862; cited, land, post, §§367, 368, 372, 1160, 

Schenck v. Wicks, 23 Utah, 576, 05 1161, 1260, 1261, 1263, 1406. 


of law to recover damages for a violation of the agree- 
ment; or relying upon the real right, his ownership of the 
land, he or his heirs may sue in a court of equity, and pro- 
cure his ownership to be fully established, and the legal 
muniments of his title perfected. 

§ 106. In all eases of implied trusts there is the same 
diiference between the legal primary right, purely "per- 
sonal" in its nature, and the equitable estate, or right of 
property. One instance will illustrate the entire class. 
A receives from B a sum of money under an agreement 
to purchase therewith a parcel of land for B, and to take 
the conveyance in the latter 's name; he purchases the land, 
but takes the deed to himself in violation of his duty, and 
with the design of obtaining all the benefit and of retaining 
the ownership. The law under these and all similar cir- 
cumstances sees only a contract, express or implied, be- 
tween the parties, with the purely '^ personal" rights which 
spring from contract. B has no property in the land, and 
his only legal remedy is compensation by dainages. In 
equity, however, B acquires a "real" right, an estate in 
the land, which is regarded as the true and beneficial owner- 
ship, with all the incidents of real property; and he can 
establish that ownership by compelling A to convey the 
legal title and deliver the possession. 

§ 107. The same and sometimes even a greater differ- 
ence between the legal and equitable rights exists in all in- 
stances, so common in England, but no longer permitted 
in many American states, but seldom known, even if theo- 
retically possible, in the others, of express passive trusts 
in lands. At law the cestui que trust never acquires any 
property in the land so long as the trust is subsisting, and 
in many cases he obtains no right whatever, either of prop- 
erty or of contract. In equity, however, the cestui que 
trust is the real owner ; his primary right ^is one of prop- 
erty in the land, either in fee, for life, or for years. An- 
other exceedingly instructive example is the estate of the 


mortgagor created by equity, while the law, unless altered 
by statute, regards all the property as vested in the mort- 
gagee. I need not add any more examples. I have already 
given a sufficient number and variety to illustrate and show 
the truth of my main proposition, — that equity is not 
wholly a system of remedies; but that it consists in part 
of primary rights and duties, and of the rules concerning 
them, differing from, sometimes conflicting with, but more 
often additional to, the primary rights, duties, and rules 
relating to the same matters established by the law. 

§ 108. II. Equitable Remedies. — Equity consists, to a 
very great extent, of Eemedies and Eemedial Eights dif- 
ferent from any which the law administers by means of its 
ordinary actions ;i although it does, under certain circum- 

§ 108, 1 I intentionally pass by the specific legal remedies which the 
law gives by means of Mandamus, Quo "Warranto, and certain other special 
proceedings, and which have some general resemblance to the reliefs 
■granted by equity. 

The principle of equitable primary rights, as distinguished from legal 
primary rights, and of equitable remedies, was very clearlj' recognized and 
illustrated by the doctrine concerning the liability of a married woman's 
separate estate to be appropriated in equity in satisfaction of her con- 
tracts, by the English Court of Appeal in the veiy recent case of Ex parte 
Jones, L. R. 12 Ch. Div. 484, 488-490. Speaking of the nature and 
grounds of this equitable liability, James, L. J., said : "If she is not liable 
to be sued as a feme sole in what used formerly to be called a common- 
law action, she is not liable to be sued for a debt at all. In equity the 
liability was to have her separate estate taken from her for the benefit 
of the person with whom she had contracted on the faith of it. That was 
a special equitable remedy, arising out of a special equitable right. But 
the married woman who contracts in that way is not a debtor in any sense 
of the word" (that is, she is not liable under a contract binding at law, 
which creates the legal liability of indebtedness and the corresponding legal 
right of a creditor). Brett, L. J., said: The equitable procedure "did 
not enable any one to sue a married woman as -iipon and for a debt in a 
court of equity. It was a peculiar remedy against the separate property 
of the married woman so long as it existed, but it was not a remedy against 
her as and for a debt." 

Cotton, L. J., said : "A debtor must be a person who can be sued per- 
sonally for a debt, and who is liable to all the consequences of a personal 


stances, grant remedies which are legal in their nature, and 
are capable of being conferred by a judgment at law, 
namely, a mere recovery of money, or of the possession of 
specific land or chattels. Many of the ordinary equitable 
remedies are derived directly from the nature of the pri- 
mary right which they are intended to protect. For ex- 
ample, in the case of a contract for the purchase of land, 
or of an implied trust in land, or of any other transaction 
from which the equitable primary right consists in a right 
of property, this equitable estate, although the real, bene- 
ficial ownership is subject to some great inconveniences 
which lessen its value, the holder of the legal title in trust 
for the equitable owner cannot defeat the latter 's right 
as long as he retains such title in his own hands, but he can 
convey it to another bona fide purchaser, and thus cut off 
the existing equitable estate. To prevent this, and to 
secure his full enjoyment of the property, a peculiar rem- 
edy is given to the equitable owner, by which he establishes 
his right, perfects his interest, compels a conveyance of 
the legal title, and a transfer of the possession, if neces- 
sary, and thus acquires a full and indefeasible estate, legal 
as well as equitable, in the land.^ A large class of reme- 
dies are thus based upon and exactly fitted to the nature 
of the primary right; these remedies are distinctively 
equitable ; and their intimate correspondence with the pri- 
mary rights which they enforce has, more than anything 
else perhaps, led to the mistake, alluded to in a former 
paragraph, of confounding all equitable primary rights 

judgment against him. But that is not at all the position of a married 
woman, even though she has separate estate. ... It is not the woman, as 
a woman, who becomes a debtor, but her engagement has made that par- 
ticular part of her property which is settled to her separate use a debtor 
and liable to satisfy the engagement." 

§108, (a) This paragraph of the a municipality), and in Tennant's 

text is cited in Provisional Munici- Heirs v, Fretts, 67 W. Va. 569, 1-iO 

pality of Pensacola v. Lehman, 57 Am. St. Rep. 979, 29 L. E. A. (N. S.) 

Fed. 324, 330, 13 U. S. App. 411, G25, 68 S. E. 387. 
(suit for specific performance against 


with remedial ones, and of supposing that equity is wholly 
a system of remedies. 

§ 109. The distinguishing characteristics of legal rem- 
edies are their uniformity, their unchangeableness or fixed- 
ness, their lack of adaptation to circumstances, and the 
technical rules which govern their use. The legal remedies 
by action are, in fact, only two: recovery of possession of 
specific things, land or chattels, and the recovery of a sum 
of money. When a person is owner of land or of chattels 
in such a way that he is entitled to immediate possession, 
he may recover that possession; but since the action of 
''Ejectment" has taken the place of the old real actions, 
a recovery of the land by its means does not necessarily 
determine or adjudge the title, and in a recovery of chat- 
tels by the action of replevin, the title is only determined 
in an incidental manner.^ For all other violations of all 
possible primary rights, the law gives, as the only remedy, 
the recovery of money, which may be either an ascertained 
sum owed as a debt, or a sum by way of compensation, 
termed damages. Equitable remedies, on the other hand, 
are distinguished by their flexibility, their unlimited 
variety, their adaptability to circumstances, and the nat- 
ural rules which govern their use. There is in fact no 

§ 109, 1 It should be remembered that I am speaking of the common- 
law forms of action, and not of the system introduced by the I'eforraed 
procedure. Since in the action of ejectment the plaintiff was a fictitious 
person, and not the real party in interest, a judgment was no bar to any 
number of succeeding actions; it required a suit in equity and a perpetual 
injunction to restrain the continuous bringing of such actions in a given 
case, and to declare the title. In the American states, statutes have put a 
limit upon the number of separate actions which may be brought. Under 
the reformed procedure, the action to recover laud really has nothing in 
common with "ejectment"; it rather resembles the old "real action" in 
detennining the title as well as the possession, and it is so regarded in 
some of the states. But by a strange inconsistency, the statutes of other 
states treat it as only a simplified ejectment, and the judgment recovered 
by it as not finally adjudicating upon the title. In a few of the states, 
the old common-law "real action" is still used instead of ejectment. 


limit to their variety and application; the court of equity 
has the power of devising its remedy and shaping it so as 
to fit the changing circumstances of every case and the 
complex relations of all the parties.^' 

§ 110. Notwithstanding this unlimited power of expan- 
sion and invention, there are certain species of equitable 
remedies which have become well established and famil- 
iarly known, and which are commonly designated by the 
term "equitable remedies" whenever it is used. They 
may be separated into three classes: 1. Those which are 
entirely different from any kind of reliefs known and 
granted by the law. Of this class are the preventive rem- 
edy of Injunction, the restorative remedy of Mandatory 
Injunction, the remedies of Reformation, Specific Perform- 
ance, and many others.^ 2. Those which the legal proce- 
dure recognizes, but does not directly confer, and the bene- 
ficial results of which it obtains in an indirect manner. A 
familiar example is the relief of Rescission or Cancella- 
tion. A court of equity entertains a suit for the express 
purpose of procuring a contract or conveyance to be can- 
celed, and renders a decree conferring in terms that exact 
relief. A court of law entertains an action for the re- 

§ 109, (a) Flexibility of Equita"ble (remedy by redemption and recon- 
Eemedies, and their adaptability to veyance where land has been con- 
circumstances. The text is quoted veyed with trust for payment of 
in The Salton Sea Cases, 172 Fed. surplus on sale thereof to grantor). 
820, 97 C. C. A. 242 (injunction The text is cited in Boring v. Ott, 
against overflow of land, decree pro- 138 Wis. 260, 19 L. R. A. (N. S.) 
tecting all rights); in Sourwine v. 1080, 119 N. W. 865 (enjoining judg- 
Supreme Lodge, 12 Ind. App. 447, ment because of perjury). 
54 Am. St. Rep. 532, 4;0 N. E. 646; §110, (a) This paragraph of the 
in Turner's Admr. v. Citizens' Bank, text is cited in Provisional Munici- 
111 Va. 184, 68 S. E. 407 (devisees pality of Pensacola v. Lehman, 57 
whose shares have been lost by elec- Fed. 324, 330, 13 U. S. App. 411, 
tion , entitled to compensation for 6 C. C. A. 349 (suit for specific per- 
their loss out of fund in court); in formance against a municipality). 
Campbell v. Alsop's Admrs., 116 Va. Cited, also, in Mc Williams v. Burnes, 
39, 81 S. E. 31; in Weltner v. Thur- 115 Mo. App. 6, 90 S. W. 735; 
mond, 17 Wyo. 268, 129 Am. St. Rep. Shepard v. Pabst, 149 Wis. 35, 135 
1113, 98 Pac. 590, 99 Pac. 1128 N. W. 158. 


covery of the possession of chattels, or, under some cir- 
cumstances, for the recovery of land, or for the recovery 
of damages, and although nothing is said concerning it, 
either in the pleadings or in the judgment, a contract or a 
conveyance, as the case may be, is virtually rescinded ; the 
recovery is based upon the fact of such rescission, and 
could not have been granted unless the rescission had taken 
place. Here the remedy of cancellation is not expressly 
asked for, nor granted by the court of law, but all its effects 
are indirectly obtained in the legal action. ^ ^ It is true, 
the equitable remedy is much broader in its scope, and 
more complete in its relief; for its effects are not confined 
to the particular action, but by removing the obnoxious 
instrument they extend to all future claims and actions 
based upon it. 3. Those which are substantially the same 
both in equity and at the law. Familiar examples of this 
class are the partition of land among co-owners, and the 
admeasurement of dower, in which the final relief granted 
by equity is the same as that obtained through the now 
almost obsolete legal actions ; 2 the process of accounting 
and determining the balance in favor of one or the other 

§ 110, 1 It would perhaps be more correct to say that the legal judg- 
ment proceeded upon the assumption that one of the parties had himself 
rescinded the contract or conveyance prior to the suit, and that he was 
justified in so doing; but this explanation does not alter the result or 
modify the statement of the test. In either theory, the legal procedure 
recognizes the rescission as a fact, and its benefits are secured indirectly 
by the judgment; as in actions by defrauded vendors to recover the goods 
or their value. 

§ 110, 2 The ancient legal actions of partition and admeasurement of 
dower, though long discarded in England, are still, retained in a modified 
form in Massachusetts, Pennsylvania, and perhaps in two or three addi- 
tional states. In other states, where the reformed procedure has not 
been introduced, "ejectment" is sometimes used for the same purpose. 

§ 110, (b) Rescission at law and This paragraph is cited in Wataon 

in equity. The text is quoted in v. Borah, 37 Okl. 357, 132 Pac. 347 

State V. Snyder, 66 Tex. 687, 18 (cancellation); Taylor v. Brown, 92 

S. W. 106, 108; in Bruner v. Miller, Ohio 287, 110 N. E. 739. 
59 W. Va. 36, 52 S. E. 995. 


party;* and even, under special circumstances, the award 
of pecuniary damages expressly.^ This mode of classi- 
fying equitable remedies was both common and convenient 
while the jurisdictions of law and equity were wholly dis- 
tinct and confided to different tribunals, but has lost much 
of its efficacy since they have been conferred upon the same 
court, and under the reformed procedure, which coml)ines 
legal and equitable remedies in one action, it has become 
positively misleading, 

§ 111. Abandoning, therefore, this method of arranging 
and describing remedies, as no longer adapted to the ad- 
ministration of equity jurisprudence at the present day, 
I shall classify them according to their essential natures. 
Equity has followed the true principle of contriving its 
remedies so that they shall correspond both to the primary 
right of the injured party, and to the wrong by which that 
right has been violated. It has, therefore, never placed 
any limits to the remedies which it can grant, either with 
respect to their substance, their form, or their extent ; but 
has always preserved the elements of flexibility and ex- 
pansiveness, so that new ones may be invented, or old ones 
modified, in order to meet the requirements of every case, 
and to satisfy the needs of a progressive social condition, 
in which new primary rights and duties are constantly aris- 
ing, and new kinds of wrongs are constantly committed.* 

§110 (c) The text is cited in Eus- 54 Am. Rep. 532, 40 N. E. 646; 

sell V. McCall, 141 N. Y. 437, 38 quoted, also, in The Salton Sea 

Am. St. Kep. 807, 36 N. E. 498. Cases, 172 Fed. 820, 97 C. C. A. 

§ 110, (d) This paragraph of the 242 (injunction against overflow of 

text is cited in Hicks v. Rupp, 49 land; decree protecting all rights); 

Mont. 40, 140 Pac. 97. Harrison v. Woodward, 11 Cal. App. 

§ 111, (a) The text is quoted in 15, 103 Pac. 933 (suit against one 

Union Pacific R. Co. y. Chicago, R. I. holding papers in escrow to recover 

& P. R. Co., 163 U. S. 564, 16 Sup. the papers); and cited in Kessler 

Ct. 1173; Columbia Ave. Sav. Fund & Co. v. Ensley Co., 129 Fed. 397; 

etc. Co. V. City of Dawson, 130 Fed. Montgomery Light & Power Co. v. 

152, 176; Harrigan v. Gilchrist Montgomery Traction Co. (Ala.), 

(Wis.), 99 N. W. 909; Sourwiue v. 191 Fed. 657, 664 (growing liberality 

Supreme Lodge, 12 Iiul. App. 447, of courts in enforcing specific per- 


§ 112. Although the number and variety of particular 
remedies are great, those in common use may be grouped 
into certain general classes according to their essential ele- 
ments, which, as said above, are based upon the primary 
right violated and the wrongful act or default in combina- 
tion. These classes are the following: 1. Declarative 
Reniedies, or those whose main and direct object is to de- 
clare, confirm, and establish the right, title, property, or 
estate of the plaintiff, whether it be equitable or legal. The 
remedies of this class are often granted in combination 
with others, and in fact they sometimes need other kinds 
of relief as a preliminary step to make them effective ; but 
on the other hand, they are often granted by themselves, 
unconnected with anything else. 2. Restorative Remedies, 
or those by which the plaintiff is restored to the full enjoy- 
ment of the right, property, or estate to which he is en- 
titled, but which use and enjoyment have been hindered, 
interfered with, prevented, or withheld by the wrong-doer.^ 
The legal remedies of this kind are simple recoveries of 
possession either of land or of chattels. The equitable 
remedies of restoration are much more various in their 
form and complete in their effect. Like those of the first 
class, they are often granted in combination with other 
kinds of relief, and frequently need some other special 
equitable remedy, such as cancellation or reformation of 
instruments, to remove a legal obstacle to the full enjoy- 
ment of the plaintiff's right, and to render them efficient 
in restoring him to that enjoj^ment. 3. Preventive Reme- 
dies, or those by which a violation of a primary right is 
prevented before the threatened injury is done, or by which 
the further violation is prevented after the injurj^ has 
been partially effected, so that some other relief for the 

formanee); Board of Commrs. v. §112 (a) The text is quoted in 

A. V. Wills & Sons, 236 Fed. 362 Churcliill v. Capen, 84 Vt. 104, 78 

(under special circumstances, con- Atl. 734, pointing out the difference 

tract for construction of works between this class of remedies and 

specifically enforced). reformation. 


wrong actually accomplislied can be granted. The ordi- 
nary injunction, whether final or preliminary, is the 
familiar example of this elass; the mandatory injunction 
is essentially a restorative remedy. 4. Remedies of Spe- 
cific Performance, or those by which the party violating 
his primary duty is compelled to do the very acts wliicli 
his duty and the plaintiif's primary right require from 
him. The remedies of this class are very numerous in 
their special forms and in respect to the juridical relations 
in which they are applicable. "Specific performance" is 
often spoken of as though it was confined to the case of 
executory contracts; but in reality it is constantly em- 
ployed in the enforcement of rights and duties arising 
from relations between specific persons which do not re- 
sult from contracts, as, for example, between cestuis que 
trustent and their trustees, wards and their guardians, 
legatees, distributees, or creditors and executors or admin- 
istrators, and the like.^ In these latter cases, however, as 
well as in that of the specific performance of an executory 
contract at the suit of a vendor, the form and nature of the 
final relief is often the same as that of accounting, pecu- 
niary compensation, or restoration. 5. Remedies of Ref- 
ormation, Correction, or Re-execution, by means of wliioh 
a written instrument, contract, deed, or other muniment 
of title, which for some reason does not conform to the 
actual rights and duties of the parties there'to, is reformed, 
corrected, or re-executed."^ Sometimes this remedy is 
asked for and obtained simply on its own account, merely 
for purpose of correcting the instrument; but it is often, 
and perhaps generally, obtained as a necessary prelim- 
inary step to the granting of a further and more substan- 
tial relief needed by the plaintiff, such as a restoration to 
full rights of property, or the specific performance of the 

§112, (b) The text is cited in ment lien against estate of deced- 

Hibernia Sav. & L. Soc. v. London ®° -'• 

T T T^- T n ^oo n ^ § ^^^' ^'^^ '^^^^ paragraph is cited 

& Lancashire Fire Ins. Co., 138 Cal. ■ -yr /-> i /m <-,• . x 

' m May v. Cearley (Tex. Civ. App.). 

257, 71 Pac. 334 (enforcing judg- 133 g.W. 165. 


contract after it lias been corrected. 6. Remedies of 
Rescission or Cancellation, or those by which an instru- 
ment, contract, deed, judgment, and even sometimes a legal 
relation itself subsisting between two parties, is, for some 
cause, set aside, avoided, rescinded, or annulled.*^ This 
remedy, like the preceding, is sometimes conferred as the 
sole and final relief needed by the plaintiff, but is often 
the preliminary step to a more effective remedy by which 
his primary right is declared or restored. 7. Remedies of 
Pecuniary Compensation, or those in which the relief con- 
sists in the award of a sum of money. These remedies, 
whose final object is the recovery of money, are of three 
distinct species, which differ considerably in their external 
form and incidents, but which agree in their substance, — 
in the intrinsic nature of the final relief. They are the 
following : First. Those in which the relief consists simply 
in the recovery of a general pecuniary judgment; that is, 
a judgment to be enforced or collected out of the debtor's 
property generally, — any property which he may own 
liable to be taken in satisfaction. This simple pecuniar}'' 
recovery is, in the vast majority of cases, legal, and not 
equitable, but it is not unknown in equity.® A court of 
equity occasionally grants the relief of compensatory dam- 
ages in connection with some other specific relief,^ and 
under very peculiar circumstances it decrees the payment 
of damages alone. Several kinds of equitable suits are 
wholly pecuniary in their relief, as those for contribution 
and exoneration.! Secondly. Those cases in which the 

§ 112, 1 A few well-known equitable actions are wholly pecuniary in 
their object and relief, although not generally described as such. For 

§ 112, (d) This paragraph is cited in Cumberland Telephone & Tel. Co. 

in Watson v. Borah, 37 Okl. 357, v. Williamson, 101 Miss. 1, 57 South. 

132 Pac. 347. 559. 

§ 112, (e) The text is cited in § 112, (f ) The text is cited to this 

State V. Sunapee Dam Co. (N. H.), effect in Blair v. Smith, 114 Ind. 

55 Atl. 899, 912, where the question 114, 5 Am. St. Rep. 593, 15 N. E. 

of damages in equity suits ia very 817; and to the effect that damages 

elaborately discussed. Cited, also, in equity are only awarded as ancil- 


relief is not a general pecuniary judgment, but is a decroe 
of money to be obtained and paid out of some particular 
fund or funds. The equitable remedies of this species 
are many in number and various in their external forms 
and incidents. They assume that the creditor has, either 
by operation of law, or from contract, or from some acts 
or omissions of the debtor, a lien, charge, or encumbrance 
upon some fund or funds belonging to the latter, either 
land, chattels, things in action, or even money; and the 
form of the remedy requires that this lien or charge should 
be established, and then enforced, and the amount due ob- 
tained by a sale total or partial of the fund, or by a 
sequestration of its rents, profits, and proceeds.? These 
preliminary steps may, on a casual view, be misleading 
as to the nature of the remedy, and may cause it to appear 
to be something more than compensatory; but a closer 
view shows that all these steps are merely auxiliary, and 
that the real remedy, the final object of the proceeding, 
is the pecuniary recovery. Among the familiar examples 
of this species are the suit to foreclose a mortgage of land, 
common throughout the United States, by a sale of the 
mortgaged premises ; ^ the suit to foreclose a chattel mort- 

example, the suit by the vendor for the specific performance of an ordinary 
land contract is really brought for the recovery of money alone, and it 
differs from the suit to enforce the vendor's lien in the fact that the 
judgment is for the recovery of the mOney generally, and not out of tlie 
land itself as a special fund. 

§ 112, 2 The strict foreclosure by which the mortgagor's equitable right 
of redernption is cut off, and the mortgagee's legal estate is perfected, is 
a remedy of an entirely different class; it is in fact a recovery of land, 
the acquisition of a comj^lete title, the establishment of a perfect legal 

lary to the main relief, and are com- § 112, (g) The text is quoted in 

pensatory, not exemplary or puni- Weldon v. Superior Court, 138 Gal. 

tive, in Karns v. Allen, 135 Wis. 427, 71 Pac. 502 (a case of equitable 

48, 15 Arm. Cas. 543, 115 N. W. 357. garnishment, authorized by statute. 

As to compensatory damages in by a materialman, of funds due the 

equity, see post, § 237. contractor) ; and in Knapp, Stout & 


gage by a sale of the goods; a suit to enforce a vendor's 
lien by a sale of the land; the creditor's suit to enforce 
his equitable lien upon the debtor's property by sale; the 
suit to enforce payment of a married woman's contract 
by a sale of the separate estate upon which it is charged; 
and generally, all similar suits the object of which is to 
enforce an equitable lien upon a fund, and thereby to ob- 
tain satisfaction of the demand which it secures. Thirdly. 
There is also another species of pecuniary remedies, closely 
analogous to the last, and differing from it only in the 
additional element of a distribution of the final pecuniary 
awards among two or more parties having claims either 
upon one common fund or upon several funds.^ The final 
relief in all these cases is simply pecuniary; the amounts 
to which the different parties are entitled are ascertained, 
and are obtained by a distribution of the fund or funds 
upon which they are chargeable. Of this species are suits 
to wind up partnerships and distribute partnership assets ; 
to settle and distribute the personal estates of decedents; 
to marshal assets; and the statutory proceeding to wind 
up the affairs of insolvent corporations. 8. The Remedy 
of Accounting. This is closely analogous to the remedy 
of Compensation, and is generally used in connection with 
and auxiliary to some forms of it. It is also a legal rem- 
edy, but has become to a great extent equitable. It is a 
necessary step in many forms and varieties of pecuniary 
relief, and sometimes is an essential preliminary in es- 
tablishing rights of property in lands or chattels. 9. 
Remedies of Conferring or Removing Official Functions. 
Courts of equity are empowered by statute in many of the 
states to remove and to appoint trustees of private trusts, 
and under certain circumstances to remove and to appoint, 
or provide for the election of, the managing officers of 
private business corporations. 10. Remedies of Establish- 

Co, V. McCaffrey, 178 HI. 107, 69 §112, (h) The text is quoted in 

Am. St. Rep. 290, 52 N. E. 898 (en- Weldon v. Superior Court, 138 Cal. 
forcing bailee's lien in equity). 427, 71 Pac. 502. 


i)ig or Destroying Personal Status. This speeios of reme- 
dies does not belong to the original jurisdiction of chan- 
cery, and so far as it exists, is wholly of statutory origin.^ 
I would include in it suits to obtain a divorce and to annul 
a marriage,J which in several of the states are entertained 
by equity courts, and proceedings by which a person is 
judicially declared to be of unsound mind or an habitual 
drunkard. Other species of equitable remedies have been 
created by statute in different states, which do not prop- 
erly belong to any of the foregoing classes. The most 
important are the proceedings for the dissolution and 
winding up of corporations, and of enforcing the official 
duties of corporate officers. The remedial powers of 
equity are so broad and so flexible that there may be many 
other special forms of remedy belonging to its general 
jurisdiction, but depending so closely upon the peculiar 
circumstances and relations of the litigant parties that they 
do not admit of classification. 

§ 113. The equitable remedies also differ from the legal 
ones in the manner of their administration. The common- 
law rules of procedure are fixed, rigid, arbitrary, technical, 
while those of the equity suit are natural and flexible. 
In no features is the contrast greater than in respect to 
parties and to judgments. The doctrines of the common 
law concerning the parties to actions, their joint or several 
rights and liabilities, and the form of judgment based upon 
these respective kinds of right and liability, are the crown- 
ing technicality of the system, resting upon verbal prem- 
ises which mean nothing, and built up from these premises 
by the most accurate processes of mere verbal logic. It 
was a fundamental principle that no one could be a plain- 

§ 112, (i) The text is quoted in vorce is a "case in equity" within 

Vandorbilt v. Mitchell, 71 N. J. Eq. the moaning of a constitutional pro- 

632, 63 Atl. 1107; reversed on ap- vision conferring appellate jurisdic- 

peal, 72 N. J. Eq. 910, 14 L. R. A, tion in all cases in equity, see 

(N. S.) 304, 67 Atl. 97. Sharon v. Sharon, 67 Cal. 185, 7 

§112, (j) That an action for di- Pac. 456, 635, 8 Pac. 709. 


tiff unless he was alone or jointly with the co-plaintiffs 
entitled to the whole recovery, nor a defendant unless he 
was alone or jointly with the co-defendants liable to the 
entire demand. The common law knew no such thing as 
the making a person plaintiff who did not share the right 
of recovery, or defendant who was not liable for the whole 
claim, merely for the purpose of binding him by the jiidrj- 
ment and cutting off any possible right on his part?- The 
judgment must be one single, entire recovery, both as 
affects the plaintiffs and the defendants ; and no one could 
be a plaintiff who did not thus hold the legal title, even 
though all beneficial interest in the cause of action be- 
longed to another. On this ground the assignor of a thing 
in action not negotiable must be the plaintiff, and the abil- 
ity of an assignee to bring an action is wholly the result 
of statute. "Where the action was by two or more plain- 
tiffs, the judgment was necessarily a single one in favor 
of all considered as one undivided body. It was impossible 
that each one of several plaintiffs could recover a differ- 
ent sum of money by way of debt or damages. Even if 
the action was for the possession of chattels or land, dif- 
ferent plaintiffs could not recover distinct chattels or 
tracts of land; the judgment was for all the chattels as 
one subject-matter, or for the whole land as a unit, and if 
the plaintiff's rights were different they must be undivided, 
so that each share, being as yet unpartitioned, should ex- 

§ 113, 1 This rule has been changed by the new procedure as adopted 
in several of the western states, which very properly requires that when 
an action is brought by the assignee of a thing in action, except of nego- 
tiable paper, the assignor must be made a party either plaintiff or 
defendant, so that he may be heard, if necessaiy, on the question as to 
the validity of the alleged assignment, and any future claim against the 
debtor on his part may be barred by the judgment. This innovation, 
which strikes at the very root of the common-law theoiy as to parties 
and judgments, has been in operation for years without the slightest diffi- 
culty, and its advantages are patent. This single fact demonstrates the 
utter worthlessness, the mere verbal character, of the so-called legal rea- 
soning by which the common-law dogmas have been upheld. 


tend throughout the entire mass, and the judgment be for 
^11 as joint or co-owners. The same rule extended to the 
defendants. If there were two or more, one single judg- 
ment must be rendered against all; different recoveries 
against separate defendants in the same action were im- 
possible. The common law permitted no affirmative re- 
lief, no recovery of debt or damages, land or chattels, in 
favor of a defendant against a plaintiff, except perhaps in 
the little used and now virtually obsolete legal action of 
"account." Even in the case of "Recoupment of Dam- 
ages," which was a recent invention of the common-law 
courts, the demand on behalf of the defendant was only 
used defensively. The exceptional case of "Set-off," in 
which alone an affirmative recovery always pecuniary was 
ever possible in favor of the defendant, was wholly of a 
statutory origin.^- 

§ 114. The equitable doctrines with respect to parties 
and judgments are wholly unlike those which prevailed at 
the common law, different in their fundamental concep- 
tions, in their practical operation, in their adaptability to 
circumstances, and in their results upon the rights and 
duties of litigants. The governing motive of equity in the 
administration of its remedial system is to grant full re- 
lief, and to adjust in the one suit the rights and duties of 
all the parties, which really grow out of or are connected 
with the subject-matter of that suit.^ Its fundamental 
principle concerning parties is, that all persons in whose 
favor or against whom there might be a recovery, however 
partial, and also all persons who are so interested, although 
indirectly, in the subject-matter and the relief granted, 

§113, (a) Common-law Doctrines 170 Fed. 24, 95 C. C. A. 298; in 

Concerning Parties and Judgments. Nichols v. Nichols, 79 Conn. 644, 

The text is cited in Hayden v. Doug- 66 Atl. 161; in Seiver v. Union Pac. 

las County, 170 Fed. 24, 95 C. C. A. E. Co., 68 Neb. 91, 110 Am. St. Rep. 

298. 393, 61 L, R. A. 319, 93 N. W. 943; 

§ 114, (a) Equitable Doctrines Con- in Sexton v. Sutherland (N. D.), 164 

cernlng Parties. — The text is quoted N. W. 278. 
in Hayden v. Douglas County (Wis.), 


that their rights or duties might be affected by the decree, 
although no substantial recovery can be obtained either for 
or against them, shall be made parties to the suit; and it 
is not ordinarily a matter of substantial importance 
whether they are joined as plaintiffs or as defendants, 
although this question of procedure is regulated to a cer- 
tain extent by rules based upon considerations of con- 
venience rather than upon any essential requirements of 
the theory. The primary object is, that all persons suffi- 
ciently interested may be before the court, so that the re- 
lief may be properly adjusted among those entitled, the 
liabilities properly apportioned, and the incidental or con- 
sequential claims or interests of all may be fixed, and all 
may be bound in respect thereto by the single decree.^ 

§ 115. The fundamental principle of equity in relation 
to judgments is, that the court shall determine and adjust 
the rights and liabilities concerning or connected with the 
subject-matter of all the parties to the suit, and shall grant 
the particular remedy appropriate in amount and nature 
to each of those entitled to any relief, and against each of 
those who are liable, and finally shall so frame its decree 
as to bar all future claims of any party before it which may 
arise from the subject-matter, and which are within the 
scope of the present adjudication.^ In rendering its de- 
cree, a court of equity is not hampered by any of the arbi- 
trary regulations which restrict the action of common-law 
tribunals ; and especially, it is not bound to give a single 

§114, (b) The text is quoted in 79 N. J. Eq. 342, 81 Atl. 36.8 (prin- 

Seiver v. Union Pac. K. Co. 68 Neb. ciple applied to specific performance 

91, 110 Am. St. Eep. 393, 61 L. E. A. suit). 

319, 93 N. W. 943 (injunction against § 115, (a) The text was quoted in 

a multiplicity of garnishment suits Union Mill & Mining Co. v. Dang- 

to reach exempt wages); in Sexton berg, 81 Fed. 73, 119, by Hawley, 

V. Sutherland (N. D.), 164 N. W. D. J., and the principle applied in a 

278; cited in Behlow v. Fisher, 102 decree apportioning the use of the 

Cal. 208, 36 Pac. 509 (dissenting waters of a stream among numerous 

opinion; dissolution of partnership); riparian proprietors. The text is 

in Peeples v. Yates, 88 Miss 2S9, cited in Hayden v. Douglas County, 

40 South. 996; in Day v. Devitt, 170 Fed. 24, 95 C. C. A. 298. 


judgment in favor of the co-plaintiffs regarded as one 
body, nor against the defendants as a group of persons 
jointly or equally liable. In this respect it possesses a full 
freedom to adapt its relief to the particular rights and 
liabilities of each party, and to determine the special in- 
terests of all, so far as they are legitimately connected 
with the subject-matter, and properly within the scope of 
the adjudication. It has power to grant relief to some of 
the co-plaintiffs, and not to others, aiid against some of 
the co-defendants, and not against others; it can confer 
different reliefs in kind and extent to different plaintiffs 
and against different defendants ; it can bestow affirmative 
relief upon all or some of the defendants against all or 
some of the plaintiifs; and finally, it can determine and 
adjust the rights and duties of the co-plaintiffs, or of the 
co-defendants, as between themselves. I would not be 
understood as asserting that this extreme flexibility or 
apportionment of remedies and obligations is common in 
ordinary equitable suits, nor that it is without limit and 
control; on the contrary, it is regulated by rules of plead- 
ing and procedure so contrived that all parties may be in- 
formed of the claims made against them, and of the liabili- 
ties to which they are exposed. My object here is simply 
to state the general principles of the Equity Remedial 
System, and to describe the power which inheres in a court 
of equitable jurisdiction to mold its decree and to adjust 
its reliefs so as to establish and enforce the particular 
rights and liabilities, legitimately connected with the sub- 
ject-matter, and within the scope of the judgment, of all 
the parties to the action. The modes in which this power 
should be exercised according to the rules of pleading and 
procedure must be considered in another place. 

§ 116. The remedial system of equity as a whole, with 
its great variety of specific remedies which enforce the very 
primary rights and duties of persons rather than give 
pecuniary equivalents for their ^dolation, with its power to 


enlarge the scope of these ordinary forms of relief, and 
even to contrive new ones adapted to new circumstances, 
with its comprehensive rules concerning parties, and with 
its unlimited control over the form and material of its judg- 
ments, possesses enormous advantages over the narrow, 
inflexible, and artificial methods of the common law. The 
reformed American procedure has attempted to combine 
the two, or rather to enlarge the equity doctrines and rules, 
so that they may embrace all actions, legal as well as equi- 
table; and in those states where the courts have accepted 
and carried out the reform in its true spirit, this attempt 
has been successful as far as is possible from the essential 
elements of the two jurisdictions. A complete amalgama- 
tion, however, is not possible, so long as the jury trial is 
retained in legal actions. There is certainly no impossi- 
bility nor even difficulty in requiring a jury to decide the 
issues of fact upon which the right to many kinds of equi- 
table remedy depends; this is the province of a jury in 
legal actions, the court pronouncing the judgment upon 
their verdict. A jury is clearly incompetent to frame and 
deliver a decree according to the doctrines and methods 
of equity; but there can be no real obstacle in the way of 
its ascertaining the facts by its verdict, and leaving the 
court to shape the decree and award the relief based upon 
these facts in many species of equitable remedy. That the 
issues of fact may be complicated is no insurmountable 
difficulty; for no issues of fact are ordinarily more com- 
plicated than those involving elements of fraud, which have 
always been regarded as peculiarly within the province of 
a jury.i There are, however, classes of equitable suits in 

§ 116, 1 This proposition of the text, which might otherwise have been 
regarded as a mere theoretical conception, has been actually wrought out 
into practice by the courts of Pennsylvania. For a long term the legis- 
lature of that state refused to confer any equitable jurisdiction upon its 
courts. As a consequence, and in order to prevent a failure of justice, 
the courts contrived a system of administering many equitable remedies 
and enforcing many equitable rights by means of the common-law forms 


which the issues of fact upon which the relief depends are 
so intimately connected with the relief itself that their 
decision is plainly beyond the competence of a jury, and 
must of necessity be left to the court or judge. Of this 
character, for Example, are all suits for the distribution 
and marshaling of assets, and in fact all those in which 
the final relief depends upon an accounting. ^Tiile a par- 
tial amalgamation of law and equity into one remedial 
system may be theoretically possible by extending the jury 
trial to certain equitable actions in which it is not now 
used, I am strongly of the opinion that the jury trial in 
civil causes of a legal nature is a practical obstacle to any 
more complete combination of the two systems than has 
already been accomplished by the reformed procedure.^ 

§ 117. To sum up the discussions of the foregoing sec- 
tion: The entire municipal law, so far as it is concerned 
with private civil relations, comprises, — 1. Legal rules 
defining legal primary rights and duties applicable to most 
of the facts and circumstances which have been brought 
within the range of jural relations; 2. Legal rules defin- 
ing legal remedial rights and duties and remedies, which 
are few in number, and very limited in their nature and 
form; 3. Equitable rules defining equitable primary rights 
and duties applicable to certain classes of jural relations, 
which rights and duties are supplementary and additional 
rather than contradictory to the legal ones affecting the 

of action. This was accomplished in the manner suggested in the text. 
In the common-law action the facts showing the equitable right were 
admitted into the pleadings, the jury passed upon the issues of fact, legal 
and equitable, and on their verdict the court rendered its judgment, which, 
by being made conditional, was enabled in an indirect manner to main- 
tain the equitable right and grant the equitable remedy. In this manner 
the common-law action of ejectment was made the means of enforcing 
specific performance, and of protecting the equitable estates of parties, 
where their land was held under an implied trust, etc. 

§ 116, 2 See Pomeroy on Remedies and Remedial Rights, §§ 51, 52, in 
which this question is more fully examined. 


same relations; 4. Equitable rules defining equitable pri- 
mary rights and duties applicable to a comparatively few 
facts and circumstances, which are actually conflicting with 
the corresponding legal rights and duties; 5. Equitable 
rules defining equitable remedial rights and duties and 
remedies, which are much more various in their nature and 
form, specific in their object, and flexible in their opera- 
tion, than the remedies supplied by the law. There is, 
therefore, no clashing nor uncertainty with respect to the 
final absolute rights and duties of individuals, except so 
far as such conflict or doubt may arise from the compara- 
tively few rules of the fourth class, where the antagonism 
between equity and the law does actually exist. It is cer- 
tainly strange, inexplicable except upon historical grounds, 
that in an age and country advanced in civilization, the 
municipal law should present such an anomaly, that a 
married woman's agreement, for example, should be 
utterly void by the rules of the law, while, according to 
the doctrines of equity, it might be valid and enforceable 
out of her separate estate; or that a certain contract for 
the sale of land should be treated as an absolute nullity by 
a court of law, and should be regarded as binding and 
specifically executed by a court of equity. If any change, 
however, is to be made for the purpose of removing this 
discord, it must be in the legal and not in the equitable 
rules. The latter are, in all instances, the more just, and 
more in accordance with the sentiments and opinions of 
the age ; while the former are necessarily subordinate, some 
of them have become practically obsolete, and all of them 
would be totally abandoned in any thorough revision or 
scientific codification of our entire jurisprudence. 





§ 118. Importance and difficulty of a correct classification, 
f § 119, 120. Different grounds which might be taken for a classification. 
§§ 121-125. Ordinary mode of classification according to the nature of the 

§ 121. In the three divisions of exclusive, concurrent, and auxiliary. 
§§ 122, 123. Different modes of carrying out this system by various writers. 
§§ 124, 125. Fundamental objections to this system of classification. 
§§ 126, 127. The true principles of classification in the present condition of 

§ 128. Plan and order of arrangement adopted in this treatise. 

§ 118. Importance and Difficulty of a Correct Classifi- 
cation. — The practical as well as the scientific value of a 
treatise on equity jurisprudence must largely depend upon 
the Principles of Classification adopted in the arrange- 
ment and discussion of the subject-matter. At the very 
outset, however, we encounter a most serious obstacle. 
From the partial character of equity as a system, from the 
fact that it covers only a comparatively small portion of 
the doctrines and rules, facts and circumstances, embraced 
in the entire national jurisprudence, its orderly and con- 
sistent arrangement necessarily becomes a matter of great 
difficulty. There are so many breaks, omissions, and, so 
to speak, empty spaces in the system of equity, that it is 
almost impossible to follow any one plan or method 
throughout the whole extent. It is plain, however, that 
the principles and modes adopted should conform to the 
present condition of equity, and to its existing relations 
with the law. 

§ 119. Different Grounds of Classification. — There are 
several features or elements of the equity jurisprudence 
which might, with more or less propriety, be selected as 
the basis of a classification. Among these are certain im- 


portant external facts or events, such as Fraud, Mistake, 
Accident, and the like, which are the occasions of numer- 
ous equitable rules. These external facts have been 
treated by some writers as distinct heads or departments 
of equity jurisprudence, and they are often so described 
in the general language of judicial opinions. A jurispru- 
dence, however, does not consist of the mere facts or events 
which are the occasions of rules and rights, but of the rules 
which create the rights, and of the rights and duties them- 
selves which result from these rules. Although such ex- 
ternal facts and events as fraud, mistake, accident, and 
the like are the occasions of numerous equitable rules, and 
therefore figure largely in the practical workings of the 
equitable jurisdiction, they are also the occasions from 
which many legal rules and rights take their origin; they 
are not peculiar to equity, and if adopted as a basis of 
classification, would tend to confuse its doctrines with those 
of the law. There is another objection, of much more 
weight. These external facts are the sources of a great 
variety both of rights and remedies. Fraud, for example, 
affects a large part of equity jurisprudence. It is the occa- 
sion of equitable rights of property, of equitable rights con- 
cerning contract, of equitable rights growing out of special 
personal relations, such as cestui que trust and trustee, 
and of many equitable remedies, such -as cancellation, 
reformation, specific enforcement, accounting,^ and others. 
It is plain, therefore, that these species of external facts 
and events, important as they undoubtedly are, do not fur- 
nish any sufficient basis for a practical nor for a scientific 
classification. They do not suggest any grounds for dis- 
criminating between rights and remedies which are essen- 
tially different; they would tend to produce confusion, 
rather than to supply a means of analyzing and arranging 
the doctrines in an orderly and distinct manner. 

§ 119, (a) The text is cited in also, in Walls v. Brundidge, 109 Ark. 

Stockton V. Anderson, 40 N. J. Eq. 250, Ann. Cas. 1915C, 980, 160 S. W. 

486, 4 Atl. 642; McCormick v. Hart- 230; Stapleton v. Haight, 135 Iowa, 

ley, 107 Ind. 248, 6 N". E. 357. Cited, 564, 113 N. W. 351. 


§ 120. Another possible basis for a classification miglit 
be found in certain grand iinderl3ing principles, wliich are 
often called the Maxims of Equity, of which the following 
are given merely as examples: lie who seeks equity must 
do equity; equality is equity; equity regards as done what 
ought to be done; equity looks at the substance and real 
intent, and not at the form, etc. It must be said of these 
grand principles, that they are a component part of equity 
jurisprudence, and not mere external facts or events, like 
fraud and mistake. They are the fruitful sources of doc- 
trine whence are derived a vast number of particular rules 
concerning both primary rights and remedies. But the 
objection last mentioned in the preceding paragraph ap- 
plies with even greater force to them. These principles 
are -too broad, comprehensive, and, so to speak, universal, 
to be taken as the basis of any practical classification. 
They run through all parts of the system, and are the 
source of so many and different rights and remedies, that 
they furnish no lines of division nor grounds of distin- 
guishing one from another, and of arranging the whole 
according to any fixed plan. These principles in them- 
selves are of the highest importance to an accurate under- 
standing of equity as a whole ; they are the unfailing foun- 
tains whence flow the various streams of right and justice ; 
the perennial sources of practical rules applicable to the 
ever-changing events of the social life; the foundation- 
stones upon which the beautiful structure of equity has 
been erected. The student who has made all these prin- 
ciples a part of his mental habit, who has, as it were, in- 
corporated them into his very intellectual being, has 
already mastered the essence of equity, and has made the 
acquisition of its particular rules an easy and delightful 

§ 121. Ordinary Mode of Classification. — The plan of 

arrangement which has been followed by most authors of 

§ 120, (a) The text is cited in Otis v. Gregory, 111 Ind. 504, 13 
N. E. 39. 


general treatises is based upon the relations wliicli for- 
merly existed between equity and the law when the two 
jurisdictions were as yet wholly distinct, and were admin- 
istered by separate tribunals. Its divisions were made, 
not according to any inherent quality or nature either of 
rights or remedies, but according to a purely accidental 
quality of the jurisdiction. The fact that this jurisdic- 
tional criterion was merely accidental and incidental, is 
demonstrated by its having been utterly abolished in Eng- 
land and in many of our states without any change in the 
equitable rights and remedies themselves, but with only a 
change in the mode of administering those rights and 
remedies by a separate judicial proceeding. This plan of 
classification separates the whole body of equity into the 
three following grand divisions: 1. That containing the 
matters in respect of which courts of equity had an exclu- 
sive jurisdiction ; 2. That containing matters in respect of 
which courts of equity had jurisdiction concurrently with 
courts of law; 3. That containing matters in respect of 
which the equity jurisdiction, though exclusive, was wholly 
exercised in aid of certain actions or proceedings which 
belonged exclusively to courts of law. In brief, the classi- 
fication which has ordinarily been adopted in the text- 
books is, the Exclusive Jurisdiction, the Concurrent Juris- 
diction, and the Auxiliary Jurisdiction. 

§ 122. Before examining the merits of this plan, a 
brief description of the manner in which it has been fol- 
lowed by different authors will be given. A great diver- 
sity exists among text-writers who have adopted this plan, 
in the modes which they have employed, in the accuracy 
and consistency with which they have adhered to the prin- 
ciples, in the criteria which they have taken to determine 
the nature and scope of the three grades of jurisdiction, 
and, as a consequence, in their arrangement of particular 
topics and heads of equity in one or the other of these three 
divisions. By some writers the element of exclusiveness 


or of concurrence in the jurisdiction has been regarded 
more in connection with the primary rights, estates, and 
interests created by equity than with its remedies. But 
they have not followed this method consistently, since their 
order of arrangement has, to a partial extent, been deter- 
mined by the nature of the remedies, and even by mere 
external facts or events which are the occasions of rights 
and duties. It has resulted from this radical difference 
in their mode of interpreting and carrying out the plan, 
that there is no agreement among these authors in their 
arrangement of particular topics under the three general 
divisions of jurisdiction. ^ 

§123. -Other authors, in adopting this general plan of 
classification, have applied the criterion of exclusiveness 
or concurrence wholly to the remedies which equity gives, 
and have determined the various topics falling within one 
or the other of the three divisions in accordance with the 
nature of these remedies ; that is, whether they belong ex- 
clusively to the equity jurisdiction, or are conferred by the 

§ 122, 1 1 take simply as an illustration the Principles of Equity, by 
E. H. T. Snell (London, 1874). In the "Concurrent" jurisdiction, this 
author places both "Specific Performance" and "Injunction," although as 
remedies both are exclusively equitable. The reason of this arrangement 
seems to be that the law has jurisdiction over contracts generally, and 
over some of the rights and interests which may be protected by injunc- 
tion. Under the "Auxiliary" jurisdiction, he strangely enough places the 
remedy of "CanceUation," "Bills to Establish Wills," "Bills Quia Timet," 
and "Bills of Peace." The first of these is an exclusive equitable remedy, 
and is constantly used as a means of establishing or restoring equitable 
rights and estates. The three others are in evei-y case final reliefs, de- 
claring and establishing rights of property. It is difficult to conceive 
how a suit to "quiet title" can be regarded as belonging to the "Auxiliary" 
jurisdiction. This author, like many others, places fraud, actual or con- 
structive, mistake, and accident as distinct heads of concuiTent juris- 
diction. The objections to such an arrangement are patent. In the first 
place, as already said, these matters are not in any sense parts of equity 
jurisprudence. In the second place, they are the occasions whence equi- 
table primary rights and remedies of the most exclusive character take 
their rise, as well as those which are legal. 


law courts, or are entirely auxiliary to the prosecution of 
legal actions. This method has the advantage of consist- 
ency and simplicity, and is not open to the objection of 
confusion ; but it necessarily places the primary rights and 
duties of equity in a very subordinate position, and thus 
presents a one-sided and even misleading view of the 
equity jurisprudence considered in its totality.^ Some 
text-writers of high reputation, while professing to class- 
ify particular topics under the three divisions according 
to the nature of the remedies, have failed to carry out this 
mode of arrangement with consistency, and have thus left 
the student without any certain clew to their system of 

§ 123, 1 By far the best example of this method, I think, is the Doctrine 
of Equity, by John Adams, 6th Am. ed., 1873. His three chief divisions 
are : 1. Jurisdiction in cases in which the law courts cannot enforce a 
right; meaning thereby a remedial right, and intending to include in the 
division those remedies which are exclusively equitable. Under this head 
he places Specific Performance, Reformation, Cancellation and Rescission, 
Injunction, Bills of Peace and to Quiet Title, Suits to Foreclose or to 
Redeem Mortgages, Enforcement of Trusts, and others. 2. Jurisdiction 
in cases in which the law courts cannot administer a right, — that is, cannot 
fully and advantageously enforce it ; the division including remedies which 
are within the concurrent jurisdiction of equity. Under this head he 
ranges Account, Partition, Settlement of Partnership Matters and Estates 
of Decedents, Marshaling of Assets, Contribution and Exoneration, etc. 
3. Jurisdiction which is wholly auxiliary, including only Discovery, Per- 
petuation of Testimony, and Examination of Witnesses abroad. This 
author is perfectly consistent in following out the principles which he 
has adopted; and he does not fall into the common error of taking fraud, 
mistake, accident, and the like as distinct heads of equity jurisprudence. 
The result is, that Mr. Adams's book is clear, distinct, Avithout confusion, 
and from his stand-point presents a very correct and consistent view of 
equity. But this view is certainly a partial one. The representation of 
equity as consisting wholly of remedies is incorrect in its fundamental 
conception, and when all equitable primary rights, interests, and estates 
are treated merely as incidents of the remedies, such a representation 
is actually made, even though it was undesigned on the part of the author. 

§ 123, 2 It cannot be denied that Judge Story's Commentaries are liable 
to this criticism, axid the result is plainly shown in his classification and 


§ 124. Even if the plan of classification according to 
the nature of the equity jurisdiction, considered in its re- 
lations with that of the law, possessed at one time certain 
practical advantages which on the whole rendered it pref- 
erable to any other (and I do not admit this proposition 
as unquestionably true), the recent and great changes 
made by statute have, in England, and in many of the 
states entirely, and in other states to a large extent, de- 
stroyed the basis of fact — the relations between equity and 
the law — upon which the very principles of the classifica- 
tion were founded. In England and in all the common- 
wealths of this country where the reformed procedure pre- 
vails, there is no longer any auxiliary jurisdiction of 
equity, nor any reason for calling its remaining functions 
either exclusive or concurrent, since legal and equitable 
primary rights are maintained, legal and equitable reme- 
dial rights are enforced, and legal and equitable remedies 
are granted by the same tribunal and in the same action. 
In most of the remaining states where the two jurisdic- 
tions are still kept distinct, the ''auxiliary" equitable pro- 
ceedings have either been abolished or have become prac- 
tically obsolete;^ and in all of them the powers of the 
law courts have been so enlarged, equitable rights and in- 
terests are to such an extent cognizable by way of defense 
in legal actions, and so many matters which once came 
within the province of equity have been placed under a 
complete system of statutory regulation, and their admin- 

(•cirrangement and treatment of particular topics. While certain remedies 
f;ae properly ranged under the exclusive jurisdiction, and others under 
fjie concurrent, as is done by Mr. Adams, this criterion is often abandoned ; 
;no clear distinction is made between remedies or the rights to them, and 
I he equitable estates, interests, rights, and obligations which are primary 
in their nature; and finally, the mere external facts of fraud, mistake, 
etc., are regarded as veritable and important heads of equity jurispru- 
dence, and are discussed at great length. 

§ 124, (a) The text is cited to this effect in Becker v. Frederick W. 
Lipps Co. (Md.), 101 Atl. 783. 
I— 10 


istration given to special tribunals, that the ancient sep- 
aration into exclusive jurisdiction no longer furnishes an 
adequate nor even a true principle upon which to classify 
the body of equity jurisprudence. This method, which 
has been commonly adopted by text-writers, is therefore 
in direct conflict with the reformed procedure now used in 
more than half of the states and territories, as well as in 
England and its chief colonial dependencies; and it is also 
opposed to the tendencies of legislation in all the other 
states, with a very few exceptions. There is nothing which 
so hinders the progress of legal reform, and so long de- 
lays the general acceptance according to its true intent of 
a new legal system, as the persistent retention of the 
nomenclature, methods, and classification which had been 
established as the outgrowth and formal expression of the 
ancient notions discarded and abandoned by the legislative 
enactment. For this reason, if for no other, I am strongly 
of the opinion that a plan of arranging and presenting the 
equity jurisprudence which had its origin solely in the fact 
that law and equity were originally two distinct jurisdic- 
tions, and were administered by separate tribunals, is not 
at all adapted to the condition of the municipal law, and 
of the relations between its departments, which now exists 
throughout the United States, nor to the national tenden- 
cies shown in the changes which are constantly made by 
the state legislatures, especially the tendencies towards a 
scientific revision and codification of the municipal law, 
which will more and more obliterate the external distinc- 
tions between equity and the law. 

§ 125. There is, however, another, and as it seems to 
me more fundamental, objection to this method of classifi- 
cation, based upon the assumed relations between legal 
and equitable jurisdiction. Whenever some single feature 
or partial element of an extensive system is taken as the 
basis of classifying its component parts, the inevitable re- 
sult must be an imperfect and even incorrect view of the 


system as a whole. The choice of the equitable remodios 
alone as the fixed points to which all doctrines and rules 
are referred, and the classification of these remedies solely- 
according to their relations with the jurisdictions pos- 
sessed by the two courts, have tended irresistibly to pro- 
duce a confused and one-sided conception of the nature 
and functions of equity.^ Under the influence of such a 
conception, some writers have taught that equity consists 
entirely of certain remedies, and have denied that it creates 
any primary rights and duties whatever. I have already 
shown the erroneous character of this theory, and shall 
not dwell upon it further. 

§ 126. True Principles of Classification. — A comprehen- 
sive treatment of equity which shall conform to its real 
nature and its present condition as a branch of the juris- 
prudence now existing in the United States should pre- 
sent all of its component parts in their true relations with 
each other and with the law, and should adopt such prin- 
ciples of classification as will follow the essential lines of 
separation between these parts, and furnish a correct and 
practical guide for the student and the lawyer. No method 
can be accurate nor really practical which, in the first 
place, does not recognize the fact that equity consists of 
two grand divisions, the Primary Rights and Duties, Es- 
tates and Interests which it creates, and the Remedial 
Rights and Duties enforced by the various Remedies which 
it confers; and which, in the second place, does not pre- 
sent the principles, doctrines, and rules concerning these 
Primary Rights, Estates, and Interests, separate and dis- 
tinct from those which relate to the Remedial Rights and 
Remedies. The classification of the remedies, being no 

§ 125, 1 As an illustration of this proposition, it is impossible to lay 
down any comprehensive, complete, and accurate rules concerning the 
extent of the equity jurisdiction, when the equitable and legal remedies 
are taken as the only elements for determining the question. The primary 
rights, estates, and interests created by equity must necessarily enter into 
any general solution of the problem. 


longer based upon any notion of exclusive and concurrent 
jurisdictions, should be made in accordance with their own 
inherent nature and the nature of the primary rights, the 
violation of which they are intended to redress or relieve. 
Underlying these equitable estates, interests, and rights, 
and these equitable remedies, and constituting the sources 
from which most of them have been derived, there are cer- 
tain equitable principles of a most broad, comprehensive, 
and general nature and application. These principles run 
through every branch of th"e equity jurisprudence; from 
them a large part of the particular doctrines and rules of 
that system, both concerning equitable estates and inter- 
ests, and equitable remedies, have been developed. They 
seem to require, therefore, in any well-constructed arrange- 
ment, a separate treatment, preliminary to the examina- 
tion of those more special topics which are directly con- 
nected with the equitable estates, interests, rights, and 

§ 127. The order which should be observed in the treat- 
ment of these two grand divisions which make up the whole 
of equity jurisprudence may well be determined by consid- 
erations of convenience, rather than by the requirements 
of a scientific precision. The division of equity which is 
concerned solely with remedies is much broader and more 
comprehensive than that which is concerned with equitable 
primary rights and interests. The remedies administered 
by equity are not confined to cases in which equitable pri- 
mary rights have been violated; they are not restricted to 
the single purpose of maintaining equitable estates and 
interests. As has already been stated in a preceding sec- 
tion, the peculiar reliefs of equity are given, under certain 
well-established conditions of fact, for the violation of legal 
primary rights and for the protection and support of legal 
estates and interests. In other words, while every equi- 
table right and interest is enforced and preserved by an 
appropriate equitable remedy, the remedial jurisdiction of 
equity extends beyond these somewhat narrow limits, and 


embraces many classes of legal rights and interests for 
the violation of which, under the existing circumstances, 
the law gives no adequate relief. Before, however, enter- 
ing upon either of these two grand divisions of the work, 
a preliminary investigation into the nature and extent of 
the equity jurisdiction is necessary as a foundation for all 
subsequent discussions. 

§ 128. I shall in the following treatise adopt the general 
plan, principles of classification, and method of treatment 
described in the foregoing paragraphs. The entire work 
will be separated into four parts. Part First will contain 
an inquiry into the nature and extent of the Equity Juris- 
diction as it now exists in the United States, both in its 
original and general form, and as limited or regulated by 
the statutory legislation of the various states and of the 
Congress of the United States. The three remaining parts 
will treat of the Equity Jurisprudence, or the doctrines 
which are administered by the courts in the exercise of 
their equitable jurisdiction. Part Second will discuss the 
grand principles and maxims which are the foundation of 
Equity Jurisprudence, and the sources of its particular 
doctrines, and will also describe some of the most impor- 
tant facts and events which are the occasions of equitable 
primary and remedial rights and duties. Part Third will 
contain that portion of Equity Jurisprudence which con- 
sists of Primary Rights and Duties, or in other words, of 
equitable estates, titles, and interests. Part Fourth will 
contain that portion of Equity Jurisprudence which con- 
sists of remedial rights and duties and of remedies. This 
description does not include any discussion of mere pro- 
cedure. The term ** Remedies," as it has been defined, 
and as it will be used throughout the book, does not em- 
brace the rules of procedure, but only the reliefs which are 
granted for a violation, actual or threatened, of legal and 
equitable rights. 









Equity jurisdiction defined. 

Requisites in order that a case may come within it. 

Distinction between the existence of equity jurisdiction and the 
proper exercise of it. 

Inadequacy of legal remedies, how far the test. 

Equity jurisdiction depends on two facts: the existence of equi- 
table interests, and the inadequacy of legal remedies. 

How far the jurisdiction is in personam, how far in rem. 

Equity- jurisdiction threefold, — exclusive, concurrent, and aux- 

What embraced in the exclusive jurisdiction. 

What embraced in the concurrent jurisdiction. 

Cases may fall under both. 

What embraced in the auxiliary jurisdiction. 

Order of subjects. 

§ 129. Equitable Jurisdiction Defined. — It is important 
to obtain at tlie outset a clear and accurate notion of what 
is meant by the term ** Equity Jurisdiction." It is used 
in contradistinction to "jurisdiction" in general, and to 
''common-law jurisdiction" in particular. In its most 
general sense the term ''jurisdiction," when applied to a 
court, is the power residing in such court to determine 







§§ 134, 135. 


§§ 137, 138. 

§§ 139, 140. 


§§ 142-144. 



judicially a given action, controversy, or question pre- 
sented to it for decision. If this power does not exist with 
reference to any particular case, its determination by the 
court is an absolute nullity; if it does exist, the determina- 
tion, however erroneous in fact or in law, is binding upon 
the parties until reversed or set aside in some proceeding 
authorized by the practice, and brought for that express 
purpose. 1 «• It is plain that the term used in this strict 

§ 129, 1 The true meaning of "jurisdiction" is so often misunderstood, 
and the word is so often misapplied, that I shall quote a passage from 
the opinion of Mr. Justice Folger in the recent case of Hunt v. Hunt, 
72 N. Y. 217, 228-230, 28 Am. Rep. 129, in which the subject is ex- 
plained in a very clear and convincing manner: "Jurisdiction of the 
subject-matter does not depend upon the ultimate existence of a good 
cause of action in the plaintiff in the particular case. See Groenvelt v. 
Burwell, 1 Ld. Raym. 466, 467. A court may have jurisdiction of all 
actions in assumpsit of that subject-matter. An action by A in which 
judgment is demanded against B, as the indorser of a promissory note, 
falls within that jurisdiction. Such court may entertain and try the 
action, and give a valid and effectual judgment in it. Though it should 
appear in proof that there never had been presentment and demand, nor 
notice of non-payment, yet a judgment for A against B, though against 
the facts, without facts to sustain it, would not be void as rendered 
without jurisdiction. It would be erroneous, and liable to reversal on 
review. Until reviewed and reversed, it would be valid and enforceable 
against B, and entitled to credit when brought in play collaterally. Juris- 
diction of the subject-matter is power to adjudge concerning the general 
question involved, and is not dependent upon the state of facts which 
may appear in a particular case, arising, or which is claimed to have 
arisen, under that general question. One court has jurisdiction in crim- 
inal cases; another in civil cases; each in its sphere has jurisdiction of the 
subject-matter. Yet the facts, i. e., the acts of the party proceeded 
against, may be the same in a civil case as in a criminal case; as, for 
instance, in a civil action for false and fraudulent representations and 
deceit, and in a criminal action for obtaining property by false pretenses. 
We should not say that the court of civil poAvers had jurisdiction of the 

§ 129, (a) The text is quoted in structive case, Miller v. Rowan, 251 

Venner y. Great Northern Ey. Co., HI. 344, 96 N. E. 285 (decree con- 

153 Fed. (N. Y.) 408; in Tonnele struing will where only legal estates 

V. Wetmore, 195 N. Y. 436, 88 N. E. involved, though erroneous, not 

1068; cited and followed in the in- void). 


sense may be applied to courts of equity as well as to any 
other tribunals. With this signification of the word, it 
would be said that an equity court has no jurisdiction to 
try the issues arising upon an indictment, and to render 
judgment in a criminal prosecution; the entire proceeding 
would be null and void. On the other hand, it is equally 
plain that this strict meaning is not always given to the 
term ^'equity jurisdiction," as it is ordinarily used. The 
proceedings and judgment of a court of chancery or of a 
court clothed with equity powers are not necessarily null 
and void because the action is not one which comes within 
the scope of the ''equity jurisdiction" in the common 
acceptation of that phrase, or in other words, because the 
claim is one for which there is a full, adequate, and com- 
plete remedy at law.^ ^ This well-settled rule furnishes a 

criminal action, nor vice versa, though each had power to pass upon 
allegations of the same facts. So there is a more general meaning 
to the phrase 'subject-matter,' in this connection, than power to act upon 
a particular state of facts. It is the power to act upon the general, and, 
so to speak, the abstract, question, and to determine and adjudge whether 
the particular facts presented call for the exercise of the abstract power. 
A suitor for a divorce may come into any court of the state in which he 
is domiciled, which is empowered to entertain a suit therefor, and to 
give judgment between husband and wife of a dissolution of their married 
state. If he does not establish a cause for divorce, jurisdiction to pro- 
nounce judgment does not leave the court. It has power to give judgment 
that he has not made out a case. That judgment would be so valid and 
effectual as to bind him thereafter, and to be res adjudicata as to him 
in another like attempt by him. If that court, however, should err, and 
give judgment that he had made out his case, jurisdiction remains in it 
so to do. The error is to be corrected in that very action. It may not 
be shown collaterally to avoid the judgment, while it stands unreversed. 
The judgment is in such case also res adjudicata against the party cast 
in the judgment. We conclude that jurisdiction of the subject-matter 
is the power lawfully confen-ed to deal with the general subject involved 
in the action." 

§ 129, 2 Bank of Utica v. Mersereau, 3 Barb. Ch. 528 ; Cummings v. 
Mayor, etc., 11 Paige, 596; Creely v. Bay State B. Co., 103 Mass. 514; 

§129, (b) The text is quoted in Tonnele v. Wetmore, 195 N, Y. 436, 
88 N. E. 1068. 


decisive test, and shows that when ordinarily speaking of 
the ''equity jurisdiction" we do not thereby refer to the 
general power inherent in a court to decide a controversy 
at all, — a power so essential that its absence renders the 
decision a mere nullity, but we intend by the phrase to de- 
scribe some more special and limited judicial authority. 

§130. ** Equity jurisdiction," therefore, in its ordinary 
acceptation, as distinguished on the one side from the gen- 
eral power to decide matters at all, and on the other from 
the jurisdiction "at law" or ''common-law jurisdiction," 
is the power to hear certain kinds and classes of civil causes 
according to the principles of the method and procedure 
adopted by the court of chancery, and to decide them in 
accordance with the doctrines and rules of equity jurispru- 
dence, which decision may involve either the determination 
of the equitable rights, estates, and interests of the parties 
to such causes, or the granting of equitable remedies. In 
order that a cause may come within the scope of the equity 
jurisdiction, one of two alternatives is essential ; either the 
primary right, estate, or interest to be maintained, or the 
violation of which furnishes the cause of action, must be 
equitable rather than legal ; ^ * or the remedy granted must 

Amis V. Myers, 16 How. 492, 493 ; Sexton v. Pike, 13 Ark. 193. In some 
instances where the facts very clearly bring the ease within the common- 
law jurisdiction, the court of equity will itself take the objection at any 
stage of the suit and dismiss it, even though no objection had been raised 
by the parties; but even in such cases a judgment of the equity court 
sustaining the action and granting the relief would not necessarily be a 
nullity. See Parker v. Winnipiseogee Co., 2 Black, 545, 550, 551 ; Hipp 
V. Babin, 19 How. 271, 277, 278. 

§ ISO, 1 Reese v. Bradford, 13 Ala. 837 ; Sessions v. Sessions, 33 Ala. 
522, 525; Torrey v. Camden, etc., R. R. Co., 18 N. J. Eq. 293; Ontario 
Bank v. Mumford, 2 Barb. Ch. 596, 615; Woodruff v. Robb, 19 Ohio, 212, 
214; Wolfe v. Scarborough, 2 Ohio St. 361, 368; Heilman v. Union Canal 
Co., 37 Pa. St. 100, 104; McCullough v. Walker, 20 Ala. 389, 391; Wol- 

§ 130, (a) The text is quoted in Deposit & Trust Co. v. Cahn, 102 
Venner v. Great Northern Ey. Co. Md. 530, 62 Atl. 819. 
(C. C. N. Y.), 153 Fed. 408; in Safe 


be in its nature purely equitable, or if it be a remedy which 
may also be given by a court of law, it must be one which, 
under the facts and circumstances of the case, can only be 
made complete and adequate through the equitable modes 
of procedure. 2 At the same time, if a court clothed with 
the equity jurisdiction as thus described should hear and 
decide, according to equitable methods, a case which did 
not fall within the scope of the equity jurisprudence, be- 
cause both the primary right invaded constituting the cause 
of action and the remedy granted were wholly legal, and 
belonging properly to the domain of the law courts, such 
judgment, however erroneous it might be and liable to re- 

eott V. Robbins, 26 Conn. 236; Green v. Spring, 43 111. 280; Vick v. 
Percy, 7 Smedes & M. 256, 268, 45 Am. Dec. 303; Abbott v. Allen, 2 
Johns. Ch. 519, 7 Am. Dec. 554; Waddell v. Beach, 9 N. J. Eq. 793, 795; 
Milton V. Hogue, 4 Ired. Eq. 415, 422; Johnson v. Connecticut Bank, 21 
Conn. 148, 157; Perkins v. Perkins, 16 Mich. 162, 167; BoUes v. Carli, 
12 Minn. 113, 120; Echols v. Hammond, 30 Miss. 177; Hipp v. Babin, 
19 How. 271, 277, 278; Wing v. HaU, 44 Vt. 118, 123; Detroit v. Board 
of Public Works, 23 Mich. 546, 552; Simmons v. Hendricks, 8 Ired. Eq. 
84-86, 55 Am. Dec. 439; Pratt v. Northam, 5 Mason, 95, 104; Thompson 
V. Brown, 4 Johns. Ch. 619, 631; Hunt v. Danforth, 2 Curt. 592, 603; 
Gay V. Edwards, 30 Miss. 218, 230; Bush v. Golden, 17 Conn. 594; GiUiam 
V. Chancellor, 43 Miss. 437, 5 Am. Rep. 498. 

§ 130, 2 Brinkerhofie v. Brown, 4 Johns. Ch. 671 ; Mason v. Piggott, 11 
111. 85, 89; Claussen v. Lafrenz, 4 G. Greene, 22^227; Kimball v. Grafton 
Bank, 20 N. H. 347, 352 ; Person v. Sanger, Daveis, 252, 259, 261 ; Curtis 
V. Blair, 26 Miss. 309, 327, 59 Am. Dec. 257; Dickenson v. Stoll, 8 N. J. Eq. 
294, 298; Perkins v. Perkins, 16 Mich. 162, 167; Barrett v. Sargeant, 18 
Vt. 365, 369 ; Jordan v. Faircloth, 27 Ga. 372, 376 ; Bassett v. Brown, 100 
Mass. 355; Morgan v. Palmer, 48 N. H. 336; Hall v. Joiner, 1 S. C. 186; 
Matter of Broderick's Will, 21 Wall. 503, 504; Comstock v. Henneberry, 
66 111. 212; Suter v. Matthews, 115 Mass. 253; Santacruz v. Santacruz, 
44 Miss. 714, 720; Glastenbury v. McDonald's Administrator, 44 Vt. 450, 
453; Brandon v. Brandon, 46 Miss. 222, 231; Scruggs v. Blair, 44 Miss. 
406, 412; Carr v. Silloway, 105 Mass. 543; Sanborn v. Braley, 47 Vt. 
171; Doremus v. Williams, 4 Hun, 458; Carlisle v. Cooper, 21 N. J. Eq. 
576; Edsell v. Briggs, 20 Mich. 429; McGunn v. Huntin, 29 Mich. 477; 
Gay V. Edwards, 30 Miss. 218, 230. 


versal, would not necessarily be null and void.^ ^ On the 
contrary, as will be more fully stated hereafter, the objec- 
tion that the case does not come within this so-called equity 
jurisdiction must ordinarily be definitely raised by the de- 
fendant at the commencement of the proceedings, or else 
it will be regarded as waived, and the judgment will not 
even be erroneous.^ <^^ In some instances, however, where 
the equitable functions of the court are specitically defined 
by statute, or the facts show very clearly that the rights 
involved in the controversy and the remedies demanded are 
purely legal, and completely within the scope of ordinary 
legal proceedings, the court of equity will itself take the 
objection at any stage of the cause, and will dismiss the 
suit, although no objection has in any way been raised by 
the parties.^ ^ 

§ 130, 3 This conclusion results from the principle laid down by Folger, 
J., in the passage above cited. If the court has jurisdiction over the 
subject-matter of equitable rights, interests, and remedies, its jurisdiction 
does not depend upon its deciding correctly as to the existence of such 
rights, or as to the granting of such remedies. The jurisdiction itself 
exists independently of the particular case over which it is exercised; 
jurisdiction, in its most general and accurate sense of a power to decide 
concerning certain subject-matter, involves the power to decide wrongly 
as well as correctly. 

§130, 4 Cummings v. Mayor, etc., 11 Paige, 596; Bank of Utica v. 
Mersereau, 3 Barb. Ch. 528; Amis v. Myers, 16 How. 492; Creely v. Bay 
State B. Co., 103 Mass. 514; Sexton v. Pike, 13 Ark. 193. 

§ 130, 5 Hipp V. Babin, 19 How. 271, 278 ; Parker v. Winnipiseogee 
Co., 2 Black, 545, 550, 551. 

§ 130, (b) The text is quoted in v. Eowan, 251 HI. 344, 96 N. E. 285 

Venner v. Great Northern Ry. Co. (decree construing will where only 

(C. C. N. Y.), 153 Fed. 408; in Ton- legal estates involved, though er- 

nele v. Wetmore, 195 N. Y. 436, 88 roneous, not void). 
N. E. 1068; cited to this effect in §130, (c) The text is quoted in 

Freer v. Davis, 52 W. Va. 1, 94 Am. Tonnele v. Wetmore, 195 N. Y. 436, 

St. Rep. 895, 43 S. E. 164, 172, dis- 88 N. E. 1068. See, also, Miller v. 

senting opinion; the majority hold- Eowan, 251 111. 344, 96 N. E. 285; 

ing that consent cannot confer Hill v. St. Louis & N. E. Ey. Co., 

jurisdiction to try a disputed title 243 HI. 344, 90 N. E. 676. 
in suit to enjoin trespass. The text § 130, (d) This passage of the text 

is supported by the case of Miller is quoted in Hanna v. Eeeves, 22 


§ 131. It is plain, from the foregoing definitions, that 
the question whether a given case falls within the equity 
jurisdiction is entirely different and should be most care- 
fully distinguished from the question whether such case is 
one in which the relief peculiar to that jurisdiction should 
be granted, or in which the equity powers of the court 
should be exercised in maintaining the primary right, es- 
tate, or interest of the plaintiff. The constant tendency to 
confound these two subjects, so essentially different, has 
been productive of much confusion in the discussion of equi- 
table doctrines. Equity jurisdiction is distinct from equity 
jurisprudence. One example will suffice to illustrate this 
important proposition. A suit to enforce the specific per- 
formance of a contract, or to reform a written instrument 
on the ground of mistake, must always belong to the equity 
jurisdiction, and to it alone, since these remedies are wholly 
beyond the scope of common-law methods and courts; but 
whether the relief of a specific performance, or of a refor- 
mation, shall be granted in any given case, must be deter- 
mined by an application of the doctrines of equity jurispru- 
dence to the special facts and circumstances of that case.* 
The same is true of every species of remedy which may be 
conferred, and of every kind of primary right, estate, or in- 
terest which may be enforced or maintained, by a court pos- 
sessing the equitable jurisdiction. In other words, the 
equity jurisdiction may exist over a case, although it is one 
which the doctrines of equity jurisprudence forbid any re- 
lief to be given, or any right to be maintained. This con- 
clusion is very plain, and even commonplace; and yet the 
''equity jurisdiction" is constantly confounded with the 
right of the plaintiff to maintain his suit, and to obtain the 

Wash. 6, 60 Pac. 62, but held not (C. C. N. Y.), 153 Fed. 408. The 

applicable to the facts of the case. text is cited in Thorn & Hunkins 

§ 131 (a) Distinction Between the Lime & Cement Co. v. Citizens' Bank, 

Existence of EcLUity Jurisdiction and 158 Mo. 272, 59 S. W. 109; Hanson 

the Proper Exercise of It.— The first v. Neal, 215 Mo. 256, 114 S. W. 

half of this paragraph is quoted in 1073. 
Venner v. Great Northern Ey. Co. 


equitable relief. This is, in fact, making the power to de- 
cide whether equitable relief should be granted to depend 
upon, and even to be identical with, the actual granting of 
such relief. 

§ 132. Extent of the Jurisdiction. — Having thus gener- 
ally defined ''equity jurisdiction," I shall proceed with the 
most important and practical inquiry as to its extent and 
limitations, and with the examination of the kinds and 
classes of cases over which it may be exercised. The at- 
tempt has been made to furnish one comprehensive test for 
the solution of all questions which may arise as to the exist- 
ence of the jurisdiction, — to reduce all special rules to one 
general formula. To this end, it has often been said by 
courts as well as by text-writers that the equity jurisdic- 
tion extends to and embraces all civil cases, and none 
others, in which there is not a full, adequate, and complete 
remedy at law.i As has already been stated, some writers 
have gone so far as to assert that equity jurisprudence con- 
sists wholly in a system of remedies, and that the only 
rights created and conferred by it are remedial rights, that 
is, rights to obtain some remedy; and according to their 
theory, its jurisdiction is of course to be measured by the 
absence or existence of adequate remedies at the law.^ 

§ 132, 1 See, as illustrations, the following among many such cases : 
Earl of Oxford's Case, 1 Ch. Rep. 1, 2 Lead. Cas. Eq. 1291, and notes; 
Grand Chute v. Winegar, 15 Wall. 373; Insurance Co. v. Bailey, 13 Wall. 
616; Hipp V, Babin, 19 How. 271, 278; Parker v. Winnipiseogee Lake, 
etc., Co., 2 Black, 545, 550, 551. 

§ 132, 2 See Adams's Equity, Introduction, p. 9, 6th Am. ed. Mr. 
Adams says : Eqiaity "does not create rights which the common law denies ; 
but it gives effectual redress for the infringement of existing rights, where, 
by reason of the special circumstances of the case, the redress at law 
would be inadequate." See also Introd., p. 12: Now, if equity "gives 
effectual redress for the infringement of existing rights" (and the whole 
passage shows that he is speaking of existing primary rights), it is plain 
that the "existing rights" thus infringed upon and redressed must have 
drawn their existence from some source, either from the law or from 
equity. It is absolutely certain that many of the "existing rights" which are 


§ 133. The general criterion which has thus been pro- 
posed is, however, insufficient and misleading. Althoiiiih 
the inadequacy of legal remedies explains, and is even 
necessary to explain, the interposition of equity in certain 
classes of cases, it wholly fails to account in any consistent 
and correct manner for the entire equity jurisdiction. Tlie 
history of the court of chancery shows that all its powers 
cannot be referred to this source. It is true that the 
common-law modes of procedure are utterly inadequate to 
meet all the ends of justice, and to administer all the reme- 
dies which are granted by equity; and that in some general 
sense equity is established to supply this defect in the law. 
But the absence of full, adequate, and complete remedies 
at law does not constitute a basis upon which to rest the 
whole equity jurisdiction, nor furnish a practical explana- 
tion of all the doctrines and rules which make up the equity 
jurisprudence. No theory is scientifically complete, nor 

thus redressed by equity, even if not denied by the law, are neither created 
nor recognized by the law. Whence, for example, do the rights of the 
cestui que trust of land arise? Such rights "exist," and when infringed 
upon they are "effectually redressed" by equity. Rights cannot exist 
without some creative source from which they derived their efficacy. The 
law certainly does not create, nor even acknowledge, the existence of any 
rights belonging to the cestui que trust. The conclusion is inevitable that 
these rights are created by equity. Even Mr. Adams admits the existence 
of these primary rights independent of the remedies for their violation; 
and to deny that they are created by equity is to run into a palpable 
absurdity for the purpose of maintaining an untenable theory. If it 
should be said, in opposition to this conclusion, that the only rights which 
the law does not itself create nor recognize are the very remedial rights 
themselves given by equity, the rights to obtain the remedies furnished 
by the equity methods, the answer is very simple. In the first place, this 
argument is a mere begging of the question, a mere reasoning in a circle ; 
and in the second place, the statement is without any foundation in fact. 
There are large and numerous classes of rights, estates, and interests 
maintained and enforced by equity, but not recognized by the law, which 
are in every sense of the term primary, — as much so as the legal estate 
in fee in land; and some of these equitable primary rights are, in truth. 
not merely unrecognized, but actually denied by the law. 
I— 11 


practically efficient, which does not recognize two distinct 
sources and objects of the equity jurisdiction, namely, the 
primary rights, estates, and interests which equity juris- 
l^rudence creates and protects, and the remedies which it 
confers. These two facts in combination can alone define 
the extent and fix the limits of the equity jurisdiction. ^ 

§ 134. Some writers have argued that the equitable 
jurisdiction is to be regarded as wholly remedial, and that 
equity itself does not create any rights of property or other 
primary rights, because the court of chancery, as they say, 
.only acts in personam against the parties, and never in 
rem upon the subject-matter of a judicial controversy. It 
is said that a decree of the court never operates by virtue 
of its own inherent efficacy to create or to transfer an es- 
tate, right, or interest; that such decree never executes 
itself, nor furnishes any means or instruments by which 
it may be executed without the intervention and act of the 
party against whom it is rendered; that the plaintiff in 
equity ne;ver, merely by means of the decree in his favor, 
either recovers possession of the land or other subject- 
matter, or becomes vested with a title to or estate therein ; 
and that the court simply orders some act to be done, a 
conveyance to be executed, an instrument to be surrendered 
up and canceled, possession to be delivered, and the like, 
and then merely uses a moral coercion upon the defendant, 
by means of fine and imprisonment, to compel him to do 
what is directed to be done in the judgment. This radical 
difference between the effect of a decree in equity and a 
judgment at law, it is urged, shows that there are no equi- 
table primary rights, no equitable estates or interests, dis- 

§ 133, 1 The correctness of this view of the equitable jurisdiction and 
of equity jurisprudence is acknowledged and asserted by the most able 
and learned among modern text-writers. Mr. Spence, in particular, 
though using a terminology' somewhat different from that which I have 
adopted, makes this theory the basis of his classification and of his whole 
treatment of equity jurisprudence. 


tinct and separate from the rights to obtain such remedies 
as are administered by the court of chancery. 

§ 135. There may be some plausibility in this argument 
on its surface, but when it is examined with care, and under 
the light of history, all its force disappears. The early 
chancellors, from prudential motives alone, and to avoid a 
direct conflict with the common-law courts, adopted this 
method of acting, as they said, upon the consciences of de- 
fendants; and the practice which they invented has, with 
the English national devotion to established forms, con- 
tinued to modern times. But it is certainly a complete 
confounding of the essential fact with the external form, 
to say that such a mere method of procedure, adopted 
solely from considerations of policy, determines the nature 
of the equitable jurisdiction, and demonstrates the non- 
existence of an}^ equitable primary rights, estates, and in- 
terests. If there had been any necessary connection be- 
tween the proceedings and remedies of chancery and this 
mode of enforcing its decrees in personam, if it had been 
intrinsically impossible to render these decrees operative 
in rem, then the argument would have had some weight; 
but in fact there is no such connection, no such impossi- 
bility; the decrees of a court of equity may be made to 
operate in rem to the same extent and in the same manner 
as judgments at law.^ Furthermore, whatever of plausi- 
bility there might be in the theory as applied to the English 
court of chancery has been entirely destroyed by the legis- 
lation of this country. The statutes of the several states 
have virtually abolished the ancient doctrine that the de- 
crees in equity can only act upon the person of a party, 
and have generally provided that in all cases where the 
ends of justice require such an effect, and where it is pos- 
sible, a decree shall either operate ex proprio vigor e to 
create, transfer, or vest the intended right, title, estate, 

§135, (a) The text is quoted in (N. S.) 625, 68 S. E. 387 (jurisdic- 
Tounant's Heirs v. Fretts, 67 W. Va. tion to pronounce a decree in rem is 
569, 140 Am. St. Rep. 979, 29 L. R. A. not dependent on statute). 


or interest, or else that the acts required to be done in 
order to accomplish the object of the decree shall be per- 
formed by an officer of the court acting- for and in the name 
of tEe party against whom the adjudication is made. In 
the vast variety of equitable remedies, there are, of course, 
some which directly affect the person of the defendant, 
and require some personal act or omission on his part, and 
these are still enforced, and can only be enforced, in per- 
sonam. In regard to all other classes, the statutes of our 
states have, as a general rule, either made them operative 
per se as a source of title, or as conferring an estate or 
right, or have given the requisite power to certain officers 
to carry them into effect. ^ This modern legislation has 
not, however, deprived a court of equity of its power to act 
in personam in cases where such an effect is necessary to 
maintain its settled jurisdiction; as, for example, where 
the parties being within its jurisdiction, the subject-matter 
of the controversy, whether real or personal property, is 
situated within the territory of another state or nation. ^ ^ 

§ 135, 1 For example, wherever a decree orders a conveyance to be made 
by the defendant, the statutes of many states provide that the deed may 
be executed by a commissioner or other ofl&cer of the court, with the 
same effect as though done by the defendant himself; others declare that 
decrees may vest a title in the party in whose favor they are rendered. 
All decrees which require the sale of property real or personal, or the 
distribution of moneys, are executed by an officer of the court, and his 
deed upon the sale conveys all the estate and title of the defendant. Pre- 
ventive decrees, like ordinary injunctions, and some kinds of restorative 
decrees, as mandatory injunctions, must still operate in personam^ and 
be enforced by attachment process against the defendant, with fine and 
imprisonment in case of disobedience. 

§ 135, 2 See Topp v. White, 12 Heisk. 165 ; Moore v. Jaeger, 2 Mc Ar. 
465; Penn v. Lord Baltimore, 1 Ves. Sen. 444, 2 Lead. Cas. Eq., and notes 
thereto; Caldwell v. Carrington, 9 Pet. 86; Watkins v. Holman, 16 Pet. 
25; Mead v. Merritt, 2 Paige, 402; Hawley v. James, 7 Paige, 213, 32 
Am. Dec. 623; Sutphen v. Fowler, 9 Paige, 280; Newton v, Bronson, 13 

§ 135, (b) The text is cited in ber Ashpalt Paving Co., 151 Wis. 48, 
Bethell v. Bethell, 92 Ind. 318 (suit Ann. Cas. 1914B, 53, 138 N. W. 94. 
to reform a deed); McMillan v. Bar- 


§ 136. Divisions. — Adopting, therefore, the primary 
rights, estates, and interests which equity creates, and the 
remedies which it confers, as the objects which define and 
limit the extent of the equity jurisdiction, I shall state 
the principles by which the extent and limits of that juris- 
diction are ascertained. It has been customary among 
writers to distinguish the equitable jurisdiction as exclu- 
sive and concurrent, and some have added the third sub- 
division, auxiliary. I have already given reasons which 
appear to be sufficient for not following this method of 
division in treating of the matters which constitute the 
body of equity jurisprudence; but I shall adopt it as the 
most convenient in discussing the jurisdiction. This dis- 
tinction or opposition between the "exclusive" and the 
"concurrent" relates wholly to the nature and form of 
the remedies which are administered by equity courts, and 
properly belongs, therefore, to that part of the jurisdiction 
alone which is based upon these remedies. As has already 
been stated, the equity jurisdiction embraces both eases 
for the maintenance or protection of primary rights, es- 
tates, and interests purely equitable, and cases for the 
maintenance or protection of primary rights, estates, and 
interests purely legal; and in the latter class of cases the 
remedies granted may be of a kind which are peculiar to 
equity courts, such as reformation, cancellation, injunc- 
tion, and others, or may be of a kind which are adminis- 
tered by courts of law, as the recovery of money, or of the 
possession of specific things. ^ It is evident that the dis- 
tinction between the exclusive and the concurrent jurisdic- 
tion represents the fact that the two kinds of remedies, 
equitable and legal, may, under proper circumstances, be 

N. Y. 587, 67 Am. Dec. 89; Bailey v. Ryder, 10 N. Y. 363; Gardner v. 
Ogden, 22 N. Y. 332-339, 78 Am. Dec. 192; Pingree v. Coffin, 12 Gray, 
304; Davis v. Parker, 14 Allen, 94; Brown v. Desmond, 100 Mass. 267. 

§136, (a) This passage of the Trust Co. v. Cahn, 102 Md. 530, 62 
text is quoted in Safe Deposit & Atl. 819. 


obtained in the last-mentioned class of cases ; no sncli divi- 
sion could have existed if the equity jurisdiction had been 
confined to the first class. 

§ 137. Exclusive Jurisdiction. — With these preliminary 
explanations we are prepared for a description, in general 
terms, of the various kinds and classes of cases which come 
within the equitable jurisdiction of courts. The exclusive 
jurisdiction extends to and embraces, first, all civil cases in 
which the primary right violated or to be declared, main- 
tained, or enforced — whether such right be an estate, title, 
or interest in property, or a lien on property, or a thing in 
action arising out of contract — is purely equitable, and 
not legal, a right, estate, title, or interest created by equity, 
and not by law.i ^ All cases of this kind fall under the 
equitable jurisdiction alone, because of the nature of the 
primary or substantive right to be redressed, maintained, 
or enforced, and not because of the nature of the remedies 
to be granted; although in most of such instances the 
remedy is also equitable. It is a proposition of universal 
application that courts of law never take cognizance of 
cases in which the primary right, estate, or interest to be 
maintained, or the violation of which is sought to be re- 
dressed, is purely equitable, unless such power has been ex- 
pressly conferred by statute; and if the statutes have inter- 
fered and made the right or the violation of it cognizable 
by courts of law, such right thereby becomes to that extent 
legal. 2 One example will sufficiently illustrate this propo- 

§ 137, 1 See 1 Spence's Eq. Jur., pp. 430^34. 

§ 137, 2 For example, by a peculiar rule in Georgia, a person who 
has a high equitable estate in land, called a "complete equity," may main- 
tain the legal action of ejectment on it to recover possession of the land : 
Goodson V. Beacham, 24 Ga. 153; Jordan v. Faircloth, 27 Ga. 372, 376. 
A vendee in a contract for the sale of land who had paid the agreed 
price, and was entitled to a deed and to the possession, and who simply 
needed the legal title to complete his ownership, would have the "complete 
equity" intended by this rule. In my own opinion, the same result should 

§137,- (a) This paragraph of the text is quoted in Brissell v. Knapp 
(C. C. Nev.), 155 Fed. 809 (trusts). 


sition. At the common law (in its earliest stages), an 
assignment of a thing in action conveyed no right or inter- 
est whatever to the assignee which would be recognized to 
any extent or for any purpose by a court of law. In pro- 
cess of time, however, an interest in the assignee came tO 
be acknowledged, and to be in some measure protected; 
but he was never regarded as obtaining a full legal right 
or title, so that he could maintain an action in his own name 
as assignee of the thing in action. ^ Equity, however, 
treated the assignee as succeeding to all the right and litle 
of the assignor, as possessing a full interest in, or, so to 
speak, ownership of, the thing in action transferred, and 
therefore permitted him to maintain the proper suit in 
his own name. It is an entirely mistaken view to say that 
equity only gave a remedy in this case, for there could be 
no remedy without an antecedent right. The assignee ac- 
quired a substantive right, an absolute interest; but it was 
equitable, and could therefore only be enforced by a suit 
in equity ; while a court of law would only permit an action 
to be prosecuted in the name of the assignor, in whom it 
said the title was still vested.'* ^ The statutes of many 
states have abolished this common-law xule, and enabled 
the assignee to sue in his own name in a court of law. The 
necessary effect of this legislation is to change the right 

follow in all the states which have adopted the reformed procedure abol- 
ishing all distinctions between legal and equitable actions; but the de- 
cisions are nearly all opposed to this view. See the question stated and 
discussed in Pomeroy on Remedies and Remedial Rights, §§ 98-!! 03. 

§ 137, 3 2 Black. Com. 442 ; 1 Spenee's Eq. Jur., p. 181 ; Lampet's 
Case, 10 Coke, 47, 48: Winch v. Keeley, 1 Term Rep. 619; Master v. 
Miller, 4 Term Rep. 340; Westoby v. Day, 2 El. & B. 605, 624; Raymond 
v. Squire, 11 Johns. 47 ; Briggs v. Dorr, 19 Johns. 95 ; Conover v. Cutting, 
50 N. H. 47. 

§ 137, 4 1 Spenee's Eq. Jur., p. 643; Row v. Dawson, 1 Ves. Sen. 331, 
2 Lead. Eq. 1531, 1559, and notes thereto. 

§ 137, (b) The text is cited in Cloae v. Independent Gravel Co. 156 Mo. 
App. 411, 138 S. W. 81. 


acquired by the assignee of a thing in action, from being 
purely equitable, into a legal title, interest, or ownership.^ ° 

§ 138. The exclusive jurisdiction includes, secondly, all 
civil cases in which the remedy to be granted — and, of 
course, the remedial right — is purely equitable, or one 
which is recognized and administered by courts of equity, 
and not by courts of law. In the cases' of this class, the 
primary right which is maintained, redressed, or enforced 
is sometimes equitable and is sometimes legal ; but the juris- 
diction depends, not upon the nature of these rights, estates, 
or interests, but wholly upon the nature of the remedies.^ 
Cases in which the remedy sought and obtained is one which 
equity courts alone are able to confer must, upon any con- 
sistent system of classification, belong to the exclusive juris- 
diction of equity,^ even though the primary right, estate, 
or interest of the party is one which courts of law recognize, 
and for the violation of which they give some remedy. 
Thus a suit to compel the specific performance of a contract 
falls under the exclusive jurisdiction of equity, although a 
legal right also arises from the contract, and courts of law 

§ 137, 5 See, as to these state statutes and their effect, Poraeroj' on 
Remedies and Remedial Rights, chap. 2, sec. 2, § § 124-138 ; Petersen v. 
Chemical Bank, 32 N. Y. 21, 35, 88 Am. Dec. 298, per Denio, J. : "The 
law of maintenance prohibited the transfer of the legal property in a 
chose in action, so as to give the assignee a right of action in his own 
name. But this is now abrogated, and such a demand as that asserted 
against the defendant in this suit [an ordinary debt] may be sold and 
conveyed, so as to vest in the purchaser all the legal as well as the equi- 
table rights of the original creditor." See also Cummings v. Morris, 
25 N. Y. 625, 627, per Allen, J. Some dicta of judges to the contrary, 
to be found in a few cases, must be regarded as mistaken ; as, for example, 
McDonald v. Kneeland, 5 Minn. 352, 365, per Atwater, J. 

§ 137, (c) This paragraph of the 1005, an action to quiet title. The 

text is cited in Deering v. Schreyer, text is cited in Curtice v. Dixon, 

171 N. Y. 451, 64 N. E. 179. 73 N. H. 393, 62 Atl. 492. 

§ 138, (a) The text is quoted in § 138, (b) The text is quoted in 

Montana Ore Purchasing Co. v. Bos- Mclsaac v. McMurray, 77 N. H. 466, 

ton & M. Consol. C. & S. Min. Co., L. R. A. 1916B, 769, 93 Atl. 115. 
27 Mont. 536, 70 Pac. 1114, 71 Pac. 


will give the remedy of damages for its violation. The 
remedies peculiar to equity are not confined to cases in 
which the primary right of the complaining party, what- 
ever be its kind, is equitable; they are given in numerous 
classes of instances where such right, estate, or interest 
is wholly legal. Thus a legal estate in land may be pro- 
tected by the exclusively equitable remedy of injunction 
against nuisances or continued trespasses; or the legal 
estate may be established against adverse claimants by a 
suit to quiet title, or by the remedy of cancellation to re- 
move a cloud from title. Again, the particular fact or event 
which occasions the peculiar equitable remedy, and gives 
rise to the right to such remedy, may also be the occasion 
of a legal remedy and a legal remedial right simultaneous 
with the equitable one. This is especially true with ref- 
erence to fraud, mistake, and accident. Fraud, for ex- 
ample, may at the same time be the occasion of the legal 
remedy of damages and of the equitable relief of cancella- 
tion. These two classes of cases cannot, however, be re- 
garded or treated as belonging to the concurrent jurisdic- 
tion ; such a mode of classification could only be productive 
of confusion. The criterion which I have given is always 
simple and certain in referring to the exclusive jurisdiction 
all cases in which the remedy is given by courts of equity 
alone, without regard to the nature of the substantive right 
which forms the basis of the action, or to the fact or event 
which is the occasion of the required relief. In this manner 
only is the notion of jurisdiction preserved distinct from 
all questions as to the propriety of exercising that jurisdic- 
tion and of granting relief by equity courts in particular 
cases. It is proper to remark here that the statutoiy legis- 
lation of many states has increased the number of cases in 
which purely equitable remedies are granted for the pur- 
pose of maintaining, enforcing, or defending primary 
rights, estates, and interests which are legal in their nature, 
and has thus enlarged this department of the original ex- 
clusive jurisdiction of equity. As examples merely, I 


mention the statutory suit to quiet title and determine the 
legal estate by the holder of the fee in possession or not in 
jDossession, against an adverse claimant or claimants rely- 
ing perhaps upon another legal title ; ^ the suit by heirs to 
set aside an alleged will of lands; the ordinary equitable 
suit in many stated to enforce a mechanic's lien and other 
similar liens ; and the suits given by statute in most states 
to dissolve corporations or to remove their officers, and the 

§ 139. Concurrent Jurisdiction. — The concurrent juris- 
diction embraces all those civil eases in which the primary 
right, estate, or interest of the complaining party sought 
to be maintained, enforced, or redressed is one which is 
cognizable by the law, and in which the remedy conferred 
is of the same kind as that administered, under the like cir- 
cumstances, by the courts of law, — being ordinarily a re- 
covery of money in some form.^ The primary right, the 
estate, title, or interest, which is the foundation of the suit, 
must be legal, or else the case would belong to the exclusive 
jurisdiction of equitj^ ; and the law must, through its judicial 
procedure, give some remedy of the same general nature 
as that given by equity, but this legal remedy is not, under 
the circumstances, full, adequate, and complete. The fact 
that the legal remedy is not full, adequate, and complete is, 
therefore, the real foundation of this concurrent branch of 
the equity jurisdiction.^ a Ti^is principle is well illustrated 

§ 139, 1 See 1 Spence's Eq. Jur., pp. 430-i34. 

§ 139, 2 There is a distinction here of gTeat importance, but which has 
often been overlooked. The want of a full, adequate, and complete 
remedy at law, under the circumstances of the particular case, is also 

§138, (c) The text is quoted and editor's note; and Pomeroy's Equi- 

cited in Montana Ore Purchasing Co. table Remedies, chapter "Quieting 

V. Boston & M. Consol. C. & S. Min. Title." 

Co., 27 Mont. 536, 70 Pac. 1114, 71 § 139, (a) The text is cited in 
Pac. 1005, discussing the equitable Henderson v. Johns, 13 Colo. 280, 
jurisdiction in such suits as depend- 22 Pac. 461 (suit to compel sur- 
ent on the plaintiff's possession. render of notes); in Gill v. Ely- 
See, on this subject, post, § 292, Norris Safe Co., 170 Mo. App. 478, 


by the case of contribution among sureties. The surety 
entitled to reimbursement may maintain an action at law, 
and recover a pecuniary judgment against each of the per- 
sons liable to contribution, but this legal relief is subject 
to so many limitations that it may often fail to restore the 
plaintiff to his rightful position. The equity suit for a con- 
tribution gives exactly the same final remedy, — a recovery 
of money ; but on account of the greater freedom and adapt- 
ability to circumstances incident to the equitable procedure, 
it enables the plaintiff in one proceeding to obtain such 

the reason why the jurisdiction of equity is actually exercised, and a de- 
cision is made in favor of the plaintiff granting him equitable relief, in 
some instances of the exclusive jurisdiction; as, for examj^le, in suits for 
the specific performance of contracts. But such fact is not in these 
instances the foundation of the jurisdiction; it is only the occasion on 
which a decision is rightfully made in pursuance of the doctrines of equity 
jurisprudence by courts already possessing the jurisdiction. The juris- 
diction exists because courts of equity alone are competent to administer 
these remedies. In all instances of concurrent jurisdiction, both the 
courts of law and those of equity are competent to administer the same 
remedy, and the foundation of the jurisdiction in equity is the inadequacy 
of the relief as it is administered through means of the legal procedure. 
The exclusive jurisdiction of equity rests upon an entirely different founda- 
tion, and exists absolutely without reference to the adequacy of legal 
reliefs. This distinction is a plain one, but is often lost sight of; the 
two classes of cases are often confounded, and the equitable jurisdiction, 
in all instances exclusive and concurrent, is made to rest merely upon the 
inadequacy of legal remedies. This error grows out of the tendency to 
confound questions as to the equitable jurisdiction; i. e., the power of 
equity courts to hear and decide, with the altogether different questions 
as to the rightfulness of their decision; i. e., whether, according to the 
doctrines of equity, a case unquestionably within their jurisdiction was 
properly decided. 

156 S. W. 811 (court has at least in Myers t. Sierra Valley Stock & 

concurrent jurisdiction, as relief Agric. Assn., 122 Cal. 669, .55 Pac. 

prayed was to have bill of sale 689 (remedy to enforce contribution 

declared a mortgage and canceled among stockholders is at law) ; Buck 

for fraud; and hence may administer v. Ward, 97 Va. 209, 33 S. E. 513 

complete relief); in State v. Chicago (suit to recover money expended by 

& N. W. Ey. Co., 132 Wis. 345, 112 reason of defendant's fraud). 
N. W. 515 (accounting); and quoted 


complete reimbursement as relieves him effectually from 
all the burden which does not properly rest upon him, and 
produces a just equality of recompense as well as of loss 
among all the parties. ^ The incidents and features of legal 
remedies which render them inadequate are various in 
their kind and extent, and will be described in a subsequent 
section. One of the most common and important of these 
features which is frequently the ground for the equitable 
jurisdiction is the necessity of obtaining whatever remedies 
the law furnishes, by means of several separate actions, 
either simultaneous against different persons, or succes- 
sive against the same person; while in equity the plaintiff 
may obtain full relief by one suit brought against all the 
parties liable or interested. This power, which the equity 
courts possess, of deciding the whole matter in one judicial 
proceeding, and of thus avoiding a repetition or circuity of 
legal actions, is a fruitful source of the concurrent equitable 
jurisdiction.'* ^ 

§ 140. The cases included within the concurrent juris- 
diction may, for purposes of convenience and clearness in 
their discussion, be arranged under two general classes. 
The first contains all those cases, belonging to the concur- 
rent jurisdiction, in which the primary right violated, the 
estate, title, or interest to be protected, is, of course, legal, 
and the subject-matter of the suit, and the act, event, or 
fact which occasions the right to a remedy, may be brought 
within the cognizance of the law courts, and made the foun- 
dation of a legal action, but in respect of which the whole 

§ 139, 3 Bering v. Earl of Winchelsea, 1 Cox, 218, 1 Lead. Cas. Eq. 
120, and notes. 

§ 139, 4 New York, etc., R. R. v. Schuyler, 17 N. Y. 592; McHenry v. 
Hazard, 45 N. Y. 580; Third Ave. R. R. v. Mayor, etc., 54 N. Y. 159; 
Eldridge v. Hill, 2 Johns. Ch. 281; West v. Mayor, etc., 10 Paige, 539; 
Oelrichs v. Spain, 15 Wall. 211, 228; Woods v. Monroe, 17 Mich. 238; 
Earl of Oxford's Case, 2 Lead. Cas. Eq. 1337, note. 

§139, (b) The text is cited in McMullin's Admr. v. Sandars, 79 Va. 
356. See post, §§243-275. 


system of legal remedies is so partial and insufficient that 
complete justice can only be done by means of the equity 
jurisdiction. The most important acts, events, and facts 
which thus require or permit the interposition of equity in 
the cases forming this branch of the concurrent jurisdiction 
are fraud, mistake, and accident. ^ ^ The second class con- 
tains all the remaining cases in which the primary right to 
be redressed or protected is legal, and the relief is of the 
same kind as that given by the law, but in which, from the 
special circumstances of the case itself, or from the inherent 
defects of the legal procedure, the remedy at law is inade- 
quate, and equity takes jurisdiction, in order to do complete 
justice. Among the familiar examples of this class are 
suits for an accounting,^ for contribution, for exoneration, 
in all of which the remedy, both at law and in equity, is a 
recovery of money ; suits for partition of land,<^ admeasure- 
ment of dower, and settlement of boundaries, in all of which 
the final relief, both at law and in equity, is the obtaining 
possession of specific tracts of land; and suits which result 
in an award of damages. 

§ 141. It should be remarked, however, that the fore- 
going divisions of the jurisdiction cannot always be strictly 
observed in the actual practice, since one suit may often 

§ 140, 1 All cases of equitable cognizance arising from fraud, accident, 
or mistake do not belong to the concurrent jurisdiction merely because 
the law has jurisdiction of cases arising from the same facts. Suits 
occasioned by fraud, in which the remedy granted is cancellation, and 
those occasioned by mistake, in which the remedy is a reformation, and 
the like, fall within the exclusive jurisdiction. The concun-ent jurisdic- 
tion, however, embraces a large variety of cases in which the cause of 
action springs from, or is occasioned by, fraud or mistake. 

§ 140, (a) This paragraph of the 141 N. Y. 437, 38 Am. St. Eep. 807; 

text is cited in Stockton v. Ander- and in State v. Chicago & N. W. By. 

son, 40 N. J. Eq. 486, 4 Atl. 642. Co., 132 Wis. 345, 112 N. W. 515. 

The author's note is cited in Curtice § 140, (c) This paragraph of the 

V. Dixon, 73 N. H. 393, 62 Atl. 492. text is cited in Daniels v. Benedict, 

§140, (b) This paragraph of the 50 Fed. 347. 
text is cited in Eussell v. McCall, 


include different kinds of the same jurisdiction, and may 
even embrace both the exclusive and the concurrent juris- 
dictions. For example, both the equitable estate of the 
cestui que trust and the legal estate of the trustee may be 
protected by means of one action based upon the exclusive 
jurisdiction, and many remedies belonging to the exclusive 
jurisdiction are combined in the same suit with a pecuniary 
recovery. The explanation is to be found in the general 
principle of the equity procedure, which requires all the 
parties interested in the subject of an action to be brought 
before the court, and the whole controversy to be settled 
by one adjudication. 

§ 142. Auxiliary Jurisdiction. — The auxiliary jurisdic- 
tion, in its original and true scope and meaning, is in fact 
a special case of the ''exclusive," since its methods and 
objects are confined to the equity procedure. In all suits 
which belong to this jurisdiction in its original and proper 
sense, no remedy is either asked or granted; their sole 
object is the obtaining or preserving of evidence to be 
used u*pon the trial of some action at law. The cases em- 
braced within this proper auxiliary jurisdiction are suits 
for discovery, to obtain an answer under oath from a party 
to a pending or anticipated action at law, which answer may 
be used as evidence on the trial of such action; suits for the 
perpetuation of evidence; and suits for the obtaining of 
evidence in a foreign country. The latter two species of 
suits are practically obsolete in this country, having been 
superseded by more summary and efficient proceedings au- 
thorized by statutes.* 

§ 143. Although the auxiliary jurisdiction for a discov- 
ery was originally exercised for the sole purpose above 
mentioned, to obtain evidence from a party litigant to be 
offered on the trial of a legal action, so that as soon as its 

§142, (a) This paragraph of the 156 Fed. 500; Turnbull v. Crick, 63 
text is cited in Balfour v. San Minn. 91, 65 N. W. 135; Chapman v. 
Joaquin Valley Bank (C. C. Cal.), Lee, 45 Ohio St. 356, 13 N. E. 736. 


purpose was accomplished by the filing of a proper answer 
the suit itself was ended, and no decree was possible, yet 
in some of the American states such a discovery in relation 
to matters in controversy purely legal has been made the 
ground of enlarging the concurrent jurisdiction of equity, 
by extending it to the very issues themselves in respect of 
which the discovery is obtained. In other words, where the 
court of equity has exercised its auxiliary jurisdiction to 
obtain discovery concerning any matter in controversy, 
even though purely legal, it thereby acquires complete juris- 
diction over the controversy itself, and may go on and 
decide the issues and grant the proper relief, although the 
case is one cognizable at law, and the legal remedy is fuUp 
adequate. Mere discovery is thus made the foundation of 
a concurrent jurisdiction over cases which are purely legal, 
both in the primary rights involved and in the remedy, 
without any regard to the adequacy or inadequacy of this 
legal remedy. This doctrine prevails, or has prevailed, in 
certain of the states, but it is clearly opposed to the true 
theory of the equitable jurisdiction. ^ It should be re- 
marked that in many of the states the whole auxiliary juris- 
diction for discovery has become useless and obsolete, 
through great changes made in the general law of evidence, 
or has been expressly abolished by statute. ^ a 

§144. The suit for a ''discovery" belonging to the 
auxiliary jurisdiction, as described in the foregoing para- 
graphs, should be carefully distinguished from the so-called 
"discovery" which may be, and ordinarily is, an incident 
of every equitable action. It is a part of the ordinary 
equity procedure, that whatever be the relief sought, and 
whether the jurisdiction be exclusive or concurrent, the 
plaintiff may, by means of allegations and interrogatories 

§ 143, 1 See post, chap, ii, §§ 250 et seq. 
§ 143, 2 See post, section iv. 

§ 143, (a) The text is cited to this effect in Becker v. Frederick W. 
Lipps Co. (Md.), 101 Atl. 783. 


contained in his pleading, compel the defendant to disclose 
by his answer facts within his own personal knowledge 
which may operate as evidence to sustain the plaintiff's 
contention. The name ''discovery." is also given to this 
process of probing the defendant's conscience, and of ob- 
taining admissions from him, which accompanies almost 
every suit in equity; but it should not be confounded with 
''discovery" in its original and strict signification, nor 
with that mentioned in the last preceding paragraph, which 
is sometimes made the ground for extending the concurrent 
jurisdiction of equity over cases otherwise belonging to the 
domain of the common-law courts.* 

§ 145. The foregoing summary may be appropriately 
concluded by a statement of the order to be pursued in the 
further discussion of the equitable jurisdiction thus briefly 
outlined. The whole subject will be distributed into three 
chapters, which will respectively treat of, — Chapter I., 
doctrines concerning the jurisdiction generally, its extent 
when unaffected by statutory limitations ; Chapter II., gen- 
eral rules for the government of this jurisdiction; Chapter 
III., particular jurisdiction of the courts in the various 
states, and of the United States courts. The three remain- 
ing sections of the present chapter are devoted in order to 
a more detailed description of the exclusive, the concurrent, 
and the auxiliary jurisdictions. 

§ 144, (a) Discovery as an ordi- graph of the text is quoted in full 

nary incident of an action for in Balfour v. San Joaquin Valley 

equitaWe relief distinguished from Bank (C. C. Cal.), 156 Fed. 500. 
the suit for discovery. This para- 


§§ 147-149. 


§§ 151-155. 



§§ 159, 160. 




§§ 165-167. 

§§ 168, 169. 

§§ 170-172. 





Equitable primary rights and "equities" defined. 

Equitable estates described. 

Certain distinctive equitable doctrines forming part of equity 

Trusts described. 
Executors and administrators. 
Fiduciary relations. 
Married women's separate property. 
Estates arising from equitable converoioa. 
Mortgages of land. 
Mortgages of personal property. 
Equitable liens. 
Estates arising from assignment of things in action, possibilities, 

etc., and from an equitable assignment of a fund. 
Exclusive equitable remedies described. 

§ 146. Equitable Estates, Interests, and Rights in Prop- 
erty. — It was stated in the preceding section that the exclu- 
sive jurisdiction included, first, all civil cases based upon 
or relating to equitable estates, interests, and rights in 
property as the subject-matter of the action, whatever may 
be the nature of the remedy ; and secondly, all civil cases in 
which the remedy granted is purely equitable, that is, ad- 
ministered by courts of equity alone, whatever may be the 
nature of the primary right, estate, or interest involved in 
the action. I purpose now to describe these two classes in 
a general manner. Equitable primary rights, interests, and 
estates may exist in things real and in things personal, in 
lands and in chattels. They are also of various amounts 
and degrees, from the substantial beneficial ownership of 
the subject-matter down to mere liens. In all cases, how- 
ever, they are rights in, to, or over the subject-matter, 
recognized and protected by equity, and are to be distin- 
guished from the so-called * * equities, ' ' a term which, when 
properly used, denotes simply the right to some remedy 



administered by courts of equity.^ ^ A cestui que trust, a 
mortgagee, a vendee in a contract for the sale of land, is 
clothed with an equitable estate or interest ; while the mere 
right to have an instrument reformed or canceled, or to 
have a security marshaled, and the like, is properly "an 
equity. ' ' 

§ 147. Equitable Estate Defined. — An equitable estate, 
in its very conception, and as a fact, requires the simulta- 
neous existence of two estates or ownerships in the same 
subject-matter, whether that be real or personal, — the one 
legal, vested in one person, and recognized only by courts 
of law; the second equitable, vested in another person, 
and recognized only by courts of equity. These two in- 
terests must be separate, and as a rule, must be held by 
different persons ; for if the legal estate and the equitable 
estate both become vested in the same person by the same 
right, then, as a general rule, a merger takes place, and 
the legal estate alone remains. ^ There are indeed ex- 
ceptions to this general doctrine; for under certain cir- 
cumstances, as will appear hereafter, equity prevents such 
a merger, and keeps alive and distinct the two interests, 
although they have met in the same owner.^ In all cases 
of equitable estates, as distinguished from lesser interests, 
whether in fee, for life, or for years, they are in equity 
what legal estates are in law; the ownership of the equi- 
table estate is regarded by equity as the real ownership, 
and the legal estate is, as has been said, no more than the 

§ 146, 1 The term "an equity" is thus synonymous with what I have 
denominated an equitable remedial right. It is, however, constantly used 
in a broader and improper sense, as describing every kind of right which 
equity jurisprudence recognizes, — estates and interests in land, or chattels, 
liens, and rights to obtain remedies. Such indiscriminate use of the term 
only tends to produce confusion of thought. 

§ 147, 1 Selby v. Alston, 3 Ves. 339. 

§ 147, 2 These apparent exceptions really confirm the general rule. 

§ 146, (a) This paragraph of the Coal & Nav. Co., 24 Pa. Co. Ct. Rep. 
text is cited in Mengel v. Lehigh 152. 


shadow always following the equitable estate, which is the 
substance, except where there is a purchaser for value and 
without notice who has acquired the legal estate.^ a This 
principle of a double right, one legal and the other equi- 
table, is not confined to equitable estates, properly so 
called; it is the essential characteristic of every kind of 
equitable interest inferior to estates. In the total owner- 
ship resulting from mortgages, or from the operation of 
the doctrine of conversion, or from the assignment of 
things in action, and other interests not assignable at law, 
and in liens, there is always a legal title or estate vested 
in one person, recognized by courts of law alone, and an 
equitable interest, ownership, or claim, distinct from a 
mere right of action or remedial right, vested in another 
person, which is recognized, and, according to its nature, 
protected or enforced by courts of equity. 

§ 148. Equitable estates and interests of all kinds are 
separated by a broad line of distinction, with respect to 
their nature and the mode in which equity deals with them, 
into two classes. The first class contains those in which 
the equitable estate is regarded as a permanent, subsist- 
ing ownership; the separation between the legal and equi- 
table titles is not treated as an anomaly, much less a 
wrong, but as a fixed and necessary condition to be pre- 

§ 147, 3 Attorney-Gen. v. Downing, Wilm. 23 ; Burgess v. Wheate, 1 
Eden, 223 ; Mansell v. Mansell, 2 P. Wms. 681 ; Williams v. Owens, 2 Ves. 
603; Brydges v. Brydges, 3 Ves. 120. As to the descent of equitable 
estates as contradistinguished from mere equitable rights of action or 
"equities," see Trash v. Wood, 4 Mylne & C. 324, 328; Roberts v. Dix- 
well, 1 Atk. 609. For example of equitable estate in fee under the doe- 
trine of conversion descending to heir, see Martin v. Trimmer, L. R. 11 
Ch. Div. 341. 

§147, (a) This paragraph of the Co. v. Cahn, 102 Md. 530, 62 Atl. 

text is quoted in Patty v. Middleton, 819; in Watts v. Spencer, 51 Or. 262, 

82 Tex. 586, 17 S. W. 909, discussing 94 Pac. 39 (equitable title to a 

the equitable estate of the wife in water right protected by injunc- 

"community" property under the tion). 
Texas law; in Safe Deposit & Trust 


served as long as the equitable interest continues ; and the 
various rules and doctrines of equity are concerned with 
the respective rights and liabilities of the two owners, 
while the remedies given to the equitable owner are in- 
tended to preserve his estate, and to protect it both against 
the legal owner and against third persons. The class em- 
braces most species of express trusts, the interests created 
by mortgages as originally established by the court of 
chancery, the interests resulting from an assignment of 
things in action. These various species of equitable es- 
tates and interests might well be described by applying to 
them the term ''permanent." In the second class the 
separation of the two interests is regarded as always 
temporary, and in many instances as actually wrongful. 
There is a certain antagonism between the equitable and 
the legal ownership or right, and the very existence of 
the legal estate is often in complete violation of the rights 
of the equitable owner. The doctrines and rules of equity 
concerning this class do not contemplate" a permanent 
separation between the two interests; the rights of the 
equitable owner are hostile to those of the legal pro- 
prietor; while the remedies given to the equitable owner 
always have for their object the perfecting of his rights 
against the legal estate, and very generally consist in com- 
pelling a complete transfer of the legal estate, so that the 
equitable owner shall obtain the legal title in addition to 
the equitable interest which he already possesses. The 
class embraces resulting, implied, and constructive trusts, 
the interests arising from the operation of the doctrine of 
conversion, and liens, including the equitable interest of 
mortgagees according to the doctrine which prevails in 
many of the states. Equitable estates of the first class are 
very numerous in England, by reason of the customs of 
landed proprietors and the frequency of marriage settle- 
ments, provisions for families in wills, the separate prop- 
erty of married women, charitable foundations, and other 
species of express trusts ; and a very large part of equity 


as administered in England is concerned with these perma- 
nent equitable estates. Although not unknown, they are, 
from our widely different social customs and practices 
of land-owners, comparatively very infrequent in this 

§ 149. From the universality of this double ownership, 
or separation of the legal and equitable titles between two 
proprietors or holders, which is an essential feature of 
trusts, all species of equitable estates and interests might 
possibly be regarded as particular kinds of trusts, or as 
special applications of the general principles concerning 
trusts. Thus the holder of the legal title in assignments 
of things in action, in cases of conversion, in mortgages 
and in liens, no less than in trusts proper, is frequently 
spoken of as the trustee, and the holder of the equitable 
interest as the cestui que trust. It would be possible, 
therefore, to treat the entire jurisdiction of equity over 
equitable estates and interests, and these estates and in- 
terests themselves, as based upon and included within the 
single subject of trusts. ^ But this method, while resting 
upon some analogies and external resemblances, would 
overlook essential differences between the various estates 
and interests created by equity, and would therefore be 
misleading. Still, as this form of a double ownership or 
right originated in the notion of trusts, and as all the 
species of equitable interests are connected by analogy, 
more or less closely, with trusts, it becomes necessary to 
explain the essential nature of trusts, and to describe the 
introduction and development of their conception with 
some detail. 

§ 150. I would remark, in this connection, so as to pre- 
vent misunderstanding, that there are many important 
and even fundamental principles and doctrines which are 
applied in all parts of the equity jurisprudence, but which 

§ 149, 1 This method has been pursued partially, if not wholly, by some 
text-writers: See Willard's Eq. Jur. 


do not belong to a statement of its jurisdiction. These 
doctrines do not determine the existence of equitable es- 
tates and interests, nor fix the form and nature of equitable 
remedies; but they aid in defining and regulating the 
rights, duties, and liabilities incident to such estates and 
interests, and furnish rules concerning their enjoyment, 
transfer, devolution, and the like; and they also serve to 
determine the occasions on which rights of action arise, 
the extent to which parties are entitled to remedies, and 
the kind of remedy appropriate' to secure or restore the 
primary right invaded. Among these important prin- 
ciples and doctrines of equity I mention, as illustrations, 
the rules established for the construction of wills and 
deeds; the principles which are especially concerned with 
the administration of estates, and the settlement of the 
claims of creditors, encumbrancers, devisees, legatees, and 
others, upon funds belonging to the same debtor, including 
the doctrines of equitable and legal assets, of contribution 
and exoneration, of marshaling assets and securities, of 
election, of satisfaction and performance, of priorities, 
and of notice ; and other principles of equal importance, 
the equitable position of bona fide purchasers, the theory 
of valuable and meritorious consideration, the appropria- 
tion of pa\Tnents and the apportionment of liabilities, the 
relations between sureties and their creditors and the prin- 
cipal debtors, the control of transactions between persons 
in fiduciary relations, the equitable theory as to forfeitures 
and penalties, and the general doctrines concerning fraud, 
mistake, accident, public policy, and the like. These and 
other fundamental principles and doctrines are invoked 
and applied throughout every branch of equity jurispru- 
dence; they aid, to a greater or less extent, in controlling 
every species of equitable primary right, estate, or inter- 
est, and in regulating every kind of remedial right and 
remedy recognized by courts of equity. While they form 
no part of the jurisdiction, properly so called, they consti- 
tute a most important feature of the equity jurisprudence, 


and will be discussed under their appropriate connections 
in subsequent chapters. The purely equitable estates and 
interests which come within the exclusive jurisdiction and 
constitute the first branch thereof are the following, sepa- 
rated, for purposes of convenience as to treatment, into 
general groups: Trusts; married women's separate prop- 
erty; equitable interests arising from the operation of the 
doctrine of conversion; equitable estates or interests aris- 
ing from mortgages of real or of personal property, and 
from pledges of chattels or securities; equitable liens on 
real and on personal property; equitable interests of as- 
signees arising from assignments of things in action, pos- 
sibilities, and the like, not assignable at law, or arising 
from transactions which do not at law operate as assign- 
ments. i I shall describe with only so much detail as is 
necessary each one of these groups in order. 

§ 151. Trusts.a — The whole theory of trusts, which 
forms so large a part of the equity jurisprudence, and 
which is, in a comprehensive view, the foundation of all 
equitable estates and interests, has undoubtedly been 
developed from its germ existing in the Eoman law, a 
peculiar mode of disposing of property by testament called 
the '^fidei-commissum/' In a fidei-commissum the tes- 
tator gave his estate directly to his heir, but accompanied 
the bequest with a direction or request that the heir should, 
on succeeding to the inheritance, at once transfer it to a 
specified beneficiary. At first the claims of the beneficiary 
were purely moral, resting wholly upon the good faith of 
the heir; but in process of time they became vested rights, 

§ 150, 1 See 1 Spence's Eq. Jur., 429-434, 435-593, 594-598, 599-604. 
642. To these might be added, as an example of equitable primary rights 
not being estates or interests in nor liens on specific property, the right 
in equity of a creditor against the personal representatives of a deceased 
joint debtor, although his right is wholly gone at law; and the similar 
right of the personal representatives of a deceased joint creditor. 

§ 151, (a) This paragraph is cited in Brissell t. Knapp (C. 0. Nev.), 
155 Fed. 809. 


recognized by the law and enforced by the magistrates. ^ 
Borrowed from this Roman conception, ''uses," by which 
land was conveyed to or held by A to the use or for the 
benefit of B, seem to have been invented during the latter 
part of the reign of Edward III.2 They grew rapidly into 
favor, and it is said that during the reign of Henry V. 
the greater part of the land in England was held in this 
manner. The ''trusts," however, of modern equity juris- 
prudence are all directly based upon the celebrated ''Stat- 
ute of Uses," passed in the twenty-seventh year of the 
reign of Henry VIII. (A. D. 1535), although the principal 
doctrines which define their kinds and classes and regu- 
late their operation may be traced to the uses existing 
jjrior to the statute. Henry VIII., in compelling Parlia- 
ment to enact the statute of uses, undoubtedly intended to 
destroy the entire system of conveyances to uses, by which 
the legal and equitable estates in land were separated, and 
vested in different owners, and which, for many reasons, 
he regarded as a fraud upon his legal rights and pre- 
rogatives; but in fact no such result followed. From the 
peculiar language of the enacting clause, and by the judi- 
cial interpretation placed thereon, all the various kinds 
of double ownership which had before existed under the 
name of "uses" were preserved under the name of 
"trusts." The whole system fell within the exclusive 
jurisdiction of chancery ; the doctrine of trusts became and 
continues to be the most efficient instrument in the hands 
of a chancellor for maintaining justice, good faith, and 
good conscience; and it has been extended so as to embrace 
not only lands, but chattels, funds of every kind, things in 
action, and moneys.^ I shall merely state, without de- 

§ 151, 1 See Institutes of Justinian, b. ii, tit. 23, § 1 j Sandars's ed., 
pp. 237, 238; Institutes of Gaius, ii., §§ 246-259. 
§ 151, 2 1 Spence's Eq. Jur. 439-442. 

§ 151, (b) The text is quoted in Clark v. Spanley, 122 Ark, 366, 183 
Mitchell V. Bank of Indianola, 98 S. W. 964. 
Miss. 658, 54 South. 87; and cited in 


scribing in this part of my work, the various kinds and 
classes of trusts which are thus subject to the exclusive 
equitable jurisdiction. 

§ 152. All possible trusts, whether of real or personal 
property, are separated by an important line of division 
into two great classes : those created by the intentional 
act of some party having the dominion over the property, 
done with a view to the creation of a trust, which are ex- 
press trusts; those created by operation of law, where the 
acts of the parties may have had no intentional reference 
to the existence of any trust, which are implied trusts. 
Express trusts are again separated into two general 
classes: private and public. Private trusts are those 
created by some written instrument, deed, or will, or in 
some trusts of personal property by a mere verbal declara- 
tion, without any writing, for the benefit of certain and 
designated individuals, in which the cestui que trust, or 
"beneficiary," is a known and certain person or class of 
persons. Public, or as they are frequently termed, chari- 
table, trusts are those created for the benefit of an unas- 
certained, or uncertain, and sometimes fluctuating body 
of individuals, in which the cestuis que trustent may be a 
class or portion of a public community, as, for example, 
the poor of a particular town or parish.^- 

§ 153.a Express private trusts are either ** passive" or 
'^ active." An express private passive trust exists where 
land is conveyed to or held by A in trust for B, without 
any power expressly or impliedly given to A to take the 
actual possession of the land, or to exercise acts of owner- 
ship over it, except by the direction of B. The naked legal 
title only is vested in A, while the equitable estate of the 
cestui que trust is to all intents the beneficial ownership, 

§ 152, (a) This paragraph is cited Crane, 80 N. J. Bq. 509, 43 L. R. A. 

• TT -4. J oi. X Ti:;i V* p r. „ (N. S.) 604, 85 Atl. 408. 

in United States Fidelity & Guar- ^ ' ' 

§ 153, (a) This paragraph is cited 
anty Co. v. Smith, 103 Ark. 145, 147 .^ ^^^^^^^ ^ ^^^^^^^ ^^ ^^^ ^ ^^ 

S. W. 54; Franklin Township v. 425 72 Atl. 960. 


virtually equivalent in equity to the corresponding legal 
estate.^ Express private active, or as they are sometimes 
called, special, trusts are those in which, either from the 
express directions of the written instrument declaring the 
trust, or from the express verbal directions, when the 
trust is not declared in writing, or from the very nature 
of the trust itself, the trustees are charged with the per- 
formance of active and substantial duties in respect to the 
management of and dealing with the trust property, for 
the benefit of the cestuis que trustent. They may, except 
where restricted by statute, be created for every purpose 
not unlawful, and as a general rule, may extend to every 
kind of property, real and personal. In this class, the 
interest of the trustee is not a mere naked legal title, and 
that of the cestui que trust is not the real ownership of the 
subject-matter. The trustee is generally entitled to the 
possession and management of the property, and to the re- 
ceipt of its rents and profits, and often has, from the very 
nature of the trust, an authority to sell or otherwise dis- 
pose of it. The interest of the beneficiary is more limited 
than in passive trusts, and in many instances cannot with 
accuracy be called even an equitable estate. He always 
has the right, however, to compel a performance of the 
trust according to its terms and intent.^ The foregoing 
classes of express private trusts are all embraced within 
the general exclusive jurisdiction of equity as it is estab- 
lished by the English court of chancery; and they belong 
to the same jurisdiction as it is administered in the states 
of this country, except so far as they have been abrogated 
or modified by statute. In some of the states the legis- 
lature has not interfered, so that all these species of pri- 

§153, 11 Spence's Eq. Jur. 495-497; Cook v. Fountain, 3 Swanst. 
591, 592, per Lord Nottingham; Adair v. Shaw, 1 Schoales & L. 262. 
per Lord Redesdale; Lloyd v, Spillett, 2 Atk. 150; Raikes v. Ward, 1 
Hare, 447, 454. 

§153, 2 1 Spence's Eq. Jur. 496, 497; Lord Glenorchy v. Bossville. 
Cas. t. Talb. 3. 


vate trusts have a theoretical, even if not an actual, exist- 
ence. In several of the states, however, great changes 
have been made by statute. By the common type of this 
legislation, wherever it has been adopted, all express pri- 
vate passive trusts in land have been abolished, and the 
express private active trusts have been restricted to a few 
specified forms and objects. ^ 

§ 154. Express Public Trusts or Charities. — In private 
trusts there is not only a certain trustee who holds the 
legal estate, but there is a certain specified cestui que trust. 
It is an essential feature of public or charitable trusts, 
that the beneficiaries are uncertain, a class of persons de- 
scribed in some general language, often fluctuating, chan- 
ging in their individuals, and partaking of a quasi public 
character. The most patent examples are ''the poor" 
of a specified district, in a trust of a benevolent character, 
or ''the children" of a specified town, in a trust for educa- 
tional purposes. It is a settled doctrine in England and 
in many of the American states, that personal property, 
and real property except when prohibited by statutes of 
mortmain, may be bequeathed or conveyed in trust for 
charitable uses and purposes, for the benefit of such un- 
certain classes; and if the purposes are charitable within 
the meaning given to that term, the trust falls within the 
jurisdiction of equity, and will be enforced. ^ The trusts 

§ 153, 3 As examples of this type of legislation, see 1 R. S. of N. Y., 
p. 727, §§45-65; CivU Code of Cal., §§847, 852, 857-871. 

§ 154, 1 Moriee v. Bishop of Durham, 9 Ves. 399, 405, 10 Yes. 522, 
541; Mitford v. Reynolds, 1 Phila. 185; Nash v. Morley, 5 Beav. 177; 
Kendall v. Granger, 5 Beav. 300; Townsend v. Cams, 3 Hare, 257; 
Nightingale v. Goulburn, 5 Hare, 484; Attorney-General v. Aspinal, 2 
Mylne & C. 613, 622, 623; British :Musenm v. White, 2 Sim. & St. 594, 
596; Coggeshall v. Pelton, 7 Johns. Ch. 292, 11 Am. Dec. 471; Salton- 
stall V. Sanders, 11 Allen, 446 ; American Academy v. Harvard College, 
12 Gray, 582; Jackson v. Phillips, 14 Allen, 539, per Gray, J. Trusts 
for private objects do not fall within the jurisdiction over charitable 
trusts, and are void if they create perpetuities; as, for example, those 
for the erection or repair of private tombs or monuments : In re Rickard, 


over which this peculiar jurisdiction extends, and which 
mark its special nature, should not be confounded with 
gifts to corporations which are authorized by their char- 
ters to receive and hold property, and apply it to objects 
which fall, perhaps, within the general designation of 
*' charitable." Such gifts are regulated either by the rules 
of law applicable to corporations, or by the provisions of 
their individual charters. 2 There is a wide divergence 
among the states of this country in their acceptance of 
the doctrine concerning charitable trusts. In some of 
them, either from a statutory abolition of trusts, or from 
the general provisions of statutes concerning perpetuities, 
or from the general public policy of the state legislation, 
it is held that charitable trusts do not exist at all, except 
in the instances expressly authorized by statute, which are 
all gifts to corporations. 3 In a much larger number of 
the states, the jurisdiction over charitable trusts, either on 
the ground that the statute of Elizabeth is in force, or as 
a part of the ordinary powers of equity, has been accepted 
in a modified form and to a limited extent, and such trusts 
are upheld only when the property is given to a trustee 
sufficiently certain, and for purposes and beneficiaries 
sufficiently definite. In a very few of the states the juris- 
diction seems to be accepted to its full extent, and to be 
exercised in substantially the same manner as it is by the 
English court of chancery.'* 

31 Beav. 244; Fowler v. Fowler, 33 Beav. 616; Hoare v. Osborne, L. R. 1 
Eq. 585; or those to found a private museum: Thompson v. Shakespeare, 
1 De Gex, F. & J. 399; or those for the benefit of a private company: 
Attorney-General v. Haberdashers' Co., 1 Mylne & K. 420; or for a mere 
private charity; Ommanney v. Butcher, Turn. & R. 260. 

§ 154, 2 See Levy v. Levy, 33 N. Y. 97, 112-118, per Wright, J. ; 
Baseom v. Albertson, 34 N. Y. 584, 587-621, per Porter, J. 

§ 154, 3 New York is a leading example of this class : See Baseom v. 
Albertson, 34 N. Y. 584 ; Levy v. Levy, 33 N. Y. 97 ; Beekman v. Bonsor, 
23 N. Y. 298, 80 Am. Dec. 269; Holmes v. Mead, 52 N. Y. 332, 339; 
Burrill v. Boardman, 43 N. Y. "254, 263, 3 Am. Rep. 694; Adams v. Perry, 
43 N. Y. 487. 

§ 154, 4 See Part Third, Chapter of Charitable Trusts, post. 


§ 155. Trusts Arising by Operation of Law. — The sec- 
ond great division of trusts, and the one which in this 
country especially affords the widest field for the jurisdic- 
tion of equity in granting its special remedies so superior 
to mere recoveries of damages, embraces those which arise 
by operation of law from the deeds, wills, contracts, acts, 
or conduct of parties, without any express intention, and 
often without any intention, but always without any words 
of declaration or creation.^ They are of two species, 
"resulting" and ''constructive," which latter- are some- 
times called trusts ex maleficio; and both these species are 
properly described by the generic term "implied trusts." ^ 
Resulting trusts arise where the legal estate is disposed of 
or acquired, not fraudulently or in the violation of any 
fiduciary duty, but the intent in theory of equity appears 
or is inferred or assumed from the terms of the disposi- 
tion, or from the accompanying facts and circumstances, 
that the beneficial interest is not to go with the legal title. 

§ 155, 1 There is another kind which are sometimes, but very improp- 
erly, called "implied" trusts; namely, where a party, by a written instru- 
ment, deed, or will, has intended to create a trust for some specific object, 
and has used language showing that intent; but the language he has 
employed does not in express terms declare and create the trust, so that 
the court, in deciding upon the effect of the instrument, is obliged to 
construe or interpret the words, in order that they may amount to a 
declaration of the trust. The most familiar illustration is that of a trust 
arising from mere precatory words in a deed or will. These trusts have 
no resemblance whatever to those which "arise by operation of law"; 
they are in every respect express trusts, either active or passive; they only 
differ in form from ordinary express trusts from a certain vagueness or 
incompleteness of the language used to create or declare them, so that 
a court is forced to interpret this language. When interpreted, it be- 
comes in every sense an express declaration of the trust. To include 
these instances among implied trusts is to violate every principle of true 
classification, and to introduce an unnecessary confusion into the subject. 
All true implied trusts differ from express trusts, not only in the manner 
of their creation, but also in their essential features and qualities. 

§155, (a) The text is quoted in Morris v. Newlin Lumber Co., 100 
Ark. 253, 140 S. W. 1. 


In such a case a trust "results" in favor of the person for 
whom the equitable interest is thus assumed to have been 
intended, and whom equity deems to be the real owner.^^ 
Constructive trusts are raised by equity for the purpose 
of working out right and justice, where there was no in- 
tention of the party to create such a relation, and often 
directly contrary to the intention of the one holding the 
legal title. All instances of constructive trust may be re- 
ferred to what equity denominates fraud, either actual or 
constructive, including acts or omissions in violation of 
fiduciary obligations. If one party obtains the legal title 
to property, not only by fraud or by violation of confidence 
or of fiduciary relations, but in any other unconscientious 
manner, so that he cannot equitably retain the property 
which really belongs to another, equity carries out its 
theory of a double ownership, equitable and legal, by im- 
pressing a constructive trust upon the property in favor 
of the one who is in good conscience entitled to it, and who 
is considered in equity as the beneficial owner.^c Courts 

§ 155, 2 The following cases furnish illustrations : Ackroyd v. Smith- 
son, 1 Brown Ch. 503, 1 Lead. Cas. Eq. 1177; Robinson v. Taylor, 2 
Brown Ch. 589; Berry v. Usher, 11 Ves. 87; Watson v. Hayes, 5 Mylne 
& C. 125; Jessop v. Watson, 1 Mylne & K. 665; Eyre v. Marsden, 2 Keen, 
564; Burley v. Evelyn, 16 Sim. 290; Wood v. Cone, 7 Paige, 472, 476; 
Wood V. Keyes,- 8 Paige, 365, 369; Millard v. Hathaway, 27 Cal. 119; 
Malony v. Sloans, 44 Vt. 311. 

§ 155, 3 1 Perry on Trusts, § 166 ; 1 Spenee's Eq. Jur. 511, 512 ; Mc- 
Laue V. Johnson, 43 Vt. 48; Collins v. Collins, 6 Lans. 368; Thompson 
V. Thompson, 16 Wis. 94; Pillow v. Brown, 26 Ark. 240; Ryan v. Dox, 

§155, (b) The text is quoted in 252; Morris v. Newlin Lumber Co., 

Springer v. Young, 14 Or. 280, 12 100 Ark. 253, 140 S. W. 1; Teich 

Pac. 400. The text is cited in v. San Jose Safe Deposit Bank 

Flesner v. Cooper, 39 Okl. 133, 134 of Savings, 8 Cal. App. 397, 97 PaC 

•Pac. 379; Aylesworth v. Aylesworth 167; in Davenport v. Burke (Idaho), 

(Ind. App.), 160 N. E. 907; and 167 Pac. 481; in Holliday v. Perry, 

quoted in Morris v. Newlin Lumber 38 Ind. App. 588^ 78 N. E. 877 

Co., 100 Ark. 253, 140 S. W. 1. (the fraud which gives rise to a 

§ 155, (c) Constructive Trusts. — constructive trust need not be in 

The text is quoted in Patterson v. the inception of the transaction); 

Dickinson, 193 Fed. 328, 113 C, C. A. in Springer v. Young, 14 Or. 280, 12 


of equity, by tliiis extending the fundamental principle of 
trusts — that is, the principle of a division between the 
legal estate in one and the equitable estate in another — 
to cases of actual or constructive fraud and breaches of 
good faith, are enabled to wield a remedial power of 
tremendous efficacy in protecting the rights of property. 

§ 156. Executors and Administrators — Estates of De- 
ceased Ov/ners. — The theory of trusts express and implied 
having been established, it was easily extended to certain 
other analogous subjects which were thus brought within 
the equitable jurisdiction. One of the most important 
of these was the administration of the estates of deceased 
persons. The relation subsisting between executors 
and administrators on the one hand, and legatees, dis- 
tributees, and creditors on the other, has so many of the 
features and incidents of an express active trust, that it 
has been completely embraced within the equitable juris- 
diction in England, and also in the United States, where 
statutes have not interfered to take away or to abridge the 
jurisdiction.^- At the common law no action lay to re- 

34 N. Y. 307, 90 Am. Dec. G96; Dodd v. Wakeman, 26 N. J. Eq. 484; 
Green v. Ball, 4 Bush, 5S6; Hunt v. Roberts, 40 Me. 187; Hodges v. 
Howard, 5 R. I. 149; Laing v. McKee, 13 Mich. 124, 87 Am. Dec. 738; 
Nelson v. Worrall, 20 Iowa, 469; Coyle v. Da\is, 20 Wis. 593; Hidden v. 
Jordan, 21 Cal. 92; Sandfoss v. Jones, 35 Cal. 481. 

Pac. 400; in Clongh v. Dawson, 69 oil leases for his principal, purchases 

Or. 52, 133 Pac. 345, 138 Pac. 233; for himself); Harrop v. Cole, 85 

Kersey v. Kersey, 76 W. Va. 70, 85 N. J. Eq. 32, 95 Atl. 378 (agent to 

S. E. 22. The text is cited in Bris- buy purchases with his own money 

sell V. Knapp (C. C. Nev.), 155 Fed. for himself); and paraphrased in 

809; in Sanguinetti v. Eossen, 12 Wellner v. Eckstein, 105 Minn. 444, 

Cal. App. 623, 107 Pac. 560 (con- 117 N. W. 830, in the very instructive 

structive trust arising from convey- opinion of Elliott, J., holding that 

ance to attorney on his oral promise in case of inheritance by a murderer 

to execute a writing reciting the from the person murdered, he takes 

terms of the trust) ; in Bellevue title as trustee ex malef.cio. 
State Bank v. Coffin, 22 Idaho, 210, § 156, (a) The text is quoted in 

125 Pac. 816; Fox v. Simons, 251 111. Newberry v. Wilkinson, 199 Fed. 

316, 96 N. E. 233 (agent to purchase 673, 678, 118 C. C. A. 111. 


cover a legacy, unless it was a specific legacy of goods, and 
the executor had assented to it so that the property therein 
vested in the legatee. ^ Although individual creditors 
might recover judgments at law for the amount of their 
respective claims, the legal procedure furnished absolutely 
no means by which the rights and claims of all distributees, 
legatees, and creditors could be ascertained and ratably 
adjusted, the assets proportionably distributed among 
those having demands of an equal degree as to priority, 
and the estate finally settled. The power of the ancient 
'* spiritual courts" over the subject-matter was also very 
limited and imperfect; in many instances it could furnish 
no relief, and was at best but ''a lame jurisdiction." 2 
Where the claim against an estate was purely equitable, 
as where a testator had charged land with his debts or 
legacies, thus creating an equitable lien, or had devised 
property in trust for the payment of debts or legacies, and 
the like, the court of chancery had, of course, an original 
and exclusive jurisdiction. In all other cases it obtained 
a jurisdiction because its relief was more complete, and 
it alone could provide for the rights and claims of all par- 
ties. This jurisdiction at length became firmly estab- 
lished and practically exclusive on this ground of trusts; 
that the relation between the executor or administrator 
and the parties interested in the estate is virtually one of 
express trust, which equity has always the power to en- 
force.3i> Throughout the great majority of the United 
States, however, this jurisdiction of equity, even where 
not expressly abrogated, has become virtually obsolete. ° 

§ 156, 1 Deeks v. Strutt, 5 Tenn Rep. 690 ; Doe v. Guy, 3 East, 120. 

§ 156, 2 See Pamplin v. Green, 3 Cas. Chan. 95 ; Matthews v. Newby, 
1 Vern. 134, 2 Freem. 189; Petit v. Smith, 5 Mod. 247. 

§ 156, 3 See Adair v. Shaw, 1 Sehoales & L. 262, per Lord Redesdale; 
Anonymous, 1 Atk. 491, per Lord Hardwieke. 

§ 156, (b) The text is cited to this § 156, (c) The text is quoted in 

effect in Siglin v. Smith, 168 Ala. Price v, Laing, 67 W. Va. 373, 68 
398, 53 South. 260. S. E. 24. 


Partly from prohibitory and partly from permissive stat- 
utes, the jurisdiction over the administration of decedents' 
estates in all ordinary cases has been wholly withdrawn 
from the equity tribunals and exclusively exercised by the 
probate courts in all the states, with very few exceptions.^ 
Although the general jurisdiction of equity over the sub- 
ject of administrations is thus practically, and even in 
some instances expressly, abolished in so many states, still 
the jurisdiction remains in all matters of trust created by 
or arising from the provisions of wills; and thus a large 
field is left for the exercise of the equitable jurisdiction in 
the construction of wills, and in the determination and en- 
forcement of equitable rights, interests, and estates created 
and conferred thereby.^ ^ 

§ 157. Fiduciary Relations. — The equitable doctrine of 
trusts has also been extended so as to embrace, either 
wholly or partially, many other relations besides those of 
trusts created by private owners of property. Guardians 
of infants, committees or guardians of the insane, re- 
ceivers, directors, and other managers of stock corpora- 
tions, and the like, are in a general sense trustees, or 
rather quasi trustees, in respect of the particular persons 
towards whom they stand in a fiduciary relation, — the 

§ 156, 4 See post, chap, iii., sec. ii., §§ 346-352, where this matter is 
more fully described. 

§ 156, 5 Whitman v. Fisher, 74 111. 147; Campbell's Appeal, 80 Pa. 
St. 298; Harris v. Yersereau, 52 Ga. 153; Dorsheimer v. Rorback, 23 
N. J. Eq. 46 ; Youmans v. Youmans, 26 N. J. Eq. 149 ; Haag v. Sparks, 27 
Ark. 594; Jones v. Jones, 28 Ark. 19; Duncan v. Duncan, 4 Abb. N. C. 
'275; Marlett v. Marlett, 14 Hun, 313; Chipman v. Montgomery, 63 N. Y. 
221; Bailey v. Briggs, 56 N. Y. 407; Brundage v. Brundage, 65 Barb. 
397; Collins v. Collins, 19 Ohio St. 468; Perkins v. Caldwell, 77 N. C. 
433; Heustis v. Johnson, 84 111. 61; Matter of Broderick's Will, 21 Wall. 

§ 156, (d) This paragraph is cited South. 84. See, as to the jurisdic- 
in Jenkins y. Jenkins, 83 S. C. 537, tion in administration of decedents' 
65 S. E. 736. The text is cited in estates, post, §§ 1152-1154, and notes. 
Benedict v. Wilmarth (Fla.), 35 


wards, stockholders, etc.^^ But the analogy should not be 
pushed too far. The trust which exists in these and simi- 
lar cases is not of so high and complete a character that 
equity has an exclusive jurisdiction over the rights and 
interests of the beneficiaries, to maintain and enforce them 
against the trustees. The law, by means of its actions 
ex cequo et bono, supplies the beneficiaries with sufficient 
remedies for many violations of such fiduciary relations. 
The relations in which such persons stand towards their 
beneficiaries partake so much of the trust character, how- 
ever, that equity possesses a jurisdiction in many instances 
where its remedies are more effective, or its modes of 
procedure enable the court to do more complete justice by 
its decrees. 

§ 158. While the jurisdiction of equity in these last- 
mentioned cases of fiduciary relations is concurrent and 
depends upon the superiority of its remedies, the exclusive 
jurisdiction in the cases before described of private ex- 
press trusts proper, whether passive or active, is wholly 

§ 157, 1 Keech v. Sanford, Sel. Cas. Ch. 61, 1 Lead. Cas. Eq. 48; Fox 
V. Maekreath, 2 Brown Ch. 400, 2 Cox, 320, 1 Lead. Cas. Eq. 188; Monet 
V. Paske, 2 Atk. 54 ; Kimber v. Barber, L. R. 8 Ch. 56 ; Powell v. Glover, 
3 P. Wms. 252; Wedderburn v. Wedderbum, 4 Mylne & C. 41; Gt. 
Luxembourg R'y Co. v. Magnay, 25 Beav. 586 ; Docker v. Somes, 2 Mylne 
& K. 665; Knox v. Gye, L. R. 5 H. L. 656, 675; Gresley v. Mousley, 4 
De Gex & J. 78, 3 De Gex, F. & J. 433; Holman v. Loynes, 4 De Gex, 
M. & G. 270; Hesse v. Briant, 6 De Gex, M. & G. 623; Knight v. Bowyer, 2 
De Gex & J. 421, 445; Savery v. King, 5 H. L. Cas. 627; Dodge v. Woolsey, 
18 How. 331, 341 ; Koehler v. Black R., etc., Co., 2 Black, 715 ; Butts v. 
Wood, 37 N. Y, 317; Bliss v. Matteson, 45 N. Y. 22; Neall v. Hill, 16. 
Cal. 145, 76 Am. Dec. 508. 

§157, (a) The text is cited in Hammersmith (Ind. App.), 81 N. E'. 
Benedict v. Wilmarth (Fla.), 35 614 (same) ; Mitchell v. Bank of In- 
South. 84; in Donahue v. Quacken- dianola, 98' Miss. 658, 54 South, 87. 
bush, 75 Minn. 43, 77 N. W. 430 See, also, Campbell's Automatic 
(receiver as trustee) ; in Frieker v. Safety Gas Burner Co. v. Hammer, 
American Mfg. & Imp. Co., 124 Ga. 78 Or. 612, 153 Pac. 475 (joint ad- 
165, 52 S. E. 65 (corporation di- venturers), 
rectors and managers) ; Tevis v. 


independent of the nature of the remedies given. The 
actual remedies which a court of equity gives depend upon 
the nature and object of the trust; sometimes they are spe- 
cific in their character, and of a kind which the law courts 
cannot administer, but often they are of the same general 
kind as those obtained in legal actions, being mere re- 
coveries of money. A court of equity will always by its 
decree declare the rights, interest, or estate of the cestui 
que trust, and will compel the trustee to do all the specific 
acts required of him by the terms of the trust. It often 
happens that the final relief to be obtained by the cestui 
que trust consists in the recovery of money. This rem- 
edy the courts of equity will always decree when necessary, 
whether it is confined to the payment of a single specific 
sum, or involves an accounting by the trustee for all that 
he has done in pursuance of the trust, and a distribution 
of the trust moneys among all the beneficiaries who are 
entitled to share therein.* 

§ 159. Married Women's Separate Property. — The 
married woman's separate estate, prior to any legislation 
on the subject, is merely a particular case of trusts, and 
the jurisdiction of equity over it has been long estab- 
lished.i As the wife's interest in the property held to her 
separate use is wholly a creature of equity, the equitable 
jurisdiction over it is of course exclusive; and in direct 
antagonism to the common-law theory, equity regards and 
treats the wife, with respect to such separate estate, as 
though she were unmarried.^ This equitable separate es- 

§ 159, 1 See Drake v. Storr, 1 Freem. 205, which shows that in 1695 
the wife's separate estate was a well-settled doctrine of equity. 

§ 159, 2 Lady Arundel v. Phipps, 10 Yes. 140 ; Grigby v. Cox, 1 Ves. 
Sen. 517 ; Hulme v. Tenant, 1 Brown Ch. 16 ; Field v. Sowle, 4 Russ. 112 ; 
Owens V. Dickenson, Craig & P. 48; Nantes v. Con-oek, 9 Ves. 189; Aylett 

§ 158, (a) Exclusive Jurisdiction Indianola, 98 Miss. 658, 54 South. 

Embraces All Cases of Express 87; and cited in Warren v. Warren, 

Trusts.— This paragraph of the text 75 N. J. Eq. 415, 72 Atl. 960. 
is quoted in Mitchell v. Bank of 


tate of married women being only a species of trust prop- 
erty held upon express trust, either passive or active, it is 
of course embraced within the legislation of various states 
abolishing or restricting and regulating such trusts. 

§ 160. This jurisdiction of equity, so far as it is con- 
cerned with the contracts of married women, and their 
other dealings with their separate property, has been 
greatly enlarged by the modem legislation in many of the 
states. These statutes, it is true, do not create any equi- 
table estate; their effect is to vest a purely legal title in 
the wife, and to free such title from the interests and 
claims and rights which the common law gave to the hus- 
band. But while the legislation thus acts upon her title, 
it does not, in general, remove the common-law disability 
of entering into contracts, or clothe the wife with a gen- 
eral capacity of making contracts which are binding at 
law, and enforceable against them by legal actions. The 
matter of married women's contracts is therefore left ex- 
clusively to courts of equity, and is governed by equitable 
doctrines. The jurisdiction of equity in the enforcement 
of married women's liabilities against their separate prop- 
erty has thus been enlarged, since it has been extended in 
these states to all the property which a wife may hold by 
a legal title, and is not confined to such equitable estate as 
is held for her separate use.i 

§ 161. Equitable Estates Arising from the Doctrine of 
Conversion. — The doctrine of "conversion" is a particular 
application of the principle that equity regards as done 
what ought to be done. The doctrine itself was thus stated 
by an eminent English equity judge in the leading case 

V. Ashton, 1 Mylne & C. 105, 112 ; La Touche v. La Touche, 3 Hurl. & C. 
576 ; Heatley v. Thomas, 15 Ves. 596 ; McHenry v. Davies, L. R. 10 Eq. 
88 ; Murray v. Barlee, 3 Mylne & K. 209 ; Owen v. Homan, 4 H. L. Cas. 
997; Johnson v. Gallagher, 3 De Gex, F. & J. 494, 521. 

§ 160, 1 See post, part iii., chapter on Married Women's Separate 
Property, where an abstract of the legislation in the various states is given. 


upon the subject: ''Nothing is better settled than this 
principle, that money directed to be employed in the pur- 
chase of land, and land directed to be sold and turned into 
money, are to be considered as that species of property 
into which they are directed to be converted; and this, in 
whatever manner the direction is given, whether by will, 
by way of contract, marriage articles, settlement, or other- 
wise ; and whether the money is actually deposited or only 
covenanted to be paid, whether the land is actually con- 
veyed or only agreed to be conveyed, the owner of the 
fund, or the contracting parties, may make land money, or 
money land. The cases establish this rule universally." ^ 
As this doctrine of conversion is wholly a creation of the 
equitable jurisprudence, the estates or interests which re- 
sult from it are entirely equitable in their nature, and 
equity has an exclusive jurisdiction to maintain and pro- 
tect such interests, whether the remedy which it gives in 
any particular case consists in establishing a person's 
right to a specific piece of land, or merely in granting a 
recovery of money .^ 

§ 162. Mortgages.^ — At the common law a mortgage of 
land is a conditional conveyance of the legal title, subject 
to be defeated by the mortgagor's performing the condi- 
tion, paying the debt on the very day stipulated. If the 

§ 161, 1 Fletcher v. Ashburner, 1 Brown Ch. 497, per Sir Thomas 
Sewell, M. R. ; Lechmere v. Carlisle, 3 P. Wms. 223 ; Wheldale v. Par- 
tridge, 5 Ves. 396, 8 Ves. 227; Harcourt v. Seymour, 2 Sim. N. S. 12, 45; 
In re Pedder, 5 De Gex, M. & G. 890; Craig v. Leslie, 3 Wheat. 564; Peter 
V. Beverly, 10 Pet. 534, 563; Lorillard v. Coster, 5 Paige, 173, 218; Gott 
V. Cook, 7 Paige, 523, 534; Kane v. Gott, 24 Wend. 641, 659, 660, 35 
Am. Dec. 641; Pratt v. Taliaferro, 3 Leigh, 419, 421, 427; Siter v. Mc- 
Clanachan, 2 Gratt. 280; Smith v. McCrary, 3 Ired. Eq. 204, 207; Samuel 
V. Samuel's Adm'rs, 4 B. Mon. 245, 253; Allison v. Wilson's Ex'rs, 13 
Serg. & R. 330, 332. 

§161, (a) The text is cited in §162, (a) Sections 162, 163, aro 

Greenland v. Waddell, 116 N. Y. cited in Savings & Loan See. v. 

239, 15 Am. St. Rep. 400, 22 N. E. Davidson, 97 Fed. 696, 713, 38 

367. C. C. A. 365. 


condition for any reason was not performed on that day, 
the conveyance ipso facto became absolute, the mort- 
gagee's estate became a perfect legal title, in fee, for life, 
or for years, according to the terms of the deed, and all 
the mortgagor's interest under the instrument was com- 
pletely gone. In other words, the law applied to a mort- 
gage the same strict rules which had been establishe'd with 
regard to every conditional conveyance. Side by side 
with this harsh system of the law, the court of chancery 
developed another theory, which may justly be regarded 
as the most magnificent triumph of equity jurisprudence 
over the injustice of the common law. The source of this 
theory was found in the principle that equity can and will 
relieve against legal penalties and forfeitures, whenever 
the person who seeks to enforce them may be fairly com- 
pensated by an award of money. As early as the reign of 
James I. the court of chancery had begun to relieve the 
mortgagor; and in the reign of Charles I. his right to re- 
deem, after a failure to perform the condition, had become 
fully recognized as a part of the equity jurisprudence.^ 
This equitable right 'of the mortgagor was termed his 
"equity of redemption"; that is, his "right in equity to 
redeem." At first this equity of redemption was re- 
garded as a mere right or thing in action, and at the close 
of the reign of Charles II. it was said to be a mere right 
to recover the land in equity after a failure to perform the 
condition, and not to be an estate in the land.^ This nar- 
row view, however, was soon abandoned; the equitable 
theory became more consistent and complete, until in 1737 
Lord Hardwicke laid down the doctrine as already estab- 
lished, and which has since been regarded as the very cen- 
tral notion of the equitable theory, that an equity of re- 
demption is (in equity) an estate in the land, which may 
be devised, granted, or entailed with remainder; that it 

§ 162, 1 Emanuel College v. Evans, 1 Rep. Chan. 18; 1 Jones on Mort- 
gages, §§6, 7; Coote on Mortgages, 21. 

§ 162, 2 Roscanick v. Barton, 1 Cas. Chan. 217. 


cannot be considered as a mere right only, but such an 
estate whereof there may be a seisin ; and that the person 
therefore entitled to the equity of redemption is consid- 
ered as the owner of the land, and a mortgage in fee is 
considered as personal assets. 3 It should be carefully ob- 
served that by this theory the mortgagor's estate is wholly 
an equitable one; neither in equity nor at law is he 
regarded as retaining the legal estate. Being purely a 
creation of equity, it fell, of course, under the exclusive 
jurisdiction of chancery, and was maintained and pro- 
tected by means of the remedy obtained in a suit for re- 
demption. This double mode of dealing with mortgages, 
the legal, the only one recognized and administered by the 
courts of law, and the equitable, prevailing alone in the 
court of chancery, has continued to exist in England until 
the present day. 

§ 163. The English system has not been adopted to its 
full extent in any of the American states. Two entirely 
different methods of viewing the mortgage have become 
established in the states of this country, and the states 
themselves must be separated into two great classes with 
respect to their adoption of one or the other of these 
methods : 1. In nearly half of the states and territories the 
conflict between the legal and the equitable -conceptions is 
entirely removed. The legal theory of mortgages has been 
abandoned, and the equity theory has been left in full 
force, furnishing a single and uniform collection of rules, 
recognized and administered, so far as necessary, alike by 
courts of law and of equity. The mortgage is not a con- 
veyance; it confers no estate in the land upon the mort- 
gagee. It simpy creates a lien on the land as security for 
the debt due. The mortgagor's estate, instead of being 
equitable, an equity of redemption, is, for all purposes, 
and between all parties, the legal estate, but encumbered 
by the lien created by the mortgage. This simple concep- 

§ 162, 3 Casborne v. Searfe, 1 Atk. 603. 


tion is carried out with all its consequences, not only as 
between the immediate parties, but as between all persons 
who have or acquire any interest in or claim upon the 
mortgage itself or the land which is subject to the mort- 
gage.i 2. The second method, which prevails in the resi- 
due of the states and territories, may be briefly described 
as follows: Between the immediate parties — the mort- 
gagor and mortgagee and persons holding under them — 
the legal conception is acknowledged, and the legal rights 
and duties flowing from the mortgage as a conveyance of 
the legal estate are recognized and enforced by the courts 
of law. But as between the mortgagor and his repre- 
sentatives and all other persons not holding under or 
through the mortgagee, the legal conception has been en- 
tirely abandoned, and the equity view has been adopted by 
all courts, of law as well as of equity. Finally, the equity 
theory exists, is in fact the only one administered by courts 
of equitable jurisdiction, and is applied by them to all par- 
ties in the same manner and to the same extent as by the 
court of chancery in England. ^ 

§ 164. Mortgage of Personal Property. — While a mort- 
gage of personal property is, at the common law, a condi- 
tional sale, which becomes absolute, passing a perfect legal 
ownership on the mortgagor's failure to perform the condi- 
tion, yet the doctrine is well settled that an equity of re- 
demption exists; and the equitable jurisdiction is un- 
doubted to relieve the mortgagor by a suit to redeem, even 
though the mortgagee has taken possession of the chattels, 

§ 163, 1 This method has been adopted in the following states and terri- 
tories: California, Colorado, Dakota, Florida, Georgia, Indiana, Iowa, 
Kansas, Louisiana, Michigan, Minnesota, Nebraska, Nevada, New York, 
Oregon, South Carolina, Texas, Utah, and Wisconsin. 

§ 163, 2 The second method has been adopted in the following states : 
Alabama, Arkansas, Connecticut, Delaware, Illinois, Kentucky, Maine, 
Maryland, Massachusetts, Mississippi, Missouri, New Hampshire, New 
Jersey, North Carolina, Ohio, Pennsylvania, Rhode Island, Tennessee, 
Vermont, Virginia, and West Virginia. 


at any time before the mortgagor's right has been fore- 
closed by a piiblic sale of the mortgaged property.* Even 
after such a sale, if there has been any element of bad faith 
or inequitable conduct on the part of the mortgagee, the 
mortgagor may still sometimes maintain a suit for an ac- 
counting.! The jurisdiction also extends to the mort- 
gagee's interest, which may be protected and enforced by 
a suit brought to foreclose the mortgagor's right of re- 
demption, and to sell the mortgaged property, similar to 
the suit so common in the United States for the foreclos- 
ure of a mortgage of land.^^ A like jurisdiction exists 
over pledges of chattels or of things in action ; the pledgee 
may enforce his security by a suit for a foreclosure and 
sale. 3 c Under special circumstances the pledgor may 
maintain an equitable action for a redemption.'* In some 
of the states the common-law view of the chattel mortgage 
as a conditional sale has been totally abandoned ; the mort- 
gage itself has been assimilated to the mortgage of land 
as only creating a lien, — a mere hypothecation, — the legal 

§164, iHart v. Ten Eyck, 2 Jolms. Ch. 100, 101; Stoddard v. Deni- 
son, 7 Abb. Pr. N. S. 309; Flanders v. Chamberlain, 24 Mich. 305; Hey- 
land V. Badger, 35 Cal. 404. 

§ 164, 2 Hart v. Ten Eyck, 2 Johns. Ch. 100 ; Lansing v. Goelet, 9 Cow. 
372, per Jones, C. ; Charter v. Stevens, 3 Denio, 33, 45 Am. Dec, 444; 
Huntington v. Mather, 2 Barb. 538 ; Mattison v. Baucus, 1 N. Y. 296. 

§ 164, 3 Ex parte Mountford, 14 Ves. 606 ; Freeman v. Freeman, 17 
N. J. Eq. 44; Dnpuy v. Gibson, 36 111. 197; Donohue v. Gamble, 38 Cal. 
340; Civ. Code of Cal., § 3011. 

§ 164, 4 Jones v. Smith, 2 Ves. 372; Bartlett v. Johnson, 9 Allen, 530; 
Hasbrouck v. Vandervoort, 4 Sand. 74. 

§ 164, (a) The text is cited to Cleghorn v. Minnesota T. I. & T. Co., 

this effect in Lang v. Thacher, 48 57 Minn. 341, 47 Am. St. Rep. 615, 

App. Div. (N. Y.) 313, 62 N. Y. Supp. 59 N. W. 320. This section of the 

958. text was cited in Knapp, Stout & 

§164, (b) This paragraph of the Co. v. McCaffrey, 178 111. 107, 69 

text is cited in M'Cormick v. Hart- Am. St. Rep. 290, 52 N. E. 898. and 

ley, 107 Ind. 248, 6 N. E. 357 (juris- the principle applied, by analogy, 

diction to protect the mortgagee's to the enforcement in equity of a 

interest before the debt is due). bailee's lien. 

§164, (c) Cited to this effect in 


ownership with all its incidents, including the right of pos- 
session, being left in the mortgagor until the lien is en- 
forced and the mortgagor's interest extinguished, either 
by means of an equitable suit or by a public sale.^ 

§ 165. Equitable Liens, analogous to mortgages, con- 
sidered from the purely equitable point of view, are the 
class of interest embraced under the denomination of 
''equitable liens." An equitable lien is not an estate or 
property in the thing itself, nor a right to recover the 
thing, — that is, a right which may be the basis of a pos- 
sessory action; it is neither a jiis ad rem nor a ju^ in re.^ 
It is simply a right of a special nature over the thing, 
which constitutes a charge or encumbrance upon the thing, 
so that the very thing itself may be proceeded against in 
an equitable action, and either sold or sequestered under a 
judicial decree, and its proceeds in the one case, or its 
rents and profits in the other, applied upon the demand of 
the party in whose favor the lien exists. It is the very 
essence of this conception, that while the lien continues, 
the possession of the thing remains with the debtor or per- 
son who holds the proprietary interest subject to the 
encumbrance.2 a 

§ 166. The doctrine of equitable liens is one of great 
importance, and of wide application in administering the 
remedies peculiar to equity jurisprudence, and a brief ex- 
planation of the foundation and reasons of the jurisdiction 
is essential to a full understanding of the subject. It is 

§ 164, 5 As, for example, in California: Civ. Code, §§ 2920, 2923, 2927, 
2931, 2936, 2967-2970, 3000-3002. 

§ 165, 1 See Peek v. Jenness, 7 How. 620, per Grier, J. 

§ 165, 2 Brace v. Duchess of Marlborough, 2 P. Wms. 491 ; Ex parte 
Knott, 11 Ves. 617. 

§ 165, (a) This paragraph is cited Barlow Drug Co., 194 Ala. 507, 69 

in American Can Co. v. Erie Pre- South. 931 (foreclosure of seller's 

serving Co. (C. C. N. Y.), 171 Fed. lien where contract provides no 

548. Sections 165-167 are cited in method of enforcing) ; Boyett v. 

Averyt Drug Co. v. Ely-Robertson- Hahn (Ala.), 73 South. 79. 


sometimes, although unnecessarily and even incorrectly in 
my opinion, spoken of as a branch of implied trusts; but 
it is more accurate to describe these liens as analogous to 
trusts ; for although they have some similar features, they 
are unlike in their essential elements. The common-law 
remedies upon all contracts, except those which transfer a 
legal estate or property, such as conveyances of land and 
sales or bailments of chattels, are always mere recoveries 
of money; the judgments are wholly personal, in ancient 
times were enforced against the person of the debtor, by 
his imprisonment until he voluntarily paid the amount, and 
in modern times, against the property generally of the 
judgment debtor, by means of an execution. This species 
of remedy is seldom granted by equity, and is opposed to 
its general theory. The remedies of equity are as a class 
specific. Although it is commonly said of them that they 
are not m rem, because they do not operate by the in- 
herent force of the decree in an equitable suit to change 
or to transfer the title or estate in controversy, yet these 
remedies are, as a general rule, directed against some spe- 
cific thing; they give or enforce a right to or over some 
particular identified thing, land, or personal property, 
or a fund, rather than a right to recover a sum of money 
generally out of the defendant's assets. Eemedies in 
equity, as well as at law, require some primary right or in- 
terest of the plaintiff, which shall be maintained, enforced, 
or redressed thereby. When equity has jurisdiction to 
enforce rights and obligations growing out of an executory 
contract, this equitable theory of remedies cannot be car- 
ried out, unless the notion is admitted that the contract 
creates some right or interest in or over specific property, 
which the decree of the court can lay hold of, and by means 
of which the equitable relief can be made efficient. The 
doctrine of ''equitable liens" supplies this necessary ele- 
ment, and it was introduced for the sole purpose of fur- 
nishing a ground for the specific remedies which equity 
confers, operating upon particular identified property, in- 


stead of tlie general pecuniary recoveries granted by 
courts of law. It follows, therefore, that in a large class 
of executory contracts, express or implied, which the law 
regards as creating no property right nor interest analo- 
gous to property, but only a mere personal right and 
obligation, equity recognizes, in addition to the ohligation, 
a peculiar right over the thing with which the contract 
deals, which it calls a ''lien," and which, though not prop- 
erty, is analogous to property, and by means of which 
the plaintiff is enabled to follow the identical thing, and 
to enforce the defendant's obligation by a remedy which 
operates directly upon that thing.^ 

§ 167. These equitable liens may be created by express 
executory contracts relating to specific property then exist- 
ing,i or property to be afterward acquired ;2 and some- 
times by implied contracts, upon the maxim that he who 
seeks the aid of equity in enforcing some claim must him- 
self do equity.3 The following are some of the important 
kinds of equitable liens which are recognized as falling 
under this branch of the jurisdiction : Those resulting from 

§ 167, 1 Ex parte Wills, 1 Ves. 162, 2 Cox, 233 ; Card v. Jaffray, 2 
Sehoales & L. 379; In re Howe, 1 Paige, 125, 19 Am. Dec. 395; Chase 
V. Peck, 21 N. Y. 581; Daggett v. Rankin, 31 Cal. 321, 326; Love v. Sierra 
Nevada Co., 32 Cal. 639, 652, 653, 91 Am. Dec. 602; Pinch v. Anthony, 
8 Allen, 536; Adams v. Johnson, 41 Miss. 258; Morrow v. Turney, 35 
Ala. 131. 

§ 167, 2 Holroyd v. Marshall, 10 H. L. Cas. 191 ; Wellesley v. Wellesley, 
4 Mylne & C. 561, 579, per Lord Cottenham; Metcalfe v. Archb. of York, 
6 Sim. 224, 1 Mylne & C. 547, 556; Lyde v. Minn, 4 Sim. 505, 1 Mylne & 
K. 683; Otis V. Sill, 8 Barb. 102. 

§ 167, 3 Lake v. Gibson, 1 Abr. Cas. Eq. 290, pi. 3 ; Lake v. Craddock, 
3 P. Wms. 158, 1 Lead. Cas. Eq. 177, 179; Gladstone v. Birley, 2 Mer. 
403; Bright v. Boyd, 1 Story, 478, 2 Story, 605; Miner v. Beekman, 50 
N. Y. 337; Smith v. Drake, 23 N. J. Eq. 302; McLaughlin v. Barnum, 31 
Md. 425 ; Sale v. Crutchfield, 8 Bush, 636. 

• § 166, (a) The text is quoted in Bisby v. Quinby, 92 Kan. 86, 140 Pac. 


charges on property by will or by deed; '* the grantor's lieu 
on land conveyed for the unpaid price ;^ the vendee's lien 
for the money paid in a contract for the purchase of 
land; 6^ the vendor's lien for the purchase price in the 
same contract;"^ the grantor's lien for unpaid price created 
by express reservation in a deed of conveyance;^ the lien 
in favor of a lender, created by a deposit of title deeds ;^ 
various statutory liens.^ In addition to the liens above 
mentioned, which belong to the general equitable jurispru- 
dence, the legislation of many states has created or allowed 
other liens, which often come within the equity jurisdiction, 

§ 167, 4 King V. Denison, 1 Ves. & B. 272, 276 ; Hill v. Bishop of Lon- 
don, 1 Atk. 620; Craig v. Leslie, 3 Wheat. 582; Gardner v. Gardner, 3 
Mason, 178. 

§ 167, 5 Mackreth v. Symmons, 15 Ves. 329, 1 Lead. Cas. Eq. 289 ; 
Blackburn v. Gregson, 1 Brown Ch. 420; Rose v. Watson, 10 H. L. Cas. 
672 ; Smith v, Evans, 28 Beav. 59. This lien is established in a large num- 
ber of the states, but not in all. 

§ 167, 6 Cator v. Earl of Pembroke, 1 Brown Ch. 301; Rose v. Watson, 
10 H. L. Cas. 672; Wythes v. Lee, 3 Drew. 396; Lane v. Ludlow, 6 
Paige, 316, note; Chase v. Peck, 21 N. Y. 585; Wickman v. Robinson, 14 
Wis. 494, 80 Am. Dec. 789; Stewart v. Wood, 63 Mo. 252; Willis v. Searcy, 

49 Ala. 222. 

§167, 7 Smith v. Hibbard, Dick. 730; Smith v. Evans, 28 Beav. 59; 
Haughwout V. Murphy, 22 N. J. Eq. 531; Hall v. Jones, 21 Md. 439; 
Yancy v. Mauck, 15 Gratt. 300; Hill v. Grigsby, 32 Cal. 55; Smith v. Row- 
land, 13 Kan. 245. 

§ 167, 8 This species of lien, peculiar to the United States, is fully 
established in several of the states; Heist v. Baker, 49 Pa. St. 9; Carpenter 
V. Mitchell, 54 111. 126; Markoe v. Andras, 67 111. 34; Davis v. Hamilton, 

50 Miss. 213; Stratton v. Gold, 40 Miss. 781; White v. Downs, 40 Tex. 
226; King v. Young Men's Ass'n, 1 Woods, 386. 

§ 167, 9 This lien is very common in England, and has been recognized 
in some of the states: Russell v. Russell, 1 Brown Ch. 269; Ex parte 
Hooper, 1 Mer. 7; Parker v. Housefield, 2 Mylne & K. 419; Whitbread v. 
Jordan, 1 Younge & C. 303. 

§ 167, (a) The text is cited in & Lancashire Fire Ins. Co., 138 Cal. 

Stults v. Brown, 112 Ind. 370, 2 Am. 257, 71 Pac. 334 (action to enforce 

St. Rep. 190, 14 N. E. 230. a judgment lien against property of 

§ 167, (b) The text is cited in decedent), 
Hibernia Sav. & L. See. v. London 


in respect, at least, to their means of enforcement. The 
so-called ** mechanics' liens" may be taken as the type and 
illustration of this class.® 

§ 168. Equitable Estate or Interest Arising from an As- 
signment of Things in Action, Possibilities, Contingencies, 
or Expectancies, and from an Equitable Assignment of a 
Fund. — By the ancient common law, things in action, pos- 
sibilities, expectancies, and the like, were not assignable; 
an assignee thereof acquired no right which was recog- 
nized by courts of law. Equity, however, has always held 
that the assignment of a thing in action for a valuable con- 
sideration should be enforced at the suit of the assignee; 
and has also given effect to assignments of every kind of 
future and contingent interests and possibilities in real 
and personal property, when made upon a valuable con- 
sideration. ^ ^ As soon as the assigned expectancy or pos- 
sibility has fallen into possession, the assignment will be 
enforced.2 It followed, therefore, that the assignee of a 
thing in action acquired at once an equitable ownership 
therein, as far as it is possible to predicate property or 
ownership of such a species of right; while the assignee 
of an expectancy, possibility, or contingency acquired at 
once a present equitable right over the future proceeds of 
the expectancy, possibility, or contingency, which was of 

§ 168, 1 Warmstrey v. Lady Tanfield, 1 Ch. Rep. 16; Wright v. Wright, 
1 Ves. Sen. 411; Hobson v. Trevor, 2 P. Wms. 191; Bennett v. Cooper, 
9 Beav. 252; Lindsay v. Gibbs, 22 Beav. 522; Spragg v. Binkes, 5 Ves. 
588 ; Stolfes v. Holden, 1 Keen, 152, 153 ; Jewson v. Moulson, 2 Atk. 421. 

§ 168, 2 Holroyd v. Marshall, 10 H. L. Cas. 191. 

§ 167, (c) The text is cited in ing that as the lien was statutory, 

Gilchrist v. Helena Hot Springs & and not equitable, the "clean hands" 

Smelter R. Co., 58 Fed. 708, 710, maxim did not apply. 
holding that equity has jurisdiction § 168, (a) The text is cited to 

to enforce statutory liens when the this effect in In re Garcelon, 104 Cal. 

statute itself provides no method of 570, 32 L. R. A. 595, 43 Am. St. Rep. 

enforcement. Sections 165-167 are 134, 38 Pae. 414; Hale v. Hollon, 14 

cited in Schmulbach v. Caldwell. Tex. Civ. App. 96, 35 S. W. 843, 36 

196 Fed. 16, 115 C. C. A. 650, hold- S. W. 288. 


such a certain and fixed nature that it was sure to ripen 
into an ordinary equitable property right over those pro- 
ceeds, as soon as they came into existence by a trans- 
formation of the possibility or contingency into an inter- 
est in possession. There was an equitable ownership or 
property in abeyance, so to speak, which finally changed 
into an absolute property upon the happening of the 
future event. Equity permitted the creation and transfer 
of such an ownership.^ At an early day, this species of 
equitable ownership arising from assignments prohibited 
by the common law was very important, and was the occa- 
sion of an extensive branch of the equitable jurisdiction. 
This special jurisdiction has, however, been greatly cur- 
tailed. Modern statutes, both in England and in the 
American states, permit, with certain well-defined excep- 
tions, things in action, possibilities, expectancies, and con- 
tingencies to be assigned, and the assignee to sue there- 
upon in his own name. As far as this legislation has gone, 
it has, in effect, turned the equitable right or ownership of 
the assignee into a legal one, and has thus removed the 
very foundation of the equitable jurisdiction over the 
subject-matter. The jurisdiction is therefore abrogated, 
except so far as it is preserved by the operation of the 
general principle, that where the jurisdiction of equity has 
been established over any given subject, it is not abolished 
by subsequent statutes conferring jurisdiction over the 
same subject upon the courts of law. Whatever may be 
the effect of these statutes in abridging, or rather in re- 
moving occasion for, the jurisdiction of equity, it is plain 
that the jurisdiction must still exist in the cases where a 
thing in action or demand purely equitable in its nature is 
assigned, and where the assignment itself is equitable, — 
that is, does not operate as an assignment at law, — and 
where any species of possibility or expectancy not within 
the scope of the statutes is transferred. ^ 

§ 168, (b) The text is quoted in § 168, (c) The text is quoted in 

Stott V. Praney, 20 Or. 410, 23 Am. Stott v. Franey, 20 Or. 410, 23 Am. 
St, Rep. 132, 26 Pac. 271. St. Rep. 132, 26 Pae. 271. 


§ 169. Among these cases which are untouched by the 
legislation, and over which the exclusive jurisdiction of 
equity still continues unabridged, is the equitable assign- 
ment of a specific fund which is in the hands of a third 
person, an assignment which does not operate at law, and 
therefore creates no legal rights of property in the as- 
signee. If A has a specific fund in the hands of B, or in 
other words, if B is a depositary or otherwise holds a 
specific sum of money which he is bound to pay to A, and 
if A agrees with C that the money shall be paid to C, or 
assigns it to C, or gives to C an order upon B for it, the 
agreement, assignment, or order creates an equitable 
ownership of the fund in the assignee C, so that he can re- 
cover it by a suit in equity, and it is not necessary that B 
should consent or promise to hold it for or pay it to such 
assignee. 1 It is not necessary that the entire debt or fund 
should be thus assigned; the same doctrine applies to the 
assignment of a definite portion of it.2» 

§ 169, 1 Rodick v. Gandell, 1 De Gex, M. & G. 763; Ex parte Imbert, 
1 De Gex & J. 152 ; Jones v. Farrell, 1 De Gex & J. 208 ; Gurnell v. Gard- 
ner, 9 Jur., N. S., 1220; Ex parte South, 3 Swanst. 393; Burn v. Car- 
valho, 4 Mylne & C. 702; Lett v. Morris, 4 Sim. 607; Watson v. Duke of 
Wellington, 1 Russ. & M. 605; Yeates v. Groves, 1 Ves. 281; Lepard v. 
Vernon, 2 Ves. & B. 51; Ex parte Alderson, 1 Madd. 53; Collyer v. Fal- 
lon, 1 Turn. & R. 470, 475; Adams v. Claxon, 6 Ves. 230; Row v. Dawson, 
1 Ves. Sen. 331 ; Freddy v. Rose, 3 Mer. 86, 102 ; Ex parte Carruthers, 3 
De Gex & S. 570; Malcolm v. Scott, 3 Hare, 39; Mandeville v. Welch, 5 
Wheat. 277, 286; Tiernan v. Jackson, 5 Pet. 598; Gibson v. Finley, 4 
Md. Ch. 75; Wheatley v. Strobe, 12 Cal. 92, 98, 73 Am. Dec. 522; Walker 
V. Mauro, 18 Mo. 564; Shaver v. Western Union Tel. Co., 57 N. Y. 459, 

§ 169, 2 Watson v. Duke of Welling-ton, 1 Russ. & M. 602, 605, per Sir 
John Leach; Lett v. Morris, 4 Sim. 607; Smith v. Everett, 4 Brown Ch. 
64; Morton v. Naylor, 1 Hill, 583; Grain v. Aldrieh, 38 Cal. 514, 99 
Am. Dec. 423. 

§169, (a) The text is cited and 610; Rivers v. A. & C. Wright Co., 
followed in The Elmbank, 72 Fed. 117 Ga. 81, 43 S. E. 499. 


§ 170. Exclusively Equitable Remedies.^ — Having thus 
explained the equitable primarj^ rights, estates, interests, 
and charges in and upon property over which the exclusive 
jurisdiction of equity extends, I now proceed to enumer- 
ate the remedies which are wholly equitable, administered 
by courts of equity alone, and which therefore constitute 
the other department of the exclusive jurisdiction. There 
are certain general qualities belonging to all these rem- 
edies, which should be clearly and correctly understood; 
otherwise our notions of the remedial functions of equity 
will be partial, confused, and even erroneous. 1. These 
exclusive remedies may be granted in order to protect, 
maintain, or enforce primary rights, estates, or interests 
which are legal as well as those which are equitable; they 
are not administered in behalf of equitable substantive 
rights alone. As illustrations, an injunction is often given 
to prevent the invasion of a legal ownership or interest, 
a decree quieting title is often rendered to establish an 
existing legal estate, and the like.^ And in many in- 
stances where the existing primary right, estate, or inter- 
est of the complainant is equitable, the very object and 
effect of the remedy is to clothe him with the correspond- 
ing legal right, estate, or interest; as, for example, when 
the beneficiary under a constructive trust, or the vendee 
under a contract for the sale of land, obtains a decree 
directing a conveyance of the legal title. 2. Although it 
was said in the earliest days of the jurisdiction of chan- 
cery, and has been constantly repeated by writers and 
judges to the present time, that equitable remedies act 
wholly on the person, in personam, and not upon property, 
in rem, the exact meaning and limits of this rule must be 
accurately understood, or else it will be very misleading, 
and will entirely misrepresent the theory of the equity 
remedial system. It has no significance beyond the fact 

§ 170, (a) Sections 170-172 are §170, (b) The text is quoted in 

cited in McCracken v. McBee, 96 Curtiee v. Dixon, 72 N. H. 393, &2 

Ark. 251, 131 S. W. 450. Atl. 492. 


that, according to the practice adopted by the court of 
chancery from prudential motives, the decrees of the court 
did not, so to speak, execute themselves by divesting the 
defendant of estates or interests, and vesting the same in 
the plaintiff; defendants were ordered to do specified acts, 
such as the execution of conveyances, the delivery up and 
cancellation of instruments, and the like, which would, 
when done, establish, perfect, and secure the rights ad- 
judged to be held by the plaintiffs; the decree that a con- 
veyance of land should be made by the defendant to the 
plaintiff did not of itself operate as a title, did not of itself 
transfer the estate to the plaintiff; nor was an officer of 
the court authorized to execute the conveyance ; the defend- 
ant himself was ordered to do the act, and he alone could 
perform it; his refusal simply brought on him the punish- 
ment of fine and imprisonment until he consented to obey.*' 
This ancient quality in the operation of equitable rem- 
edies has been greatly modified by various statutes in the 
United States, which, in some instances, provide that a de- 
cree establishing an estate, interest or right of property 
in the plaintiff shall execute itself, shall be of itself a muni- 
ment of title, by divesting the defendant of the interest 
and vesting the same in the plaintiff, without any convey- 
ance or other instrument of transfer. The decree alone, 
being on record, operates as a sufficient security of the 
plaintiff's rights as adjudged. In other instances, an offi- 
cer of the court, commissioner, master, or referee is au- 
thorized to carry out the provisions of the decree by 
executing the necessary instruments, which are thereupon 
the plaintiff's muniments of title, with the same effect as 
though they had been executed by the defendant himself. 
Finally, in many instances, the decree must, from the 
nature of the remedy, — e. g., an injunction, — act directly 
against the defendant personally, and order him to do or 
to refrain from certain acts. The maxim referred to has 

§ 170, (c) The text is cited in 53, 138 N. W. 94; Collins v. Bradley 
McMillan v. Barber Asphalt Pav- Co., 227 Fed. 199. 
ing Co., 151 Wis. 48, Ami. Cas. 1914B, 


therefore a very limited application. When we turn from 
this mere external manner in which equitable remedies 
were enforced according to the original chancery procedure 
to the essential, and so to speak internal, nature and quali- 
ties of the remedies themselves, instead of their being 
merely personal, it is one of the distinctive and central 
principles of the equity remedial system that it deals with 
property rights, — estates, interests, liens, — rather than 
with the mere personal rights and obligations of the liti- 
gant parties. This tendency of equity to base its reme- 
dies upon the rights of property, in their various grades, 
from complete estates to liens or charges, is exhibited in 
the clearest manner in all its suits brought to enforce the 
rights and duties growing out of contracts. Although the 
contract is executory, even though it stipulates only with 
respect to things not yet in existence, — things to be ac- 
quired in future, — the remedial right is worked out b}" con- 
ceiving of a present ownership, interest, lien, or charge, 
as arising from the executory provisions, or a present pos- 
sibility which will ripen into such an interest, and by 
establishing this proprietary right, protecting and en- 
forcing it. The decree, with a few exceptional cases, 
passes over the personal rights of the plaintiff, and the 
personal obligations of the defendant, deals with rights or 
interests in property, and shapes its relief by conferring 
rights, or imposing duties growing out of or connected 
with some grade of property. Even when the executory 
contract creates what at law would be a debt, and when 
the recovery at law would be a general pecuniary judg- 
ment, the equitable remedy views this debt as an existing 
fund, and awards its relief in the form of an ownership 
of or lien upon that fund. A general pecuniary judgment 
to be recovered from the debtor's assets at large — as an 
award of damages — ^is only granted by a court of equity 
under very exceptional circumstances.^ 3. Another qual- 

§ 170, 1 The same conception is shown in the jurisdiction which equity 
exercises over the persons of those who are non sui juris, such as infants, 


ity of the distinctively equitable remedies, connected with 
and perhaps growing out of the one last mentioned, is their 
specific character, both with respect to substance and form. 
Except in actions to recover possession of land or of chat- 
tels ("action of right," "ejectment," or "replevin"), the 
legal remedies by action are all general recoveries of speci- 
fied sums of money, which may be collected by execution 
out of any property of the debtor not exempted. The 
equitable remedies, with a few exceptions, are specific; 
deal with specific things, land, chattels, choses in actions, 
funds; establish specific rights, estates, interests, liens, 
and charges in or over these things; and direct specific 
acts to be done or omitted with respect to these things, for 
the purpose of enforcing the rights and duties thus de- 
clared. Even when the controversy is concerning pecuni- 
ary claims and obligations, and the final relief is wholly 
pecuniary, the equitable remedies are administered by re- 
garding the subject-matter as a specific fund, and by ad- 
judging such fund to its single owner, or by apportioning 
it among the several claimants. It is the distinctive fea- 
ture of the system, which gives it a superior efficacy over 
the legal methods, that it ascertains a rightful claimant's 
interest in or over a specific thing, land, chattels, choses in 
action, debts, and even money in the form of a fund, and 
follows it through the hands of successive possessors as 
long as it can be identified. The two qualities which I 
have thus described, that equitable remedies deal with 
property rights rather than with personal rights and obli- 
gations, and that they are specific in their nature, are the 
peculiar and important features of the system, and give it 
the power of expansion and of application to an unlimited 
variety of circumstances, which enables equity to keep 

lunatics, etc. Although the jurisdiction, when existing, extends over the 
persons, the fact upon which it rests, and which is the necessary* occasion 
for its exercise, is the existence of property belonging to the person. An 
infant, for example, cannot be made a ward of the court merely because 
he is an infant, but because he is an infant possessing property which the 
court can administer. 


abreast with the progress and changing wants of society. 
4. Another quality of equitable remedies is their unlim- 
ited variety of form. It is absolutely impossible to enu- 
merate all the special kinds of relief which may be granted, 
or to place any bounds to the power of the courts in shap- 
ing the relief in accordance with the circumstances of par- 
ticular cases. As the nature and incidents of proprietary 
rights and interests, and of the circumstances attending 
them, and of the relations arising from them, are prac- 
tically unlimited, so are the kinds and forms of specific 
relief applicable to these circumstances and relations.*^ 
The ordinary remedies, however, which are administered 
by equity, those which are appropriate to the circum- 
stances and relations most frequently arising, are well as- 
certained and clearly defined, both as to their form and 
nature. Certain species of these belong to tbe exclusive 
jurisdiction, and the doctrines and rules which regulate 
their administration constitute a large portion of the 
equity jurisdiction. I shall complete my survey of the 
exclusive jurisdiction by enumerating these kindp of reme- 
dies which are commonly administered, and which are sus- 
ceptible of a definite classification and arrangement. 
They may be grouped according to their nature and ob- 
jects in the following classes. 

§ 171. 1. The first class embraces those remedies which 
are wholly ancillary or provisional; which do not either 
directly or indirectly affect the nature of any primary 
right, but are simply means and instruments by which 
primary rights may be more efficiently preserved, pro- 
tected, and enforced in judicial proceedings. This class 

§ 170, (d) Unlimited Variety of N. E. 191. This paragraph is cited 

Eciuitable Remedies. — • The text is in Hoffman Motor Trust Co. v. 

quoted in Sharon v. Tucker, 144 Erickson, 124 Minn. 279, 144 N. W. 

U. S. 542, 12 Sup. Ct. 720, by Field, 952 (holding that a plaintiff is en- 

J.; quoted, also, in Eector, etc., of titled to such relief as the facts 

St. Stephen's Church v. Rector, etc. proved require, regardless of the 

of Church of Transfiguration, 201 prayer for relief). 
N. Y. 1, Ann. Cas. 1912A, 760, 94 


includes tlie ordinary preventive injunction, receivers, and 
interpleader.^ 2. The second class embraces those reme- 
dies which operate indirectly to establish or protect pri- 
mary rights, either legal or equitable. They do not ex- 
pressly nor directly declare, establish, and enforce the 
ultimate right, estate, or interest of the complaining 
party; but their object is to perfect and complete the means 
by which such right, estate, or interest is evidenced or 
secured, — the title, — or to remove obstacles which hinder 
the enjoyment of such right.^ They are therefore in their 
nature not final remedies, but are often granted as prelim- 
inary to the final relief by which the party 's primary right, 
estate, or interest is established and enforced. The im- 
portant remedies contained in this class are re-execution 
of instruments, reformation of instruments,*^ surrender or 
discharge of instruments, and cancellation or rescission.^ 
3. The third class embraces those remedies by which a 
primary right of property, estate, or interest is directly 
declared, established, acquired or enforced; and they often 
consist in the conveyance by defendant of a legal estate, 
corresponding to the complainant's equitable title. These 
remedies deal directly with the plaintiff's right of prop- 
erty, and grant to him the final relief which he needs, by 
establishing and enforcing such right. The particular 

§171, (a) The text is quoted in §171, (c) The text is cited in 

Smith V. United States (C. C. Or.), Bickley v. Commercial Bank of Co- 

142 Fed. 225 (receivers) ; and cited in lumbia, 43 S. C. 528, 21 S. E. 886; 

Vila V. Grand Island E. L., I. & C. S. Martin v. Hempstead County Levee 

Co. (Neb.), 97 N. W. 613 (ancillary District No. 1, 98 Ark. 23, 135 S. W. 

character of the remedy of appoint- 453. This and the preceding para- 

ing a receiver); Freer v. Davis, 52 graph are cited to the effect that 

W. Va. 1, 94 Am. St. Rep. 895, 59 equity has exclusive jurisdiction 

L. R. A. 556, 43 S. E. 164 (ancillary over reformation, in Pickrell & 

character of the remedy of injunc- Craig Co. v. Castleman Blakemore 

tion to restrain trespass). Co., 174 Ky, 1, 191 S. W. 680. 

§171, (b) Quoted in Sharon v. §171, (d) The text is cited in 

Tucker, 144 U. S. 542, 12 Sup. Ct. Bruner v. Miller, 59 W. Va. 36, 52 

720, by Field, J., a suit to establish, S. E. 995 (rescission) ; Watson v. 

as a matter of record, a title de- Borah, 37 Okl. 357, 132 Pac. 347 

pending on prescription. (cancellation). 


remedies properly belonging to this class may assume an 
almost unlimited variety of forms, since their form de- 
pends upon anji corresponds to the nature of the primary'- 
right to be established, and of the subject-matter over 
which that right extends; it is chiefly in its relation with 
this class that the peculiarly elastic quality of the equity 
remedial system is found. The remedies belonging to the 
class may, for purposes of clearer description, be again 
subdivided into three principal groups. Some are simply 
declarative; that is, their main and direct object is to de- 
clare, confirm, and establish the right, title, interest, or 
estate of the plaintiff, whether legal or equitable ; they are 
usually granted in combination with others, and often need 
other kinds of relief as a preliminary step to making them 
efficient; as, for example, a preliminary reformation, re- 
exlecution, or cancellation. « Others are restorative, or 
those by which the plaintiff is restored to the full enjoy- 
ment of the right, interest, or estate to which he is entitled, 
but the use and enjoyment of which has been hindered, 
interfered with, prevented, or withheld by the wrongdoer. 
These also are often granted in combination with other 
kinds of relief, and frequently need some other prelim- 
inary equitable remedy, such as cancellation or reforma- 
tion, to remove a legal obstacle to the full enjoyment of the 
plaintiff's right, and to render them efficient in restoring 
him to that enjoyment. Others are remedies of specific 
performance, or those by which the party violating his pri- 
mary duty is compelled to do the very acts which his 
duty and the plaintiff's corresponding primary right re- 
quire from him. The following particular instances are 
examples of the remedies belonging to this general class: 
Establishing and quieting title and possession of land ; ^ 

§171, (e) This paragraph of the §171, (f) The text is cited in 
text is cited in Bohart v. Chamber- Mason v. Fichner, 120 Minn. ISo, 
lain, 99 Mo. 622, 13 S. W. 85, decree 139 N. W. 485 (when a suit to de- 
establishing the existence of a lost termine adverse claims is of equi- 
instrument; Sharon v. Tucker, 144 table cognizance). 
U. S. 542, 12 Sup. Ct. 720. 


establishing some general right (''bills of peace") ; estab- 
lishing wills ;g construing wills and determining the rights 
under them of devisees and legatees,^ establishing disputed 
boundaries ; redeeming lands or chattels from mortgages, 
pledges, and thus establishing the plaintiff's right of prop- 
erty and possession therein; strict foreclosure of mort- 
gages; specific performance of contracts and of other 
similar obligations; performance of duties arising from 
implied trusts, resulting or constructive, by compelling a 
conveyance of the legal title; performance of the duties 
arising from express trusts, by compelling the trustee to 
fulfill the trust according to its terms ; and numerous other 
cases of the same nature. 4. A fourth class embraces 
those remedies which establish and enforce liens and 
charges on property, rather than rights and interests in 
property, either by means of a judicial sale of the prop- 
erty itself which is affected by the lien and a distribution 
of its proceeds, or by means of a sequestration of the prop- 
erty, and an appropriation of its rents, profits, and income, 
until they satisfy the claim secured by the lien.i The im- 
portant examples are: The foreclosure of mortgages of 
land or of chattels, and of pledges, by a sale and applica- 
tion of the proceeds; the similar enforcement of grantors' 
or vendees' liens on land; the enforcement of mechanics' 
and other like statutory liens ; J the enforcement of charges 
created by will and other equitable liens; creditors' suits to 
enforce the equitable liens of judgment creditors and other 

§171, (g) This paragraph of the §171, (i) The text is quoted in 

text was cited in In re Cilley, 58 Knapp, Stout & Co. v. McCaffrey, 

Fed. 977, 986, where, however, it 178 111. 107, 69 Am. St. Rep. 290. 52 

was held that a proceeding to estab- N. E. 898 (enforcing lien of bailee 

lish a will was not a "suit at com- in equity). 

mon law or in equity" within the § 171, (j) The text is cited in 

meaning of the statute authorizing Hibernia Savings & Loan Society v. 

removal to a federal court on the London & Lancashire Fire Ins. Co., 

ground of diverse citizenship. 138 Cal. 257, 71 Pac. 334 (jurisdic- 

§171, (h) The text is cited in tion to enforce judgment lien against 

Matthews v. Tyree, 53 W. Va. 298, property of decedent). 
44 S. E. 526. 


similar liens on the assets of debtors, ^ and the like. 5. A 
fifth class contains certain special remedies which do not 
belong to the original jurisdiction of chancery, but are 
wholly the results of statutory legislation. Among them 
are suits to set aside wills; suits to establish or to destroy 
some kinds of official status, as proceedings against cor- 
porations and their officers, brought by stockholders or 
creditors or officials on behalf of the state, to dissolve and 
wind up the corporations, and to remove or institute cor- 
poration officers, and the like; and suits for divorce abso- 
lute and limited, and for alimony, in many of the states. 
6. The last class comprises proceedings in which jurisdic- 
/tion is exercised over persons not sui juris, — infants, per- 
sons non compotes mentis, confirmed drunkards. The 
foregoing six general classes include all the important 
species, and most of the particular instances of the reme- 
dies which belong to the exclusive jurisdiction, those which 
are administered alone by courts of equity. 

§ 172. "When, under what circumstances, for what pur- 
poses, to what extent, and with what limitations and re- 
strictions these remedies, or any one of them, will actually 
be granted to and against litigant parties, are questions 
which do not belong to a statement of the equitable juris- 
diction; they belong alone to the equity jurisprudence, and 
their answer involves, to a large extent, a discussion of its 
doctrines and rules. The administration of those purely 
equitable remedies is the judicial function which marks 
and fixes one branch of the exclusive jurisdiction; the de- 
termination of the scope and extent of that jurisdiction 
only requires a knowledge of what these remedies are, and 
not of the particular circumstances under which they will 
be conferred. In a word, all cases in which the purely 
equitable remedies are granted fall within the exclusive 
jurisdiction of equity; what those cases are constitutes a 

§ 171, (k) The text is cited in Huff v. Bidwell, 151 Fed. 563, 81 C. C. A. 
43 (creditors' suits). 


large portion of the equity jurisprudence, and is ascer- 
tained only by an application of its principles, doctrines, 
and rules.* 

§§ 173, 174. 


§§ 176-179. 








What embraced in the concurrent jurisdiction; inadequacy of 

legal remedies defined. 
The remedies given must be legal in their nature. 
General principle; when no concurrent jurisdiction exists. 
Examples of such cases. 

Where a law court has first taken cognizance of a case. 
General principle; where concurrent jurisdiction does exist. 
Rule -first. Where equity has jurisdiction for any partial pur- 
pose, it may retain the cause for all purposes. 
§ 182. Rule second. Where equity originally had jurisdiction, and the 
law subsequently acquires jurisdiction over the same matter, 
the equity jurisdiction still continues. 
§ 183. Effect of the reformed procedure upon the equity jurisdiction. 
§§ 184r-189. Enumeration of the principal matters over which the concurrent 
jurisdiction ordinarily extends. 
§ 185. Suits for the recovery of lands and of chattels, 
§§ 186-188. Suits for pecuniary recoveries. 

§ 188. Suits arising from accident, mistake, or fraud. 
§ 189. Other special cases. 

§ 173.a Description and Test. — The Concurrent Juris- 
diction, as stated in a former section in this chapter, em- 
braces all those civil cases in which the primary right, es- 
tate, or interest of the complaining party sought to be 
maintained, enforced, or redressed is one which is created 
and is cognizable by the law, and in which the remedy con- 

§ 172, (a) The text is cited in ler, 59 W. Va. 36, 52 S. E. 995. Sec- 

Brickley v. Commercial Bank of tions 173, 174, cited, to the effect 

Columbia, 43 S. C. 528, 21 S. E. 886. that the remedy of accounting is em- 

§173, (a) Section III, §§173-189, braced in the concurrent jurisdiction, 

cited generally in Illinois Finance in Balfour v. San Joaquin Valley 

Co. V. Interstate Rural Credit Assn. Bank (C. C. Cal.), 156 Fed. 500. 
(Del.), 101 Atl. 870; Bruner v. Mil- 


ferred is also of the same kind as that administered, under 
the like circumstances, by the courts of law. The primary 
right, estate, title, or interest which is the foundation of 
the suit must be legal, or else the case would belong to the 
exclusive jurisdiction of equity ; and the law must, through 
its judicial procedure, give some remedy of the same gen- 
eral nature as that given by equity; but this legal remedy 
is not, under the circumstances, full, adequate, and com- 
plete. The actual foundation of this, concurrent branch of 
the equitable jurisdiction, the essential principle to which 
every instance of its exercise must finally be referred, is 
therefore the inadequacy, incompleteness, or insufficiency 
of the legal remedies which can be granted by courts of 
law to the litigant parties. This inadequacy or insuffi- 
ciency inheres, not in the essential nature of the relief 
itself, but generally in the modes in which the relief is ad- 
ministered by courts of law, the inflexible and often arbi- 
trary rules of legal procedure concerning parties to ac- 
tions, trials, judgments, and the like. Although the 
exclusive jurisdiction of equity does not rest upon the 
inadequacy of legal remedies as its foundation, yet, as has 
already been said, the rules which govern its exercise, the 
doctrines of equity jurisprudence which guide and limit 
the court of chancery in its decision of causes falling 
within the exclusive jurisdiction, do also depend in some 
measure upon the insufficiency and inadequacy of the 
remedies granted by the law. This inadequacy of legal 
remedies, in its relations with the exclusive jurisdiction of 
equity, almost always exists in the yery nature of the 
remedies themselves. The equitable remedies are differ- 
ent from and superior to those conferred by the law, and 
for this reason a court of equity may interfere and grant 
them, although the primary right, interest, or estate of 
the plaintiff is legal in its nature, and he might obtain 
some remedy for the violation of his right from a court of 
law. This is not true of the concurrent jurisdiction. The 
very definition of that jurisdiction assumes that the reme- 


dies administered under a given state of circumstances, by 
equity and by the law, are substantially the same, — re- 
coveries of money, or of specific tracts of land, or of spe- 
cific chattels. The incompleteness or insufficiency of the 
legal remedy upon which the concurrent equitable juris- 
diction rests must therefore necessarily exist in the modes 
of legal procedure, its arbitrary and unbending rules, its 
want of elasticity and adaptability to circumstances, and 
all the other incidents of legal methods which often pre- 
vent them from doing full justice to the litigant parties. 

§ 174.a The cases coming within the concurrent juris- 
diction may, for purposes of convenience only, and not 
from any difference of principle, be arranged under two 
general classes. The distinguishing feature of the first 
class is the act, event, or fact which is the occasion of the 
remedial right. It contains all those cases in which the 
primary right violated, the estate, title, or interest to be 
protected, is of course legal, and the subject-matter of 
the suit, and the act, event, or fact which occasions the 
right to a remedy, may be brought within the cognizance of 
the law courts, and made the foundation of a legal action, 
but in respect of which the whole system of legal proce- 
dure and remedies is so partial and insufficient that com- 
plete justice can only be done by means of the equity juris- 
diction. The most important acts, events, or facts which 
are the occasions of remedial rights, and which thus per- 
mit or require the interposition of equity in the cases com- 
posing this class, are fraud, mistake, and accident. The 
second class contains all the remaining cases in which the 
primary right to be redressed or protected is legal, and 
the relief is of the same kind as that given at law, but in 
which, from the special circumstances of the case itself, 
or from the inherent defects of the legal procedure, the 
remedy at law is inadequate, and equity assumes jurisdic- 

§ 174, (a) Cited approval in Stockton v. Anderson, 40 N. J. Eq. 48S, 4 
Atl. 642. 


tion, in order to do comi^lete justice. As mere illustra- 
tions of this class may be mentioned suits for an aceount- 
ing,b for contribution, and the like, in which both the legal 
and the equitable remedy is a recovery of money; suits 
for partition,^ for admeasurement of dower, and for set- 
tlement of boundaries, in which the relief in both courts is 
the obtaining possession of land ; and the suits which may 
be maintained under peculiar circumstances for the re- 
covery of specific chattels. 

§ 175. The Remedies Legal.^ — ^In order that a suit may 
fall under the concurrent jurisdiction of equity, the 
remedy — that is, the sulistantial relief obtained by the de- 
cree — must be of the same general nature as that which 
would be obtained by means of an action at law under like 
circumstances. All the general kinds of remedy, or final 
relief, which are possible by means of legal actions are de- 
fined with absolute certainty and fixedness. Omitting the 
particular species of relief obtainable through certain 
writs or special judicial proceedings, such as "man- 
damus," the writ of "prohibition," '* habeas corpus," the 
law, through its actions, is confined to three general kinds 
of remedies, — the obtaining possession of specific tracts of 
land, the obtaining possession of specific chattels, and the 
recovery of ascertained sums of money, either debts or 
damages, by way of compensation. In every case, there- 
fore, properly belonging to the concurrent jurisdiction of 
equity, the final and substantial relief granted by the de- 
cree must be either an award of possession of some piece 
of land, or a delivery of possession of some specific chattel, 
including written instruments, such as deeds, which with 
this respect are regarded as chattels, or a pecuniary re- 

§ 174, (b) Cited in Balfour v. San § 175, (a) Cited with approval in 

Joaquin Valley Bank (C. C. Cal.), State v. Donegan, 94 Mo. 66, 6 S. W. 

156 Fed. 500. 693; Bindseil v. Smith, 61 N. J. Eq. 

§ 174, (c) This paragraph of the 654, 47 Atl. 456 (jurisdiction to de- 
text is cited in Daniels v. Benedict, cree the transfer of written instru- 
50 Fed. 347 (partition), ments). 


covery.i While the equitable relief must be of the same 
general nature as that granted by the law courts, it need 
not be of the same external form, nor be accompanied by 
the same incidents.^ Thus where a decree in equity awards 
to the plaintiff, as his ultimate relief, the possession of 
certain land, it may, as a preliminary to and basis of such 
award, adjudge his estate and title — in fee, for life, or for 
years — in and to such land; while the judgment in an ac- 
tion of "ejectment" simply awards the possession, with- 
out expressly adjudicating upon the estate or title. Also, 
in most instances of pecuniary recoveries in equity, the 
money is regarded and treated as a fund, which is either 
awarded to the single claimant, or is distributed among 
the several claimants in the shares to which they are ad- 
judged to be entitled. The cases are very few indeed in 
which a court of equity, in the same manner and form as 
a court of law, decrees the payment to the plaintiff of a 
sum of money merely as a debt or as compensatory dam- 
ages.^ Another important element of the concurrent 

§ 175, 1 In respect to no other topic connected with equity has there been 
such confusion of treatment, and such utter lack of any consistent prin- 
ciple, among text-writers, as in relation to the matter of the concurrent 
jurisdiction. As illustrations: Because some purely legal rights and legal 
causes of action may be occasioned by fraud, accident, or mistake, many 
text-writers have therefore placed fraud, accident, and mistake, and every- 
thing pertaining to them, wholly within the concurrent jurisdiction of 
equity. Although the primary right arising therefrom may be entirely 
equitable, and although the remedy conferred may be one which can be 
administered only by a court of equity, such as reformation, cancellation, 
injunction, etc., they are all, right and remedy, treated as though belong- 
ing to this branch of equity jurisdiction. In the same manner, the sub- 
ject of partnership, as an entirety, is referred to this jurisdiction, although 
the interest to be maintained and the remedy to be obtained are wholly 
equitable in their nature. These instances are examples merely of a mode 
of treatment which fails to draw any true line of distinction between the 
two great departments of the equity jurisdiction. 

§ 175, (b) For an instance where Bally v. Hornthal, 154 TT. Y. 64S, 
Bucli relief was required, and a mere 661, 61 Am. St. Eep. 645, 652, 49 
personal judgment was rendered, see N. E. 56. 


equitable jurisdiction exists in the marked difference be- 
tween the modes of procedure at law and in equity with 
reference to the actual rendition of final judgment and the 
form of such judgment. The judgment in an action at 
law, unaltered by modern statutes, is most truly a yea, yea, 
or a nay, nay; that is, it is a single, undivided award, or 
denial of some one of the three kinds of relief above de- 
scribed as alone possible; no adjustment of opposing 
rights, no partial relief to each of the opposing litigants, 
is permitted. The judgment is either for the defendant 
wholly, that the plaintiff take nothing by his action, or for 
the plaintiff wholly, that he recover possession of a speci- 
fied tract of land, or of a specified chattel, or that he re- 
cover a single sum of money from the defendant, or from 
all the defendants if there are more than one. The doc- 
trine of set-off, by which a defendant may recover judg- 
ment for a debt against the plaintiff, is wholly of a statu- 
tory origin; and the doctrine of recoupment, by which the 
plaintiff's pecuniary recovery may be lessened by means 
of a claim for damages in favor of the defendant, is a very 
recent innovation upon the common-law methods of pro- 
cedure. The modes of procedure in a court of equity 
have never been thus restricted. Its decree is not confined 
to a single adjudication for or against the defendant; but 
as a preliminary, and leading up to the final award in favor 
of either party, or even in the very final award itself being 
thus partially in favor of both litigants, it may make any 
adjustments, admit any limitations, and determine upon 
any cross-demands and subordinate claims which complete 
justice done to the parties shall require. The decree in 
equity can thus easily shape itself to the circumstances of 
each case, even when the final relief is only an award of 
money, or of possession of land or of chattels. <^ The in- 
stances to which the concurrent jurisdiction extends may 

§ 175, (c) For example, although estate by a cancellation of his in- 

an administrator cannot, to the dividual liability to the debtor of 

detriment of creditors, distributees, the estate, yet such debtor is en- 

or legatees, discharge a debt due the titled to a credit by way of equi- 


therefore be described, in a general way, as follows : First, 
those cases where the primary right, interest, or estate is 
of course legal, and where the law gives its remedy, but 
from the superior flexibility of the equitable procedure, 
and the greater power of the equitable decrees to do com- 
plete justice, the relief conferred by equity, although of 
the same kind as that given by the law, is more efficient 
and complete ; and secondly, those comparatively few cases 
where, from the arbitrary, rigid, and technical nature of 
its rules of procedure, the law can give no remedy at all.^ 
In further treatment of this subject, I shall state the gen- 
eral doctrines upon which the jurisdiction rests, and which 
regulate all possible instances of its exercise, and shall 
then enumerate and explain the important and well-settled 
cases which come within its scope. 

§ 176. General Principle — No Concurrent Jurisdiction.a 

The principle may be stated in its broadest generality, 
that in cases where the primary right, interest, or estate 
to be maintained, protected, or redressed is a legal one, 
and a court of law can do as complete justice to the mat- 
ter in controversy, both with respect to the relief granted 

§ 175, 2 As illustrations of this second class : by the ancient rules of 
common-law procedure, at the time when the equity jurisdiction com- 
menced, there could be no recovery at law on a lost bond; and for the 
same reason, one partnership cannot maintain an action at law against 
another firm, when the two firms have a common member. 

table set-off, where, by its allowance, equitable set-off has not been spe- 
justice will be done as between him cifically pleaded. State v. Donegan, 
and the administrator, without af- 94 Mo. 68, 6 S. W. 693. 
fecting the rights of any one except § 176, (a) Cited with approval in 
those of the administrator as heir Rogers v. Eogers, 17 R. I. 623, 24 
or devisee. And where evidence of Atl. 46. Cited, generally, to the 
such equitable set-off has been re- effect that damages awarded by 
ceived without objection, being thus equity are only such as are ancillary 
before the court with the implied to the main relief, in Karns v. Allen, 
admission that the pleadings were 135 Wis. 48, 15 Ann. Cas. 543, 115 
broad enough to allow its reception, N. W. 357; cited in Gill v. Ely- 
such judgment may be given upon Norris Safe Co., 170 Mo. App. 478, 
the facts as the right of the matter 156 S. W. 811. 
required, although the defense of an 


and to tlie modes of procedure by which such relief is 
conferred, as could be done by a court of equity, equity 
will not interfere even with those peculiar remedies which 
are administered by it alone, such as injunction, cancella- 
tion, and the like, much less with those remedies which 
are administered both by it and by the law, and which 
therefore belong to its concurrent jurisdiction.! This prin- 
ciple, however, must be understood as referring to the 
original condition of law and equity, at a period wheu 
equity was establishing its jurisdiction, and before the 
remedial powers of the law courts had been extended by 
statutes, or enlarged by the gradual adoption of equitable 
notions; for, as will be more fully shown hereafter, the 
present power of the law courts to grant complete relief 
does not, in general, deprive equity of a jurisdiction which 
it had formerly acquired, because the law courts then pos- 
sessed no such power.2 But in order that the general 
principle may apply, the sufficiency and completeness of 
the legal remedy must be certain; if it is doubtful, equity 
may take cognizance.^ Wliile the concurrent jurisdiction 
of equity thus depends upon the inadequacy of legal rem- 

§ 176, 1 Southampton Dock Co. v. Southampton, etc., Board, L. R. 11 
Eq. 254; Collins v. Clayton, 53 Ga. 649; Craft v. Dickens, 78 111. 131; 
Dart V. Barbour, 32 Mich. 267, 271; Ross v. Buchanan, 13 111. 55, 58; 
Mason v. Piggott, 11 111. 85, 89; and the same doctrine applies under the 
reformed system of procedure: Kyle v Frost, 29 Ind. 382; Claussen v. 
Lafrenz, 4 G. Greene, 224, 225-227. See also, sustaining the general 
principle as stated in the text, Grand Chute v. Winegar, 15 Wall. 373 ; 
Insurance Co. v. Bailey, 13 Wall. 616 ; Hipp v. Babin, 19 How. 271 ; South 
Eastern R'y v. Brogden, 3 Macn. & G. 8; Phillips v. Phillips, 9 Hare, 
471; Moxon v. Bright, L. R. 4 Ch. 292; Smith v. Leveaux, 2 De Gex, 
J. & S. 1; Foley v. Hill, 1 PhiU. Ch. 399, 2 H. L. Cas. 28. 

§ 176, 2 Varet v. New York Ins. Co., 7 Paige, 560, 568 ; King v. Bald- 
win, 2 Johns. Ch. 554, 17 Johns. 384, 8 Am. Dec. 415; Bromley v. Hol- 
land, 7 Ves. 3, 19, per Lord Eldon; Atkinson v. Leonard, 3 Brown Ch. 
218, 224, per Lord Thurlow; Billon v. Hyde, 1 Atk. 126, per Lord Hard- 
wicke. And see post, § 209. 

§ 176, 3 Rathbone v. Wan-en, 10 Johns. 587; King v. Baldwin, 2 Johns. 
Ch.554,17 Johns. 384, 8 Am. Dec.415;Bateman v. Willoe, 1 Schoales & L. 


edies for the particular controversy, or for the class of 
cases of which the particular controversy is an instance, 
it is impossible to define, by any single formula, what is 
the adequacy or sufficiency of the remedy at law which 
shall prevent an exercise of the equitable jurisdiction. 
Instead of attempting to formulate such a comprehensive 
proposition, we must describe the various classes of cases 
in which this adequacy exists, and over which, as a conse- 
quence, the concurrent jurisdiction of equity does not 

§177 Illustrations. a — In all cases where the plaintiff 
holds or claims to have a purely legal estate in land, and 
simply seeks to have his title adjudicated upon,^ or to re- 
cover possession, against an adverse claimant who also 
relies upon an alleged legal title, there being no equitable 
feature of fraud, mistake, or otherwise, calling for the 
application of equitable doctrines or the granting of pecu- 
liar equitable reliefs, the remedy at law is adequate, and 
the concurrent jurisdiction of equity does not exist. A 
suit in equity, under its concurrent jurisdiction, will not 
be maintained to take the place of the action of ejectment, 
and to try adverse claims and titles to land which are 
wholly legal, and to award the relief of a recovery of pos- 
session.i ^ "While this general doctrine is well established, 

205, per Lord Redesdale; Southampton Dock Co. v. Southampton, etc., 
Board, L. R. 11 Eq. 254; South Eastern R'y v. Brogden, 3 Macn. & G. 8 
§ 177, 1 Welby v. Duke of Rutland, 6 Brown Pari. C. 575 (vol. 2, p. 39, 
in Tomlins's ed.') ; Hill v. Proctor, 10 W. Va. 59, 77; Caveds v. Billings, 
16 Fla. 261; Strubher v. Belsey, 79 111. 307; Phelps v. Harris, 51 Miss. 

§ 177, (a) Cited with approval in souglit to remove cloud on title be- 

Woodsworth v. Tanner, 94 Mo. 124, long to the exclusive jurisdiction. 

7 S. W. 104; Eogers v. Kogers, 17 §177, (c) Ejectment Bills. — The 

E. I. 623, 24 Atl. 46; cited, also, in text is cited in Porter v. Armour & 

Illinois Steel Co. v. Sehroeder, 133 Co., 241 111. 145, 89 N. E. 356; in 

Wis. 561, 126 Am. St. Rep. 977, 14 Watkins v. Childs, 79 Vt. 234, 65 

L. R. A. (N. S.) 239, 113 N. W. 51. Atl. 81 (suit concerning disputed 

§177, (b) It must be borne in boundaries). In the following cases, 

mind that cases where relief is the plaintiff being out of possession, 


still, in addition to the particular cases of disputed bound- 
aries, partition, and assignment of dower, over wliich the 
concurrent jurisdiction may extend, and in which a remedy- 
strictly legal may be granted, a court of equity will also 
confer the final relief of possession, and will decree a de- 
fendant to deliver up possession of land to the owner, when 
such relief is incidental to the main object of the suit, and 
the action is brought for some object otherwise within the 

789, 793; Lewis v. Cocks, 23 Wall. 466, 469; Boston Diatite Co. v. Flor- 
ence Mfg. Co., 114 Mass. 69, 19 Am. Rep. 310 ; Whitehead v. Kitson, 119 
]\Iass. 484; Griswold v. Fuller, 33 Mich. 268; First Nat. Bank v. Bininger, 
26 N. J. Eq. 345; Woodi'ufie v. Robb, 19 Ohio, 212, 214; Wolfe v. Scar- 
borough, 2 Ohio St. 361, 368; Woleott v. Robbins, 26 Conn. 336; Green 
V. Spring, 43 111. 280; Roberts v. Taliaferro, 7 Iowa, 110, 112; Shotwell v. 
Lawson, 30 Miss. 27, 64 Am. Dec. 145 ; Bobb v. Woodward, 42 Mo. 482, 
488; Waddell v. Beach, 9 N. J. Eq. 793, 795; Milton v. Hogue, 4 Ired. Eq. 
415, 422; Pell v. Lander, 8 B. Mon. 554, 558; Doggett v. Hart, 5 Fla. 
215, 58 Am. Dec. 464; Dickerson v. Stoll, 8 N. J. Eq. 294, 298; Topp v. 
Williams, 7 Humph. 569; Hale v. Darter, 5 Humph. 79; Hipp v. Babin, 
19 How. 271, 277; Bowers v. Smith, 10 Paige, 193, 200. 

the bill was held to be an ejectment Pac. 50, 106 Pac. 1052; Williams v. 

bill, and relief was refused: Fussell Mathewson, 73 N. H. 242, 60 Atl. 

V. Gregg, 113 U. S. 550, 5 Sup. Ct. 687; Pittman v. Burr, 79 Mich. 539, 

631; Laeassagne v. Chapuis, 144 44 N. W. 951; Leininger v. Summit 

U. S. 119, 12 Sup. Ct. 659; Smyth Branch R. Co., 180 Pa. St. 289, 36 

V. New Orleans Canal & Banking Atl. 738; Saunders v. Racquet Club, 

Co., 141 U. S. 656, 12 Sup. Ct. 113; 170 Pa. St. 265, 33 Atl. 79, 37 

Ringo V. Binns, 35 U. S. (10 Pet.) Wkly. Notes Cas. 130; Chambersburg 

269; McGuire v. Pensacola City Co., Borough School Dist. v. Hamilton 

105 Fed. 677, 44 0. C. A. 670; John- Tp. School Dist., 228 Pa. St. 119, 77 

son V. Munday, 104 Fed. 594, 44 Atl. 414; Rogers v. Rogers, 17 R. I. 

C. C. A. 64; E'rskine v. Forest Oil 623, 24 Atl. 46; New York & N. E. 

Co., 80 Fed. 583; Eiffert v. Craps, 58 R. Co. v. City of Providence, 16 

Fed. 470, 7 C. C. A. 319, 8 U. S. App. R. L 746, 19 Atl. 759; Chandler v. 

436; Jordan v. Phillips & Crew Co., Graham, 123 Mich. 327, 82 N. W. 

126 Ala. 561, 29 South. 831; Morgan 814; .Jones v. Fox, 20 W. Va. 370. 

V. Lehman, Durr & Co., 92 Ala. 440, As stated in Frost v. Walls, 93 Me. 

9 South. 314; Ohm v. City and 405, 45 Atl. 287, "It is not the busi- 

County of San Francisco (Cal.), 25 ness of equity to try titles and put 

Pac. 155; Gage v. Mayer, 117 III. one party out and another in." A 

632, 7 N. E. 97; Atkinson v. J. R. lessee out of possession cannot try in 

Crowe Coal & Min. Co., SO Kan. 161, equity the right of one in possession 

18 Ann. Cas. 242, 39 L. R. A. 102 claiming to hold under a prior lease. 




equity jurisdiction. 2 d in \[]^q manner, the concurrent 
jurisdiction does not embrace suits by the legal owner to 

§177, 2 Green v. Spring, 43 111. 280; Roberts v. Taliaferro, 7 Iowa, 
110, 112. 

Weiss V. Levy, 166 Mass. 290, 44 N. K. 
225. A receiver cannot maintain a 
bill to recover possession of land 
from a stranger to the equity case in 
which he was appointod. Coles v. 
Northrup, 66 Fed. 831, 14 C. C. A. 138, 
30 U. S. App. 270. The mere fact that 
the 'dispute involves a question of 
boundary does not give jurisdiction, 
iiuless the case is one of which 
equity, under its established juris- 
diction, has cognizance. Walker v. 
Leslie, 90 Ky. 642, 14 S. W. 682; 
Watkins v. Childs, 79 Vt. 234; 65 
Atl. 81 (citing text); Carberry v. 
West Virginia & P. R. Co., 44 W. Va. 
260, 28 S. E. 694. In some juris- 
dictions it is held that where a ques- 
tion of title is raised in a 2}<i^iitio7i 
or foreclosure bill, the title must be 
established at law. The reason given 
is that as to the party denying title 
the bill is an ejectment bill. Thus, 
in Osborne v. Osborne, 41 S. C. 195, 
19 S. E. 494, the plaintiff in parti- 
tion claimed half of the land and 
the defendant all of it. It was held 
that the issue must be tried at law. 
In Benoist v. Thomas, 121 Mo. 660, 
27 S. W. 609, the plaintiff's title to 
one-half the land was undisputed, 
but there was a dispute between the 
defendants as to the other half. 
See, also, on partition, Capell v. 
Moses, 36 S. C. 559, 15 S. E. 711; 
Marshall v. Pitts, 39 S. C. 390, 17 
S. E. 831. As to foreclosure, see 
Loan & Exchange Bank v. Peterkin, 
52 S. C. 236, 68 Am. St. Rep. 900, 
29 S. E. 546. 

§177, (d) The text is quoted in 

Hanna v. Reeves. 22 Wash. 6, 60 
Pac. 62. 

Delivery of Possession as Inci- 
dental to Other Relief. — Thus, in 
Woodsworth v. Tanner, 94 Mo. 124, 
7 S. W. 104, a wife brought suit 
to cancel a deed to her husband, and 
it was held that as incidental thereto 
the court might decree possession. 
The court said: "When the suit is 
for some purpose within the equi- 
table jurisdiction of the court, and 
that relief is granted, and possession 
is incidental to such relief, the court 
may go on, and award a writ for 
the possession. Having jurisdiction 
for one purpose, it will give full 
and complete relief, even to the ex- 
tent of decreeing possession, and 
will enforce that branch of the de- 
cree." Citing Pom. Eq. Jur., § 177. 
But the mere fact that equitable re- 
lief, such as account, discovery, etc., 
is prayed, does not give jurisdiction 
when the right to such relief does 
not arise until the legal title is es- 
tablished. North Pennsylvania Coal 
Co. V. Snowden, 42 Pa. St. (6 
Wright) 488, 82 Am. Dec. 530; Will- 
iams V. Fowler, 201 Pa. St. 336, 50 
Atl. 969. The mere fact that a ques- 
tion of priority of liens arises does 
not authorize such relief. Cole v. 
Mettee, 65 Ark. 503, 67 Am. St. Rep. 
945, 47 S. W. 407. Although plaintiff 
cannot sue at law because he has 
not the legal title, he cannot there- 
fore go into equity to obtain pos- 
session unless he shows that defend- 
ants are affected by his equity. 
Young v. Porter, 3 Woods, 342, Fed. 
Cas. No. 18,171. 


recover possession of a chattel, except in the few cases 
where the chattel has a certain special, extraordinary, and 
unique value impossible to be compensated for by damages, 
nor suits merely to determine the legal title to chattels 
between adverse claimants, where the claim of neither 
party involves or depends upon any equitable interest or 
feature. In all ordinary controversies concerning the 
legal ownership or possession of chattels, the common-law 
actions of replevin or trover furnish a complete and 
adequate remedy.^ « 

§ 178.a Cases in which the remedy is a mere recovery 
of money do not ordinarily come under the concurrent 
jurisdiction. Where the primary right of the plaintiff is 
purely legal, arising either from the non-performance of 
a contract or from a tort, and the money is sought to be 
recovered as a debt or as damages, and the right of action 
is not dependent upon or connected with any equitable 
feature or incident, such as fraud, mistake, accident, trust, 
accounting, or contribution, and the like, full and certain 
remedies are afforded by actions at law, and equity has no 
jurisdiction ; these are cases especially within the sole cog- 

§ 177, 3 Bowes v. Hoeg, 15 Fla. 403, 408 (recovery of possession of a 
chattel) ; Long v. Barker, 85 111. 431 (to determine legal title to chattels) ; 
McCiillogh V. Walker, 20 Ala. 389. 391 (to enforce a gift of a chattel, 
legal remedy complete) ; Young v. Young, 9 B. Mon. 66 (to try legal title 
to chattels, replevin sufficient) ; Comby v. Me Michael, 19 Ala. 747 (to 
compel delivery of a chattel) ; Hall v. Joiner, 1 S. C. 186. 

§ 177, (e) Lawrence v. Times the bill." Chambers v. Chambers, 98 

Printing Co., 90 Fed. 24 (books and Ala. 454, 13 South. 674. Belief will 

accounts of a newspaper) ; Keystone not be awarded merely because dis- 

Elect. L., H. & P. Co. v. Peoples' E. covery is asked when there is no 

L., H. & P. Co., 200 Pa. St. 366, 49 averment showing its materiality or 

Atl. 951; Jones v. MacKenzie, 122 necessity. Armstrong v. Huntons, 1 

Fed. 390 (railroad ties). "Of course Rob. (Va.) 323. 

the mere fact that complainants' § 178, (a) Cited with approval in 

legal remedies would prove abortive Bennett v. Bennett, 63 N. J. E'q. 306, 

because of the insolvency of the re- 49 Atl. 501; Darfi;in v. Hewlitt, 115 

spondents cannot impart equity to Ala. 510, 22 South. 128. 


nizance of the law.^^ This proposition does not state the 
entire doctrine. Even when the cause of action, based 

§ 178, 1 Cochran v. Cochran, 2 Del. Ch. 17 ; Askew v. Myrick, 54 Ala. 
30; Bellamy v. Hawkins, 16 Fla. 733; Collins v. Stephens, 58 Ga. 284; 
Badger v. McNamara, 123 Mass. 117; Stewart v. Mumford, 80 111. 192; 
Ward V. Peck, 114 Mass. 121; Finnegan v. Femandina, 15 Fla. 379, 21 
Am. Rep. 292; Reese v. Bradford, 13 Ala. 837; Sessions v. Sessions, 33 
Ala. 522, 525; Andrews v. Huckabee, 30 Ala. 143; Maury v. Mason, 8 
Port. 211; Torrey v. Camden etc. R. R., 18 N. J. Eq. 293; Heilman v. 
Union Canal Co., 37 Pa. St. 100, 104; Vose v. Philbriek, 3 Story, 335, 
344; Howard v. Jones, 5 Ired. Eq. 75, 79, 81; Ohling v. Luitjens, 32 111. 
23; Anderson v. Lincoln, 5 How. (Miss.) 279, 284; Abbott v. Allen, 2 
Johns. Ch. 519, 7 Am. Dec. 554; Curtis v. Blair, 26 Miss. 309, 327; John- 
son V. Conn. Bk., 21 Conn. 148, 157 (damages for wrongful taking of 
chattels); Wolf v. Irons, 8 Ark. 63, 66; Stone v. Stone, 32 Conn. 142; 
Coquillard v, Suydam, 8 Blackf. 24, 29; Meres v. Crisman, 7 B. Mon. 422 
(damages for a tort) ; Lawson v. Davis, 7 Gill, 345; Perkins v. Perkins, 

16 Mich. 162, 167; Bennett v. Nichols, 12 Mich. 22; Blakeley v. Biscoe, 1 
Hemp. 114; Echols v. Hammond, 30 Miss. 177; Norwich R. R. v. Storey, 

17 Conn. 364, 370; Fletcher v. Hooper, 32 Md. 210; Jones v. Newhall, 
115 Mass. 244, 15 Am. Rep. 97. 

§ 178, (b) Quoted in Phipps v. 49 Atl. 501. To collect on a bond 

Kelly, 12 Or. 213, 6 Pac. 707; Frank- for maintenance. Elliott v, Elliott 

lin Township v. Crane, 80 N. J. Eq. (N. J.), 36 Atl. 951. To recover 

509, 43 If. R. A. (N. S.) 604, 85 part of the proceeds recovered in 

Atl. 408 (action to determine lia- an action for tort. Kammermayer 

bility of tax collector) ; cited in y, Helz, 107 Wis. 101, 82 N. W. 689. 

Myers v. Sierra Val. Stock & Agric. To enforce an unlimited liability of 

Assn., 122 Cal. 669, 55 Pac. 689, also stockholders. Marsh v. Kaye, 168 

in Becker v. Frederick W. Lipps Co. n. Y. 196, 61 N. E. 177. In like 

(Md.), 101 Atl. 783. manner, relief will be refused when 

No Jurisdiction, Ordinarily, for a mere money recovery on a nogo- 

Mere Recovery of Damages. — In the tiable instrument is asked. Shields 

following cases relief was refused, a v. Barrow, 58 U. S. (17 How.) 130; 

sum due under a contract or damages Sioux Nat. Bank v. Cudahy Pack- 

for breach thereof being sought; ing Co., 58 Fed. 20; McCullough v. 

Lewis V. Baca, 5 N. M. 289, 21 Pac. Kervin, 49 S.'C. 445, 27 S. E. 456; 

343; Matthews v. Matthews, 133 Jumper v. Commercial Bank, 48 S. C. 

N. Y. 679, 31 N. E. 519; Chew v. 430, 26 S. E. 725. In jurisdictions 

Perkins (Md.), 31 Atl. 507. In the where a beneficiary is allowed to sue 

following actions also relief was re- on a contract, it would seem that 

fused: To enforce a decree for ali- he should not be allowed equitable 

mony granted in a foreign state. aid to recover damages. Hopkins v. 

Bennett v. Bennett, 63 N. J. Eq. 306, Hopkins, 86 Md. 681, 37 Atl. 371. 




upon a legal right, does involve or present, or is connected 
with, some particular feature or incident of the same kind 
as those over which the concurrent jurisdiction ordinarily 
extends, such as fraud, accounting, and the like, still, if the 
legal remedy by action and pecuniary judgment for debt 
or damages would be complete, sufficient, and certain — that 
is, would do full justice to the litigant parties — in the par- 
ticular case, the concurrent jurisdiction of equity does not 
extend to such case.c por example, whenever an action at 
law will furnish an adequate remedy, equity does not as- 

An assignee of a legal claim cannot 
ordinarily seek such relief in equity. 
"A court of equity will not enter- 
tain a bill by the assignee of a 
strictly legal right, merely on the 
ground that he cannot bring an ac- 
tion at law in his own name, nor 
unless it appears that the assignor 
prohibits and prevents such action 
from being brought in his name, or 
that an action so brought will not 
afford the assignee an adequate 
remedy." Hayes v. Hayes, 45 N. J. 
Eq. 461, 17 Atl. 634; affirmed, Hayes 
V. Berdan, 47 N. J. Eq. 567, 21 Atl. 
339. See, also, Bernz v. Marcus 
Sayre Co., 52 N. J. Eq. 275, 30 Atl. 
21. Where the assignor collects 
after the assignment, the assignee 
has an adequate remedy at law. 
French v. Hay, 89 U. S. (22 Wall.) 
231. A receiver cannot maintain a 
bill against the sureties on the bond 
of his predecessor; Combs v. Shisler, 
47 W. Va. 373, 34 S. E. 763; nor to 
recover from stockholders' dividends 
illegally paid; Hayden v. Thompson, 
67 Fed. 273. A trustee under a 
mortgage cannot maintain a bill 
against a city to recover money due 
by the city to his mortgagor. Inter- 
national Trust Co. V. Cartersville I. 
G. & W. Co., 63 Fed. 341. For the 
same reason, a holder of a judgment 
against an insolvent corporation can- 
not resort to equity to compel the 

allowance of his claim by the re- 
ceiver. Denton v. Baker, 79 Fed. 
189, 24 C. C. A. 476. Likewise, 
where the relief sought is damages 
for a tort, as for trespass to land 
(Wiggins V. Williams, 36 Fla. 637, 
30 L. E. A. 754, 18 South. 859; Rhea 
V. Hooper, 73 Tenn. (5 Lea) 390), 
or for conversion of personal prop- 
erty (Eobertson v. McPherson, 4 
Ind. App. 595, 31 N. E. 478), relief 
will be refused. See, also, L. Mar- 
tin Co. v. L. Martin & Wilckes Co., 
75 N. J. Eq. 39, 72 Atl. 294, re- 
versing (N. J. Eq.) 71 Atl. 409 
(no damages, as distinguished from 
account of profits, in connection 
with injunction against unfair com- 

Whether a suit in equity lies by 
a trustee in bankruptcy to recover 
a voidable preference under § 60b 
of the Bankruptcy Act of 1898 is 
a disputed question; see cases re- 
viewed in Simpson v. Western Hard- 
ware and Metal Co., 227 Fed. 304; 
but an action under § 67e to recover 
property fraudulently transferred is 
within the equity jurisdiction: Id. 

§178, (c) This and the following 
sentence were quoted in Campbell 
V. Rust, 85 Va. 653, 8 S. E. 664; 
Buck V. Ward, 97 Va. 209, 33 S. E. 
513; Chapman v. Lee, 45 Ohio St. 
356, 13 N. E. 736. As stated by 
the United States Supreme Court: 




sume jurisdiction because an accounting is demanded or 
needed ;2^ nor because the case involves or arises from 
fraud ; 2 ® nor because a contribution is sought from per- 

§178, 2 Jewett v. Bowman, 29 N. J. Eq. 174; Badger v, McNamara, 
123 Mass. 117; Passyunk Building Association's Appeal, 83 Pa. St. 441 
(accounts are all on one side, and no discovery is prayed) ; Frue v. Loring, 
120 Mass. 507; Ward v. Peck, 114 Mass. 121; Coquillard v. Suydam, 8 
Blaokf. 24, 29 (against an agent, where the agency is for a single trans- 
action) ; Norwich, etc., R. R. v. Story, 17 Conn. 364, 370 (the fact that 
the accounts between the parties are numerous and complicated is not 
alone sufficient to give jurisdiction in equity in Connecticut) ; Long v. 
Cochran, 9 Phila. 267; Santacruz v. Santacruz, 44 Miss. 714, 720. 

§ 178, 3 Fraudulent misappropriation and conversion of money : Bay 
City Bridge Co. v. Van Etten, 36 Mich. 210; where the suit is merely to 

"Whenever one person has in his 
hands money equitably belonging to 
another, that other person may re- 
cover it by assumpsit for money 
had and received. The remedy at 
law is adequate and complete." 
Gaines v. Miller, 111 U. S. 395, 4 
Sup. Ct. 426. Although a note is 
delivered by mistake, if only a 
money recovery is sought the legal 
remedy is adequate. Bolt v. Gray, 
54 S. C. 95, 32 S. E. 148. In Boyce 
v. Allen, 105 Iowa, 249, 74 N. W. 
948, the plaintiff conveyed property 
by absolute deed as security. He 
came into equity to sue for the price. 
It was held that such relief could 
be given at law and the bill was 

§ 178, (d) Accounting. — The text 
is cited to this point in Balfour v. 
San Joaquin Valley Bank (C. C. 
Cal.), 156 Fed. 500. See Schwalber 
V. Ehman, 62 N. J. Eq. 314, 49 Atl. 
1085; "Willis v. Crawford, 38 Or. 
522, 63 Pac. 985; Garland v. Hull, 
21 Miss. (13 Smedes & M.) 76, 51 
Am. Dec. 140; Dargin v. Hewlitt. 
115 Ala. 510, 22 South. 128; Getman 
V. Dorr, 59 N. Y. Supp. 788, 28 Misc. 
Eep. 654; Appeal of Pittsburgh etc. 

E. E. Co., 99 Pa. St. 177. In Nor- 
deen v. Buck, 79 Minn. 352, 82 N. W. 
644, the action was held to be legal, 
although the examination of a long 
account was involved. And in Ga- 
lusha v. Wendt, 114 Iowa, 597, 87 
N. W. 512, it was held that mere in- 
tricacies of the calculations neces- 
sary to the determination of the 
amount of plaintiff's recovery do not 
make it an equitable action. The 
mere fact that the party from whom 
the account is sought is a receiver 
does not give equity jurisdiction. 
Hamm v. J. Stone & Sons Live Stock 
Co., 13 Tex. Civ. App. 414, 35 S. W. 
427. In Kuhl v. Pierce County, 44 
Neb. 584, 62 N. W. 1066, a county 
brought suit against two sets of 
sureties on the bonds of a county 
treasurer, whose defalcations had so 
extended that it could not be deter- 
mined during which term they had 
occurred. The court held that the 
complication was due to the laches 
of the county and that the right 
of the defendants to a jury trial 
coidd not be destroyed thereby. 

§178, (e) Fraud.— The text is 
cited to this point in Leonard v. 
Arnold, 244 111. 429, 91 N. E. 534, 


sons jointly indebted; ^ ^ nor even to recover money held in 
trust, where an action for money had and received will 
lie. 5 s In the following cases, which are given as illustra- 
tions, the concurrent jurisdiction of equity was held not 
to exist, although each case presented some peculiar fea- 
ture which was claimed to be equitable, and to remove it 
from the exclusive jurisdiction of the law: Where a judg- 
ment debtor had died, and no administrator had been 
appointed, a suit in equity could not be maintained by the 
creditor to recover the amount of his judgment; ^ to re- 
recover damages on account of the fraud : Ferson v. Sanger, Daveis, 252, 
259, 2G1; and see Vose v. Philbriek, 3 Story, 335, 344; where a court of 
law had first taken jurisdiction: Glastonbury v. McDonald's Adm'r, 44 
"Vt. 450, 453; in general, where the legal remedy is adequate: Youngblood 
V. Youngblood, 54 Ala. 486; Huff v. Ripley, 58 Ga. 11; Suter v. Mathews, 
115 Mass. 253. 

§ 178, 4 Patterson v. Lane, 35 Pa. St. 275 (suit by a creditor of an 
insolvent corporation against the stockholders, to enforce their individual 
liability, where a remedy was given at law by statute) ; Stone v. Stone, 32 
Conn. 142 (suit on implied contract against several defendants, to recover 
money paid out for their joint benefit). 

§ 178, 5 Crooker v. Rogers, 58 Me. 339. 

§ 178, 6 Cochran v. Cochran, 2 Del. Ch. 17, He should procure the 
appointment of an administrator, and proceed in law against him. 

See Whitney v. Fairbanks, 54 Fed. at law in an action sounding in tort 

985; Andrews v. Moen, 162 Mass. or for money had and received." 

294, 38 N. E. 505; State v. Jones, For a good statement of the rule, 

131 Mo. 194, 33 S. W. 23; Krueger see Security Sav. & Loan Assn. v. 

V. Armitage, 58 N. J. Eq. 357, 44 Buchanan, 66 Fed. 799, 14 C. C. A. 

Atl. 167; Polhemus v. Holland 97, 31 U. S. App. 244. 

Trust Co., 59 N. J. Eq. 93, 45 Atl. § 178, (f ) Contribution.— Myers v. 

534; Shields v. McCandlish, 73 Fed. Sierra Val. Stock & Agric. Assn., 

318. In Paton v. Major, 46 Fed. 122 Cal. 669, 55 Pac. 689 (suit to 

210, the court quoted the following enforce a right of contribution 

from Buzard v. Houston, 119 U. S. among stockholders, created by stat- 

347, 7 Sup. Ct. 249: "In cases of ute). 

fraud or mistake, as under any other § 178, (g) The text is quoted in 

head of chancery jurisdiction, a Franklin Township v. Crane, SO N". J. 

court of the United States will not Eq. 509, 43 L. R. A. (N, S.) 604, 85 

sustain a bill in equity to obtain Atl. 408 (action to hold tax collector 

only a decree for the payment of liable for funds coming into hia 

money by way of damages when hands), 
the like amount can be recovered 


cover for work and labor done for the benefit of trust es- 
tates, a statute having authorized suits at law for the col- 
lection of such claims ; "^ a suit by one executor against his 
co-executor to recover the plaintiff's share of the com- 
pensation allowed by the probate court and retained by 
the defendant ; ^ a suit by a judgment creditor of a de- 
cedent, against the administrator, to recover the amount 
of his judgment ; ^ where a mere pecuniary judgment at 
law against the debtor would be useless, because he is in- 
solvent, or is a non-resident of the state, or has absconded, 
or for any other similar reason; ^^ suit by grantee of land 
in possession, to recover back the purchase price, on ac- 
count of the failure of the grantor's title; ^^ suit by a ward 
against his guardian and sureties on the guardian's 
bond; 12 a suit to establish and enforce a mere personal 
debt of the defendant as a lien on his lands ; ^^ and in 
Massachusetts it is held that no suit can be maintained by 
the vendor against the purchaser to compel the specific 
performance of a contract for the sale of land, when the 
only relief given by the decree is the recovery of the un- 
paid purchase price, on the ground that exactly the same 
relief can always be obtained by an action at law.^"* This 

§ 178, 7 Askew v. Myriek, 54 Ala. 30. 

§ 178, 8 Bellamy v. Hawkins, 16 Fla. 733. An action for money had 
and received would give a perfect remedy. 

§ 178, 9 Collins V. Stephens, 58 Ga. 284. An action at law against the 
administrator and his sureties on his bond would give complete relief if 
he failed to pay the judgment. 

§ 178, 10 Mnnegan v. Fernandina, 15 Fla. 379, 21 Am. Rep. 292; Reese 
V. Bradford, 13 Ala. 837 (defendant out of the state) ; Heilman v. Union 
Canal Co., 37 Pa. St. 100, 104 (insolvency of defendant) ; Meres v. Chris- 
man, 7 B. Mon. 422 (defendant has absconded) ; Echols v. Hammond, 30 
Miss. 177 (defendant non-resident or absconding). 

§178, 11 Anderson v. Lincoln, 5 How. (Miss.), 279, 284; Abbott v. 
Allen, 2 Johns. Ch. 519, 7 Am. Dec. 554; as to when the grantee may sue 
in equity, see Waddell v. Beach, 9 N. J. Eq. 793, 796. 

§ 178, 12 Lawson v. Davis, 7 Gill, 345. 

§ 178, 13 Perkins v. Perkins, 16 Mich. 162, 167; Bennett v. Nichols, 12 
Mich. 22. 

§ 178, 14 Jones v. Newhall, 115 Mass. 244, 15 Am. Rep. 97. 


conclusion, however, rests upon the statutory limitations of 
the jurisdiction in Massachusetts, and is opposed to the 
general doctrines of equity jurisprudence. 

§ 179. Cognizance First Taken by a Law Court.a — In 
further limitation upon the power of equity to interfere 
where the primary rights, interests, or estates are legal, 
the doctrine is well settled that when the jurisdictions of 
law and of equity are concurrent, the one which first takes 
actual cognizance of any particular controversy ordinarily 
becomes thereby exclusive.^ If, therefore, the subject- 
matter or primary right or interest, although legal, is one 
of a class which may come within the concurrent jurisdic- 
tion of equity, and an action at law has already been com- 
menced, a court of equity will not, unless some definite 
and sufficient ground of equitable interference exists, en- 
tertain a suit over the same subject-matter even for the 
purpose of granting reliefs peculiar to itself, such as can- 
cellation, injunction, and much less to grant the same kind 
of relief which can be obtained by the judgment at law. 
The grounds which will ordinarily prevent the application 
of this doctrine, and will permit the exercise of the equi- 
table jurisdiction in such cases, are the existence of some 
distinctively equitable feature of the controversy which 
cannot be determined by a court of law, or some fraudulent 
or otherwise irregular incidents of the legal proceedings 
sufficient to warrant their being enjoined, or the necessity 
of a discovery, either of which grounds would render the 
legal remedy inadequate. This rule results in part, in the 
United States, from the provisions of the national and 
state constitutions securing the right to a jury trial which 

§179, (a) This paragraph of the v. Miller, 59 W. Va. 36, 52 S. E. 

text is cited and followed in Ger- 995; Dille v. Longwell, 169 Iowa, 

man v. Browne, 137 Ala. 429, 34 686, 148 N. W. 637; Lynch v. Schcm- 

South. 985; Sprigg v. Common- mel, 176 Iowa, 499, 155 N. W. 1019. 
wealth Title Ins. & Tr. Co., 206 Pa. § 179, (b) The text is quoted in 

St. 548, 56 Atl. 33; Druon v. Sulli- Connell v. Yost, 62 W. Va. 66, 57 

van, 66 Vt. 609, 30 Atl. 98; Bruncr S. E. 299. 


belongs especially to the machinery of legal actions. ^ *^ In 
cases which are brought to procure some distinctively equi- 
table remedy, and which therefore belong to the exclusive 

§ 179, 1 Hipp V. Babin, 19 How. 271; Insurance Co. v. Bailey, 13 Wall. 
616; Oelrichs v. Spain, 15 Wall. 211, 228; Grand Chute v. Winegar, 15 
Wall. 373; Smith v. Melver, 9 Wheat. 532; Crane v. Bunnell, 10 Paige, 
333; Bank of Bellows Falls v. Rutland & B. R. R., 28 Vt. 470, 477; 
Stearns v. Steams, 16 Mass. 167, 171; Mallett v. Dexter, 1 Curt. 178; 
Winn V. Albert, 2 Md. Ch. 42; Nelson v. Dunn, 15 Ala. 501; Gould v. 
Hayes, 19 Ala. 438; Thompson v. Hill, 3 Serg. 167; Bumpass v. Reams, 
1 Sneed, 595; Merrill v. Lake, 16 Ohio, 373, 47 Am. Dec. 377; Mason v. 
Piggott, 11 111. 85; Ross v. Buchanan, 13 111. 55; Hempstead v. Watkins, 
6 Ai-k. 317, 42 Am. Dec. 696. In Grand Chute v. Winegar, 15 Wall. 373, 
an action at law had been brought on certain bonds issued by the municipal 
corporation, and the defense was set up that they had been issued fraudu- 
lently, and without authority, etc. While said action was pending, the 
corporation brought the suit in equity, setting up the same fraud and 
want of authority, and praying that the bonds might be surrendered up 
and canceled. The court held that although equity might have a concur- 
rent jurisdiction, still, as the courts of law had first taken cognizance of 
the matter, and there was nothing to show that the defense set up, if 
established, would not be an adequate remedy, a court of equity could not 
interfere even to grant its peculiar relief of cancellation. Hunt, J., thus 
states the general doctrine : "It is an elementary principle of equity, that 
when full and adequate relief can be obtained in a suit at law, a suit in 
equity cannot be maintained. . . . And the result of the argument is, that 
whenever a court of law is competent to take cognizance of a right, and 

§ 179, (c) Equity will not with- Newman v. Commercial Nat. Bank, 
draw the litigation concerning an 156 111. 530, 41 N. E. 156; Erste 
accounting from a common-law Sokolower Congregation v. First 
court, unless it clearly appears that United, etc., Verein, 32 Misc. Eep. 
such course is necessary, in order 269, 66 N. Y. Supp. 356; Spiller v. 
that complete justice may be done, Wells, 96 Va. 598, 70 Am. St. Rep. 
but will do so when the account is 878, 32 S. E. 46; McCalla v. Beadle- 
complicated or intricate, and in such ston, 17 R. I. 20, 20 Atl. 11; Wilkin- 
case will restrain the legal action. son v. Stuart, 74 Ala. 198. See, 
Ely V. Crane, 37 N. J. Eq. 160, 564. further, Hall v. Ames, 182 Fed. 1008; 
See, also, Casperson v. Casperson, 65 Hirsch v. Independent Steel Co., 196 
N. J. L. 402, 47 Atl. 428; Nash v. Fed. 104; Biermann v. Guaranty 
McCathern, 183 Mass. 345, 67 N. E. Mut. Life Ins. Co., 142 Iowa, 341, 120 
323. On the general proposition, see N. W. 963; Prewett v. Citizens' Na- 
Sweeny v. Williams, 36 N. .1. Eq. tional Bank, 66 W. Va. 184, 135 Am. 
627; Ely v. Crane, 37 N. J. Eq. 160; St. Hep. 1019, 66 S. E. 231. 


jurisdiction, the doctrine must be regarded as merely regu- 
lating the exercise of that jurisdiction, but in the cases 
which belong to the concurrent jurisdiction it must be re- 
garded as one of the elements which determine the very 
existence of such jurisdiction. 

has power to proceed to a judgment which affords a plain, adequate, and 
complete remedy, without the aid of a court of equity, the plaintiff must 
proceed at law, because the defendant has a constitutional right to a trial 
by jury." In Insurance Co. v. Bailey, 13 Wall. 616, an action at law had 
been brought on a policy of life insurance by the executors of the person 
assured, and the company set up the defense that the policy had been 
obtained by means of fraudulent representations. The company then 
commenced this suit in equity to have the policy canceled on the same 
ground. The court held that the equity suit could not be maintained, be- 
cause the jurisdiction of the law had first attached, and the question of 
fraud could be fully tried, and the company obtain complete relief, in the 
legal action then pending. In Bank of Bellows Falls v. Rutland, etc., 
R. R., 28 Vt. 470, an action at law had been brought against the bank to 
recover damages for the taking of certain property under an execution 
and judgment against the railway company, which the company had previ- 
ously conveyed to the plaintiff in said action. The bank thereupon com- 
menced this suit in equity, praying to have such conveyance set aside and 
canceled on the ground of its being fraudulent as against creditors of the 
railway, and to have the action at law enjoined. The court held it to be 
a well-settled doctrine that in all cases of concurrent jurisdiction the 
cause belongs exclusively to the tribunal which first takes cognizance of it; 
that the question whether the conveyance was fraudulent could be decided 
in the legal action, and if the defense of fraud was made out therein, the 
bank would obtain a complete relief, and that no special ground was shown 
why this rule should not apply in the present case. In Crane v. Bunnell, 
10 Paige, 333, an action at law had been brought on a note payable in 
chattels, and the defense was set up that the note had been procured by 
fraudulent representations. The defendant then filed this bill in chancery, 
alleging the same fraud and praying to have the note canceled and the 
action at law enjoined. The court, admitting that it had a concurrent 
jurisdiction in cases of fraud, and might entertain a suit for discovery 
and relief, held that there was a material difference when the suit was 
commenced after the action at law. In such a suit the complainant might 
perhaps be entitled to a discovery; but he could not have the trial and 
decision of the controversy removed from the court of law which had first 
taken cognizance of it, and in which the parties could have the benefit of 
a jury trial. 


§ 180. General Principle — Concurrent Jurisdiction 
Exists. — The propositions contained in the preceding 
paragraphs are all negative in their form; I shall now state 
the rules which affirmatively define the extent and limits 
of the concurrent jurisdiction. The doctrine, in its most 
general and comprehensive form, admits the existence of 
the concurrent jurisdiction over all cases in which the 
remedy at law is not certain, complete, and sufficient. The 
fact that there is a legal remedy is not the criterion; that 
legal remedy, both in respect to its final relief and its 
modes of obtaining the relief, must be as efficient as the 
remedy which equity would confer under the same circum- 
stances, or else the concurrent jurisdiction attaches.^ * 
In applying this doctrine, the ordinary instances of the 
concurrent jurisdiction in which the final relief consists in, 
the obtaining possession of a specific parcel of land, sub- 
stantially the same as would be conferred by a court of 
law, are few and well defined; namely, the partition of 

§ 180, 1 Some of the cases in which this rule is laid down, and in which 
the equitable jurisdiction was spoken of by the court as being '^concurrent/' 
really belonged to the exclusive jurisdiction, since the reliefs sought for or 
obtained were those administered alone by equity; but the doctrine applies 
most directly to the concurrent jurisdiction, and is in fact a fundamental 
element of its existence; when applied to cases coming within the exclusive 
jurisdiction, the doctrine should be regarded merely as one of the general 
rules which control the administration of its purely equitable reliefs : Cur- 
rier V. Rosebrooks, 48 Vt. 34, 38; Ii-win v. Irwin, 50 Miss. 363. 368; 
Martin v. Tidwell, 36 Ga. 332, 345 ; Walker v. Morris, 14 Ga. 323 ; Keeton 
V. Spradling, 13 Mo. 321; State v. McKay, 43 Mo. 594, 598; Holland v. 
Anderson, 38 Mo. 55, 58; Livingston v. Livingston, 4 Johns. Ch. 287, 290, 
291, 8 Am. Dec. 562; Wiswall v. McGovern, 2 Barb. 270; Pope v. Solo- 
mons, 36 Ga. 541, 545 ; Morris v. Thomas, 17 111. 112, 115 ; Hunt v. Dan- 
f orth, 2 Curt. 592, 603 ; Carr v. Silloway, 105 Mass. 543, 549 ; Richardson 
V. Brooks, 52 Miss. 118, 123; Southampton Dock Co. v. Southampton, etc., 
Board, L. R. 11 Eq. 254; South Eastern R'y v. Brogden, 3 Macn. & G. 
8, and cases cited ; Boyce's Executors v. Grundy, 3 Pet. 210, 215 ; Watson 
v. Sutherland, 5 Wall. 74, 78; Dows v. Chicago, 11 Wall. 108, 110. 

§180, (a) The text is quoted in Mack t. Latta (N. Y.), 71 N". E. 97, 
by Parker, C. J. 


land, the assignment of dower, and the settlement of dis- 
puted boundaries. But in addition to these three classes, 
the concurrent jurisdiction embraces other cases involving 
the ownership or enjoyment of lands, and a relief which is 
substantially the recovery of possession will be conferred, 
where the facts and circumstances are special, and the 
remedy at law would be doubtful, incomplete, or insuffi- 
cient. 2 The same is true with respect to pecuniary relief. 
While the various instances in which equity will decree a 
recovery of money as the final remedy, and which consti- 
tute a most important part of its concurrent jurisdiction, 
are' well ascertained and form a settled and certain reme- 
dial system, they by no means exhaust that jurisdiction; 
it extends to and embraces all cases of legal primary 
rights and causes of action for which the law furnishes no 
certain, adequate, and complete remedy.^ 

§ 181. Effect of a Partial Jurisdiction. — The concurrent 
jurisdiction of equity to grant remedies which are legal 
in cases which might come within the cognizance of the 
law courts is materially affected by the operation of two 
important principles, which are now merely stated, and 
which will be more fully discussed in a subsequent section. 
The first of these principles is, that when a court of equity 
has jurisdiction over a cause for any purpose, it may re- 
tain the cause for all purposes, and proceed to a final de- 
termination of all the matters at issue.^ For this reason, 

§ 180, 2 See Respass v. Zorn, 42 Ga. 389 ; Watkins v. Owens, 47 Miss. 
593, 598; Academy of Visitation v. Clemens, 50 Mo. 167; Otley v. Havi- 
land, 36 Miss. 19. 

§ 180, 3 Franklin Ins. Co. v. McCrea, 4 G. Greene, 229 (decreeing pay- 
ment of the amount due on a policy of insurance after a reformation of 
it) ; Hunt v. Danforth, 2 Curt. 592, 603 (recovery by a married woman 
of money left to her separate use) ; Gay v. Edwards, 30 INIiss. 21S, 230 
(where several claimants are separately interested in the same fund, tlieir 
shares unascertained) ; Edsell v. Briggs, 20 Mich. 429, 432; Carr v. Sillo- 
way, 105 Mass. 543. , 

§ 181, (a) The text is quoted in L. R. A. 1917E, 633, 162 N. W. 399, 
Wade V. Major, 36 N. D. 331, dissenting opinion. 


if the controversy contains any equitable feature or re- 
quires any purely equitable relief which would belong to 
the exclusive jurisdiction, or involves any matter pertain- 
ing to the concurrent jurisdiction, by means of which a 
court of equity would acquire, as it were, a partial cog- 
nizance of it, the court may go on to a complete adjudica- 
tion, and may thus establish purely legal rights and grant 
legal remedies which would otherwise be beyond the scope 
of its authority.^ ^ The equitable feature or incident 

§181, 1 Oelrichs v. Spain, 15 Wall. 211, 228; Hamilton v. Cummings, 
1 Johns. Ch. 517; Hawley v, Cramer, 4 Cow. 717; Crane v. Bunnell, 10 
Paige, 333; Rathbone v. Warren, 10 Johns. 587, 596; King v. Baldwin, 17 
Johns. 384, 8 Am. Dec. 415 ; Bradley v. Bosley, 1 Barb. Ch. 125 ; Billups 
V. Sears, 5 Gratt. 31, 50 Am. Dec. 105; Rust v. Ware, 6 Gratt. 50, 52 
Am. Dec. 100; Parker v. Kelly, 10 Smedes & M. 184; Jesus College v. 
Bloom, 3 Atk. 262, 263, Amb. 54; Ryle v. Haggle, 1 Jacob & W. 234, 237; 
Corporation of Carlisle v. Wilson, 13 Ves. 276, 278, 279 ; Adley v. Whit- 
stable Co., 17 Ves. 315, 324; Pearce v. Creswick, 2 Hare, 286, 296; Mc- 
Kenzie v. Johnston, 4 Madd. 373; Martin v. Tidwell, 36 Ga. 332, 345; 
Walker v. Morris, 14 Ga. 323 ; Keeton v. Spradling, 13 Mo. 321 ; State v. 
McKay, 43 Mo. 594, 598; Pope v. Solomons, 36 Ga. 541, 545; cases of 

§181, (b) Quoted in Carpenter v. 25 Or. 119, 35 Pac. 174; Installment 
Osborn, 102 N. Y. 561, 7 N. B. 823; B. & L. Co. v. Wentworth, 1 Wash. 
Stickney v. Goudy, 132 111. 213, 23 St. 467, 25 Pac. 298; Freer v. Davis, 
N. E. 1034; Wigging v. Williams, 36 52 W. Va. 1, 94 Am. St. Eep. 895, 
Fla. 637, 30 L. K. A. 754, 18 South. 59 L. R. A. 556, 43 S. E. 164, dissent- 
859; U. S. V. Union Pac. E'y. Co., ing opinion; Keith v. Henkleman, 
160 U. S. 1, 16 Sup. Ct. 190; Chrislip 68 111. App. 623; Richi v. Chat- 
V. Teter, 43 W. Va. 356, 27 S. E. tanooga Brewing Co., 105 Tenn. 651, 
288; Ames v. Ames, 75 Neb. 473, 58 S. W. 646; Hagan v. Continental 
106 N. W. 584. Cited with approval Nat. Bank (Mo.), 81 S. W. 171. 
in Lynch v. Metropolitan El. E'y. Cited, also, in these recent cases: 
Co., 129 N. Y. 274, 26 Am. St. Rep. Paine v. Germantown Trust Co., 136 
523, 15 L. R. A. 287, 29 N. E. 315; Fed. 527. 69 C. C. A. 303; McMul- 
Chambers v. Cannon, 62 Tex. 293; len Lumber Co. v. Strother, 136 Fed. 
Walters v. Farmers' Bank, 76 Va. 295, 69 C. C. A. 433 (court having 
12; Blair v. Smith, 114 Ind. 114, 5 jurisdiction for accounting, full re- 
Am. St. Eep. 593, 15 N. E. 817; lief given, though some of the 
Broadis v. Broadis, 86 Fed. 951; breaches of contract might have 
Keith V. Henkleman, 173 111. 137, been tried at law) ; Norton v. Colusa 
50 N. E. 692; Bank of Stockham v. P. M. & S. Co. (C. C. Mont), 167 
Alter, 61 Neb. 359, 85 N, W. 300; Fed. 202 (damages in connection 
Fleishner v. Citizens' R. E. & I. Co., with injunction against nuisance) ; 


which most frequently draws a cause completely within 
the cognizance of equity, and enables the court to proceed 
to a full adjudication of all the issues and to a grant of all 
necessary reliefs, legal as well as equitable, is the auxiliary 
remedy of a discovery. It should be carefully noticed, 
however, that the proposition is not stated in absolute 

diseovei-y and suit retained for complete relief; Handley's Ex'r v. Fitz- 
hugh, 1 A. K. Marsh. 24; Sanborn v. Kittredge, 20 Vt. 632, 50 Am. Dec. 
58; but see Little v. Cooper, 10 N. J. Eq. 273, 275, and Brown v. Edsall, 
9 N. J. Eq. 25G; Clark v. White, 12 Pet. 178, 188 (in a suit to compel 
delivery of instruments under an agreement, court went on and decreed 
defendant to repay money paid out by the plaintiff) ; Franklin Ins. Co. 
V. McCrea, 4 G. Greene, 229 (in suit to reform a policy of insurance, court 
went on and ordered payment of the amount due on the policy as re- 
formed) ; Mays v. Taylor, 7 Ga. 238, 244 (court went on and decreed 
payment of money, although an action at law would lie for a breach of 
contract) ; Brooks v. Stolley, 3 McLean, 523, 527 (in a suit for the in- 
fringement of a patent right, the court may determine matters not 
originally within its jurisdiction, and may grant purely legal remedies 
therefor; viz., the payment of sums of money stipulated under a contract 
for the use of the patent) : Souder's Appeal, 57 Pa. St. 498, 502; Zetelle 
V. Myers, 19 Gratt. 62 (suit in equity must include the entire transaction; 
plaintiff cannot divide it, and sue in equity for a part and at law for a 
part) ; cases where damages may be awarded in a suit for specific per- 
formance: Corby v. Bean, 44 Mo. 379; Cuff v. Borland, 55 Barb. 481; 
De Bemer v. Drew, 39 How. Pr. 466. See also Boyd v. Hunter, 44 Ala. 
705 (decreeing payment of rent due by a tenant) ; People v. Chicago, 53 
111. 424 (in suit to enjoin certain unlawful acts, all rights were settled 
and remedies given, although legal) ; Gillian v. Chancellor, 43 Miss. 437, 5 
Am. Rep. 498 (final settlement of a decedent's estate) ; Carlisle v. Cooper, 
21 N. J. Eq. 576 (complete relief in ease of a private nuisance). 

Cree v. Lewis, 49 Colo. 186, 112 Pae. 418, 82 Atl. 741 (injunction against 

326; Cowan v. Skinner, 52 Fla. 486, action at law, case retained for legal 

11 Ann. Cas. 452, 42 South. 730 relief) ; Woolfolk v. Graves, 113 Va. 

(damages in connection with injunc- 182, 69 S. E. 1039, 73 S. E. 721 

tion to restrain trespass) ; Coleman (injunction against cutting of tim- 

V. Connolly, 242 111. 574, 134 Am. ber, case retained to determine title 

St. Rep. 347, 90 N. E. 278 (account- to the land); Steinman v. Clinchfield 

ing of rents as incident to parti- Coal Corp. (Va.), 93 S. E. 684. For 

tion) ; Gantz v. Gease, 82 Ohio 34, a full examination of this doctrine, 

91 N. E. 872; Fife v. Cate, 85 Vt. see posf, §§ 231-242. 


terms, as though the rule were peremptory; it is rather 
permissive, and is by no means universal in its operation.^ 
Immediately derived from this principle, as a corollary or 
particular phase of it, is the doctrine that the concurrent 
jurisdiction of equity may be exercised over matters and 
causes of action which are legal, and by the granting of 
legal remedies, in order to avoid a multiplicity of suits. 
Where numerous actions at law are brought, or are about 
to be brought, either by the same or by different parties, 
all involving and requiring the decision of the same ques- 
tions of law or of fact, so that the determination of one 
would not legally affect the others, a court of equity may, 
in order to do full justice to the litigants and to avoid 
great expense, take cognizance and adjudicate upon all 
the rights and confer all the remedies in one suit, although 
both the primary rights and the final reliefs are legal. 
This instance of the concurrent jurisdiction plainly rests 
upon the arbitrary, unyielding, and insufficient modes of 
procedure in actions at law, and in the ample power of the 
equitable procedure to adapt its judicial proceedings and 
its final reliefs to the circumstances of each case, by bring- 
ing in all parties interested in a controversy, no matter 
how unequal their interests may be, and by awarding com- 
plete relief no matter how conditional and limited, to all 
these parties by means of one suit and decree. ^ 

§ 181, 2 See post, §§ 223-229, where the doctrine is fully examined. 

§181, 3 Huntington v. Nicoll, 3 Johns. 566; Livingston v. Livingston 
6 Johns. Ch. 497, 10 Am. Dec. 353; Eldridge v. Hill, 2 Johns. Ch. 261 
West V. Mayor of N. Y., 10 Paige, 539; New York & N. H. R. R. v 
Schuyler, 17 N. Y. 592, 34 N. Y. 30 ; McHenry v. Hazard, 45 N. Y. 580 
Thompson v. Engle, 4 N. J. Eq. 271 ; Hughlett v. Harris, 1 Del. Ch. 349 
Youngblood v. Sexton, 32 Mich. 406, 20 Am. Rep. 654; Mayor of York 
V. Pilkington, 1 Atk. 282, 283, per Lord Hardwicke; Weale v. West Mid- 
dlesex, etc., Co., 1 Jacob & W. 358, 369, per Lord Eldon; Whaley v. 
Dawson, 2 Schoales & L. 367, 370, per Lord Redesdale; Super\dsors v. 
Deyoe, 77 N. Y. 219, 225. 


§ 182. Effect of Jurisdiction Subsequently Acquired by 
the Law Courts. ^ — The second principle, which is most im- 
portant in its effects upon the modern concurrent juris- 
diction, is the following: Whenever equity originally ac- 
quired jurisdiction over any particular subject-matter, 
right, or interest, because the law either did not recognize 
the existence of the right or interest, or could not furnish 
an adequate remedy for its protection, and the scope of 
the common law has since become enlarged, so that it now 
not only admits the particular primary right or interest 
to be legal, but also furnishes a legal remedy by its ac- 
tions, which may even he adequate under ordinary circum- 
stances, still the equitable jurisdiction is not in general 
thereby destroyed or lessened, although it is made to be 
concurrent, and although the special reasons for its con- 
tinued exercise — namely, the inadequacy of the legal 
remedy — may no longer exist. The scope of the law and 
the jurisdiction of the law courts have thus been enlarged 
in two different modes. Since the earlier and more arbi- 
trary condition of the law, when on that very account the 
equitable jurisdiction in many matters took its origin, the 
law itself has gradually and by the progressive judicial 
legislation of its courts adopted and incorporated into its 
jurisprudence, and thus made strictly legal, a multitude 
of doctrines and rules which were originally purely equi- 
table; and especially by the invention of the theory of 
implied contracts or obligations, and the enormous de- 
velopment of its actions ex cequo et bono, — ''assumpsit" 
and ''case," — it is now enabled to take cognizance of a 
great variety of subject-matters, primary rights, and 
causes of action, and to confer its pecuniary remedies, 
which are at least reasonably complete and sufficient, 
under circumstances and in judicial controversies which 
formerly would come alone within the equitable jurisdic- 

§ 182, (a) See post, §§ 276-281, generally, in Wheeler v. Ockcr & 
where this subject is more fully tlis- Ford Mfg. Co., 162 Mich. 204, 127 
russed. This paragraph is cited, N. W. 332. 


tion. In this class of cases, where the concurrent author- 
ity of the law has resulted from the action of the law courts 
in adopting equitable doctrines, and not from the com- 
pulsory action of the legislature, the general principle 
operates without exception, that the jurisdiction of equity 
still remains unaffected and unabridged, extending to the 
same rights, interests, and causes of action, although they 
are now legal, and granting the same remedies, although 
they are legal in their nature, and substantially identical 
with those given by the law courts. The courts of law 
have no power, by their own judicial legislation, and with- 
out any statutory interference, to abolish, curtail, or 
modify the jurisdiction which has once been acquired 
by equity. The equitable jurisdiction therefore exists, 
although the reasons for its exercise have nearly or quite 
disappeared, and the instances of its exercise in actual 
practice have perhaps been greatly lessened in number.^ ^ 
The second mode of enlarging the jurisdiction at law has 
been by statute. The legislature has interfered, and has 
directly created a jurisdiction at law over particular 
subject-matters, which before did not exist in any degree, 
or has amplified and extended it where it was before par- 
tial and incomplete. In these instances of statutory juris- 

§ 182, 1 Collins V. Blantern, 2 Wils. 341, 350, per Wilmot, C. J. ; At- 
kinson V. Leonard, 3 Brown Ch. 218, 224; Harrington v. Du Chatel, 1 
Brown Ch. 124; Bromley v. Holland, 7 Ves. 3, 19-21; Kemp v. Prior, 7 
Ves. 237, 249, 250; East India Co. v. Boddam, 9 Ves. 464, 46S, 469; 
Ex parte Greenway, 6 Ves. 812; Varet v. N. Y. Ins. Co., 7 Paige, 560, 568, 
per Walworth, C; King v. Baldwin, 2 Johns. Ch. 554, 17 Johns. 384, 8 
Am. Dec. 415 ; Rathbone v. Warren, 10 Johns. 587 ; Viele v. Hoag, 24 Vt. 
46; Wells v. Pierce, 27 N. H. 503, 512, 513; Smith v. Hays, 1 Jones Eq. 
321; Miller v. Gaskins, 1 Smedes & M. 524; Burton v. Hynson, 14 Ark. 
32 ; Eorce v. City of Elizabeth, 27 N. J. Eq. 408 ; People v. Houghtaling, 
7 Cal. 34S, 351; Heath v. Derry Bk., 44 N. H. 174; Irick v. Black, 17 
N. J. Eq. 189, 199. 

§ 182, (b) The text is cited in wlioro a defense, originally equi- 

Hoge V. Fidelity Loan & Trust Co. table, has become legally cognizable, 

(Va.), 48 S. E. 494, limiting the ex- and a judgment is sought to be en- 

ercise of this principle in the case joined because of such defense. 


diction at law, the general principle above stated is not so 
absolute in its operation, although the statutes, so far as 
they affect and tend to abridge the pre-existing jurisdic- 
tion of equity, are very strictly construed. The following 
conclusions, however, are sustained by the weight of judi- 
cial authority: Whenever the statutes conferring the new 
jurisdiction upon the law courts are permissive only, or 
whenever they not only contain no express prohibitory 
language, but also do not indicate, from all their provisions 
taken together, any clear intent to restrict the equitable 
jurisdiction, that jurisdiction remains unaffected, and may 
still be exercised, even though the rights protected and 
the remedies conferred have by the statutes been made 
legal, and a relief ordinarily sufficient, even amply sufficient 
and complete, may be obtained through the actions at 
law.2 c But the effect depends upon the legislative intent. 

§182, 2 Lane v. Marshall, 1 Heisk. 30, 34; State v. Alder, 1 Heisk. 
543, 547. As examples, statutes authorizing a party to any action to call 
the opposite party as a witness have been held not to deprive equity of its 
jurisdiction to entertain suits for discovery: Cannon v. LIcNab, 48 Ala. 
99; Millsaps v. Pfeiffer, 44 Miss. 805; per contra, Riopelle v. Doellner, 
26 Mich. 102, and Hall v. Joiner, 1 S. C. 186. And it has been held 
that statutes giving law courts jurisdiction to grant some special relief 
in cases of fraud or mistake did not abridge the like jurisdiction which 
had existed in equity: Babcock v. McCamant, 53 111. 214, 217; Dorsey v. 
Reese, 14 B. Mon. 127. Statutes authorizing defenses to be set up in 
bar of actions at law on gaming, illegal, and usurious contracts have not 
generally been regarded as affecting the pre-existing jurisdiction of equity 
over the same class of agreements : Day v. Cummings, 19 Vt. 496 ; Fanning 
V. Dunham, 5 Johns. Ch. 122, 9 Am. Dec. 283; Wistar v. McManes, 54 
Pa. St. 318, 327, 93 Am. Dec. 700; West v. Beanes, 3 Har. & J. 568; 
Gough V. Pratt, 9 Md. 526; Thomas v. Watts, 9 Md. 536; White v. 
Washington's Ex'r, 5 Gratt. 645; Lucas v. Waul, 12 Smedes & M. 157; 
Humphries v. Bartee, 10 Smedes & M. 282, 295. Statutes giving juris- 

§182, (c) The text is cited to tliis may demand a jury trial of "issues 

effect in Black v. Boyd, 50 Ohio St. of fact arising in actions for the 

46, 33 N. E. 207, holding that equity recovery of money only." The text 

jurisdiction in matters of mutual is cited, also, in Wilson v. State 

and complicated accounts is not Water Supply Commission, 84 N. J. 

abrogated by section 5130, Rev. Stat. Eq. 150, 93 Atl. 732. 
Ohio, providing that either party 


If the statute is expressly prohibitory upon the equity 
courts, or if it shows a clear and certain intent that the 
equitable jurisdiction is no longer to be exercised over the 
matters within the scope of the enactment, then such juris- 
diction of equity in the particular class of cases must be 
considered as virtually abrogated.^ ^ The two principles 
stated in this and the preceding paragraphs apply also to 
the exclusive jurisdiction, as rules regulating the admin- 
diction over matters of dower to the probate court do not interfere with 
the jurisdiction of equity; Jones v. Jones, 28 Ark. 19. Statutes giving 
law courts power to entertain actions on lost instruments: Hardeman v. 
Battersby, 53 Ga. 36; Bright v. Newland, 4 Sneed, 440, 442. Statute 
permitting action at law to recover a partnership debt out of estate of 
deceased partner: Waldron v. Simmons, 28 Ala. 629. Statutes giving a 
garnishment process against debtors, etc., of the principal debtor do not 
interfere with pre-existing equitable jurisdiction : King v. Payan, 18 Ark. 
583, 587, 588 ; Grain v. Barnes, 1 Md. Gh. 151 ; Payne v. Bullard, 23 Miss. 
88, 90, 55 Am. Dec. 74. Statutes giving actions at law against or in favor 
of married women: Mitchell v. Otey, 23 Miss. 236, 240. Statute per- 
mitting assignee of a thing in action to sue at law in his own name : 
Dobyns v. McGovern, 15 Mo. 662, 668. Statute permitting the defense 
at law of failure of consideration on a bond or note, etc. : Gase v. Fish- 
back, 10 B. Mon. 40, 41. And see, with regard to the general doctrine, 
Wells V. Pierce, 27 N. H. 503, 511-513 ; Clark v. Henry's Adm'r, 9 Mo. 
336, 339; Oliveira v. University of North Gar., 1 Phill. Eq. 69, 70; Bid- 
die v. Moore, 3 Pa. St. 161, 175, 176; Wesley Ghurch v. Moore, 10 Pa. 
St. 273; Babcock v. McGamant, 53 111. 214, 217. 

§ 182, 3 See Erie Railway v. Ramsey, 45 N. Y. 637, per Folger, J., as 
to the effect of the provision of the code of procedure permitting all possi- 
ble equitable defenses to be set up in actions at law; Schell v. Erie Rail- 
way, 51 Barb. 368; Dorsey v. Reese, 14 B. Mon. 127; Winfield v. Bacon, 
24 Barb. 154; Savage v. Allen, 59 Barb. 291; Wolcott v. Jones, 4 Allen, 
307; Glen v. Fowler, 8 Gill & J. 340; Brown's Appeal, 06 Pa. St. 155; 
Patterson v. Lane, 35 Pa. St. 275; McGough v. Ins. Go., 2 Ga. 151, 154, 
46 Am. Dec. 382; Hall v. Joiner, 1 S. G. 186; Askew v. Myrick, 54 Ala. 
30. It has been held that when a new legal right is wholly created by 
statute, and a legal remedy for its violation is also given by the same 
statute, equity has no authority to interfere with its reliefs, even though 
the statutory remedy is difficult, uncertain, and incomplete : Goleman v. 
Freeman, 3 Ga. 137; Janney v. Buel, 55 Ala. 408. 

§ 182, (d) Quoted in Phipps v. Kelly, 12 Or. 213, 6 Pac. 707. 


istration of strictly equitable remedies, but they are of far 
greater importance in their application to the concurrent 
jurisdiction, and aid in fixing its extent, and in determin- 
ing when courts of equity have power to grant remedies 
strictly legal, for the purpose of maintaining or redressing 
legal primary rights and interests. 

§ 183. Effect of the Reformed Procedure.^— The re- 
formed system of procedure which now prevails in more 
than half of the American commonwealths, in England, 
and in the most important dependencies of the British em- 
pire, has also profoundly affected the scope of the con- 
current jurisdiction, in one direction practically enlarging, 
in another practically lessening it. The fundamental prin- 
ciple of this reformed system is, that all distinctions be- 
tween legal and equitable actions are abolished, the one 
"civil action" is the single judicial means for enforcing 
all rights in a court clothed with both jurisdictions of law 
and of equity in combination, and in this civil action legal 
and equitable primary rights, causes of action, and de- 
fenses may be united, and legal and equitable remedies 
may be obtained. In applying this principle, the follow- 
ing results have been well established : Whenever a plain- 
tiff is clothed with primary rights, both legal and equi- 
table, growing out of the same transaction or condition of 
facts which thus constituted a cause of action, and is en- 
titled thereon to an equitable remedy, and also to a fur- 
ther legal remedy based upon the supposition that the 
equitable relief is granted, and he sets forth all these facts 
in his petition, and demands a judgment awarding both 
species of relief, the action will be sustained; the court 
will, in its judgment, formally grant both the equitable and 
the legal relief. ^^ In these cases there is, properly cou- 

§ 183, 1 See Pomeroy on Remedies, § 78; Cone v. Niagara Ins. Co., 60 
N. Y. 619, 3 Thorap. & C. 33; Anderson v. Hunn, 5 Hun, 79; Bruce v. 

§ 183, (a) This paragraph of the § 183, (b) Cited to this effect in 

text is cited in Brown v. Baldwin, Installment B. & L. Co. v. Went- 
46 Wash. 106, 89 Pac. 483. worth, 1 Wash. St. 467, 25 Pac. 298; 


sidered, no joinder of different causes of action; tliere is 
only the union of different remedial rights flowing from 
one cause of action. Another result of the principle 
differs from the one just stated only in matter of form. 
The plaintiff, as in the last instances, is clothed with cer- 
tain primary rights, both legal and equitable, arising from 
the same transaction or condition of facts, and is entitled 
to some equitable relief, and to legal relief based upon the 
assumption that the former relief is awarded ; he avers all 
the necessary facts in his complaint or petition, and. de- 
mands both the remedies to which he is entitled, or per- 
haps only the legal remedy. The court, instead of for- 
mally conferring the specific equitable remedy, and then 
proceeding to grant the ultimate legal remedy, may treat 
the former as though accomplished, and render a simple 
common-law judgment, embracing the final legal relief 
which was the real object of the suit, a recovery of money 
or of specific real or personal property.^ c it is plain from 

Kelly, 5 Hun, 229, 232; Laub v. Biickmiller, 17 N. Y. 620, 626; Lattin 
V. McCarty, 41 N. Y. 107, 109 ; Welles v. Yates, 44 N. Y. 525 ; N. Y. Ice 
Co. V. N. W. Ins. Co., 23 N. Y. 357, 359; Cahoon v. Bank of Utiea, 7 
N. Y. 486; Broiestedt v. South Side R. R., 55 N. Y. 220, 222; Davis v. 
Lamberton, 56 Barb. 480, 483; Brown v. Brown, 4 Rob. (N. Y.) 4S8, 
700; Walker v. Sedgwick, 8 Cal. 398; Gray v. Dougherty, 25 Cal. 266; 
Henderson v. Dickey, 50 Mo. 161, 165; Guernsey v. Am. Ins. Co., 17 
Minn. 104, 108; Montgomery v. McEwen, 7 Minn. 351. But per contra^ 
in Wisconsin: Supervisors v. Decker, 30 Wis. 624, 626-630; Noouan v. 
Orton, 21 Wis. 283; Horn v. Luddington, 32 Wis. 73. 

§ 183, 2 See Pomeroy on Remedies, § 80; Cone v. Niagara Fire Ins. Co., 
60 N. Y. 619, 3 Thomp. & C. 33 ; BidweU v. Astor Ins. Co., 16 N. Y. 263, 
267; Phillips v. Gorham, 17 N. Y. 270; Caswell v. West, 3 Thomp. & C. 

quoted in Browder v. Phinney, 30 his acts of part performance, but the 

Wash. 74, 70 Pac. 264. only relief demanded was damages 

§183, (c) This rule is well illus- for his eviction. Held, error to dis- 

trated in the case of Browder v, miss the action on the ground that 

Phinney, 30 Wash. 74, 70 Pac. 264. relief could only be granted in 

A complaint stated facts which equity. See, also, Westerfelt v. 

would have entitled the plaintiff to Adams, 131 N. C. 379, 42 S. E. 823 

specific performance of a contract (recovery in ejectment on an equi- 

to make a written lease, by reason of table title). 


the foregoing rules of the reformed procedure that a court 
clothed with full equity powers may, by means of a suit 
equitable in its form, and requiring the determination of 
equitable primary and remedial rights, also adjudicate 
upon rights and award remedies strictly legal, which might 
be adjudicated upon and awarded in an action at law ; and 
this is the essential feature of the concurrent jurisdiction. 
While the doctrines of the reformed procedure thus oper- 
ate to enlarge the concurrent jurisdiction, the further doc- 
trine that equitable defenses may be set up in actions 
purely legal practically produces a contrary result, by 
greatly lessening the number of instances in which the 
interposition of equity courts is necessary to accomplish 
the ends of justice. In theory, however, this admission of 
equitable defenses has been held not to have curtailed or 
affected the pre-existing equity jurisdiction. This ques- 
tion is most intimately connected with the subject of in- 
junctions to restrain actions or judgments at law, and its 
discussion is therefore postponed to a subsequent section. <i 

§ 184. The Principal Matters Within the Concurrent 
Jurisdiction. — Having thus stated the doctrines which 
affect in a general manner the concurrent jurisdiction of 
equity, I shall now proceed to enumerate and briefly to ex- 
plain the various classes of cases which constitute the ordi- 
nary and well-settled instances of that jurisdiction. These 
instances will be arranged into groups according to the 
nature of the final relief obtained, which is, of course, 
esseniially the same as that conferred at law under like 
circumstances, namely: 1. Those in which the relief is 

383 ; Sternbei-ger v. McGovern, 56 N. Y. 12, 21 ; McNeady v. Hyde, 47 Cal. 
481, 483 ; N. Y. Ice Co. v. N. W. Ins. Co., 23 N. Y. 337, 359 ; Graves v. 
Spier, 58 Barb. 349, 383. See, also, Marquat v. Marquat, 12 N. Y. 336; 
Barlow v. Scott, 24 N. Y. 40, 45; Cuff v. Borland, 55 Barb. 481; Herring- 
ton V. Robertson, 7 Hun, 368; White v. Lyons, 42 Cal. 279; Foster v. 
Watson, 16 B. Mon. 377, 387; Leonard v. Rogan, 20 Wis. 540; Pomeroy 
on Remedies, § § 81, 82. 

§ 183, (d) See, further, §§ 353-358, 1366-1374. 


substantially the recovery of possession, or tlie establish- 
ment of a right to the possession, of land; 2. Those in 
which the relief is the recovery of possession or delivery 

^of specific chattels or written instruments ; and 3. Those in 
which the relief is pecuniary, the recovery of or obtaining 
of money. This classification, although generally prac- 
ticable, is not absolutely perfect. In a few cases the par- 
ticular exercises of the concurrent equitable jurisdiction, 

' depending upon the same principles and controlled by the 
same rules, may include both a recovery of specific chat- 
tels and of money, as in the enforcement of gifts causa 

§ 185. 1. Under the first of these classes, where the final 
relief is substantially a recovery or obtaining possession 
of specific portions of land, the concurrent jurisdiction is 
clearly established, and its exercise is a matter of ordinary 
occurrence, in suits for the partition of land among joint 
owners or owners in common ; ^ in suits for the assignment 
or admeasurement of dower ; 2 and in suits for the adjust- 
ment of disputed boundaries, ^ ^ where some equitable inci- 
dent or feature is involved, and the dispute is not wholly 
confined to an assertion of mere conflicting legal titles or 
possessory rights.^ 2. Under the second class, where the 
final relief is substantially a recovery of chattels, the juris- 
diction embraces suits to compel the restoration or delivery 

§ 185, 1 Jeremy's Eq. Jur. 303-306 ; Fonblanque on Equity, 18-22 
(35-39) ; Agar v. Fairfax, 17 Ves. 533. 2 Lead. Cas. Eq. 865-919, and 
notes thei-eon; 1 Spenee's Eq. Jur. 653, 654. 

§ 185, 2 Jeremy's Eq. Jur. 306; Fonblanque on Equity, 22-24 (39, 40); 
1 Spenee's Eq. Jur. 653. 

§ 185, 3 Jeremy's Eq. Jur. 301, 302; Fonblanque on Equity, 21, 22 (37, 
38) ; Wake v. Conyers, 1 Eden, 331, 2 Lead. Cas. Eq. 850-864, and note 
thereon; 1 Spenee's Eq. Jur. 655. 

§ 185, (a) New York & T. Land is as to location. Link v. Caldwell, 

Co. V. Gulf, W. T. & P. B. Co., 100 22 Ky. L. Rep. 1041, 59 S. W. 502. 
Fed. 830, 41 C. C. A. 87. Equity §185, (b) In U. S. v. Flournoy 

will also determine the location o±' etc. Co., 69 Fed. 886, it was held 

a passway, when the only question that the United States, as trustee 




of possession of specific chattels of such a peculiar, un- 
common, or unique character that they cannot be replaced 
by means of money, and are not susceptible of being com- 
pensated for by any practicable or certain measure of 
damages, and in respect of which the legal actions of re- 
plevin, detinue, or trover do not furnish a complete rem- 
edy.4 <= This particular exercise of the jurisdiction ex- 

§185, 4 Jeremy's Eq. Jur. 467^70; Fonblanque on Equity, 31 (48); 
Pusey V. Pusey, 1 Vern. 273; 1 Lead. Cas. Eq. 1109-1117, and note 
thereon; 1 Spence's Eq. Jur. 643, 644. 

for Indians, can maintain a bill to 
oust parties occupying under illegal 
leases and to restrain such parties 
from inducing the Indians to make 
further leases. 

185, (c) Recovery of Specific 
Chattels. — For further treatment of 
this subject, see Pom. E'q. Eem. The 
text is quoted in Friedman v. Fraser, 
157 Ala. 191, 47 South. 320. Thus, 
equity has allowed a bill for the 
recovery of pen and pencil sketches 
(Lang V. Thatcher, 48 App. Div. 
313, 62 N. Y. Supp. 956); of wampum 
belts (Onondago Nation v. Thatcher, 
29 Misc. Eep. 428, 61 N. Y. Supp. 
1027; affirmed, 65 N. Y. Supp. 1014); 
of a cup won as a prize (Wilkinson 
V. Stitt, 175 Mass. 581, 56 N". E. 
830); of notes, bond, mortgage, and 
book accounts (Bindseil v. Smith, 
Gl N. J. Eq. 654, 47 Atl. 456); 
Tombler v. Sumpter, 97 Ark. 480, 
134 S. W. 967 (compelling delivery 
of deed held in escrow) ; compare 
Friedman v. Fraser, 157 Ala. 191, 
47 South. 320, quoting text, but 
holding that the bonds in question 
did not have a unique or peculiar 
value so as to call for the exercise 
of the jurisdiction. See, also, Clark 
V. Flint, 39 Mass. (22 Pick.) 231, 33 
Am. Dec. 733; L'quitable Trust Co. 
V. Garis, 190 Pa. St. 544, 42 Atl. 
1022. 49 Wklv. Notes Cas. 41. In 

Cushraan v. Thayer Mfg. Jewelry 
Co., 76 N. Y. 365, 32 Am. Rep. 315, 
the jurisdiction was maintained to 
compel the transfer of corporate 
stock of a peculiar value to the true 
owner. In Dock v. Dock, 180 Pa. 
St. 14, 57 Am. St. Rep. 617, 36 Atl. 
411, the plaintiff was allowed to re- 
cover letters written by her to her 
son, and by the son to plaintiff. The 
court said: "In the letters written 
by her to her son, she has a special 
property to prevent their publication 
or communication to other persons, 
or use for any illegal purpose by 
the party wrongfully in possession 
of them. The special right in these 
letters is one that can only be ade- 
quately protected in equity, and the 
court, having acquired jurisdiction 
for any part of the substantial re- 
lief sought, will go on and admin- 
ister full relief as to all the matters 
in the bill, both the letters and the 
alleged copies." It was held that 
slaves were property of such a 
peculiar nature that a bill would 
lie for their specific recovery. Mur- 
phy V. Clark, 9 Miss. (1 Smedes & 
M.) 221; Hull v. Clark, 22 Miss. (U 
Smedes & M.) 187; Harry v. Glover, 
Riloy Eq. 53, 2 Hill. Eq. 515; Young 
V. Burton, 1 McMull. Eq. 255; Bobo 
V. Grimke, 1 McMull. Eq. 304; Sims 
V. Shelton, 2 Strobh. Eq. 221; Spend- 




tends, for like reason, to suits to compel the delivery of 
deeds, muniments of title, and other written instruments, 
the value of which cannot, with any reasonable certainty, 
be estimated in money.^ ^ The equitable jurisdiction in 
these cases really rests upon the fact that the only relief 
which the plaintiff can have is the possession of the iden- 
tical thing, and this remedy cannot with certainty be ob- 
tained by any common-law action. In the same class must 
be placed suits, which are maintainable, under some special 
circumstances, for the partition of chattels, analogous to 
those for the partition of land.® 

§185, 5 Jeremy's Eq. Jur. 468, 469; Fonblanque on Equity, 43 (60, 
61) ; 1 Lead. Cas. Eq., note to Pusey v. Pusey, 1113. 

love V. Spendlove, Cam. & N. 36. It 
was necessary, however, that plain- 
tiff's right be unquestionable. Mar- 
tin V. Fancher, 21 Tenn. (2 Humph.) 
510. And no relief could be had 
when defendant did not have pos- 
session. Brown v. Goolsby, 34 Miss. 

Where the law provides no remedy 
whatever, equity may well take 
jurisdiction. Thus, where replevin 
will not lie because the goods are in 
the custody of a collector of internal 
revenue, a bill in equity is the only 
appropriate remedy. Pollard v. Eear- 
don, 65 Fed. 848, 13 C. C. A. 171, 21 
U. S. App. 639. 

§ 185, (d) Delivery of Written In- 
strument. — The text is cited and fol- 
lowed in Bindseil v. Smith, 61 N. J. 
Eq. 654, 47 Atl. 456; Kelly v. Lehigh, 
Min. & Mfg. Co., 98 Va. 405, 81 Am. 
St. Rep. 736, 36 S. E. 511; and 
quoted in Friedman v. Fraser, 157 
Ala. 191, 47 South. 320, dissenting 
opinion. See Folsom v. McCague, 
29 Neb. 124, 45 N. W. 269; Equi- 
table Trust Co. V. Garis, 190 Pa. 
St. 544, 70 Am. St. Ecp. 644, 4ii 

Atl. 1022, 44 Wkly. Notes Cas. 41; 
Danforth's Adm'r v. Paxton, 1 Wash, 
St. 6, 23 Pac. 801; Bindseil v. Smith, 
61 N. J. E'q. 654, 47 Atl. 456, citing 
the text (written instrument of 
transfer necessary, and damages not 
adequate relief) ; Scarborough v. 
Scotten, 69 Md, 137, 9 Am. St. Rep. 
409, 14 Atl, 704 (recovery of notes 
and bills; trover and replevin in- 
adequate). Equity may order the 
conveyance of a patent obtained by 
fraud. White v. Jones, 4 Call, 253, 
2 Am. Dec. 564. In Walker v. Daly, 
80 Wis. 222, 49 N. W. 812, a recovery 
was allowed of certificates of land 
location. The court held that re- 
plevin would not lie because the 
certificates were hereditaments. 

§ 185, (e) The text is quoted in 
Zinn V. Zinn (W. Va.), 46 S. E. 202, 
dissenting opinion. "Equity has ex- 
clusive jurisdiction of suits for the 
partition of personal property, even 
though the defendant denies plain- 
tiff's title." Eobinson v. Dickey, 143 
Ind. 205, 52 Am, St. Rep. 417, 42 
N. E. 679. 


§ 186. 3.^ Under the third general class, where the final 
relief is pecuniary, or recovery or award of money in some 
form or for some purpose as the result of the preliminary 
determination or adjustment of primary or remedial rights 
which are legal, the well-settled instances of the concurrent 
jurisdiction are many in number and varied in kind. The 
following are the most important and the ones most fre- 
quently met in actual practice: In the contract of surety- 
ship, and the relations growing out of it between sureties 
themselves, sureties and their principal and the creditor, 
the equitable jurisdiction includes suits for exoneration 
and for contribution, in the decision of which the principle 
of subrogation and marshaling of securities, and other 
equitable doctrines necessary to a complete adjustment of 
all claims and liabilities, may be invoked and enforced. ^ 
In the contract of partnership and the relations arising 
therefrom, the jurisdiction embraces suits for contribution, 
accounting, and pecuniary recovery necessary for the set- 
tlement of all claims which may exist between the partners 
themselves, or between the partnership and its members 
and the firm and individual creditors, all claims in fact for 
which the law by its actions gives no adequate remedy.^ b 
The principle of contribution,^ and the pecuniary recov- 

§ 186, 1 Jeremy's Eq. Jur. 517; Bering v. Earl of Winchelsea, 1 Cox, 
318, 1 Lead. Cas. Eq. 120-188, and notes thereon; Aldrich v. Cooper, 8 
Ves. 308, 2 Lead. Cas. Eq. 228, and notes thereon, 1 Spence's Eq. Jur. 

§ 186, 2 Jeremy's Eq. Jur. 515-517; 2 Lead. Cas. Eq. 391-429, note to 
Silk V. Prime, 1 Brown Ch. 138, note; 1 Spence's Eq. Jur. 664-667. 

§ 186, (a) Cited with approval in tiring member thereof to subject to 

Stoclfton V. Anderson, 40 N. J. Eq. execution property fraudulently 

488, 4 Atl. 642. withdrawn by the latter, a mere per- 

§ 186, (b) Partnership Accounting. sonal judgment against him was the 

See Pom. Eq. Rem. Equity will proper form of equitable relief, 

grant an account in settling partner- Baily v. Hornthal, 154 N. T. 648, 

Fhip affairs. Bellinger v. Lehman, 661, 61 Am. St. Kep. 645, 652, 49 

Durr & Co., 103 Ala. 385, 15 South. N. E'. 56. 

(JOG; Irwin v. Cooper, 111 Iowa, 728, §186, (c) In Eindge v. Baker, 57 

82 N. W. 757. In a suit against N. Y. 209, 15 Am. Rep. 475, there 

members of a partnership and a re- was an agreement between two ad- 


eries depending upon it, have, in the exercise of the con- 
current jurisdiction, a very wide application, and are en- 
forced under a great variety of circumstances. The most 
important, comprehensive, and multiform remedy of the 
concurrent jurisdiction which results in pecuniary recov- 
eries is that of accounting. 3 The variety of its uses and 
possible applications is practically unlimited; it can be 
adapted to all circumstances and relations in whicJi an 
account is necessary for the settlement of claims and lia- 
bilities, and for the doing full justice to the litigant par- 
ties. <l Among the most common instances in which this 
remedy is employed by courts of equity are the ascertain- 
ing and settlement of claims and liabilities between prin- 
cipals and agents,^ ® and between all other persons stand- 
ing in fiduciary relations to each other ;^ the ascertaining 
and adjustment of the respective amounts of persons en- 
titled to participate in the same fund,^ and of the respec- 
tive shares of persons subjected to some common liability ; 

§186, 3 Jeremy's Eq. Jiir. 504-550; Fonblanque on Equity, 470-473; 
1 Spence's Eq. Jur. 649-651. 

§ 186, 4 Jeremy's Eq. Jur. 513, 514. 

§ 186, 5 Jeremy's Eq. Jur. 522, 523, 541-544. 

joining owners to construct a party- Fed. 890, 894, 113 C. C. A. 368, to 
wall. One refused to do Ms part, tlie effect that the relation of prin- 
whereupon the other completed and cipal and agent being fiduciary, may 
then sued for contribution. The in some cases in itself confer juris- 
court said: "It is claimed that the diction in equity; quoted in Hurl- 
present action is not an equitable hurt v. Morris, 68 Or. 259, 135 Pac. 
one. The fact that it is brought for 531, holding that the mere existence 
money is not decisive on that point. of agency is not enough to confer 
The real test in such an action is jurisdiction, but that there must be 
this: "If it be brought for damages an agency coupled with some dis- 
for breach of contract, it is a case tinct duty on the part of the agent 
at law; if it be brought for money, in relation to funds or some specific 
by way of performance of the con- property, 
tract, it is a case in equity." § 186, (f ) Hunter v. U. S., 30 

§186, (d) The text is quoted in U. S. (5 Pet.) 173. Where a party 

State V. Chicago & N. W. By. Co., seeks to reach a particular fund, he 

132 Wis. 345, 112 N. W. 515. may obtain relief in equity. Smith 

§ 186, (e) The text is cited in v. Bates Match Co., 182 111. 166, 55 

Hayward & Clark v. McDonald, 192 N. E. 69. 




the ascertaining and adjustment of the shares of persons 
liable to contribute to a general average; the ascertain- 
ing and adjustment of the shares of persons liable to con- 
tribute with respect to charges of any kind upon land or 
other property ; the appropriation of payments ; the appor- 
tionment of rents ; ^ and numerous other instances where 
a number of persons are differently interested in the same 
subject-matter, or are differently liable with respect to 
some common objects 

§ 187.^ In the same general class of pecuniaiy reliefs 
belonging to the concurrent jurisdiction, and united 
together by a tie of close analogy, are suits for the re- 
covery of legacies, 1 suits for the recovery or enforcement 
of donations causa mortis,'^ and the various suits, involv- 

§ 186, 6 Jeremy's Eq. Jur. 506, 512, 519; 1 Spence's Eq. Jur. 661-664. 
§ 187, 1 Jeremy's Eq. Jur. 105, 537, 548} 1 Spence's Eq. Jur. 578-583. 
§ 187, 2 Snell's Eq. 138-144. 

§ 188, (g) The text is cited in 
Gulf Compress Co. v. Jones Cotton 
Co., 157 Ala. 32, 47 South. 251 (un- 
certain which of two defendants, 
who were in privity of contract, 
was liable to complainant for goods 
damaged or lost, or in what propor- 
tion, if both were liable). See, in 
general, Sears v. Hotchkiss, 25 Conn. 
171, 65 Am. Dec. 557; Pittsburg, C 
& St. L. E'y. Co. V. Koekuk & H. 
Bridge Co., 68 Fed. 19, 15 C. C. A. 
184, 46 U. S. App. 530; Tasker v. 
Ford, 64 K H. 279, 8 Atl. 823; 
Colthar v. North Plainfield Tp., 39 
N. J. Eq. 380; Meyer v. Saul, 82 
Md. 459, 33 Atl. 539; City of 
Apalaehicola v. Apalachieola Land 
Co., 9 Fla. 340, 79 Am. Dec. 284. 
See, as further illustration, Warfield- 
Pratt-Howell Co. v. Williamson, 233 
111. 487, 84 N. E. 706 (demand on 
insurance policies is to be paid out 
of a particular fund created or to 
be created by contributions made 

by a large number of persons, which 
is either in the hands of the manager 
or is to be collected by him from the 
subscribers; personal decree to com- 
pel collection may be necessary). 
Equity will take jurisdiction where 
accounts are complicated. Warner v. 
McMullin, 131 Pa. St. 370, 18 Atl. 
1056, 25 Wkly, Notes Cas. 157; In- 
hab. of Cranford Tp. v. Watters, 61 
N. J. Eq. 248, 48 Atl. 316; O'Con- 
nor V. Henderson Bridge Co., 95 Ky. 
633, 27 S. W. 251, 983; Williams v. 
Allen, 32 N. J. Eq. 485; Flickinger 
V. Hull, 5 Gill, 60. Equity will 
take jurisdiction of mutual ac- 
counts. Board of Commissioners of 
Grant County v. McKinlcy, 8 Okl. 
128, 56 Pac. 1044; Brewer v. Asher, 
8 Okl, 231, 56 Pac. 714; Black v. 
Boyd, 50 Ohio St. 46, 33 N. E. 207. 
§ 187, (a) This paragraph is cited, 
generally, in Brown v. Baldwin, 4G 
Wash. 106, 89 Pac. 4S3. 


ing some equitable feature or incident, brought in connec- 
tion with or in aid of the administration of the estates of 
deceased persons. ^^ Although the administration of de- 
cedents' estates has, in this country, been committed to 
courts of probate, and the former jurisdiction of equity 
to entertain ** administration bills" for the complete and 
final settlement of such estates does not practically even 
if nominally exist, still there are many special cases 
belonging to the concurrent jurisdiction in which suits may 
be brought to obtain pecuniary recoveries against execu- 
tors and administrators, in the process of and connected 
with their work of administering and settlement. 

§ 188. In another extensive class of suits brought to 
obtain pecuniary relief, and strictly belonging to the con- 
current jurisdiction, the remedial right is occasioned by 
or in some manner connected with accident, mistake, or 
fraud.i ^ These three matters play an important part 

§ 187, 3 Jeremy's Eq. Jur. 537-541 ; 1 Spence's Eq. Jur. 578-586. 

§ 188, 1 Fraud, mistake, and accident, being the mere occasions of 
primary and remedial rights, are not in any true sense the grounds and 
basis of jurisdiction ; the primary rights and interests, and the remedial 
rights, of which they are the occasion, belong to both jurisdictions. 
Excepting the particular case of suits to recover the amounts due upon 
lost bonds, bills, notes, etc., all the instances of suits arising from or 
based upon fraud, mistake or accident belonging to the concurrent juris- 
diction might be referred to some other head of that jurisdiction, such 
as "accounting," "contribution," and the like. 

§ 187, (b) The text is cited in sence of an adequate remedy at law 

Howell V. Morres, 127 111. 67, 19 N. is generally a sufiEicient ground of 

E. 863 (bill for accounting against equitable jurisdiction; but it is 

administrator of deceased trustee). equally true that the existence of a 

§188, (a) Thus, where plaintiff remedy at law cannot deprive courts 

seeks an abatement of the price of of equity of jurisdiction in a matter 

land on the ground of fraud as to that comes within the scope of their 

quantity, equity may grant relief. elementary jurisdiction." Meek v. 

"Fraud and misrepresentation are Spraeher, 87 Va. 162, 12 S. E. 397. 

among the elementary grounds of This paragraph of the text is cited 

equitable jurisdiction and relief. in Massie's Adm'r v. Heiskell's 

Where they exist, the question of an Trustee, 80 Va. 789, 801 (mistake of 

'adequate remedy at law' can but fact), 
seldom arise. It is true that the ab- 


throughout the entire equity jurisprudence; and all cases 
involving or in any manner depending upon or growing 
out of accident, or mistake, or fraud, have sometimes been 
described as belonging to the concurrent jurisdiction, since 
courts of law may also take cognizance of some causes of 
action or defenses arising from the same sources. In the 
classification which I have adopted, and which is far more 
accurate and consistent, all those cases in which the 
strictly equitable remedies of reformation, re-execution, 
cancellation, and the like, are granted on account of mis- 
take, accident, or fraud necessarily come within the exclu- 
sive jurisdiction.^ As these purely equitable kinds of re- 
lief are generally requisite, in order to do complete justice 
to the parties, where the remedial right arises from or is 
affected by mistake, accident, or fraud, it follows that the 
cases depending thereon, which properly belong to the con- 
current jurisdiction, are comparatively few.^ In truth, 
mistake, and especially fraud, instead of being particular 
source of the concurrent jurisdiction, are facts which affect 
the causes of action and reliefs, the primary and remedial 
rights constituting the whole of equity jurisprudence. 

§ 189. There are some other instances in which the con- 
current jurisdiction is exercised, because the legal remedy 
is inadequate, or because, through the imperfection of the 
procedure at law, a legal remedy would be wholly insuffi- 

§ 188, 2 1 Spence's Eq. Jur. 622, 628, 632 ; Jeremy's Eq. Jur. 359, 366, 

§188, (b) The text is cited to this tion for damages; relief by reinstat- 

effect in Bickley v. Commercial Bank ing action in court of another state 

of Columbia, 21 S. C. 886, 21 S. E. does not oust equity of its jurisdic- 

886; Mason v. Fichner, 120 Minn. tion). 

185, 139 N. W. 485; Wlatson v. Borah, The text is cited- to the effect that 

37 Old. 357, 132 Pac. 347 (caneella- the jurisdiction is not exercised in 

tion) ; Bruner v. Miller, 59 W. Va. 36, every case of fraud, in Lightfoot v. 

52 S. E. 995; and cited in Bush v. Davis, 198 N. Y. 261, 139 Am. St. 

Prescott & N. W. E. Co., 76 Ark. 497, Rep. 817, 19 Ann. Cas. 747, 29 

89 S. W. 86 (suit to cancel for fraud L. R. A. (N. S.) 119, 91 N. E. 582. 
a release and compromise of an ac- 




cient, if not impracticable.a- Among these tlie most im- 
portant are suits to recover rent under some special cir- 
cumstances ; 1 ^ suits to procure or compel a set-off wliicli 
is not admissible or possible under the practice at law;2e 
suits by one firm against another, when both firms have 
a common partner, and other analogous suits which the 
technical legal rules, as to parties, prevented from being 
entertained by courts of law ; ^ d and under peculiar cir- 
cumstances, recoveries of damages by way of compensa- 
tion in addition to, or even in place of, other equitable 

§ 189, 1 Fonblanque on Equity, b. 1, chap. 3, § 3, p. 156 (139). 
§ 189, 2 1 Spence's Eq. Jur. 651 ; 2 Lead. Cas. Eq. 1338-1347, notes to 
Earl of Oxford's case. 

§ 189, 3 1 Spence's Eq. Jur. 641, 642. 

§ 189, (a) When a factor deposits 
money collected as proceeds of sales 
for his principal in a bank, the prin- 
cipal may maintain a bill against the 
bank to recover the money. In such 
a case there is no legal remedy for 
the principal against the bank 
Union Stock Yards Nat. Bank v. Gil 
lespie, 137 U. S. 411, 11 Sup. Ct. 118 
In Chosen Freeholders of Essex Co 
V. Newark City Nat. Bank, 48 N. J 
Eq. 51, 21 Atl. 185, a county was al 
lowed to recover in equity from a 
bank a sum of money deposited by a 
former county collector in his own 

§ 189, (b) "Rent is recoverable in 
equity where the remedy has become 
diiEcult or doubtful at law, or where 
the premises have become uncer- 
tain." Livingston v. Livingston, 4 
Johns. Ch. 287, 8 Am. Dec. 562. 

§ 189, (c) Set-off. — The text is 
cited in Fleming v. Stansell, 13 Tex, 

Civ. App. 558, 36 S. W. 504; Farris 
V. McCurdy, 78 Ala. 250; De Laval 
Separator Co. v. Sharpless, 134 Iowa, 
28, 111 N. W. 438 (injunction against 
insolvent judgment plaintiff to com- 
pel a set-off.) 

§189, (d) Noyes v. Ostrom, 113 
Minn. Ill, 129 N. W. 142 (two firms 
having common member). Thus, 
where the lessor is also one of the 
lessees of a joint, and not several 
lease, the suit may be maintained in 
equity. Pelton v. Place, 71 Vt. 430, 
46 Atl. 63. 

§189, (e) Thus, where a party 
after contracting to sell land, con- 
veys it to another, and the legal 
remedy is insufficient because of the 
Statute of Frauds, a bill in equity 
for damages, relying upon part per- 
formance to take the case out of the 
statute, may be maintained. Jervis 
V. Smith, 1 Hoff. Ch. 470. 




§ 190. The auxiliary jurisdiction defined, 
5§ 191-209. Of discovery. 

§ 191. Definition and kinds of discovery. 
§ 192. Origin of, in English and in Roman law, 
§§193,194. Effect of modern legislation; how far discovery proper has been 
abolished by statutes. 
§ 195. General doctrine; when discovery will or will not be enforced. 
§§196,197. I. What judicial proceedings, in what courts, will be aided by 

discovery in equity. 
§§198-200. II. The parties; their situation and relations to each otherj in 
order that a discovery may be granted. 
§ 198. The plaintiff. 
§ 199. The defendant. 
§ 200. A bona fide purchaser. 
§§ 201-207. III. The nature, subject-matter, and objects of the discovery 
itself; of what the plaintiff may compel discovery, and the 
defendant must make discovery. 
§ 201. General doctrine; of what facts discovery will be compelled. 
§ 202. Of what kinds of facts discovery will not be compelled. 
§ 203. What is privileged from discovery. 

§ 204. The manner in which the defendant must make discovery. 
§§ 205-207. Production and inspection of documents. 

§ 208. IV. When, how far, and for whom may the answer in the dis- 
covery suit be used as evidence. 
§ 209. How far the foregoing rules have been altered by statute. 
§§ 210-215. Of the examination of witnesses. 

§ 210. This branch of the jurisdiction described. 
§§ 211, 212. I. Suit to perpetuate testimony. 

§ 212. iStatutory modes substituted. 
§§ 213-215. II. Suits to take the testimony of witnesses de bene esse, and of 
witnesses in a foreign country. 
§ 215. Statutory modes substituted. 

§ 190. Definition. — The auxiliary jurisdiction of equity 
belongs entirely to the procedure by which rights are en- 
forced and remedies are obtained, and is not in any manner 
concerned with the reliefs themselves which are granted, 
except so far as reliefs must always be indirectly affected 
by the procedure. Its object, scope, and functions are 


wholly confined to the procuring of evidence; and it con- 
sists of special judicial methods by which, under certain 
particular circumstances, the evidence needed in pending 
or anticipated litigations may be obtained. It is divided 
into two main branches : the first contains the modes by 
which the parties themselves are compelled to disclose 
facts and to produce documents, and thus to furnish the 
evidence needed by their adversaries; while the second 
contains the modes by which evidence of witnesses gen- 
erally is procured and preserved, under particular circum- 
stances, for which the common law made no provision. a- 
The rules of the ancient common law concerning the com- 
petency of witnesses were exceedingly arbitrary, and 
would often work great injustice, unless their defects had 
been supplied by the equitable jurisdiction. In the 
common-law courts, prior to the modern statutory legis- 
lation, a party could not be examined as a witness, nor 
forced to make admissions in his pleadings, in behalf of 
his adversary; nor was there any means in the common- 
law procedure of compelling a party to produce, or submit 
for inspection, or furnish copies of any documents or books 
which might be in his possession or under his control, how- 
ever important they might be to the other party's cause 
of action or defense. ^ It was to supply this grievous de- 
fect in the ancient common-law methods that equity estab- 
lished the first branch of its auxiliary jurisdiction, called 
discovery. 2 In like manner the ancient common law only 
permitted the examination of witnesses at the very trial 
of a cause, and its courts had no power to take testimony 
upon commission in anticipation of the trial, and much less 
in anticipation of the bringing of an action.^ This defect 
was supplied by equity in the second branch of its auxiliary 

§190, 13 Black. Com. 381, 382; Com. Dig., tit. Chancery, 3, B; 
Jeremy's Eq. Jur. 255; 1 Spence's Eq. Jur. 677. 
§ 190, 2 Ibid. 
§ 190, 3 3 Black. Com. 383 ; Jeremy's Eq. Jur. 270, 

§ 190, (a) Quoted in Winter v. Elmore, 88 Ala. 555, 7 South. 250. 


jurisdiction, which provides for and regulates the exam- 
ination of witnesses de bene esse, and the perpetuation of 
evidence. 4 I shall discuss these two branches separately. 


§ 191. Discovery Defined.^ — In one most important 
sense "discovery" is not peculiar to and does not belong 
to the auxiliary jurisdiction. Every suit in equity brought 
to obtain relief is or may be most truly a suit for dis- 
covery; for the complainant may always, and generally 
does, by the allegations and interrogatories of his bill, call 
upon and force the defendant to disclose by his answer 
under oath facts and circumstances within his knowledge 
in support of the plaintiff's contention; and the plaintiff 
may perhaps go to the hearing, relying largely, and some- 
times wholly, upon the evidence thus furnished by the 
compulsory admissions of the defendant's answer. This 
incident of chancery pleading, so entirely at variance from 
the common-law practice, by which the conscience of the 
defendant could be probed, and which was so powerful an 
instrument in eliciting the truth in judicial controversies, 
has been essentially adopted by the reformed system of 
procedure. Under that procedure this chancery mode of 
pleading for the purpose of eliciting facts as well as pre- 
senting issues has been essentially applied to all equitable 
suits, except those causes of action in which the defend- 
ant's admissions might expose him to criminal prosecu- 
tion, penalties, and the like. But this is not the discovery 
^ow under consideration.^ Discovery proper is, in its 

§ 190, 4 Jeremy's Eq. Jur. 255, 271, 273; 1 Spence's Eq. Jur. 681. 
§ 191, 1 The distinction here pointed out should be most carefully ob- 
served, or else the whole subject will become confused and uncertain. 

§191, (a) Cited with approval in Ala. 514, 52 South. 651; Sloss-Shef- 

Reynolds v. Burgess Sulphite Fibre field Steel & Iron Co. v. Maryland 

Co., 71 N. H. 332, 93 Am. St. Rep. Casualty Co., 167 Ala. 557, 52 Soutli. 

535, 57 L. R. A. 949, 51 Atl. 1075, in 751; Beem v. Farrell (Iowa), 108 

Mutual Life Ins. Co. v. Griesa, 156 N. W. 1044. 
Fed. 398; Townsend v. Miles, 167 


essential conception, merely an instrument of procedure, 
unaccompanied by any direct relief, but in aid of relief 
sought by the party in some other judicial controversy. 
The suit for discovery, properly so called, is a bill filed 
for the sole purpose of compelling the defendant to answer 
its allegations and interrogatories, and thereby to disclose 
facts within his own knowledge, information, or belief, or 
to disclose and produce documents, books, and other things 
within his possession, custody, or control, and asking no 
relief in the suit except it may be a temporary stay of 
the proceedings in another court to which the discovery re- 
lates. As soon, therefore, as the defendant in such suit 
has put in his answer containing a full discovery of all 
the matters and things which he is obliged, according to 
the principles and doctrines of equity on the subject, to 
disclose, the object of the suit has been accomplished, and 
the suit itself is ended ; nothing remains to be done but to 
use this answer as evidence in the judicial proceeding to 
which this discovery was collateral. ^ ^ This branch of the 
auxiliary jurisdiction may be invoked, and the suit in 
equity for a discovery may be maintained, by the plain- 
Unfortunately the decisions, esj^ecially the American, while speaking of 
"discovery," have not always been careful to distinguish between the 
"discovery" which is a constant incident to the obtaining of relief in every 
equity suit, and the "discovery" which is a branch of the auxiliary juris- 
diction, obtained in a separate suit without any relief. Rules and modes 
applicable alone to the latter have sometimes been spoken of as belonging 
to the former, and vice versa. 

§191, 2 Jeremy's Eq. Jur. 257, 258; 1 Spence's Eq. Jur. 677, 678; 
Adam's Eq., 6th Am. ed., 20, marg. p. 89; Lady Shaftesbury v. Arrow- 
smith, 4 Ves. 71; Kearney v. Jeffries, 48 Miss. 343; Heath v. Erie R. R., 
9 Blatchf. 316; Shotwell v. Smith, 20 N. J. Eq. 79. 

§ 191, (b) Cited to this effect in Co., 71 N. H. 332, 339, 93 Am. St. 

Hurricane Tel. Co. v. Mohler, 51 W. Eep. 535, 542, 57 L. R. A. 949, 51 

Va. 1, 41 S. E. 421; also in E'skridge Atl. 1075. To the same effect, see 

V. Thomas (W. Va.), 91 S. E. 7. Williams v. Phiel, 66 Fla. 192, 63 

Cited to the effect that the bill will South. 658, holding that in aid of the 

lie to compel the inspection of other discovery, the court may appoint a 

things than books and documents in receiver to examine and work the 

Reynolds v. Burgess Sulphite Fibre property. 


tiff in an action of law against the defendant therein, or 
by the defendant in an action at law against the plaintiff 
therein, in order to obtain evidence material to his cause 
of action or to his defense, as the case may be, and this is 
undoubtedly its most common purpose; ^ also by the de- 
fendant in a suit in equity, in the form of a cross-bill 
against the complainant therein, in order to obtain a dis- 
closure of facts necessary to enable him properly to frame 
his answer to the original bill, or to obtain a disclosure of 
facts material as evidence on his behalf at the hearing 
upon the original bill and answer thereto ; ^ and also, under 
some circumstances, by the moving party or petitioner in 
some proceeding in a court of equity to avoid the neces- 
sity or to escape the difficulty of procuring the evidence 
in that proceeding.^ It is not, however, essential to a bill 

§191, 3 Ibid. 

§ 191, 4 See King of Spain v. Hallett, 1 Clark & F. 333 ; Prioleau v. 
United States, L. R. 2 Eq. 659 ; United States v. Wagner, L. R. 2 Ch. 582, 
L. R. 3 Eq. 724; Columbian Govt. v. Rothschild, 1 Sim, 94; Millsaps v. 
Pfeiffer, 44 Miss. 805. 

§ 191, 5 Montague v. Dudman, 2 Ves. Sr. 398, per Lord Hardwicke: "A 
bill of discovery lies here in aid of some proceedings in this court (i. e., 
the court of chancery), in order to deliver the party from the necessity of 
procuring evidence; or to aid in the proceeding in some suit relating to a 
civil right in a court of common law, as an action." In an ordinary suit 
in equity the complainant has no need to file a separate bill of discovery; 
since he can always obtain all possible disclosure of material facts from 
the defendant in that same suit, by means of his bill and the defendant's 
answer. But rules hereinafter stated, concerning the subject-matter of 
the discovery, the materiality of the facts disclosed to the plaintiff's case, 
what disclosures cannot be compelled, privileged communications, the pro- 
duction of documents, etc., are generally applicable to the discoveiy sought 
by the plaintiff in a suit for relief, as well as to the discovery sought in 
a separate "suit for discovery" alone; many of the decisions cited to illus- 
trate these rules were rendered in suits for relief. The same is true under 
the new practice now prevailing in England and in many of our states, by 
which interrogatories filed by either party to a pending suit have been 
substituted in place of the discovery by means of the bill and answer in 
the same suit, or by means of a bill and answer in a separate "discovery 


of discovery that it should be the only means which the 
complainant therein has of procuring evidence in support 
of his collateral cause of action or defense; that is, it is 
not necessary that the complainant should otherwise be 
destitute of proof or of the means of obtaining it. The 
bill for a discovery is proper, either when the complainant 
therein has no other proof than that which he expects to 
elicit by its means from the defendant, or when he needs 
the matters thus disclosed to supplement and aid other evi- 
dence which he furnishes ; ^ or indeed whenever the court 
can fairly suppose that facts and circumstances discovered 
by means of the bill can be in any way material to the com- 
plainant therein in maintaining his cause of action or de- 
fense in a suit."^ ® 

§ 191, 6 Montague v. Dudman, 2 Ves. Sr. 398 ; Finch v. Finch, 2 Ves. 
Sr. 492; March v. Davidson, 9 Paige, 580; Many v. Beekman Iron Co., 
9 Paige, 188; Leggett v. Postley, 2 Paige, 599; Deas v. Harvie, 2 Barb, 
Ch. 448 ; Seymour v. Seymour, 4 Johns. Ch. 409 ; Gelston v. Hoyt, 1 Johns. 
Ch. 54; Metier v. Metier, 19 N. J. Eq. 457; Turner v. Dickerson, 9 N. J. 
Eq. 140 ; Baxter v. Earner, 7 Ired. Eq. 239. 

§ 191, 7 Peck V. Ashley, 12 Met. 478 ; Thomas v. Tyler, 3 Younge & C. 
255. The following are some of the most recent instances of the exercise 
of this jurisdiction by the American equity courts: Continental Life Ins. 
Co. V. Webb, 54 Ala. 688; Merchants' Nat. Bank v. State Nat. Bank, 3 
Cliff. 201; Hoppock v. United, etc., R. R., 27 N. J. Eq. 286; French v. 
Rainey, 2 Tenn. Ch. 640 ; French v. First Nat. Bank, 7 Ben. 488 ; Kearney 
V. Jeffries, 48 Miss. 343; Heath v. Erie R. R., 9 Blatehf. 316; Buckner v. 
Ferguson, 44 Miss. 677; Shotwell v. Smith, 20 N. J. Eq. 79. 

§ 191, (c) See, also, Attorney-Gen- sary to allege in the bill that the 
eral v. Gaskill, L. E. 20 Ch. Div. 519. plaintiff has no other witness or evi- 
"While it is necessary in a bill of dence to establish the facts of which 
discovery to show that the discovery the discovery is sought, for he is cn- 
is material to the support of the titled to it, if it be merely cumu- 
party's claim asking the same and lative evidence of material facts"; 
the manner in which it is material, Eussell v. Dickeschied, 24 W. Va. 61. 
it is not necessary to aver that the "When the plaintiff has any case to 
discovery is absolutely necessary make out, he has a right of discov- 
er indispensable for that purpose. ery of anything that may assist him 
It will be sufficient to state and in proving his case, or even tho 
show that it is material evidence. smallest title of it"; Jenkins v. 
Thus, for example, it is not necea- Bushby, 35 Law J. Ch. 400; Rey- 




§ 192. Its Origin. — The practice of tlie court of chan- 
cery to ''probe the conscience" of the defendant, and to 
compel him to make full disclosure of matters within his 
knowledge in all suits Ijrought for relief, was coeval with 
the establishment of the court itself, and was one of the 
principal means by which it rapidly extended its general 
jurisdiction. The auxiliary jurisdiction to compel dis- 
covery alone without relief, in aid of proceedings at law, 
was somewhat later in its origin, but still was exercised 
at an early day. I condense a brief account of its his- 
tory from the learned treatise of Mr. Spence.i In the 
reign of Edward IV. it was held that the donee in tail 
might have discovery of a deed, in possession of another, 
in aid of his title. ^ As early as the reign of Henry VI. 

§ 192, 1 See 1 Spenee's Eq. Jur. 677-680. 

§ 192, 2 1 Spenee's Eq. Jur. 678; 9 Edw. IV. 41; Bro. Abr., tit. Con- 
science, 3. 

nolds V. Burgess Sulphite Fibre Co., 
71 N. H. 332, 93 Am. St. Rep. 535, 
57 L. R. A. 949, 51 Atl. 1075. It is 
Bufficient if it appears that the dis- 
covery is "indispensable to justice"; 
Handley v. Hiffin, 84 Ala. 600, 4 
South. 725. "He must also show- 
that he is justly entitled thereto, 
as evidence in connection with the 
preparation and trial of his case, 
and that such evidence is necessary 
to enable him fully to prosecute or 
defend the same"; Gorman v. Bani- 
gan, 22 R. I. 22, 46 Atl. 38. See, 
also, Gallon Iron Works Co. v. Ohio 
Corrugated Culvert Co. (C. C. A.), 
244 Fed. 427 (a substantial necessity 
for discovery must be shown; no 
basis for such a suit if the disclosure 
sought is of evidence comparatively 
unimportant or merely cumulative, 
or if the plaintiff already has proof 
of the things alleged). Where the 
facts are within plaintiff's knowl- 
edge, as where he seeks discovery 

and account from a corporation to 
whose books he has access, a discov- 
ery will be denied; Kane v. Schuyl- 
kill Fire Ins. Co., 199 Pa. St. 205, 
48 Atl. 989; but see, distinguishing 
this case, Townsend v. Miles, 167 
Ala. 514, 52 South. 651 (discovery 
may be proper where complainants 
make charges of irregularities in the 
books on information and belief, and 
there is nothing to show that they 
could make legal and accurate proof 
of the facts alleged). Where the 
bill is for discovery and relief, it has 
been held that it must allege that 
the facts are known to no other per- 
son than the defendant; Vennum v. 
Davis, 35 111. 568. But such an al- 
legation is not necessary when the 
bill is filed purely for discovery in 
aid of a suit at law; Robson v. 
Doyle, 191 111. 566, 61 N. E. 43o; 
Marsh v. Davison, 9 Paige, 580; Cecil 
Nat. Bank v. Thurber, 59 Fed. 913, 
8 C. C. A. 365, 8 U. S. App. 496. 


chancery entertained jurisdiction to compel a discovery 
when it was needed to sustain an action at law, without 
reference to any equitable question. From his reign 
onwards, bills were entertained expressly for discovery, 
to enable the plaintiff to commence or prosecute proceed- 
ings at law.3 In the reign of Queen Elizabeth the court 
of chancery was accustomed to retain jurisdiction of cases 
for the decision of purely legal questions, where the par- 
ties had resorted to the court simply for the purposes of 
discovery. According to Lord Coke, this practice led the 
common-law judges, in a case referred to them by the 
chancellor, to adopt a solemn resolution by way of protest, 
and their action caused the chancellor to abridge this exer- 
cise of the equity jurisdiction.'* The limit thus placed 
upon the jurisdiction to grant relief, where the discovery 
is concerning matters purely legal, and no equitable fea- 
tures or incidents are involved in the controversy^ has 
been generally recognized and adopted by the subsequent 
English chancellors. While the principles as to discovery 
were thus settled at an early day, the system of rules which 
control its exercise was established by the chancellors sub- 
sequent to Lord Nottingham. The fundamental concep- 
tion of this auxiliary jurisdiction to obtain evidence by 
means of a suit for discovery was undoubtedly borrowed 
from the Roman law procedure. That law had provided 
actiones interrogatories by which defendants were obliged 
to make answer under oath to questions propounded, and 
actiones ad exJiihendum in which the decree compelled the 
defendant to produce some specific thing. The former 
class had, as it appears, become obsolete in the time of 

§ 192, 3 1 Spenee's Eq. Jur. 678 ; 36 Henry VI. 26 ; Caiy. 21. 

§ 192, 4 1 Spenee's Eq. Jur. 678, 679; 4 Inst. 84, 85. The resolution, 
so far as touches this subject, was as f oUows : "When any title of freehold 
or other matter determinable by the common law comes incidentally in this 
court (i. e., of chancery), the same cannot be decided in chancery, but 
ought to be referred to the trial of the common law." 


Justinian; but the general purposes, objects, and methods 
of the proceeding are described in the treatises and com- 
pilations of the Roman law which have survived to our 
own time.5 

§ 193. Effect of Modern Statutes.^ — ^Modern legislation 
has greatly interfered with the practical exercise of the 
auxiliary jurisdiction for a discovery, by introducing 
simpler and more efficacious methods in its stead, and by 
thus rendering a resort to it unnecessary and even inex- 
pedient. The important question is, whether the suit for 
a discovery alone, without relief, has been directly or in- 
directly abolished or superseded by the recent statutes. 
English statutes, passed not many years since, gave full 
power and authority to any party to an action or proceed- 
ing at law to examine his opponent under oath as a wit- 
ness ; ^ and full power to the common-law courts to compel 
any party to an action to produce documents. ^ These 
permissive statutes, it was held, did not interfere with the 
equity jurisdiction for discovery in aid of a cause of action 
or defense at law.^ More recent legislation of Parliament 
has gone much further. The supreme court judicature act 
of 1873, which consolidated all the superior courts into one 
tribunal having jurisdiction of all possible matters, except 
those purely ecclesiastical, which abolished the distinction 
between legal and equitable actions, and permitted all legal 
and equitable causes of action, defenses, and remedies to 
be united in one proceeding, and which provided for the 
examination of either party upon interrogatories at the 

§ 192, 5 Phillimore's Private Law among the Romans, 182. 

§ 193, 114 & 15 Vict., chap. 99, § 2. 

§193, 2 17 & 18 Vict., chap. 125, §§ 51, 52. 

§ 193, 3 British Empire Ship. Co. v. Somes, 3 Kay & J. 433 ; Lovell v. 
Galloway, 17 Beav. 1. This conclusion is reached by applying the general 
doctrine that equity, having once acquired jurisdiction over a given subject- 
matter, cannot lose that jurisdiction by the mere fact that the common- 
law courts have also become invested with the same powers. 

§ 193, (a) Cited with approval in South. 725; Chapman v. Lee, 45 Ohio 
Handley v. Hiffin, 84 Ala. 600, 4 St. 356, 13 N. E. 736, 


instance of his adversary, and for tlie production and in- 
spection of documents by either party at the requirement 
of the other, in any action, has superseded and practically 
put an end to, even if not directly abrogated, the suit for a 
discovery as a branch of the auxiliary jurisdiction of 
equity.'*^ Under this new method of obtaining discovery 
from the opposite party in any kind of action, and of com- 
pelling the production of documents by means of interroga- 
tories filed during the pendency of the action by either 
the plaintiff or the defendant, it is held that all the doc- 
trines and rules concerning the subject-matter of discovery 
and concerning the documents whose production can be 
compelled, which had been established by courts of equity, 
are still in force, and control the same matters in the new 
procedure. 5 c Similar modes of procuring evidence from 

§ 193, 4 Supreme Court of Judicature Act of 1873, 36 & 37 Vict., chap. 
66, Schedule, Rules of Procedure, rules 25-27. These rules provide that 
in any action either party may obtain discovery from the other on oath 
upon interrogatories; and that the court may order any party to discover, 
produce, and permit inspection of any documents, etc., in his possession 
or under his control, etc. In other words, everything which could be done 
by a bill for discovei-y can be accomplished in a more simple, direct, and 
speedy mode prescribed by the statute. The essential principles of this 
statute and of the system which it established for England are, as I have 
before stated, identical with the principles and methods of the reformed 
procedure prevailing in more than half of the American commonwealths. 

§ 193, 5 Anderson v. Bk. of Br. Columbia, L. R. 2 Ch. Div. 644; Cashin 
V. Craddock, L. R. 2 Ch. Div. 140 ; Hoffman v. Postell, L. R. 4 Ch. 673. 

§ 193, (b) As to the effect of tliis pose of obtaining from the opposite 

statute upon the equitable rule that party information as to material 

discovery would not be compelled facts, which are not within his own 

against a honu fide purchaser in aid knowledge, and are within the knowl- 

of a legal action, see post, § 200. In edge of the opposite party, but also 

Attorney-General v. Gaskill, L. K. 20 for the purpose of obtaining from 

Ch. Div. 519, the right of discovery the opposite party admissions which 

as existing in the court of chancery will make it unnecessary for him to 

was held still to exist except so far enter into evidence as to the facts 

as it is modified by the judicature admitted. 

acts and the general orders, and a § 193, (c) See, also, Attomey-Gen- 

party still has a right to exhibit in- eral v. Gaskill, L. E. 20 Ch. Div. 519. 
terrogatories, not only for the pur- 


the opposite party by means of interrogatories have been 
adopted by statute in several of our states, although in 
none of them does the matter seem to be so carefully regu- 
lated and so efficacious as in England. Passing to the 
legislation of this country, the reformed procedure, which 
was first enacted in the Code of Civil Procedure of New 
York in 1848, and has now extended to more than half the 
states and territories of this Union, and which is identical 
in its fundamental principles, doctrines, and methods with 
the English supreme court of judicature act, has in like 
manner superseded and practically, at least, destroyed the 
equitable suit for discovery without any other relief, wher- 
ever the system prevails. In some of these states the suit 
for ''discovery," properly so called, is expressly abol- 
ished by the statute ; and in all of them it is utterly incon- 
sistent with both the fundamental theory and with the par- 
ticular doctrines, rules, and methods of the reformed 
procedure. In the other commonwealths, where the com- 
mon-law and the equity jurisdictions are still preserved 
distinct from each other, whether possessed by the same 
court, or as in a very few states, by separate tribunals, the 
statutes permit the parties to all civil actions and proceed- 
ings, both at law and in equity, "to testify in their own 
behalf, and to be examined as witnesses, in the ordinary 
manner, on behalf of their adversaries ; and have also pro- 
vided summary and simple modes for comjDelling the dis- 
closure and production and inspection, by the parties to 
any action, of documents, books, and the like material, to 
the opposite party, for maintaining his cause of action or 
defense. Notwithstanding these great changes, made by 
statutes, which seem to remove the very foundation for 
any interposition by equity, it has generally been held that 
the legislature has not abridged nor affected the auxiliary 
equitable jurisdiction to entertain suits for mere discovery 
of evidence and production of documents, and that such 
equitable jurisdiction still exists, where not expressly 




abolished by the statutes.^ ^ This conclusion, however, is 
not universal. In some cases it has been held that the 

§193, 6 Cannon v. McNab, 48 Ala. 99; Millsaps v. Pfeiffer, 44 Miss. 
805; Shotwell v. Smith, 20 N. J. Eq. 79. And see also Buckner v. Fer- 
guson, 44 Miss. 677; Kearney v. Jeffries, 48 Miss. 343; Continental Life 
Ins. Co. V. Webb, 54 Ala. 688 ; Hoppock v. United, etc., R. R., 27 N. J. 
Eq. 286; French v. First National Bk., 7 Ben. 488. 

§193, (d) Auxiliary Jurisdiction 
not Abridged. — This portion of the 
text is quoted in Nixon v. Clear 
Creek Lumber Co., 150 Ala. 602, 9 
L. R. A. (N. S.) 1255, 43 South. 805. 
The text is cited in Southern Pacific 
E. Co. V. United States, 200 U. S. 
341, 50 L. Ed. 507, 26 Sup. Ct. 296; 
in Beem v. Farrell (Iowa), 108 N. W. 
1044; and in Wright v. Superior 
Court, 139 Cal. 469, 73 Pac. 145, in 
the dissenting opinion of Shaw, J., 
where the following cases are also 
cited, among others: Post v. Toledo, 
etc., Co., 144 Mass. 341, 59 Am. Rep. 
86, 11 N. E. 540; Union Passenger 
R'y Co. V. Mayor, 71 Md. 238, 17 
Atl. 933; Howell v. Ashmore, 9 N. J. 
Eq. 91, 57 Am. Dec. 371; Elliston v. 
Hughes, 1 Head (Tenn.), 227; Grimes 
V. miliary, 38 111. App. 246; Ken- 
dallville Eefrigerator Co. v. Davis, 
40 111. App. 616; Ames v. N. J. F. 
Co., 12 N. J. Eq. 68, 72 Am. Dec. 385. 
See further Lancey v. Eandlett, 80 
Me. 169, 6 Am. St. Rep. 169, 13 Atl. 
686; Handley v. Hiffin, 84 Ala. 600, 
4 South. 725; Shackelford v. Bank- 
head, 72 Ala. 476; Eussell v. Dickea- 
chied, 24 W. Va. 61; Kelley v. 
Boettcher, 85 Fed. 55, 29 C. C. A. 14; 
Indianapolis Gas Co. v. City of In- 
dianapolis, 90 Fed. 196; Miller v. 
U. S. Casualty Co., 61 N. ,J. Eq. 110, 
47 Atl. 509; Wood v. Hudson, 96 Ala. 
469, 11 South, 630; Hurricane Tel. 
Co. V. Mohler, 51 W. Va. 1, 41 S. E. 
421; Colgate v. Compagnie Francaise 
du Telegraphc, 23 Fed. 82; Clark v. 

Ehode Island Locomotive Works, 24 
E. L 307, 53 Atl. 47; Eeynolds v. 
Burgess Sulphite Fibre Co., 71 N. H. 
332, 346, 93 Am. St. Rep. 535, 550, 57 
L. R. A. 949, 51 Atl. 1075 (where dis- 
covery is essential prior to the trial). 
To the same effect, see the following 
recent cases: Carpenter v. Winn, 221 
U. S. 533; 55 L. Ed. 842, 31 Sup. Ct. 
683; Kurtz v. Brown, 152 Fed. 372, 
11 Ann. Caa. 576, 81 C. C. A. 498, 
affirming 134 Fed. 663; General Film 
Co. V. Sampliner, 232 Fed. 95, 146 
C. C. A. 287 (federal courts still have 
jurisdiction to compel production of 
documents for inspection before 
trial) ; Pressed Steel Car Co. v. 
Union Pac. E. Co., 240 Fed. 135; 
Gulf Compress Co. v. Jones Cotton 
Co., 157 Ala. 32, 47 South. 251; Sloss- 
Sheffield Steel & Iron Co. v. Mary- 
land Casualty Co., 167 Ala. 557, 52 
South. 751; Carmichael v. Pond, 190 
Ala. 494, 67 South. 384; Phiel v. 
Williams, 64 Fla. 387, 59 South. 897; 
American Security & Trust Co. v. 
Brooks, 225 Mass. 500, 114 N. E. 732; 
Keystone Lumber Yard v. Yazoo & 
M. V. E. Co., 96 Miss. 116, Ann. Cas. 
1912A, 801, 50 South. 445. A bill for 
discovery against a corporation has 
been allowed, although all the offi- 
cers are by statute made competent 
witnesses for either party. The 
court, in Continental Nat. Bk. v. 
Heilman, 66 Fed. 184, speaking of an 
objection to the jurisdiction, said: 
"But whatever force this suggestion 
might be entitled to where a discov- 




legislation, by abolishing all the grounds upon which the 
suit for a discovery was based, has necessarily abrogated 
the jurisdiction itself."^® This abridgment of the technical 

§ 193, 7 Riopelle v. Doellner, 26 Mich. 102. To the same effect, also, 
is Heath v. Erie R. R., 9 Blatchf. 316. In a suit in equity a cross-bill was 
filed praying discovery and relief. From certain proceedings and stipu- 
lations of the parties, the court held that as a bill for relief this cross- 
bill was unnecesssary and nugatoi'y, so that it was only a cross-bill for a 
discovery without relief. With respect to such a bill, the court held that 
the statutes of Congress, act of July 6, 1862, section 1 (12 U. S. Stats, 
at Large, p. 588), and act of July 2, 1864 (13 U. S. Stats, at Large, 
p. 351), permitting parties to be witnesses, had necessarily abrogated the 
equity suit for a mere discovery without relief. 

ery is sought from a natural person, 
it has none in such a case as the 
present, for the corporation cannot 
be sworn and examined as a witness; 
and it is apparent that in many cases 
a discovery by a corporation may be 
important to attain the ends of jus- 
tice." To same eifect, see Indianap- 
olis Gas Co. V. City of Indianapolis, 
90 Fed. 196. 

§ 193, (e) Jurisdiction Abridged or 
Abrogated. — The text is cited to this 
effect in Turnbull v. Crick, 63 Minn. 
91, 65 N. W. 135. The court said: 
"A bill of discovery was born of 
necessity, for there was then no other 
waj' by which a party to an action 
could secure the benefit of facts 
within the exclusive personal knowl- 
edge of his adversary, or of docu- 
ments in his exclusive possession; 
but the remedies provided by our 
Civil Code and other statutes, giv- 
ing a party the right to call his 
adversary as a witness, and compel 
the production of books and docu- 
ments, have swept away every ground 
and reason for a bill of discovery. 
. . . These remedies, furnished by 
our Reform Code of Procedure, are 
not simply cumulative, but abrogate 
bills of discovery and the practice 

and procedure in the former court 
of chancery, so far as they are in- 
consistent therewith." The text is 
also cited in Wright v. Superior 
Court, 139 CaL 469, 73 Pac. 145, 
opinion of Van Dyke, J., but the 
court left the question undecided. 
It is sometimes said that the gen- 
eral rule is that discovery will not 
be compelled from any persons who 
can be made witnesses in the cause 
in aid of which the discovery is 
sought: Eeddington v. Lanahan, 59 
. Md. 429; Rindskopf v. Platto, 29 
Fed. 130; Babbott v. Tewksbury, 46 
Fed. 86; Ex parte Boyd, 105 U. S. 
657; Brown v. M'Donald, 130 Fed. 
964, reviewing many cases in the 
Federal courts; London Guarantee & 
Accident Co. v. Doyle, 130 Fed. 719. 
In Michigan it is held that "since 
parties have become general wit- 
nesses under our statutes, a bill of 
discovery will not lie where the facts 
sought to be discovered are within 
the knowledge of any witness": Mc- 
Creery v. Bay Circuit Judge, 93 
Mich. 463, 53 N. W. 613; Shelden v. 
Walbridge, 44 Mich. 251, 6 N. W. 
681. Hence such a bill is no longer 
allowable. In Nebraska it is held 
that "under the Code, discovery has 


** discovery, " it should be carefully remembered, does not 
extend to the discover}^ or compelling defendants to make 
admissions or disclosures by means of the pleadings, in 
suits brought for relief/ In some of the states, however, 
which still retain the ancient common-law and equitable 
jurisdictions, the obtaining evidence by means of inter- 
rogatories filed in the action by either party, instead of by 
means of answers to allegations and questions contained 
in the bill or cross-bill, — substantially in accordance with 
the present English procedure, — has been provided for by 
recent statute; and this statutory change may have abro- 
gated the mode of discovery as an incident and part of the 
pleadings in suits for relief, even though it may not have 
abolished the suit for a discovery alone without relief. 

§ 194.^ It follows from the foregoing statements that 
the suit for a discovery, as a branch of the auxiliary juris- 
diction, is now confined to a portion only of the states and 
territories; and even in those commonwealths a resort to 

ceased to be one of the objects with approval in Le May v. Baxter, 
sought in a court of equity." La- 11 Wash. 649, 40 Pac. 122. This 
master v. Scofield, 5 Neb. 148; Kuhl point was directly decided in the 
V. Pierce County, 44 Neb. 584, 62 case of Smythe v. Henry, 41 Fed. 
N. W. 1066. See, also. Chapman v. 715, where discovery was prayed in 
Lee, 45 Ohio St. 356, 13 N. E'. 736; ' a suit for both equitable relief and 
Preston v. Smith, 26 Fed. 884; Pa- discovery. The court said, in an- 
ton V. Majors, 46 Fed. 210; Safford swer to an objection that full power 
V. Ensign Mfg. Co. (C. C. A.), 120 to examine witnesses had been con- 
Fed. 480 (^dictum) ; Dncktown Sul- f erred upon the law court's : "The 
phur, Copper & Iron Co. v. Fain, 109 mere fact that statutes have con- 
Tenn. 56, 70 S. W. 813. See, also, ferred upon courts of law the power 
the following recent cases: Brown v. to compel parties to the record to 
Corey, 191 Mass. 189, 77 N. E'. 838 testify as witnesses does not deprive 
(bill cannot be maintained for dis- a party in courts of the United 
covery alone, if not incidental to States of the right of discovery in 
any relief which a court of equity equity when seeking equitable relief. 
has the right to grant) ; Vogelsong Such, remedy is not as effectual as 
V. St. Louis Wood Fibre Plaster Co., the equitable remedy." 
147 Mo. App. 578, 126 S. W. 804; §194, (a) Cited with approval in 
Hamner v. Garrett, 63 Tex. Civ. App. Chapman v. Lee, 45 Ohio St. 356, 13 
208, 132 S. W. 951, 133 S. W. 1058. N. E. 736. 
§ 193, (f ) This sentence was quoted 


it is quite infrequent. For this reason, an extensive and 
minute discussion of the rules which govern it seems to 
be unnecessary. On the other hand, the principles and 
doctrines relating to discovery, which have been settled by 
courts of equity, and which determine what facts parties 
can be compelled to disclose, and what documents to pro- 
duce, and under what circumstances the disclosure or pro- 
duction can be obtained, will still continue to be recognized 
by the courts, and to regulate their action in enforcing the 
examination of parties and the production of writings by 
means of the more summary statutory proceedings. ^ ^ 
The abolition or discontinuance of the technical ''dis- 
covery" has not abrogated these principles and doctrines, 
nor dispensed with their statement, at least in a brief and 
condensed form. 

§ 195. General Doctrines When Discovery will be En- 
forced.^ — As this auxiliary jurisdiction was contrived to 
supply a great defect in the ancient common-law methods, 
which was a constant source of wrong to suitors at law, 
and as it was intended to promote right and justice, dis- 
covery was, from the outset, favored by courts of equity; 
and as a general doctrine, it will always be enforced, un- 
less some recognized and well-established objection exists 
in the particular case to prevent or to limit its operation. 
This affirmative proposition is so generally true that the 
discussion of the subject mainly consists in stating and 
explaining the objections which have been established, and 
which alone can avail to hinder the exercise of the juris- 

§194, 1 As illustrations, see the following 'eases: Anderson v. Bk. of 
Dr. Columbia, L. R. 2 Ch. Div. 644; Cashiu v. Craddock, L. R. 2 Ch. Div. 
140 ; Hoffman v. Postill, L. R. 4 Ch. 673. 

§194, (b) Cited to this effect in Co., 71 N. H. 332, 93 Am. St. Rep. 

Arnold v. Pawtuxet Val. Water Co., 535, 57 L. R. A. 949, 51 Atl. 1075; 

18 R. I. 189, 19 L. E. A. 602, 26 Sloss-Shoffiold Steel & Iron Co. v, 

Atl. 55. Maryland Casualty Co., 167 Ala. 557, 

§ 195, (a) Cited with approval in 52 South. 751. 
Reynolds v. Burgess Sulphite Fibre 


diction.l While thus made effective, the jurisdiction is 
also carefully guarded, so as not to infringe upon the de- 
fendant's rights. Its object is to promote justice by elicit- 
ing facts material to the plaintiff's contention; not to com- 
pel the defendant to disclose matters injurious to himself 
or prejudicial to his own case. "While the plaintiff is suffi- 
ciently aided in establishing his own side of the contro- 
versy, the defendant is also carefully guarded. In stating 
the matters which are affirmatively requisite to the mainte- 
nance of a suit for discovery, and the objections which may 

§ 195, 1 Jeremy's Eq. Jur. 257-269. In Wigram on Discovery, 21, 22, 
the general principles are summed up in the following propositions: 
"1. It is the right, as a general rule, of the plaintiff in equity to examine 
the defendant upon oath as to all matters of fact which, being well pleaded 
in the bill, are material to the proof of the plaintiff's case, and which the 
defendant does not, by his form of pleading, admit. 2. Courts of equity, 
as a general rule, oblige a defendant to jDledge his oath to the truth of his 
defense; with this qualification, the Vight of a plaintiff in equity to the 
benefit of the defendant's oath is limited to a discoveiy of such matei'ial 
facts as relate to the plaintiff's case; and it does not extend to the dis- 
covery of the manner in which, or of the evidence by means of which, 
the defendant's case is to be established, or to any discovery of the de- 
fendant's evidence." In Cooper's Eq. PL, chap. 3, § 3, p. 189, the objec- 
tions which will prevent a discovery are thus summarized: "1. That the 
subject is not cognizable in any municipal court of justice; 2. That the 
court will not lend its aid to obtain a discovery for the particular court 
for which it is wanted; 3. That the plaintiff is not entitled to a discovery, 
by reason of some personal disability; 4. That the plaintiff has no title 
to the character in which he sues; 5. That the value of the suit is beneath 
the digiiity of the court ; 6. That the plaintiff has no interest in the subject- 
matter, or title to the discovery required, or that an action will not lie 
for which it is wanted; 7. That the defendant is not answerable to the 
plaintiff, but that some other person has a right to call for the discovery; 

8. That the policy of the law exempts the defendant from the discovery; 

9. That the defendant is not bound to discover his own title; 10. That the 
discovery is not material in the suit ; 11. That the defendant is a mere wit- 
ness; 12. That the discoveiy called for would criminate the defendant." 
It should be observed that both these extracts relate to discoveiy as an 
incident of ordinai-y suits for relief, as well as to discovery proper; indeed, 
some passages in each can only apply to the former mode of compelling 
the defendant to disclose facts. 


negatively operate to defeat it, I shall divide tlie discus- 
sion into the following principal heads: 1. What judicial 
proceeding, in what courts, will be aided by "discover}'" 
in equity; 2. The parties, their situation and relations with 
each other, in order that a discovery may be enforced; 
3. The nature, subject-matter, and object of the discovery 
itself, — that is, the matters and facts of which the plain- 
tiff in the equity suit may inquire and compel a discovery, 
and the defendant must answer and make discovery; 4. 
The defendant's answer in the discover}^ suit when, how 
far, and by whom it may be used as evidence. 

§ 196. I. What Judicial Proceedings, in What Courts, 
will be Aided by Discovery in Equity. — A suit for dis- 
covery will be maintained in aid of another cause depend- 
ing in a court of equity upon a cross-bill filed for that pur- 
pose by the defendant therein ; ^ ^ and especially in aid of 
proceedings in any common-law court of general jurisdic- 
tion or other public tribunal of the same country which is 
or was by its original modes of procedure unable to com- 
pel the needed disclosure.^ ^ It has been said that the 
jurisdiction in aid of courts of law is confined to the 
superior courts, and does not extend to inferior courts 

§ 196, 1 Millsaps v. Pfeiffer, 44 Miss. 805 ; King of Spain v. HuUett, 
1 Ciark & F. 333; Prioleau v. United States, L. R. 2 Eq. 659; United 
States V. Wagner, L. R. 2 Ch. 582, L. R. 3 Eq. 724; Colombian Govern- 
ment V. Rothschild, 1 Sim. 94. But see Heath v, Erie R. R., 9 Blateh. 
316, as to effect of recent statutes. It seems, also, that a bill for discovery 
may sometimes lie in behalf of the complaining party in another proceed- 
ing pending in a court of equity: Montague v. Dudman, 2 Ves. Sr. 398, 
per Lord Hardwicke. 

§ 196, 2 Jeremy's Eq. Jur. 268; March v. Davidson, 9 Paige, 580; Lane 
V. Stebbins, 9 Paige, 622; Atlantic Ins. Co. v. Lunar, 1 Sand. Ch. 91; 
Kearney v. Jeffries, 48 Miss. 343; Buckner v. Ferguson, 44 Miss. 677; 
Shotwell V. Smith, 20 N. J. Eq. 79. 

§ 196, (a) The text is quoted in § 196, (b) The text is quoted in 

Nixon V. Clear Creek Lumber Co., Nixon v. Clear Creek Lumber Co., 

150 Ala. 602, 9 L. R. A. (N. S.) 1255, 150 Ala. 602. 9 L. R. A. (N. S.) 1255, 

43 South. 805. 43 South. 805. 


whose jurisdiction is local or is limited as to the subject- 
matter.3 It is well settled that a discovery will not be 
granted in aid of a controversy before arbitrators, where 
the submission to arbitration was the voluntary act of the 
parties ; ^ but the reason of this rule fails, and a discovery 
will be compelled in aid of a compulsory reference to arbi- 
trators or referees ordered by the court in an action.^ 
Discovery has sometimes been granted, both in England 
and in this country, in aid of a controversy pending in a 
tribunal of a foreign country.^ <^ 

§ 196, 3 See Jeremy's Eq. Jur. 268, where the proposition is laid down 
in this broad manner excepting all inferior courts, and defining them as 
those whose jurisdiction is local, although otherwise general, and those 
whose jurisdiction is limited in any manner, giving as an illustration the 
ecclesiastical courts. The proposition in this broad form may well be 
doubted. Adams, in his treatise, states the limitation in a much different 
manner. He says that discovery may be enforced in aid of relief "asked 
from the court of chancery, or from another public tribunal, in this 
country, which is itself unable to enforce discovery; but will not be en- 
forced to aid a proceeding before arbitrators, or before an inferior 
court." He adds that the reason why it is refused in aid of proceedings 
in the ecclesiastical courts is because those courts have themselves ample 
power to compel a disclosure of facts. I think it clear that the "inferior 
courts" mentioned by Mr, Adams do not entirely correspond with the de- 
scription given in Jeremy. It is very certain that a discovery will not 
be granted in aid of suits pending in courts of justices of the peace, and 
such tribunals which are in every way inferior. But in most of the states 
the courts of general original jurisdiction as to persons and subject-matter 
are limited as to locality, and to deny the "discovery" in aid of proceed- 
ings in these courts because they are "inferior" would virtually be to 
abolish discovery. 

§ 196, 4 Jeremy's Eq. Jur. 268 ; Street v. Rigby, 6 Ves. 821. The rea- 
so]i is, that such arbitrators are not a regular tribunal, but judges chosen 
by the parties outside of the ordinary course and mode of administering 

§ 196, 5 British Empire Ship. Co. v. Somes, 3 Kay & J. 433. 

§ 196, 6 MitcheU v. Smith, 1 Paige, 287; Daubigny v. Davallon, 2 Anstr. 
467, 468; Earl of Derby v. Duke of Athol, 1 Ves. Sr. 202, 205; Bent v. 

§196, (c) Discovery in Aid of Div. 151, the question whether juris- 
Foreign Suit. — In the case of Dreyfus diction existed to entertain a bill 
v. Peruvian Guano Co., L. E. 41 Ch. for discovery only in aid of an ac- 




§ 197. The cause of action or the defense which can be 
aided by a suit for discovery must furthermore be wholly 
civil in its nature. The auxiliary jurisdiction of discovery 
will only be exercised on behalf of a contention, action, or 
defense entirely civil ; and it will therefore withhold its aid 
from criminal prosecutions, actions penal in their nature, 
and controversies involving moral turpitude, or arising 

Young, 9 Sim. 185; that a suit for discoveiy may be maintained in aid of 
a foreign court has certainly not become a universal rule. Mr. Adams 
strongly doubts its propriety: Adams's Eq., marg. p. 19. The recent 
decision in Reiner v. Marquis of Salisbuiy, L. R. 2 Ch, Div. 378, supports 
this doubt. 

tion pending in a foreign tribunal 
was directly passed upon, and the 
jurisdiction was expressly denied. In 
examining the question, Mr. Justice 
Kay, in his opinion, showed that the 
notion that such jurisdiction existed 
was directly traceable to a dictum 
of Lord Eedesdale contained in his 
own work on pleadings (Mitford's 
Eq. PI., 3d eel., 151, 5th ed., p. 221), 
which purported to be based on the 
authority of the case of Crowe v. 
Del Rio, erroneously called Crowe v. 
Del Ris, decided in 1769, and re- 
ferred to in the subsequent case of 
Bent V. Young, 9 Sim. 180, and that 
such dictum was without support', 
and was founded on an erroneous 
construction of the case of Crowe v. 
Del Rio. In his opinion, Mr. Justice 
Kay expressly refers to the case of 
Mitchell V. Smith, 1 Paige, 287, and 
to the various text-writers, who state 
that the jurisdiction exists, and 
ehows conclusively that these au- 
thorities based their opinions on 
Lord Redesdale's dictum, for in cit- 
ing the case of Crowe v. Del Rio 
they have each copied his misspelling 
of the names of the defendants. The 
jurisdiction was upheld in Post v. 
Toledo, C. & St. L. R. Co., 144 Mass. 

341, 59 Am. Eep. 86, 11 N. E. 540. 
The court said: "The jurisdiction 
which courts of equity exercise as 
ancillary to that of other courts is 
not, on either principle or authority, 
confined to other courts of the same 
state. A receiver has been appointed 
to collect or preserve, property pend- 
ing litigation in a foreign court, and 
an injunction has been granted 
against transferring property until 
the title could be deterrtiined in a 
foreign court. In the present case 
the fact that all the officers and all 
the books of the corporation are 
without the state of Ohio makes it, 
as the bill alleges, impossible for 
the plaintiff to obtain discovery in 
the Ohio courts, and, as we think 
the plaintiff is entitled to discovery 
from the officers of the corporation, 
we are of opinion that a bill for 
discovery may be maintained here, 
where the officers and books of the 
corporation are." In Van Dyke v. 
Van Dyke (N. J.), 49 Atl. 1116, it 
was held that where a discovery of 
facts was necessary before complain- 
ant could accept any settlement by 
administrators in the orphans' court 
of another state, the court might al- 
low discovery. 


from acts clearly immoral, even though brought for the 
purpose of recovering pecuniary compensation. ^ * It was 
also a well-settled rule prior to the modern legislation, 
that equity would not interfere in aid of proceedings, 
otherwise suitable to be aided, in other courts which, by 
their constitution or established modes of procedure, were 
themselves able to give their suitors the needed relief by 
compelling the disclosure of facts or the production of 

§ 197, 1 Black v. Black, 26 N. J. Eq. 431 (no discovery granted as to 
commission of adultery) ; Currier v. Concord R. R., 48 N. H. 321 ; Glynn 
V. Houston, 1 Keen, 329; Earl of Suffolk v. Green, 1 Atk. 450; East 
India Co. v. Campbell, 1 Ves. Sr. 246 ; King v. Burr, 3 Mer. 693 ; Claridge 
V. Hoare, 14 Ves. 59, 65 ; Montague v. Dudman, 2 Ves. Sr. 398 ; Litchfield 
V. Bond, 6 Beav. 88; Short v. Mercier, 3 Macn. & G. 205; United States 
V. McRae, L. R. 3 Ch. 79; United States v. McRae, L. R. 4 Eq. 327; 
United States v. Saline Bank, 1 Pet. 100, 104; Ocean Ins. Co. v. Fields, 

2 Story, 59; Stewart v. Drasha, 4 McLean, 563; Union Bank v. Barker, 

3 Barb. Ch. 358; Skinner v. Judson, 8 Conn. 528, 21 Am. Dec. 691; 
Northrup v. Hatch, 6 Conn. 361 ; Poindexter v. Davis, 6 Gratt. 481 ; as to 
discovery in aid of suits for slander and libel, see Bailey v. Dean, 5 Barb. 
297; Thorpe v. Macauley, 5 Madd. 229, 230; Shackell v. Macauley, 2 Sim. 
& St. 79, 2 Russ. 550, note, 1 Bligh, N. S., 96, 133, 134; Wilmot v. Maccabe, 

4 Sim. 263; Southall v. , 1 Younge, 308; Hare on Discovery, 116, 117. 

§197, (a) Cited and similar Ian- worth, 2 Vern. 443; Sloane v. Hat- 

guage used in Keynolds v. Burgess field, Bunb. 18; Taylor v. Crompton, 

Sulphite Fibre Co., 71 N. H. 332, Bunb. 95; Macclesfield v. Davis, 3 

341-345, 93 Am. St. Rep. 535, 544- Ves. & B. 16; Burrell v. Nicholson, 

549, 57 L. E. A. 949, 51 Atl. 1075. 3 Barn. & Adol. 649, 1 Mylne & K. 

In this case it is held that a dis- 680. That discovery may be had in 

covery may be had in aid of an aid of the defense to a suit for libel, 

action at law for a personal tort, citing Macauley v. Shackell, 1 

The court held that the action, be- Bligh, N. S., 96; Wilmot v. Maccabe, 

ing for negligence merely, did not 4 Sim. 263; Thorpe v. Macauley, 5 

involve moral turpitude. The case Mad. 218; Marsh v. Davison, 9 

contains an excellent discussion of Paige, 580, 584, 585, 586; but contra, 

the right to discovery in such a case that discovery cannot be sustained 

and cites many of the authorities. in aid of an action for a mere per- 

That discovery lies in aid of actions Bonal tort, dicta in Glynn v. Hous- 

of tort relating to property is un- ton, 1 Keen, 329; Pye v. Butterfield, 

questioned, citing East India Co. v. 5 Best & S. 829, 836; and Lyell v. 

Evans, 1 Vern. 307; Marsden v. Pan- Kennedy, 8 App. Cas. 217, 233; and 

shall, 1 Vern. 407; Hcathcote v. the decision in Robinson v. Craig, 16 

Fleete, 2 Vern. 442; Morse v. Buck- Ala. 50. 


documents.^ As to the effect of the recent statutes con- 
ferring powers upon the law courts, and even upon courts 
of equity, which they did not originally possess, and thus 
obviating the necessity of a special resort to equity, there 
is, as has already been shown, a direct antagonism among 
the decided cases; some holding that the auxiliary equi- 

§ 197, 2 Jeremy's Eq. Jur. 269 ; Dunn v. Coates, 1 Atk. 288 ; Anony- 
mous, 2 Ves. 451; Galston v. Hoyt, 1 Johns. Ch. 547. In Leggett v. 
Postley, 2 Paige, 599, it was held that a discovery would not be granted 
merely to guard against anticipated perjury on the trial of a suit at law. 
In Gelston v. Hoyt, 1 Johns. Ch. 547, Chancellor Kent lays down the doc- 
trine in a very sweeping manner, but his statement of the rule is too 
broad, and must not be accepted without much limitation, as has been 
shown by subsequent authorities. He says : "If a bill seeks discovery in 
aid of the jurisdiction of a court of law, it ought to appear that such 
aid is required. If a court of law can compel the discovery, a court of 
equity will not interfere. And the facts which depend upon the testimony 
of witnesses can be procured or proved at law, because courts of law can 
compel the attendance of witnesses. It is not denied in this case but that 
every fact material to the defense at law can be proved by ordinary means 
at law, without resorting to the aid of this court. . . . Unless, therefore, 
the bill states affirmatively that the discoveiy is really wanted for the 
defense at law, and also shows that the discovery might be material to that 
defense, it does not appear to be reasonable and just that the suit at law 
should be delayed." The same rule was stated in Sej'^motir v. Seymour, 
4 Johns. Ch. 411, and Leggett v. Postley, 2 Paige, 599, 601. But the rule 
as thus stated is confined to suits for discovery and relief, and does not 
apply to suits for discoveiy proper, i. e., the pure exercise of the auxiliaiy 
jurisdiction. "When an action is pending at law, and one of the parties 
seeks to withdraw the entire controversy from that tribunal into a court 
of equity, on the ground that a discovery is needed, and files a bill in 
equity i^rajdng for a discovery and for final relief, and an injunction upon 
the action at law, he must affirmatively allege in his bill that a discovery 
is necessary, and that the facts which he seeks to obtain, and which are 
material to his contention, cannot be proved by witnesses or by the ordi- 
naiy testimony in the court of law. There is no such requisite to the 
maintaining a suit for discovery proper without relief. The plaintiff in 
the suit must, of course, show that the matters Avhich he seeks to obtain 
are material to his contention, but not that the suit for a discovery is the 
only means of obtaining them. In other words, a suit for a discovery is 
proper, not only when the plaintiff therein is without other means of 
proof, but also in aid of his other evidence, or even to dispense with the 


table jurisdiction remains unaffected, others declaring it 
abridged or abrogated. ^ ^ The action in aid of which the 
discovery is sought may be pending; but this is not neces- 
sary. It is sufficient if the plaintiff in the bill for a dis- 
covery shows that he has a right to maintain or defend 
an action in another court, and that he is about to sue or is 
liable to be sued therein, although no action is yet com- 
menced; a discovery may be needed to determine the 
proper parties, or to properly frame the allegations of his 

necessity of other evidence. All the text-writers are agreed upon this 
view of the object and use of "discovery" proper: Hare on Discovery, 
1, 110; Wigram on Discovery, 4, 5, 25; Story's Eq. PI., § 319, note 3. In 
Mitford's Eq. PI. (Jeremy's ed.) 307, it is said: "The plaintiff may require 
this discoverj'^, either because he cannot prove the facts, or in aid of proof 
or to avoid expense." In Earl of Glengall v. Frazer, 2 Hare, 99, 105, 
Wigram, V. C, said: "The plaintiff is entitled to a discovery, not only 
in respect to facts which he cannot otherwise prove, but also as to facts 
the admission of which will relieve him from the necessity of adducing 
proof from other sources." The decisions are to the same effect : Montague 
V. Dudman, 2 Ves. Sr. 398; Brereton v. Gamul, 2 Atk. 241; Peck v. 
Ashley, 12 Met. 481 ; Stacy v. Pearson, 3 Rich. Eq. 152 ; Chambers v. War- 
ren, 13 111. 321 ; Williams v. Wann, 8 Blackf . 478. In March v. Davison, 
9 Paige, 580, the rule laid down in Leggett v. Postley, 2 Paige, 599, and 
Gelston v. Hoyt, 1 Johns. Ch. 547, so far as it applied to suits for a dis- 
covery alone, was expressly overruled. See also French v. First Nat. 
Bank, 7 Ben. 488; Shotwell v. Smith, 20 N. J. Eq. 79. 

§ 197, 3 It has been held that the statutes permitting parties to be ex- 
amined as witnesses, and providing summary modes for compelling th« 
production of documents, have not affected the auxiliary equitable juris- 
diction for discovei-y: Lovell v. Galloway, 17 Beav. 1; British Emp. Ship. 
Co. V. Somes, 3 Kay & J. 433 ; Cannon v. McNab, 48 Ala. 99 ; Shotwell v. 
Smith, 20 N. J. Eq. 79. But, per contra, such statutes have abolished the 
jurisdiction: Riopelle v. Doellner, 26 Mich. 102; Heath v. Erie R. R., 9 
BlaLchf. 31C; also a statute allowing the defendant in a suit in equity to 
examine the plaintiff therein upon interrogatories does not affect the juris- 
diction to entertain a cross-bill by defendant for purpose of a discovei-y: 
Millsaps v. Pf eiffer, 44 Miss. 805 ; but, per contra, see Heath v. Erie R. R., 
9 Blatchf. 316. 

§197, (b) Cited with approval to Handley v. Hiffin, 84 Ala. 600, 4 
effect that jurisdiction is not lost. South. 725. 




pleading.^ « But after a judgment or verdict in the action 
at law, it is too late to bring a suit for discovery alone. ^ 

§ 197, 4 Kearney v. Jeffries," 48 Miss. 343 ; Buckner v. Ferguson, 44 
Miss. 677; Hoppock v. United, etc., R. R., 27 N. J. Eq. 280; Baxter v. 
Farmer, 7 Ired. Eq. 239; Turner v. Dickerson, 9 N. J, Eq. 140; Moodalay 
V. Morton, 1 Brown Ch. 469, 2 Dick. 652; Angell v. Angell, 1 Sim. & St. 
83 ; City of London v. Levy, 8 Ves. 404. 

§ 197, 5 Green v. Massie, 21 Gratt. 356 ; McColIum v. Prewitt, 37 Ala. 
573 ; Duncan v. Lyon, 3 Johns. Ch. 355, 402, 8 Am. Dec. 513 ; Cowman v. 
Kingsland, 4 Edw. Ch. 627; Foltz v. Pourie, 2 Desaus. Eq. 40; Faulkner's 
Adm'r v. Harwood, 6 Rand. 125. If equity has concurrent jurisdiction, 
a bill may be filed for relief and discovery as an incident thereto, and to 
enjoin the action at law even after judgment. 

§ 197, (c) Discovery in Aid of 
Future Action. — The text is cited to 
the efTect that a discovery may be 
needed to determine the proper par- 
ties in Hurricane Tel. Co. v. Mohler, 
51 W. Va. 1, 41 S. E. 421. So "when 
a plaintiff has a cause of action 
against persons who are defined 
either by statute, or by their rela- 
tions to property or a business by 
the management of which the plain- 
tiff has suffered injury, and the 
names and residences of these per- 
sons are unlvnown to him, it is not 
clear that there may not be such a 
state of facts that a court ought to 
compel a discovery of the names and 
residences of these persons from 
their agents in charge of the prop- 
erty or business; and the decisions 
recognize that this may sometimes 
be done." Post v. Toledo, C. & 
St. L. K. Co., 144 Mass. 341, 59 Am. 
Rep. 86, 11 N. E. 540. In this case 
a discovery of the names and ad- 
dresses of the stockholders of a 
corporation was allowed. So held, 
also, in Clark v. Rhode Island Loco- 
motive Works, 24 R. I. 307, 53 Atl. 
47. Recent cases to the same effect 
are Brown v. McDonald, 133 Fed. 
897, 68 L. R. A. (N. S.) 462, 67 

C. C. A. 59, reversing 130 Fed. 964; 
Kurtz V. Brown, 152 Fed. 372, 11 
Ann. Cas. 576, 81 C. C. A. 498, af- 
firming 134 Fed. 663; Brown v. 
Palmer, 157 Fed. 797; Brown v. 
Magee, 146 Fed. 765 (receiver of 
corporation can bring bill for dis- 
covery against a stockbroker to dis- 
cover who is the real owner of stock 
held in his name as agent) ; Huey v. 
Brown, 171 Fed. 641, 96 C. C, A. 443 

However, a bill of discovery can- 
not be used for mere "fishing" pur- 
poses. Thus, in George v. Solomon, 
71 Miss. 168, 14 South. 531, plaintiff 
alleged that he paid rent to two dif- 
ferent persons whom he made de- 
fendants and asked a discovery in 
order that it appear which should 
refund. Discovery was refused, the 
court saying: "The bill is a pure 
and simple fishing bill, and com- 
plainant angles in the broadest 
water. If relief, under these cir- 
cumstances, can be afforded in 
equity, we see no reason why the 
owner of lost or stolen property 
might not implead in one suit the 
residents of a city or county upon 
the averment that some one of them 
— which one, the complainant is not 


§ 198. II. The Parties, Their Situation and Relations 
to Each Other, in Order That a Discovery may be Granted 
— The Plaintiff. — Either the plaintiff or the defendant in 
the pending or anticipated action at law may file a bill for 
a discovery. Since by the rules of equity pleading, inde- 
pendent of modern statutes, only the complainant can com- 
pel a disclosure on oath from his adversary, if the de- 
fendant in an equity suit needs a discovery he must file a 
cross-bill, and thus become a plaintiff for that purpose.^ 
As the first requisite, the plaintiff in the equity suit for a 

§ 198, 1 Millsap v. Pfeiffer, 44 Miss. 805; Bogert v. Bogert, 2 Edw. Ch. 
399. To aid the defendant in obtaining a discovery, and the production 
of documents upon his cross-bill, the court may stay the proceedings of 
the plaintiff on his original bill until he has fully answered the cross-bill, 
made complete discovery, or produced the needed documents: Princess of 
Wales V. Lord Liverpool, 1 Swanst. 114; Taylor v. Heming, 4 Beav. 235; 
Bate v. Bate, 7 Beav. 528; Milligan v. Mitchell, 6 Sim. 186; Penfold v. 
Nunn, 5 Sim. 405; United States v. Wagner, L. R. 2 Ch. 582; Talmage v. 
Pell, 9 Paige, 410; White v. Buloid, 2 Paige, 164. 

It should be remembered, in applying these settled rules, that by the 
present practice in England and in many of our states, the defendant 
in an equity suit no longer files a cross-bill, and the defendant (or plain- 
tiff) in a suit at law no longer files a "bill of discovery"; in either case 
the defendant may set up any ground for affirmative relief in a "counter- 
claim," and may obtain a discovery by means of "interrogatories" sub- 
mitted in the action itself. The settled doctrines of equity apply to this 
new mode of procedure : Saunders v. Jones, L. R. 7 Ch. Div. 435, 443, per 
Bacon, V. C; Cashin v. Craddock, L. R. 2 Ch. Div. 140; Anderson v. Bank 
of British Columbia, L. R. 2 Ch. Div. 644; Hoffman v. Postill, L. R. 4 Ch. 

informed — bas converted his prop- auxiliary to tlie maintenance of a 

erty and is liable for its value." See, suit not yet brought, see Parrott v. 

also, First Nat. Bank v. Phillips, 71 Chestertown Nat. Bank, 88 Md. 515, 

Miss. 51, 15 South. 29. A discovery 41 Atl. 1067; Wolf v. Wolf's Ex'r, 2 

sought on suspicion, surmise or Har. & G. 382, 18 Am. Dec. 313; 

vague guesses is a "fishing bill," and Heinz v. German Fire Ins. Co.. 95 

will be dismissed; General Film Co. Md. 760, 51 Atl. 951; Post v. Toledo, 

V. Sampliner, 232 Fed. 95, 146 C. & St. L. R. Co., 144 Mass. 341, 59 

C. C. A. 287. Am. Rep. 86, 11 N. E. 540; Reynolds 

As holding in accordance with the v. Burgess Sulphite Fibre Co.', 71 

text, that a discovery may be had as N. H. 332, 341, 93 Am. St. Rep. 535, 


discovery must show tliat he has a title or interest in the 
subject-matter to which the proposed discovery relates, 
such an interest as he can maintain or defend in a proceed- 
ing pending or to be brought in another tribunal, and must 
thus show that he is entitled to the discovery. A mere 
stranger is never allowed to maintain a suit for discovery 
concerning a subject-matter in which he has no interest 
enforceable by a judicial proceeding, or concerning the 
title or estate of a third person. 2 a In, addition to exhibit- 
ing a title or interest in the subject-matter, the allegations 
of the plaintiff's bill must show that a discovery would not 

§ 198, 2 Jeremy's Eq. Jur. 25S ; Baxter v. Farmer, 7 Ired. Eq. 239 ; 
Turner v. Dickerson, 9 N. J. Eq. 140 ; Carter v. Jordan, 15 Ga. 76 ; Jones 
V. Bradshaw, 16 Gratt. 355; Continental Life Ins. Co. v. Webb, 54 Ala. 
688; Brown v. Dudbridge, 2 Brown Ch. 321, 322; Brownsword v. Edwards, 
2 Ves. Sr. 243, 247. 

On this ground the heir at law cannot, during the life of his ancestor, 
maintain a suit for discoverj'^ concerning the estate, since he has no present 
interest in it : Buden v. Dore, 2 Ves. 445 ; and the heir at law cannot com- 
pel a production of deeds relating to the estate in possession of the 
devisee, unless he is an heir in tail ; but the devisee is entitled to such pro- 
duction from the heir at law: Shaftesbury v. Arrowsmith, 4 Ves. 71; 
Cooper's Eq. PL, chap. 1, § 4, pp. 58, 59 ; chap. 3, § 3, pp. 197, 198. As 
a general rule, the plaintiff is confined to facts connected with or relating 
to his own title or estate, and cannot investigate the title or estate of the 
defendant in the discovery suit. This rule, however, has sometimes been 
relaxed when necessary for the ends of justice, and the following cases are 
examples both of the rule and its application : Brown v. Wales, L. R. 15 
Eq. 142; Girdelstone v. North British, etc., Co., L. R. 11 Eq. 197; Com'rs, 

.544, 57 L. R. A. 949, 51 Atl. 1075 judicial proceeding must. be pending 
(citing the text, and Marsden v. or contemplated before a bill of 
Panshall, 1 Vern. 437; Bovill v. discovery will lie": State v. Eliza- 
Moore, 2 Coop. Ch. Cas. 56; Heath- bethtown Water Co., 83 N. J. Eq. 
cote v. Fleete, 2 Vern. 442; Morse 216, 89 Atl. 1039. See, also, in sup- 
V. Buckworth, 2 Vern. 443; Russell port of the text, American Security 
V. Cowley, 1 Webst. Pat. Cas. 457; & Trust Co. v. Brooks, 225 Mass. 500, 
Patent Type Founding Co. v. Walter, 114 N. E. 732. 

.Tohns. 727). But "there must be § 198, (a) See, also, Camp v. Ward, 

some legal right, the enforcement of 69 Vt. 286, 60 Am. St. Rep. 929, 37 

which is sought and in aid of which Atl. 747. 
a discovery is necessary, and some 


be useless. The plaintiff in the discovery suit must show 
by his averments, at least in a prima facie manner, that 
if he is the plaintiff in the action at law he has a good 
cause of action, and if he is the defendant, he has a good 
defense thereto. Wliile it is not necessary that his right 
of action or of defense at law should be beyond dispute, 
still, if the bill should negative the existence of any such 
right, the court of equity would of course refuse a dis- 
covery which would then be useless.^ ^ If the result of the 
controversy at law is doubtful, even when the defendant 
in the suit for a discovery has denied the plaintiff's title, 

etc. V. Glasse, L. R. 15 Eq. 302; Kettlewell v. Barstow, L. R. 7 Ch. 6S6; 
Slack V. Black, 109 Mass. 496 ; Haskell v. Haskell, 3 Cush. 540 ; Sackvill 
V. Ayleworth, 1 Vern. 105; Dursley v. Fitzhardinge, 6 Ves. 260; Allan v. 
Allan, 15 Ves. 131; Attorney-General v. Duplessis, Parker, 144, 155-164; 
5 Brown Pari. C. 91; Glegg v. Legh, 4 Madd. 193, 208; Wigram on Dis- 
covery, 21, 22; Jeremy's Eq. Jur. 262, 263. 

§ 198, 3 Jeremy's Eq. Jur. 261 ; Cardale v. Watkins, 5 Madd. 18 ; Wallis 
V. Duke of Portland, 3 Ves. 494 ; Lord Kensington v. Mansell, 13 Ves. 240 ; 
Angell V. Draper, 1 Vern. 399 ; Maeauley v. Shackell, 1 Bligh, N. S., 120 ; 
Thomas v. Tyler, 3 Younge & C. 255; Metier v. Metier, 19 N. J. Eq. 457; 
Slack V. Black, 109 Mass. 496. 

§ 198, (b) "Unless the facts set charge of accident, surprise, or 

forth in the bill, admitting their fraud: Seotten v. Eosenblum, 231 

truth, would enable the plaintiff to Fed. 357. Of course, where diseov- 

maintain an action, he has no title ery is merely incidental to other 

to the assistance of a court of equitable relief, the bill cannot be 

equity to obtain evidence of the maintained when a right to relief is 

truth of the case." Hurricane Tel. not made out. Everson v. Equitable 

Co. V. Mohler, 51 W. Va. 1, 41 S. E. Life Assur. Co., 68 Fed. 258 (account 

421, citing this section of the text. and discovery) ; American Ore Mach. 

See, also, Tillinghast v. Westcott, Co. v. Atlas Cement Co., 110 Fed. 53 

Slade & Balcom Co., 30 R. I. 334, 75 (account and discovery) ; Welles v. 

Atl. 306; General Film Co. v. Sam- Rhodes, 59 Conn. 498, 22 Atl. 28S 

pliner, 232 Fed. 95, 146 C. C. A. 287 (bill to quiet title); Courter v. Cres- 

(bill in aid of defense must make it cent Sewing Mach. Co., 60 N. J. Eq, 

clear that the defense exists, and 413, 45 Atl, 609 (account and dis- 

that the proceeding is not a mere covery). See, also, Grieb v. Equita- 

"fishing excursion"). So, the party ble Life Assur. Society, 189 Fed. 49S 

against whom judgment has been (discovery and accounting) ; State v, 

rendered in the action at law cannot Western & A. R. Co., 136 Ga. 619, 71 

have discovery, unless there is a S. E, 1055; State v, Denton, 229 Mo. 


or has set up matter which if true would operate as a com- 
plete defense, the court of equity will, in general, gi-ant 
the diseovery, and leave the issue to be tried and finally 
determined by the court of law.* 

§ 199. The Defendant. — I proceed to consider, in the 
next place, the requisites concerning the defendant in a 
suit for a discovery. No discovery can be compelled from 
an incompetent defendant; as, for example, an infant, or a 
lunatic without committee.^ The general rule is well set- 
tled, and admits of only one or two special exceptions, 
which are necessary to prevent a failure of justice, that 
no person can properly be made a defendant in the suit for 
a discovery, or compelled as such to disclose facts within 
his knowledge, unless he has an interest in the subject- 
matter of the controversy in aid of which the discovery is 
asked. 2 Thus, as an illustration of this rule, arbitrators 

§ 198, 4 March v. Davison, 9 Paige, 580; Lane v. Stebbins, 9 Paige, 622; 
Deas V. Harvie, 2 Barb. Ch. 448; Bailey v. Dean, 5 Barb. 297; Peck v. 
Ashley, 12 Met. 478; Thomas v. Tyler, 3 Younge & C. 255, 261, 262; Hare 
on Discovery, 43-46. A suit for discovery alone may thus sometimes be 
maintained where a bill for discovery and relief would be overruled; but 
not after a judgm.ent or verdict in an action at law: McCoUum v. Prewitt, 
37 Ala. 573; Treadwell v. Brown, 44 N. H. 551; Primmer v. Patten, 32 
111. 528; Chichester v. Marquis of Donegal, L. R. 4 Ch. 416; Kettlewell v. 
Barstow, L. R. 7 Ch. 686; Thompson v. Dunn, L. R. 5 Ch. 573; Smith v. 
Duke of Beaufort, 1 Phill. Ch. 209. 

§ 199, 1 Or the attorney-general, when sued on behalf of the crown : 
Micklethwaite v. Atkinson, 1 Coll, C. C. 173, Adams's Eq. 8. The joinder, 
as defendants in the same suit for a discovery, of defendants in separate 
actions at law is irregular: Broadbent v. State, 7 Md. 416; McDougald v. 
Maddox, 17 Ga. 52. 

§199, 2 Jeremy's Eq, Jur. 259; Brownsword v. Edwards, 2 Ves. Sr. 
243; Neuman v. Godfrey, 2 Brown Ch. 332; Plummer v. May, 1 Ves. Sr. 
426; Dineley v. Dineley, 2 Atk. 394; Finch v. Finch, 2 Ves. Sr. 491; 
Fenton v. Hughes, 7 Ves. 287. Thus it has been held that in a suit by his 
creditors against a bankrupt and his assignees, he cannot be compelled to 

187, 138 Am. St. Rep, 417, 129 S. W. 62 Atl. 782 (same) ; New York Trust 
709 (discovery and accounting); Elk Co. v. Langcliffe Coal Co., 227 Pa. 
Brewing Co. ▼. Neubert, 213 Pa. 171, Gil, 76 Atl. 729 (same). 


cannot, in general, be joined as defendants to a bill of dis- 
covery and compelled to disclose the grounds of their 
award,3 but if they are charged with actual misconduct, 
^ fraud, or corruption, they are obliged to answer with re- 
spect to such allegations. 4 As another illustration of the 
rule, mere witnesses cannot be joined as defendants and 
obliged to answer; nor can a mere agent be made a partj 
for purpose of obtaining a discovery from him.^ «• This 
application of the rule is not without exception. Where 
an agent, as, for example, an attorney, has assisted his 
principal in the accomplishment of actual fraud, he may be 

make discoveiy because he has parted with his interest : De Golls v. Ward, 
3 P. Wms. 311, note ; Griffin v. Archer, 2 Anstr. 478, 2 Ves. 643 ; Whit- 
worth V. Davis, 1 Ves. & B. 545. The exceptions to this rule belong much 
more frequently to suits for relief, in which discovery is asked as an in- 
cident, than to suits for a discovery proper without relief. It was decided 
in In re Barned's Bank, L. R. 2 Ch. 350, that an official "liquidator," in 
winding up corporations, under the statute, is in all respects in the same 
position as any other defendant, and is not deemed an ofiBcer of the court : 
i. e., if joined as a defendant in a suit against the corporation, all the 
rules as to discovery, production of documents, privilege, etc., apply to 

§199, 3 Stewart v. East India Co., 2 Vem. 380; Anonymous, 3 Atk. 
644; Tittenson v. Peat, 3 Atk. 529. 

§ 199, 4 Jeremy's Eq. Jur. 260; Ives v. Medcalf, 1 Atk. 63; Lingood v. 
Croucher, 2 Atk. 395; Lonsdale v. Littledale, 2 Ves. 451; Dummer v. 
Corp'n of Chippenham, 14 Ves. 252 ; Chicot v. Lequesne, 2 Ves. Sr. 315, 
418; Lindsley v. James, 3 Cold. 477. 

§199, 5 Ballin v. Ferst, 55 Ga. 546; and see cases cited in the three 
preceding notes. 

§ 199, (a) Cited to the effect ttat debtor's debtor; Post v. Toledo, C. & 

bill for discovery does not lie St. L. R. Co., 144 Mass. 341, 59 Am. 

against mere witnesses in Hanley v. Rep. 86, 11 N. E. 540. The text is 

Wetraore, 15 R. I. 386, 6 Atl. 777; further supported by American 

Hurricane Tel. Co. v. Mohler, 51 Security & Trust Co. v. Brooks, 225 

W. Va. 1, 41 S. E. 421. See, also, Mass. 500, 114 N. E. 732 (wUl not lie 

Detroit Copper & Brass Rolling Mills against a witness, nor against one 

Co. V. Ledwidge, 162 111. 305, 44 who is not a party to the contem- 

N. E. 751, where it was held that a plated litigation, with the eiception 

creditor's bill for discovery alone mentioned in the text), 
cannot be maintained against the 


made a co-defendant and compelled to disclose tlie facts. ^ ^ 
The most important exception is in case of suits against 
corporations. Where it is desired to obtain discovery from 
a corporation in a bill filed against it for that purpose, it 
is firmly settled by the authority of decided cases that a 
secretary or some other officer may and must be joined as 
a co-defendant, from whom the discovery may be obtained 
by his answer under oath. This exception is based wholly 
upon considerations of expediency, since a corporation 
cannot make an answer on oath, nor be liable for per- 
jury."^ c Yov the same reason, the rule has been extended 

§199, SBallin v. Ferst, 55 Ga. 546; Bowles v. Stewart, 1 Schoales & 
L. 227; Bennet v. Vade, 2 Atk. 324; Fenwick v. Reed, 1 Mer. 114; Plum- 
mer v. May, 1 Ves. Sr. 426 ; Brace v, Harrington, 2 Atk. 235 ; Dummer v. 
Corp'n of Chippenham, 14 Ves. 252, 254; Jeremy's Eq. Jur. 260; Gart- 
land V. Nunn, 11 Ark. 721. 

§199, 7 Jeremy's Eq. Jur. 260; Wych v. Meal, 3 P. Wms. 311, 312, 
per Talbot, L. C. (the leading ease) ; French v. First Nat. Bk., 7 Ben. 488; 
Fenton v. Hughes, 7 Ves. 288-291, per Eldon, L. C; Dummer v. Corp'n 
of Chippenham, 14 Ves. 252; Glasseott v. Copper Min. Co., 11 Sim. 305; 
Ex parte The Contract Co., L. R. 2 Ch. 350; Gooch's Case, L. R. 7 Ch. 
207; Ayers v. Wright, 8 Ired. Eq. 229; Yates v. Monroe, 13 lU. 212; Many 
V. Beekman Iron Co., 9 Paige, 188. 

§199, (b) This paragraph is cited, South. 251; King v. Livingston Mfg. 

generally, to the point that bills of Co., 180 Ala. 118, 60 South. 143. See, 

discovery are not confined to parties also, Roanoke St. Ry. Co. v. Hicks, 

to the action at law, in Griesa v. 32 S. E. 295, 96 Va. 510; Munson v. 

Mutual Life Ins. Co., 169 Fed. 509, German-American Fire Ins. Co. (W. 

94 C. C. A. 635, reversing 156 Fed. Va.), 47 S. E'. 160. In Colgate v. 

398; but see Terrell v. Southern Ry. Compagnie Francaise du Telegraphe, 

Co., 164 Ala. 423, 20 Ann. Cas. 901, 23 Fed. 82, the court said: "Un- 

51 South. 254. doubtedly, a corporation cannot be 

§ 199, (c) Suits Against Corpora- compelled to answer under oath to a 

tions; Parties Defendant. — The text bill in equity. It answers only un- 

is cited to the eiJect that an officer der the seal of the corporation. It 

should be made a party in Virginia is for this reason the practice has 

& A. Min. & Mfg. Co. v. Hale, 93 obtained of making the officers of 

Ala. 542, 9 South. 256; Nixon v. the corporation parties to the bill 

Clear Creek Lumber Co., 150 Ala. and requiring them to answer the 

602, 9 L. R, A, (N. S.) 1255, 43 interrogatories. This, however, does 

South. 805; Gulf Compress Co. v. not excuse a corporation from an- 

Jones Cotton Co., 157 Ala. 32, 47 swering . . . Although no officer or 


by modern cases to suits by and cross-bills against nations 
or states which are not monarchical, such as the United 
States of America and other republics. ^ 

§ 200. A Bona Fide Purchaser. — Where the defendant 
is a bona fide purchaser of the property which is the 
subject-matter of the controversy, or which his adversary 
is endeavoring to reach, for a valuable consideration actu- 
ally paid, and without notice of the plaintiff's claim, he is 
protected, not only from relief concerning the property 
in a suit brought for that purpose, but he is also freed 
from the duty of making discovery, which might otherwise 
have rested upon him, of any facts and circumstances 
tending to aid the plaintiff in his contention in a suit of 
discovery alone. To constitute him a purchaser in good 
faith for a valuable consideration, so as to come within the 
operation of this equitable doctrine, he must have actually 
paid the purchase price which forms the valuable consid- 

§ 199, 8 United States v. Wagner, L. R. 2 Ch. 582; L. R. 3 Eq. 724; 
Prioleau v. United States and Andrew Johnson, L. R. 2 Eq. 6-59. See also 
Republic of Costa Rica v. Erlanger, L. R. 1 Ch. Div. 171, L. R. 19 Eq. 
33; Republic of Peru v. Weguelin, L. R. 20 Eq. 140. In King of Spain 
V. Hullett, 1 Clark & F. 333, the house of lords held that when a foreign 
monarch sues in his own name, he thereby submits himself to the jurisdic- 
tion and ordinary practice of the court ; and if the defendant files a cross- 
bill for a discovery, the king must make his answer and swear to it per- 
sonally, as any other plaintiff would be required to do. This and other 
cases also hold that when a foreign monarch sues, the court regards him 
as suing personally, and not in any representative or official character. It 
is otherwise when a nation or state sues in its corporate capacity. See, 
also King of the Sicilies v. Wilcox, 1 Sim., N. S., 301 ; Colombian Govern- 
ment V. Rothschild, 1 Sim. 94. 

agent is made a party to the biH, it the course of justice may be in- 

is still the duty of the corporation to ferred which will justify the court 

cause diligent examination to be in charging it with the costs of the 

made, and give in its answer all the suit." In Continental Nat. Bank v. 

information derived from such ex- Heilman, 66 Fed. 184, also, it is held 

amination; and if it alleges igno- that the officers are not necessary 

ranee without excuse, a disposition parties, although it is customary to 

on its part to defeat and obstruct make them parties. 


eration.i ^ The protection of bona fide purchasers for a 
valuable consideration without notice of opposing claims 
is a principle running through the entire equity jurispru- 
dence, and is one of its most righteous and efficient doc- 
trines in promoting justice. Although the general rules 
are well settled that as among mere equities to the same 
property, the one which is prior in time is also prior in 
right, and as between two holders of different equities to 
the same property, the one who has also obtained a legal 
title has thereby acquired the precedence, and that a pur- 
chaser without any show or semblance of title cannot claim 
protection as a bona fide purchaser from the equitable 
principle above mentioned,^ still it is not absolutely essen- 
tial that a purchaser in good faith for a valuable consid- 
eration and without notice, in order to come within the 
meaning and operation of the doctrine, and to be protected 
against discovery in aid of his adversary, or against re- 
lief, should always be a purchaser of a legal title. The 

§ 200, 1 Jeremy's Eq. Jur. 263, 264; Stanhope v. Earl Verney, 2 Eden, 
81 ; Maundrell v. Maundrell, 10 Ves. 246, 259, 260, 270 ; Jones v. Powles, 3 
Mylne & K. 581, 596-598; McNeH v. Magee, 5 Mason, 269, 270; Wood v. 
Mann, 1 Sum. 506; Flagg v. Mann, 2 Sum. 487; Willoughby v. Willoughby, 
1 Term Rep. 763, 767, per Lord Hardwicke. See the whole subject of 
bona fide purchasers, notice, and priorities discussed in the notes to Bassett 
V. Nosworthy, Cas. t. Finch, 102, and Le Neve v. Le Neve, Amb. 436, 3 
Atk. 646, 1 Ves. Sr. 64, in 2 Lead. Cas. Eq., 4th Am. ed., 1, 4r-108, 109, 
117-227. The system of registering conveyances, mortgages, judgments, 
and other encumbrances, universal in the United States, has rendei'ed the 
equitable doctrines concerning "notice," "priorities," and "bona fide pur- 
chasers" of less frequent application in this countiy than in England; but 
the same doctrines form a part of our equity jurisprudence, and are con- 
stantly invoked and applied by the courts whenever circumstances require 
or permit. 

§ 200, 2 Payne v. Compton, 2 Younge & C. 457; Fitzsimmons v. Ogden, 
7 Cranch, 2; Vattier v. Hinde, 7 Pet. 252, 271; Boone v. Chiles, 10 Pet. 
177; and see notes to Bassett v, Nosworthy and Le Neve v. Le Neve, 2 
Lead. Cas. Eq. 1-108, 109-227. 

§200, (a) As to the necessity of der to become a bova fide purchaser, 
payment of the purchase price in or- see post, §§ 750, 751. 


principle upon which equity proceeds is, that " if a defend- 
ant has in conscience a right equal to that claimed by the 
person filing a bill against him, although he is not clothed 
with a perfect legal title, this circumstance, in his position 
as defendant, renders it improper for a court of equity to 
compel him to make any discovery which may hazard his 
title. "3 It is also settled, as a corollary of the principle, 
that a purchaser of property with notice from a bona fide 
purchaser for a valuable consideration, and without notice, 
acquires the rights of and is entitled to the same protec- 
tion as his grantor.4 These rules of protection to the 
innocent purchaser are, of course, recognized and acted 

§200, 3 Mitford's Eq. PI. (Jeremy's ed.) 199. The substance of this 
doctrine is, that courts of equity will not take any step against such an 
innocent purchaser, but will suffer him to take every advantage which 
the law gives him; for there is nothing which can, in the language of 
equity, attach itself upon or work on his conscience, in favor of an ad- 
verse claimant : Story's Eq. Jur., § 1503. See, on this general subject, 
Payne v. Compton, 2 Younge & C. 457, 461 ; Bechinall v. Arnold, 1 Vern. 
355; Dursley v. Fitzhardinge, 6 Ves. 263; Jerrard v. Saunders, 2 Ves. 
458, per Loughborough, L. C. ; Senhouse v. Earl, 2 Ves. Sr. 450 ; Wortley 
V. Birkhead, 2 Ves. 573, 574; Langton v. Horton, 1 Hare, 547, 563; 
Skeeles v. Shearley, 8 Sim. 153, 3 Mylne & C. 112 ; Doe ex dem. Coleman 
V. Britain, 2 Barn. & Aid. 93 ; Wood v. Mann, 1 Sum. 507-509. 

§200, 4Varick v. Briggs, 6 Paige, 323, 329; Jackson v. MeChesney, 
7 Cow. 360, 17 Am. Dec. 521. And see notes to Bassett v. Nosworthy, 
and Le Neve v. Le Neve, 2 Lead. Cas, Eq. 1, 109. In fact, the rights 
once acquired by the bona fide purchaser for a valuable consideration, and 
without notice, are transferred to his heirs, devisees, and other purely 
voluntary assignees. It has been held in England that a judgment cred- 
itor, who has taken the land of his debtor by an elegit, is not to be re- 
garded as a bona fide purchaser within the meaning of the rule ; and there- 
fore such a judgment creditor, taking the land of his debtor by an elegit, 
which was subject to a prior equitable mortgage, of which he had no notice 
at the time of executing the elegit, was decreed to hold the land only in 
subordination to the lien of the equitable mortgage: Whitworth v. Gaugain, 
3 Hare, 416. The same has been held in this country with respect to a 
judgment creditor who obtains title to his debtor's land by levy thereon 
under an execution : Hart v. Farmers' and Mech. Bank, 33 Vt. 252 ; Abell 
V. Howe, 43 Vt. 403; but see Danbury v. Robinson, 14 N. J. Eq. 213, 82 
Am. Dec. 244. 




upon by the courts in administering relief; and although 
they can no longer, in many states, be applied in suits for 
a discovery to excuse him from answering, they should 
still, on principle, furnish the proper limitations to the 
examination of such a purchaser as a witness by his adver- 
sary, when he is a party to a litigation involving his title, 
where such examination has taken the^ place of the equi- 
table suit for a discovery.^ 

§ 200, (b) See, also, § 764 et seq. In 
Ind, Coope & Co. v. Emmerson, L. R. 
12 App. C. 300, the effect of the 
judicature act of 1873 upon the doc- 
trine that a bona fide purchaser was 
protected in a suit for discovery 
alone from making discovery was 
discussed. This was a suit brought 
in the Chancery Division of the 
High Court of Justice, by the holder 
of the legal title to lands, to recover 
their possession, and in it the plain- 
tiff claimed the discovery of certain 
papers and documents which she al- 
leged were material to her title. To 
the prayer for discovery, the defend- 
ants set up that they were bona fide 
purchasers. It will be noticed that 
the plaintiff's case, so far as it 
sought to recover the possession of 
the land, was one that, prior to the 
judicature act, would have been en- 
forced in a legal action of eject- 
ment, and that the discovery would 
have beeu obtained in a bill brought 
for that purpose, to which the de- 
fense of bona fide purchaser would 
have been a complete answer. The 
defendants contended that the same 
protection was afforded them in the 
present action, and that the con- 
solidation of the legal and equitable 
actions in the one action authorized 
by the judicature act had made no 
change in the pre-existing equitable 
rules as to discovery in cases of bon<i 
fide purchaser. In disposing of this 

contention, Lord Chancellor Sel- 
borne said: "The first observation to 
be made is, that the court of ehan- 
dery, when it allowed a plea of pur- 
chase for valuable consideration 
without notice to a bill for discovery 
only, allowed it, not to particular 
discovery (as, e. g., of certain deeds 
and documents), but to the whole, 
not on the ground that certain 
things ought not to be inquired into, 
but because the court ought not, as 
against such a purchaser, to give 
any assistance whatever to a plain- 
tiff suing upon a legal title- in an- 
other jurisdiction. And upon the 
same ground, a like plea would have 
been allowed to a suit asking for 
more than discovery (e. g., for an 
injunction to restrain the defendant 
at law from setting up outstanding 
terms), when the object of the suit 
was still to obtain from the court of 
chancery assistance to the suit of 
the plaintiff suing upon a legal title 
in another jurisdiction. The defense 
was, in effect 'no equity,' which is 
a different thing from an 'equitable 
defense.' It was thought inequi- 
table, generally, that a man should 
defeat a legal title by keeping back 
facts in his own knowledge, or by 
setting up outstanding terms; it was 
thought not inequitable that a pur- 
chaser for value without notice 
should use any such tabula in nau- 
fragio as best he could. But in the 




§ 201. III. The Nature, Subject-matter, and Objects of 
the Discovery Itself; that is, the Matters Concerning 
Which the Plaintiff may Inquire and Compel a Discovery, 
and the Defendant must Answer and Make Discovery.^ — 

The fundamental rule on this subject is, that the plain- 
tiff's right to a discovery does not extend to all facts 
which may be material to the issue, but is confined to facts 
which are material to his own title or cause of action; it 
does not enable him to pry into the defendant's case, or 

present case there is no suit in any 
other jurisdiction J the High Court of 
Justice is asked, and is competently 
asked, to exercise a principal and 
not an auxiliary jurisdiction, and to 
give effect to the legal title which 
the plaintiff alleges to be in herself. 
If a like suit had formerly been 
brought in the court of chancery it 
would have been demurrable, not 
because there was an equitable de- 
fense, but because the title was 
legal, and the plaintiff stated no 
equity. To abolish that division of 
jurisdictions was the very object of 
the judicature act. ... In the class 
of cases referred to, the separation 
and division of jurisdictions between 
the courts of equity and the courts 
of common law was the real and 
only ground on which such a defense 
was admitted. As against an inno- 
cent purchaser sued at law, the 
court of chancery (having no juris- 
diction itself to try the title) found 
no equity requiring it to give assist- 
ance to a proceeding brought else- 
where for that purpose. But it is 
impossible, without departing from 
that ground, to make the same de- 
fense available against discovery 
(otherwise proper) in a suit in which 
it is not available against the relief, 
and in which the High Court has 
proper jurisdiction to try. and must 

try, and determine the question of 
title, and accordingly we find that 
there is no instance of any suit com- 
petently brought in the court of 
chancery for relief, as well as dis- 
covery in which the defense of pur- 
chaser for value without notice has 
been held available against discov- 
ery incident to the relief, and not 
against the relief itself also. That 
defense was never admitted as an 
objection to particular discovery; it 
went to all or none. And in those 
cases in which the court of chan- 
cery had concurrent jurisdiction 
with the common-law courts upon 
legal titles, it was not available 
against either discovery or relief." 
It was accordingly held, affirming 
the judgment of the Court of Ap- 
peal (L. R. 33 Ch. Div. 323), that 
the defendants were obliged to make 
discovery. That a similar conclu- 
sion would be reached in all those 
American states where there has 
been a union of legal and equitable 
jurisdictions would seem necessarily 
to follow. 

§ 201, (a) Cited with approval in 
Kelley v. Boetteher, 85 Fed. 55, 29 
C. C. A, 14; Smythe v. New Orleans 
C. & B. Co., 34 Fed. 825, affirmed, 
141 U. S. 656, 12 Sup. Ct. 113; Wat- 
kins V. Cope, 84 N. J. L. 143, 86 Atl. 


find out the evidence by which that case will be supported. 
The plaintiff is entitled to a disclosure of the defendant's 
title, and to know what his defense is, but not to a state- 
ment of the evidence upon which the defendant relies to 
establish it.i ^ This rule, however, must be understood 

§ 201, 1 Jeremy's Eq. Jur. 262, 263; Wigram on Discovery, 21, 22; see 
quotation ante, § 195, note ; Hoppock v. United, etc., R. R., 27 N. J. Eq. 
286; French v. Rainey, 2 Tenn. Ch. 641; Richardson v. Mattison, 5 Biss. 
31; Kearney v. Jeffries, 48 Miss. 343; Heath v. Erie R. R., 9 Blatchf. 316; 
Sackvill V. Ayleworth, 1 Vern. 105; Dursley v. Fitzhardinge, 6 Ves. 260; 
Allan V. Allan, 15 Ves. 131; Janson v. Solarte, 2 Younge & C. 127; Attor- 
ney-General V. Corp'n of London, 2 Macn. & G. 247; Llewellyn v. Badely, 
1 Hare, 527; Lowndes v. Davies, 6 Sim. 468; Glasseott v. Copper Miners' 
Co., 11 Sim. 305; Bellwood v. Wetherell, 1 Younge & C. 211-218; Cullison 
V. Bossom, 1 Md. Ch. 95 ; Phillips v. Prevost, 4 Johns. Ch. 205 ; Cuyler v. 
Bogert, 3 Paige, 186; Bank of Utica v. Mersereau, 7 Paige, 517; King v. 
Ray, 11 Paige, 235; Brooks v. Byam, 1 Story, 296-301; Langdon v. God- 
dard, 3 Story, 13; Haskell v. Haskell, 3 Cush. 542; Bethell v. Casson, 1 
Hem. & M. 806. The following cases also illustrate the rule, in some of 
which the discovery was held to be material to plaintiff's case, and proper; 
in others not to be proper, because relating solely to defendant's defense: 

§ 201, (b) Facts Must be Material ground that the "plaintiff in eject- 
to Plaintiff's Title. — See, also, Ben- ment must rely on the strength of 
bow V. Low, L. R. 16 Ch. Div. 93 his own title"; but in the House of 
(not entitled to statement of defend- Lords it was shown that the practice 
ant's evidence); Bidder v. Bridges, was otherwise; citing Craw v. Tyrell, 
L. R. 29 Ch. Div. 34. A plea that 2 Madd. 397; Wright v. Plumptre, 
the documents which the bill seeks 3 Madd. 481; Pennington v. Berchy, 
to discover do not relate to the 2 Sim. & St. 282; Drake v. Drake, 
plaintiff's ease must be taken as 3 Hare, 523; Bennett v. Glossop, 3 
true, unless the court can see from Hare, 578; Brown v. Wales, L. R. 
the nature of the case or of the 15 Eq. 147; Butterworth v. Bailey, 
documents that the party has misun- 15 Ves. 358. 

derstood the effect of the documents; To the effect that a bill cannot 

Roberts v. Oppenheim, L. R. 26 Ch. be maintained for what does not ap- 

Div. 484. In Lyell v. Kennedy, pertain to and is not necessary for 

L. R. 8 App. Cas. 217, reversing 20 the title of the plaintiff, but ap- 

Ch. Div. 484, the Court of Appeal pertains to the title of the defend- 

(Brett, L. J., and Jessel, M. R.) had ant, see Norfolk & W. R. Co. v. 

held that in an action of ejectment Postal Tel. Cable Co., 88 Va. 932, 14 

it was the settled practice that the S. E. 689; Sunset Telephone & T. 

plaintiff could not have discovery Co. v. City of Eureka, 122 Fed. 961; 

even as to his own title, on the Genera] Film Co. v. Sampliner, 232 




with the limitation that the plaintiff may compel the dis- 
covery of all facts material to his own cause of action, even 
though the defendant's evidence may thereby be inciden- 

Owen V. Wynn, L. R. 9 Ch. Div. 29; Minet v. Morgan, L. R. 8 Ch. 361, 
363, L. R. 11 Eq. 234; In re Leigh's Estate, L. R. 6 Ch. Div. 256; Great 
Western, etc., Co. v. Tucker, L. R. 9 Ch. 376 ; Kettlewell v. Barstow, L. R. 
7 Ch. 686 (defendant was excused from producing a pedigree which he 
swore positively related solely to his own title, and showed nothing con- 
cerning the plaintiff's title by descent, which was in issue) ; Thompson v. 
Dunn, L. R. 5 Ch. 573; Chichester v. Marquis of Donegal, L. R. 5 Ch. 
497; Wilson v. Thornbury, L. R. 17 Eq. 517; Murray v. Clayton, L. R. 15 
Eq. 115 (in a suit for infringement on a patent right, after a decree in 

Fed. 95, 146 C. C. A. 287; Kinny v. 
Eice, 238 Fed. 444 (cannot have dis- 
covery for the purpose of ascertain- 
ing the names of witnesses by whom 
defendtint expects to prove his 
case); Franklin Township v. Crane, 
80 N. J. Eq. 509, 43 L. E. A. (N. S.) 
604, 85 Atl. 408. As holding that 
plaintiff cannot seek discovery of 
matters beyond his own title, see, 
also, Kelley v. Boettcher, 85 Fed. 
55, 29 C. C. A. 14. Accordingly it 
has been held that a plaintiff :s not 
entitled to an inspection of the 
deeds upon which defendant bases 
his right. Eyder v. Bateman, 93 
Fed. 31. That plaintiff is entitled 
to a discovery of defendant's title, 
see Stone v. Marshall Oil Co., 188 
Pa. St. 614, 41 Atl. 748, 1119. A bill 
mav be maintained for the discovery 
of a will under which plaintiff 
claims. Hanneman v. Eichter, 62 
N. J. Eq. 365, 50 Atl. 904. Or of 
choses in action in defendant's pos- 
session the nature of which plaintiff 
docs rot know. Smith v. Smith's 
Adm'r, 92 Va. 696, 24 S. E. 280. 
Courts of equity in patent cases 
sometimes grant an inspection of 
alleged infringing devices as inci- 
dental to ordinary discovery. Col- 
gate V. Compagnie Francaise du 

Telegraphe, 23 Fed. 82. In Eey- 
nolds V. Burgess Sulphite Fibre Co., 
71 N. H. 332, 93 Am. St. Eep. 535, 
57 L. R. A. 949, 51 Atl. 1075, it was 
held that a plaintiff may have dis- 
covery of an article of personal 
property so that an expert may ex- 
amine it before trial. The action at 
law was for negligence. In Plaster 
V. Throne-Franklin Shoe Co., 123 
Ala. 360, 26 South. 225, discovery of 
assets was allowed as incidental to 
a creditor's bill. In Clark v. Equi- 
table Life Assur. Soc, 76 Miss. 22, 
23 South. 453, it was allowed to 
determine the profits of a mutual 
life insurance company; as incidental 
to an account. In Hartman v. 
Evans, 38 W. Va. 669, 18 S. E. 810, 
it was allowed to determine the true 
character of a loan, and to show 

"The plaintiff may restrict his 
prayer for discovery to any matter 
01 part of the evir'cnce to support 
his action that he may choose. It 
would be absurd to suppose that, if 
he files a bill for discovery, he must 
call upon the defendant for all the 
evidence necessary to support the 
plaintiff's action at law." Hurri- 
cane Tel. Co. V. Mohler, 51 W. Va. 
1. 41 S. E. 421. 


tally disclosed, <^ as, for example, where the establishment 
of the plaintiff's title or cause of action involves the proof 
of fraud; and the defendant, besides discovering what the 
case is on which he relies, can be compelled to disclose all 
facts which would, by way of evidence, tend to impeach or 
destroy it, unless otherwise privileged, since such facts are 
material evidence for his adversary, but is not bound to 
disclose any evidence by which he intends to or may sup- 
port his case, for such evidence cannot be material to the 
plaintiff .2 © As a direct inference of this general rule, all 

plaintiff's favor, establishing plaintiff's right, and enjoining the defend- 
ant, plaintiff is entitled to a discovery of all the i^atented articles sold by 
defendant, and of the names and addresses of their purchasers) ;® Brown 
V. Wales, L. R. 15 Eq. 142 (in a controversy concerning title to lands 
embraced in a certain conveyance, matters identifying the parcels of land 
in dispute are part of plaintiff's title, as well as matters showing the 
devolution of the estate); Wier v. Tucker, L. R. 14 Eq. 25; Girdlestone 
V. North Brit., etc., Ins. Co., L. R. 11 Eq. 197; Bovill v. Smith, I.. R. 2 
Eq. 459 ; Dixon v. Eraser, L. R. 2 Eq. 497 ; Saunders v. Jones, 7 Ch, Div. 
435, 443. 

§ 201, 2 Stainton v. Chadwick, 3 Macn. & G. 575 ; Young v. Colt, 2 
Blatchf. 373. In Attorney-General v. Corporation of London, 2 Macn. 
& G. 247, 256, 257, 13 Beav. 313, Lord Cottenham states in a very clear 
and full manner the exact extent and limits of the plaintiff's right of dis- 
covery with respect to matter relating to the defendant's defense and title, 
and his opinion has been regarded accurate. The following more recent 
decisions will further illustrate this rule: In Hoffman v. Postill, L. R. 4 
Ch. 673, it was held that although the plaintiff cannot have a discovery of 
the evidence in support of defendant's case, yet when the defendant files 
interrogatories, he may ask any questions tending to defeat the plaintiff's 
cause of action. While this decision does not claim that discovei'y by 
defendant is governed by any different principle, it plainly shows that 
more freedom is allowed to the defendant than to the plaintiff in investi- 
gating his adversary's case. To exactly the same effect is the decision in 
Commissioner, etc. v. Glasse, L. R. 15 Eq. 302. In Republic of Costa 

§201, (c) To the same effect, see 444; Laeoss v. Town of Lebanon 

Saccharin Corporation v. Chemicals (N. H.), 101 Atl. 364. 

& Drugs Co., (1900) 2 Ch. 556. §201, (e) Quoted in Edison Elec- 

§201, (d) See Dock v. Dock, 180 trie Light Co. v. U. S. Electric 

Pa. St. 14, 57 Am. St. Rep. 617, 36 Light Co., 45 Fed. 55, 58. 
Atl. 411; Kinney v. Rice, 238 Fed. 


the facts which the plaintiff seeks to discover must be 
material; the defendant is never compelled to disclose mat- 
ters which are immaterial as evidence to support the plain- 
tiff's contention; he is never obliged to answer vexatious 
or impertinent questions, asked from curiosity or malice.^ ^ 

Rica V, Elanger, L. R. 19 Eq. 33, 44, 45, per Malins, V. C, while it was 
admitted that, in general, matters simply injurious to defendant's case 
could not be discovered, and that a mortgagee or hona fide purchaser for 
value, in a suit against him concerning the land, cannot be compelled to 
disclose the title deeds of the estate under which he holds, this general 
rule is subject to an exception; viz., when a prima facie case is stated 
impeaching the validity of these very deeds, on the ground of fraud, or 
some other ground which would establish the plaintiff's right, their dis- 
covery by the defendant will be compelled; citing, as illustrations of this 
doctrine, Beckford v. Wildman, 16 Ves. 438; Balch v. Symes, Turn. & R. 
87; Bassford v. Blakesley, 6 Beav. 131, 133; Kennedy v. Green, 6 Sim. 
6 (case of a hona fide purchaser, etc.) ; Latimer v. Neate, 11 Bligh, 112, 
4 Clark & F. 570 ; FoUett v. Jefferyes, 1 Sim., N. S., 1 ; Freeman v. But- 
ler, 33 Beav. 289; Crisp v. Platel, 8 Beav. 62. And on the rule that 
defendant must disclose matters aiding the plaintiff's cause of action, even 
though they may also affect his own title or defense, see Brown v. Wales, 
L. R. 15 Eq. 142; Smith v. Duke of Beaufort, 1 Hare, 507; Earp v. Lloyd, 
3 Kay & J. 549; Lowndes v. Davies, 6 Sim. 468. 

§ 201, 3 Finch v. Finch, 2 Ves. Sr. 492 ; Richards v. Jackson, 18 Ves. 
472; Janson v. Solarte, 2 Younge & C. 127; Montague v. Dudman, 2 Ves. 
Sr. 399; Gelston v. Hoyt, 1 Johns. Ch. 548, 549; Lindsley v. James, 3 
Cold. 477; Wier v. Tucker, L. R. 14 Eq. 25; Minet v. Morgan, L. R. 8 
Ch. 361; Republic of Costa Rica v. Erlanger, L. R. 19 Eq. 33; as, for 
example, in suits against vendors or manufacturers for infringing upon 

§ 201, (f ) Equity will not compel ters as to which a discovery is 
discovery of irrelevant matters. sought are material to the proving 
Alexander v. Mortgage Co., 47 Fed. of his action at law, but he must 
131. In Gorman v. Bannigan, 22 state his case in such a manner that 
K. I. 22, 46 Atl. 38, the plaintiff the court will be able to see how such 
sought a discovery of the value of matters may be material on the trial 
an estate in aid of an action at law thereof." That an interrogatory in- 
fer legal services. It was held that tended merely to obtain the names 
the evidence sought was immaterial of witnesses, especially witnesses 
to the issue and that the bill could whom the other party expects to 
not be maintained. In this case the call, is bad, see Watkins v. Cope, 84 
court said: "Moreover, it is not suffi- N. J. L. 143, 86 Atl. 545, citing the 
cient, in a bill of discovery, for the text. The whereabouts of some of 
complainant to allege that the mat- the defendants is not material to as- 


§ 202. As a general proposition, the discovery, in order 
to be granted, must be in aid of some object which a court 
of equity can regard with approval, or at least without dis- 
approval, — some object which is not opposed to good 
morals or to the principles of public policy embodied in 
the law.i This doctrine is the foundation of several par- 
ticular rules regulating the practice of discovery. The 
first of these particular applications of the doctrine is, that 
a defendant in the discovery suit, or in a suit for relief as 
well as discovery, is never compelled to disclose facts 
which would tend to criminate himself, or to expose him 
to criminal punishment or prosecution, or to pains, penal- 
ties, fines, or forfeitures. He may refuse an answer, not 
only to the main, directly criminating facts, but to every 
incidental fact which might form a link in the chain of evi- 
dence establishing his liability to punishment, penalty, or 
forfeiture.2 a This restriction upon the right to a dis- 

plaintiff's trademark, the names of defendant's customers who have bought 
the article need not be disclosed: Carver v. Pinto Leite, L. R. 7 Ch. 90; 
Moore v. Craven, L. R. 7 Ch. 94, note; but see Murray v. Clayton, L. R. 
15 Eq. 115;^ and see Jeremy's Eq. Jur. 265. This special rule should 
not be understood as requiring that the discovery itself must be material 
in the sense that the plaintiff has no other way of obtaining the evidence; 
it has been shown that a suit for discovery may be maintained solely on 
the ground of convenience, and need not be rested on any necessity. For 
further illustrations of the text, see cases cited in last note. 

§ 202, 1 Jeremy's Eq. Jur. 268 ; King v. Burr, 3 Mer. 693 ; Cousins v. 
Smith, 13 Ves. 542 ; Rejah v. East India Co., 35 Eng. L. & Eq. 283. 

§ 202, 2 Jeremy's Eq. Jur. 265-268 ; Currier v. Concord, etc., R. R., 
48 N. H. 321; Black v. Black, 26 N. J. Eq. 431; East India Co. v. Camp- 
bell, 1 Ves. Sr. 246; Claridge v. Hoare, 14 Ves. 59, 65; Fisher v. Owen, 
L. R. 8 Ch. Div. 646; Christie v. Christie, L. R. 8 Ch. 499; Lichfield v. 

sist plaintiff in establishing his case; §201, (e) Also, Saccharin Corpora- 

the discovery of such matters is not tion v. Chemicals & Drugs Co., (1000) 

supported by cases permitting dis- 2 Ch. 556; ante, notes 1 and (c) to 

covery of the names of stockholders, this paragraph, 

as in § 197, note (c), ante; Union §202, (a) Quoted in Robson v. 

Collection Co. v. Superior Court, 149 Doyle, 191 111. 566, 61 N, E. 435. 

Cal. 790, 87 Pac. 1035, citing the See United States v. National Lead 

text. Co., 75 Fed. 94; Daisley v. Dun, 98 




covery is subject to several limitations and exceptions 
necessary in order to promote the ends of justice. A de- 
fendant is always compelled to disclose his frauds and 
fraudulent practices, when such evidence is material to the 
plaintiff's case, even though the fraud might be so great 
as to expose the defendant to a prosecution for conspiracy, 
unless perhaps the indictment was actually pending.^ ^ 

Bond, 6 Beav. 88 ; Short v. Mercier, 3 Macn. & G. 205 ; Glynn v. Houston, 
1 Keen, 329; United States v. Saline Bank, 1 Pet. 100; Horsburg v. Baker, 

1 Pet. 232-236 ; Greenleaf v. Queen, 1 Pet. 138 ; Ocean Ins. Co. v. Fields, 

2 Story, 59; Stewart v. Drasha, 4 McLean, 563; Union Bank v. Barker, 

3 Barb. Cb. 358; Northrup v. Hatcb, 6 Conn. 361; Skinner v. Judson, 8 
Conn. 528; Poindexter v. Davis, 6 Gratt, 481; Higdon v. Heard, 14 Ga. 
255; Marshall v. Riley, 7 Ga. 367; King of the Sicilies v. Wilcox, 1 Sim., 
N. S., 301; United States v. McRae, L. R. 3 Ch. 79. 

§ 202, 3 Dummer v. Corp'n of Chippenham, 14 Ves. 245 ; Lee v. Read, 
5 Beav. 381 ; Janson v. Solarte, 2 Younge & C. 132, 136 ; Green v. Weaver, 

Fed. 497 (answers would lay defend- 
ant open to prosecution for libel); 
Marsh v. Davison, 9 Paige, 580; 
Thompson v. Whitaker Iron Co., 41 
W. Va. 574, 23 S. E. 795; Cross v. 
McClenahan, 54 Md. 21; Noyes r. 
Thorpe, 73 N. H. 481, 12 L. R. A. 
(N. S.) 636, 62 Atl. 787 (discovery 
sought in aid of an action for libel; 
production of the original writing 
containing the libelous article, and 
disclosure of names of persons from 
whom defendant received his in- 
formation, refused). It has been 
held that in order that the defend- 
ant may be excused from answering 
"it must appear, either by the bill 
of the complainant, or by the plea 
of the defendant, that his answer 
may subject him to punishment, or 
he will be compelled to make the 
discovery asked for in the bill. As 
if a bill states a marriage of the 
defendant with a particular woman, 
this is of itself no offense; but if he 
pleads that she is hia sister, that 

fact would constitute the alleged 
marriage a criminal act, and he may 
refuse to state anything more, or to 
speak as to any fact or circumstance 
which may form a link in the chain." 
Wolf V. Wolf's Ex'r, 12 Har. & G. 

That discovery may be had in aid 
of an action for a personal tort, 
where it will not expose the defend- 
ant to the liabilities mentioned in 
the text, see Reynolds v. Burgess 
Sulphite Fibre Co., 71 N. H. 332, 
93 Am. St. Rep. 535, 57 L. R. A. 949, 
51 Atl. 1075, and cases cited, ante, 
note (a), § 197. 

§ 202, (b) See, also, Leitch v. Ab- 
bott, L. R. 31 Ch. Div. 374; Pos- 
tlethwaite v. Eickman, L. R. 35 Ch. 
Div. 744. Before the defendant can 
be compelled to discover concerning 
the transaction claimed by the plain- 
tiff to be fraudulent, it is not neces- 
sary that the bill should allege the 
particulars of the fraud: Leitch v. 
Abbott, L. R. 31 Ch. Div. 374; White 


And a party may have so contracted that he has thereby 
bound himself to make discovery, although it might sub- 
ject him to pecuniary penalties.^ Some other grounds of 
limitation or exception are stated in the note.^ 

§ 203. Privileged Communications. — Another applica- 
tion of the general doctrine concerning public policy is, 
that no disclosure will be compelled of matters a knowl- 
edge of which has been communicated or obtained through 
or by means of certain close confidential relations, which 

1 Sim. 404, 427, 432; Mitchell v. Koecker, 11 Beav. 380; Robinson v. 
Kitchen, 35 Eng. L. & Eq. 558 ; Currier v. Concord, etc., R. R., 48 N. H. 
321 ; Attwood v. Coe, 4 Sand. Ch. 412 ; Skinner v. Judson, 8 Conn. 528, 
21 Am. Dec. 691 ; Howell v. Ashmore, 9 N. J. Eq. 82, 57 Am. Dec. 371 ; 
O'Connor v. Tack, 2 Brewst. 407. 

§ 202, 4 Green v. Weaver, 1 Sim. 404; Lee v. Read, 5 Beav. 381. 

§ 202, 5 Where the liability to a penalty is barred by lapse of time, or 
where the right to it held by the plaintiff has been waived by him : Trinity 
House Corp'n v. Burge, 2 Sim. 411; Skinner v. Judson, 8 Conn. 528, 21 
Am. Dec. 691; Northrop v. Hatch, 6 Conn. 361; Dwinal v. Smith, 25 Me. 
379; Mitford's Eq. PI. 195-197. Or when the penalty is in reality only 
liquidated damages: Mitford's Eq. PL 195-197. And if the so-called 
forfeiture is merely the termination or change of the party's interest un- 
der some conditional limitation, the rule does not apply; e. g., a gift 
to a woman during her widowhood, and if she marry, then over, she must 
disclose whether she has married : Hurst v. Hurst, L. R. 9 Ch. 762 ; Chaun- 
cey v. Tahourden, 2 Atk. 392; Lucas v. Evans, 3 Atk. 260; Hambrook v. 
Smith, 17 Sim. 209. Also where gaming, stock-jobbing, and the like, have 
been made illegal by statute, and parties engaging therein liable to cer- 
tain pecuniary penalties or forfeitures, a discovery is authorized by the 
statute, although it might expose the defendant to such possible liabilities, 
and therefore a suit for discovery of sums lost at play, or by stock-jobbing 
operations, and of securities given therefor, may be maintained: Mitford's 
Eq. PL 288; Rawden v. Shadwell, Amb. 268; Newman v. Franco, 2 Anstr. 
519; Andrews v. Berry, 3 Anstr. 634, 635; but see Short v. Mercier, 3 
Macn. & G. 205 ; Robinson v. Lamond, 15 Jur. 240. 

V. Ahrens, L. E. 26 Ch. Div. 717. Postlethwaite v. Rickman, L. R. 35 

Nor can the defense of privileged Ch. Div. 744; Williams v. Imbrada 

communications be set up to defeat Land and Copper Co., (1895) 2 Ch. 

discovery, where the communication 751. See this subject further dis- 

is made in a fraudulent transaction: cussed, post, § 203, note. 


are carefully guarded and protected from invasion or in- 
terference by the general policy of the law. For this 
reason a married woman cannot be compelled to disclose 
facts tending to establish any liability of her husband, the 
knowledge of which was acquired by her through her mari- 
tal relation.i On the same foundation of principle rests 
the important rule that a party will not be compelled to 
disclose the legal advice given him by his attorney or coun- 
sel, nor the facts stated or matters communicated between 
himself and them in reference to the pending suit, or to 
the dispute which has resulted in the present litigation; 
nor, on the other hand, will these professional advisers 
be compelled or permitted to disclose the matters which 
they have learned or communicated in the same manner.^a 
With respect to the nature of the matter passing between 

§ 203, 1 By the ancient law, a married woman cov;ld not testify in any 
civil proceeding either for or against her husband, no matter when, or 
where, or how she became informed of the facts. Under modem statutes 
permitting her to be a witness generally in suits to which he is a party, the 
limitation upon her discovery would doubtless extend, as stated in the 
text, only to those matters of which she obtained a knowledge through the 
confidences of the marital relation : See Le Texier v. Margrave of Anspach, 
5 Ves. 322, 15 Ves. 159; Cartwright v. Green, 8 Ves. 405, 408; Barron v. 
Grillard, 3 Ves. & B. 165. 

§203, 2 Bulstrode v. Letchmore, 3 Freem. 5, 1 Cas. Ch. 277; Park- 
hurst V. Lowten, 2 Swanst. 194, 216; Sandford v. Remington, 2 Ves. 189; 
Wilson V, Northampton, etc., R'y Co., L. R. 14 Eq. 477; McFarlan v. Rolt, 
L. R. 14 Eq. 580 ; Minet v. Morgan, L. R. 8 Ch. 361 ; Currier v. Concord, 
etc., R. R., 48 N. H. 321. As to the persons between whom the privilege 
exists, the matters must have been communicated between a client and his 

§203, (a) See Nat. Bank of West pelled where the party swears that 

Grove v. Earle, 196 Pa. St. 217, 46 he has no knowledge or information 

Atl. 268; Calcraft v. Guest, (1898) with regard to the matters inquired 

1 Q. B. 759, 67 L. J. Q. B. 505, 78 of, except such as he has derived 

L. T. (N. S.) 283, 46 Wkly. Eep. from privileged communications 

420; Lyell v. Kennedy, L. E. 27 Ch. made to him by his solicitors or 

Div. 1; Kennedy v. Lyell, L. R. 23 their agents, and that a belief 

Ch. Div. 387, affirmed, L. R. 9 App. founded on such knowledge or in- 

Cas. 81. In the last case it was de- formation is protected, 
cided that no discovery can be com- 


the client and his attorney or counsel, the protection is 
not absolute nor universal. The privilege from disclosure 
embraces those matters alone '4n which it is lawful for 
the client to ask and the solicitor to give professional ad- 
professional legal adviser, or some person acting at the time as that legal 
adviser's agent or clerk, and may be made to such legal adviser personally, 
or through the means of any intermediate agent employed expressly to 
make the communication, either by writing or orally : Anderson v. Bank of 
Br. Columbia, L. R. 2 Ch. Div. 644; Wilson v. Northampton, etc., R'y 
Co., L. R. 14 Eq. 477; McFarlan v. Rolt, L. R. 14 Eq. 580; Jenkyns v. 
Bushby, L. R. 2 Eq. 547; Goodall v. Little, 1 Sim., N. S., 155; Lafone v. 
Falkland Islands Co., 4 Kay & J. 34; Reid v. Langlois, 1 Macn. & G. 627; 
Russell V. Jackson, 9 Hare, 387; Bank of Utica v. Mersereau, 3 Barb. 
Ch. 528, 49 Am. Dec. 189 ; Crosby v. Berger, 11 Paige, 377, 42 Am. Dec. 
117; March v. Ludlum, 3 Sand. Ch. 35; Stuyvesant v. Peekham, 3 Edw. 
Ch. 579 ; Parker v. Carter, 4 Munf . 273, 6 Am. Dec. 513 ; and communica- 
tions between the party's predecessors in title and their attorneys have 
been held privileged ; MLnet v. Morgan, L. R. 8 Ch. 361.* Communications 
made to or from, or in the hearing of, the following persons have been 
held not to come within the rule, and not to be privileged. The attorney's 
son, who happened to be present in his father's office, but not connected 
with him in business : Goddard v. Gardner, 28 Conn. 172 ; a stranger who 
happened to be present at the conversation with the attorney : Jackson v. 
French, 3 Wend. 337, 20 Am. Dec. 699 ; a confidential clerk of the party : 
Corps V. Robinson, 2 Wash. C. C. 388; from a business managing agent 
of the party: Anderson v. Bank of Br. Columbia, L. R. 2 Ch. Div. 644; 
but see Ross v, Gibbs, L. R. 8 Eq. 522; between two co-defendants after 
suit brought : Hamilton v. Nott, L. R. 16 Eq. 112 ; between defendants for 
the purpose of being laid before their attorney : Goodall v. Little, 1 Sim., 
N. S., 155; but see Jenkyns v. Bushby, L. R. 2 Eq. 547; between the at- 
torneys of the opposite parties: Gore v. Bowser, 5 De Gex & S. 30. Not 
only must one of the persons be a legal professional man, but the relation 
of client and professional adviser must actually be subsisting at the time 
the communication is made ; therefore a communication will not be privi- 
leged if made to an attorney at law, who is acting simply as a friend of 
the person making it: Coon v. Swan, 30 Vt. 6; nor if made after the 
actual relation of client and lawyer has ceased : Yordan v. Hess, 13 Johns. 
492; and the communication must be made to the lawyer in consequence of 
and in respect of his professional character : Bunbury v. Bunbury, 2 Beav. 
173; Greenlaw v. King, 1 Beav. 137; Dartmouth v. Holdsworth, 10 Sim. 

§203. (b) See, also, Calcraft v. Q. B. 505, 78 L. T. (N. S.) 283, 46 
Guest, (1898) 1 Q. B. 759, 67 L. J. Wkly. Rep. 420. 




vice";^ and therefore communications by which fraud is 
contrived or arranged between a lawyer and client are 
wholly excluded from the privilege, and must be divulged.^ 
With respect to the time at which the communication must 

476. In order to be entitled to the privilege, the matter need not be com- 
municated personally between the client and his legal adviser; it may pass 
between them through an agent: Anderson v. Bank of Br. Columbia, L. R. 
2 Cb. Div. 644, per Jessel, M. R.j Bunbury v. Bunbury, 2 Beav. 173; 
Steele v. Stewart, 1 Phill. Ch. 471; Goodall v. Little, 1 Sim., N. S., 155; 
Russell V. Jackson, 9 Hare, 387; Jenkyns v. Bushby, L. R. 2 Eq. 547.® 

§ 203, 3 Reynell v. Sprye, 10 Beav. 51, 11 Beav. 618 ; Gartside v. Out- 
ram, 26 L. J. Ch, 113.® But where the fraud was entirely on the part of 
the client, was not imputed to the attorney, and was therefore collateral 
to the communication between them, the communication was held to be 
privileged : Mornington v. Mornington, 2 Johns. & H. 697. In the very 
recent case of Anderson v. Bank of British Columbia, L. R. 2 Ch. Div. 
644, the doctrine of privileged communications as it now stands under the 
modern decisions, and according to the new procedure substituted in place 
of the "bill of discovery," was fully examined by Sir George Jessel, M. R. 
The following cases also illustrate what is and what is not privileged : 
Private and confidential letters from a stranger to defendant must be pro- 
duced by him, although the sender forbid; but plaintiff may be required 
to give an undertaking not to use them for other purposes than as requisite 
for his litigation : Hopkinson v. Lord Burghley, L. R. 2 Ch. 447 ; as to 

§203, (c) See, also, Lyell v. Ken- 
nedy, L. E. 23 Ch. Div. 382, affirmed 
in L. K. 9 App. Cas. 81. 

§203, (d) The privilege from dis- 
covery does not extend to facts com- 
municated by a solicitor to his client 
which cannot be the subject of a 
confidential communication between 
them, even though such facts have a 
relation to the case of the client in 
the action: Foakes v. Webb, 28 Ch. 
Div. 287. So held as to information 
derived by the client from his solici- 
tor of the fact that the solicitor had 
had correspondence with the solicitor 
of his adversary concerning the sub- 
ject-matter of the action. 

§203, (e) Bullivant v. Attorney- 
General, (1901) App. Cas. (H. L.) 

196 (no proof or definite charge of 
any fraud or illegality to displace 
the privilege), reversing Reg. \. Bul- 
livant, (1900) 2 Q. B. 163, 69 L. J., 
Q. B., 657, 82 L. T. (N. S.) 493 ("the 
privilege does not extend to com- 
munications which came into exist- 
ence for the purpose of the client's 
procuring advice as to the mode in 
which he might evade the provisions 
of a colonial statute imposing a duty 
in respect of property"), and follow- 
ing Simms v. Registrar of Probates, 
(1900) App. Cas. (Privy Coun.) 323; 
Williams v. Imbrada R. R. Land & 
Copper Co., (1895) 2 Ch. 751; Postle- 
thwaite v. Rickman, L. R. 35 Ch. 
Div. 744. 


be made in order to be protected, there has been no little 
fluctuation among the decisions, and the rule cannot even 
now be considered as settled with certainty and uniformity, 
both throughout all the states of this country and England, 
although it is settled at last in England by the most recent 
decisions. It is well established that a lawyer who has 
been consulted professionally will not be compelled nor 
permitted to disclose the matters passing between himself 
and the client, at whatever time the communication was 
made, whether during the pendency of the litigation, or 
in contemplation of a litigation, after the dispute resulting 
in it had begun, or even before any dispute had arisen or 
any litigation was anticipated.^ It is equally well estab- 
lished that the client cannot be compelled to disclose the 
advice or opinion which he has at any time professionally 
received from his legal adviser,^ The fluctuation and dis- 
crepancy in the decisions relate to the liability of the client 
to make discovery of the matters which he has himself 
laid before his attorney or counsel as the basis of profes- 
sional advice. It was at one time settled by the decisions, 
and the rule was generally understood and acted upon, 
both in England and in the United States, and perhaps is 
still so acted upon in this country, that statements of fact 

letters being the joint pro]ierty of sender and receiver, see Pope v. Curl, 2 
Atk. 342 ; but that the sender cannot prevent their production when re- 
quired for the ends of justice, see Gee v. Pritchard, 3 Swanst. 402; Will- 
iams V. Prince of Wales Life Ins. Co., 23 Beav. 338. On the general rule 
as to what is privileged : Cossey v. London, etc., R'y, L. R. 5 Com. P. 146 
(report of the company's medical man about an accident to plaintiff) ; 
Smith v. Daniell, L. R. 18 Eq. 649 (letters written to counsel, but not 
sworn to be "confidential") ; Heath v. Crealock, L. R. 15 Eq. 257 (attorney 
of a defendant who had absconded not compelled to disclose his address, 
so that plaintiff might make jiersonal service of process on him, although 
a personal service was required by the practice). 

§ 203, 4 The rule is thus settled whether the lawyer is examined as an 
ordinary witness, or whether he is joined as a party defendant for purpose 
of discovery; Herring v. Clobery, 1 Phill. Ch. 91; Jones v. Pugh, 1 Phill. 
Ch. 96; Greenough v. Gaskell, 1 Mylne & K. 98. 

§203, 5 Ibid. 


made to a lawyer, and even written "cases" laid before 
liim for his opinion, before any disi')ute lias arisen, and 
therefore not in contemplation of an impending or antici- 
pated litigation, are not embraced within the privilege, but 
must be disclosed or produced by the client at the instance 
of his adversary in any subsequent judicial controversy.^ 
Whatever may be thought of the correctness of this partic- 
ular rule, it is well settled in England, and generally in the 
United States, that facts stated or communications made 
by a client to his lawyer, either personally or by means of 
an intermediate agent, concerning the controversy, while 
a litigation is actually pending, or before the litigation has 
commenced, hut after the dispute has arisen which tends 
to a litigation, and in contemplation of such anticipated 
litigation, are entitled to the privilege on the part of the 

§ 203, 6 Radcliffe v. Fursman, 2 Brown Pari. C. 514; Bolton v. Corpo- 
ration of Liverpool, 3 Sim. 467, 1 Mylne & K. 88 ; Greenough v. Gaskell, 
1 Mylne & K. 98, 115, per Lord Brougham ; Walker v. Wildman, 6 Madd. 
& G. 47, per Sir John Leach; Knight v. Waterford, 2 Younge & C. 39, 
per Lord Abinger; Hawkins v. Gathorcole, 1 Sim., N. S., 150; Lord Wal- 
singham v. Goodricke, 3 Hare, 122; Paddon v. Winch, L. R. 9 Eq. 666. 
Radcliffe v. Fursman, 2 Brown Pari. C. 514, is the leading case in which 
the rule is supposed to have been laid down, and the subsequent decisions 
have been made wholly upon its authority as the judgment of the highest 
appellate court, the judges considering themselves bound by it, although 
denying its correctness on principle, and sometimes severely criticising it: 
See Richards v. Jackson, 18 Ves. 474; Preston v. Carr, 1 Younge & J. 
179; Newton v. Berresford, 1 Younge, 378; and per Lord Brougham and 
Lord Abinger, in the cases cited above. But in truth no such general rule 
was laid down or involved in the case of Radcliffe v. Fursman, 2 Brown 
Pari. C. 514; and the subsequent decisions made upon its authority have 
proceeded upon an entire misapprehension of its facts. This result is es- 
tablished in the most convincing manner by the writer of an article in the 
Law Magazine, vol. 17, p. 51 (Feb., 1837), who, by a masterly analysis of 
Radcliffe v. Fursman, 2 Brown Pari. C. 514, and of subsequent cases, 
demonstrates the correctness of his conclusion. These views of the article 
referred to have been fully adopted, and the authority of Radcliffe v. 
Fursman, 2 Brown Pari. C. 514, and of the cases following it, has been 
completely overthrown by the very recent English decisions cited in a 
subsequent note. 


client wlio communicates, as well as on the part of the 
attorney or counselor who receives. The client cannot be 
compelled to discover the facts stated, nor to produce the 
written case submitted for professional advice and opinion, 
under these circumstances. "^ There has always been much 
dissatisfaction with these doctrines supposed to have been 
established upon authority of the house of lords, both 
among the profession and the judges, and this opposition 
has finally triumphed. It is now settled by the latest de- 
cisions in England, that a party will not be compelled to 
disclose matters otherwise privileged, confidentially com- 
municated, relating to questions connected with an exist- 
ing judicial controversy, although the communication was 
made before any dispute arose, and was therefore not in 
contemplation or anticipation of any impending or expected 
litigation. 8 Upon the same consideration of public policy 
controlling discovery, the rule is settled that governmental 
officers, whether civil or military, are not compelled to dis- 
close matters of state, where the public interests might be 

§ 203, 7 Bolton v. Corporation of Liverpool, 3 Sim. 467, 1 Mylne & K. 
88; Greenough v. Gaskell, 1 Mylne & K. 98, 115; Warde v. Warde, 1 Sim., 
N. S., IS, 3 Maen. & G. 365 ; Bluck v. Galeswortby, 2 Giflf. 453 ; Jenkyns 
V. Bushby, L. R. 2 Eq. 547; McLellen v. Longfellow, 32 Me. 494, 54 
Am. Dec. 599; McMannus v. State, 2 Head, 213. Notwithstanding the 
strong current of modern authority, and the tendency to maintain and even 
to extend the privilege, it has still been held that no statements are pro- 
tected from disclosure unless made during the actual pendency of a judi- 
cial proceeding to which they relate : Whiting v. Barney, 30 N. Y. 330, 86 
Am. Dec. 385. 

§ 203, 8 This conclusion was reached by the court of appeal in chancery, 
in Minet v. Morgan, L. R. 8 Ch. 361, in a most able opinion by Lord 
Chancellor Selborne, which contains a thorough review of tEe leading deci- 
sions, and discussion of the subject on principle, and overthrows the 
supposed authority of Radcliffe v. Fursman, 2 Brown Pari. C. 514, and 
cases which had followed it. The same view is maintained in the follow- 
ing cases, some of them decided before and some after Minet v. Morgan, 
L. R. 8 Ch. 361, viz.: Pearse v. Pearse, 1 De Gex & S. 12; Lawrence v. 
Campbell, 4 Drew. 485; McFarlan v. Rolt, L. R. 14 Eq. 580; Turton v. 
Barber, L. R. 17 Eq. 329; Wilson v. Northampton, etc., R'y Co., L. B. 


harmed by such a disclosure, at the suit of a private indi- 

§ 204. Manner of Making Discovery. — Having thus as- 
certained what matters are exempt from a discovery, and of 
what a discovery will be compelled, it remains to consider 
certain settled rules concerning the manner in which the 
discovery must be made by the defendant. 1. Assuming 
that the matters called for are proper subjects of a dis- 
covery; that they belong to the plaintiff's case, and not to 
the defendant's; that they are not privileged, or are not 

14 Eq. 477; Walsbam v. Stainton, 2 Hem. & M. 1; Manser v. Div, 1 Kay 
& J. 451.* 

In addition to the cases heretofore cited, the following are illustrations 
c{ the general doctrines concerning confidential communications which are 
privileged : Nias v. Northern, etc., R'y Co., 3 Mylne & C. 355, 357, per 
Lord Cottenham; Flight v. Robinson, 8 Beav. 22; Reynell v. Sprye, 10 
Beav. 51; Simpson v. Brown, 33 Beav. 482; Galley v. Richards, 19 Be.-w. 
401; Beadon v. King, 17 Sim. 34; Goodall v. Little, 1 Sim., N. S., 155; 
Garland v. Scott, 3 Sim. 396 ; Gresley v. Mousley, 2 Kay & J. 288 ; Lafone 
v. Falkland Islands Co., 4 Kay & J. 34; Russell v. Jackson, 9 Hai-e, 387; 
Chant V. Brown, 9 Hare, 790 ; Glyn v. Caulfield, 3 Macn. & G. 463 ; Storey 
v. Lord Lennox, 1 Mylne & C. 525; Burrell v. Nicholson, 1 Mylne & K. 
680; Hughes v. Biddulph, 4 Russ. 190; Herring v. Clobery, 1 Phill. Ch. 
91; Thompson v. Falk, 1 Drew. 21; Charlton v. Coombes, 4 Giff. 372; 
Nicoll V. Jones, 2 Hem. & M. 588; Combe v. Corporation of London, 15 
L. J. Ch. 80 ; Ross v. Gibbs, L. R. 8 Eq. 522 ; Parker v. Carter, 4 Munf . 
273, 6 Am. Dec. 513; Chew v. Farmers' Bank, 2 Md. Ch. 231; Williams 
v. Fitch, 18 N. Y. 546.s 

§203, 9 Smith v. East India Co., 1 PhHl. Ch. 50; Rajah of Coorg v. 
East India Co., 25 L. J. Ch, 345, 365; and see Marbury v. Madison, 
1 Cranch, 49. 

§203, (f) See, also, Calcraft v. 68 L. J. Ch. 24, 79 L. T. (N. S.) 

Guest, (1898) 1 Q. B. 759, 67 L. J. 373, 47 Wkly. Rep. 91 (as to notes 

(Q. B.) 505, 48 L. T. (N. S.) 283, of proceedings in open court). As 

46 Wkly. Rep. 420; Goldstone v. to the inspection of affidavits in a 

Williams, Deacon & Co., (1899) 1 court of lunacy, at the discretion of 

Ch. 47. the court, see In re Strachan, (1895) 

§203, (s) See, also, Ainsworth v. 1 Ch. 441. That trade secrets ap» 

Wilding, (1900) 2 Ch. 315, 69 L. J. privileged, see Federal Mfg. & Print- 

Ch. 695, 49 Wkly. Rep. 539; Gold- ing Co. v. International Bank Note 

stone V. Williams, (1898) 1 Ch. 47, Co., 119 Fed. 385. 


exempt within the operation of any other doctrine, — then 
the defendant must disclose all material facts; in other 
words, if he answers at all, he must answer fully. The 
court will, however, in the exercise of its discretion, judge 
of the materiality, and guard him against oppressive, vex- 
atious, or impertinent inquiries. ^ 2. The answers of the 
defen,dant must be complete, so that the information which 
they give will be of substantial use to the plaintiff ;2 and 

§ 204, 1 This particular rule, however, is chiefly one of practice in fram- 
ing an answer, and applies to suits for discovery and relief, as well as 
those for a discovery alone. It means that if the defendant does not raise 
any question by plea or demurrer to the bill, but answers, he must make 
a full discovei"y as to all matters inquired of; he cannot, in his answer, 
deny a portion of the plaintiff's allegations, and then claim that a dis- 
covery as to such portion is made immaterial:* Saunders v. Jones, L. R. 
7 Ch. Div. 435, 443 ; Lancaster v. Evors, 1 Phill. Ch. 349 ; Reade v. Wood- 
ruffe, 24 Beav. 421; Chichester v. Marquis of Donegal, L. R. 4 Ch. 416, 
L. R. 5 Ch. 497; Thompson v. Dunn, L. R. 5 Ch. 573; Carver v. Pinto 
Leite, L. R. 7 Ch. 90; Elmer v. Creasy, L. R. 9 Ch. 69, and cases cited 
per Lord Selborne; Saull v. Browne, L. R. 9 Ch. 364; Hurst v. Hurst, 
L. R. 9 Ch. 762; Moore v. Craven, L. R. 7 Ch. 94, note; Hichens v. Con- 
greve, 4 Russ. 562 ; West of Eng., etc., Bank v. Niekolls, L. R. 6 Ch. Div. 
613; Marquis of Donegal v. Stewart, 3 Ves. 446; Brookes v. Boucher, 8 
Jur., N. S., 639; Inglessi v. Spartali, 29 Beav. 564; Wier v. Tucker, L. R 
14 Eq. 25, and cases cited; Meth. Epis. Church v. Jaques, 1 Johns. Ch 
65 ; Phillips v. Provost, 4 Johns. Ch. 205 ; Cuyler v. Bogert, 3 Paige, 186 
Bank of Utica v. Mersereau, 7 Paige, 517; King v. Ray, 11 Paige, 235 
Champlin v. Champlin, 2 Edw. Ch. 362; Waring v. Suydam, 4 Edw. Ch 
426; Brooks v. Byam, 1 Story, 296; Langdon v. Goddard, 3 Story, 13 
Kittridge v. Claremont Bank, 3 Story, 590; Wootten v. Burch, 2 Md. Ch 
190 ; Hagthorp v. Hook, 1 Gill & J. 272 ; Salmon v. Clagett, 3 Bland, 142 
Robertson v. Bingley, 1 McCord Eq. 333; French v. Rainey, 2 Tenn. Ch 
641 ; Shotwell v. Struble, 21 N. J. Eq. 31 ; Walter v. McNabb, 1 Heisk. 703 

§ 204, 2 As, for example, when accounts are called for, they must be 
reasonably made out, and not simply the books through which the items 
are scattered, produced for inspection : White v. Williams, 8 Ves. 193 ; 
Attorney-General v. East Retford, 2 Mylne & K. 35; Drake v. Symes, 
John. 647; but this is a matter under the discretionary control of the 
court, and a defendant will not be subjected to unreasonable labor and 
expense : See Christian v. Taylor, 11 Sim. 401. 

§ 204, (a) Sec,, under the new fed- Co. v. Union Pacific R. Co., 241 Fed. 
eral equity rules, Pressed Steel Car 964. 


must be to the best of the defendant's knowledge, informa- 
tion, and belief. A defendant is bound to obtain information 
from all means reasonably within his power. If documents 
are ordered to be produced, it is no excuse for non- 
production that they are in the possession of a third person, 
or even that a third person has a lien upon or an interest 
in them.3 But if documents belong wholly or in part to a 
third person, not a party to the suit, their production 
will not be compelled.^ 3. The answers must be distinct, 
positive in their statements, not leaving facts to be inferred 
argumentatively, and giving specific replies to specific ques- 
tions ;5 but must not be unnecessarily minute and prolix, 
especially in setting forth accounts. ^ 

. §204, 3 Glengall v. Frazer, 2 Hare, 99; Stuart v. Bute, 11 Sim. 442; 
Taylor v. Rundell, Craig & P. 104, 1 Phill. Ch. 222; Clinch v. Financial 
Corporation, L. R. 2 Eq. 271. Where a defendant, who was bound to 
produce certain documents, had become a bankrupt, and had changed his 
attorneys, and the documents were in the possession of his former attor- 
neys, who had a lien upon them for their charges, this was held to be no 
excuse, and he was ordered to produce them: Vale v. Oppert, L. R. 10 
Ch. 340, 342; but James, L. J., said that an attorney cannot set up his 
lien as against the right of other parties to have a production; and to the 
same effect is Belaney v. Ffrench, L. R. 8 Ch. 918. See also, as to the 
production of documents in the possession of third persons, etc.. Ex parte 
Shaw, Jacob, 270; Rodick v. Gandell, 10 Beav. 270; Palmer v. Wright, 
10 Beav. 234; North v. Huber, 7 Jur., N. S., 767; In re Williams, 7 Jur., 
N. S., 323; Liddell v. Norton, 23 L. J. Ch. 169; Bethell v. Casson, 1 Hem. 
& M. 806. It is no excuse for the non-production of documents that third 
persons, not parties to the suit, are interested in them: Kettlewell v. 
Barstow, L. R. 7 Ch. 686. Answers on information and belief may be 
required: Fry v. Shehee, 55 Ga. 208. 

§ 204, 4 Hadley v. McDougall, L. R. 7 Ch. 312 ; Warrick v. Queen's 
College, L. R. 4 Eq. 254; Vyse v. Foster, L. R. 13 Eq. 602; but the nature 
and extent of such third person's ownership must be explained when this 
excuse is set up : Bovill v. Cowan, L. R. 5 Ch. 495. 

§ 204, 5 Faulder v. Stuart, 11 Ves. 296; Wharton v. Wharton, 1 Sim. & 
St. 235; Tipping v. Clarke, 2 Hare, 383, 389; Anonymous, 2 Younge & C. 
310; Duke of Brunswick v. Duke of Cambridge, 12 Beav. 281. 

§ 204, 6 Noi-way v. Rowe, 1 Mer. 346 ; Byde v. Masterman, Craig & P. 
265; but documents are sometimes permitted to be given in extenso: See 
Parker v. Fairlie, 1 Sim. & St. 295; Lowe v. Williams, 2 Sim. & St. 574. 




§ 205. Production and Inspection of Documents.^ — A 
branch of this general subject of discovery is the doctrine 
concerning the production and submission to inspection by 
the plaintiff of documents which the defendant admits to 

§205, (a) Sections 205, 206, are 
cited in Utah Const. Co. v. Montana 
R. Co., 145 Ted. 981. 

Personal and Real Property, Other 
Than Documents, in Defendant's 
Possession. — The right to the produc- 
tion and inspection of property, 
other than documents, in the posses- 
sion of the defendant in a bill of 
discovery, was examined with great 
care in the recent case of Reynolds 
V. Burgess Sulphite Fiber Co., 71 
N. H. 332, 93 Am. St. Rep. 535, 57 
L. R. A. 949, 51 Atl. 1075. The fol- 
lowing are the chief points in the 
opinion of the court, by Chase, J.: 
The right of discovery in respect of 
documents does not depend upon the 
fact that the documents are muni- 
ments of title to property in dispute 
in the action at law, or that they are 
relevant to an accounting between 
the parties sought in such action: 
Anonymous,- 2 Ves. Sr. 620; Mooda- 
lay V. Morton, 1 Bro. C. C. 469; Bur- 
rell V. Nicholson, 1 Mylne & K. 680; 
Storey v. Lennox, 1 Mylne & C. 523; 
Smith V. Beaufort, 1 Plare, 507; 
Chadwick v. Bowman, L. R. 16 Q. B. 
Div. 561; Peck v. Ashley, 12 Met. 
478. Discovery of personal property 
other than documents was had in 
Marsden v. Panshall, 1 Vern. 407 
(1686); Macclesfield v. Davis, 3 Ves. 
& B. 16, and in the following patent 
cases; Bovill v. Moore, 2 Coop. Ch. 
Cas. 56 (Lord Eldon) ; Browne v. 
Moore, 3 Bligh, 178; Russell v. Cow- 
ley, 1 Web. Pat. Caa. 457; Morgan 
V. Seaward, 1 Web. Pat. Cas. 167; 
Patent Type Founding Co. v. Walter, 
John. 727. Inspection of real prop- 
erty was ordered in Lonsdale v. 

Curwcn, 3 Bligh, 168; Walker v. 
Fletcher, 3 Bligh, 172; East India 
Co. V. Kynaston, 3 Bligh, 153; At- 
torney-General v. Chambers, 12 Beav. 
159; Lewis v. Marsh, 8 Hare, 97. 
It is immaterial, in such cases, that 
the complainant has no interest in 
the property to be inspected. In 
the principal case it was held that a 
bill would lie to compel the right 
of inspection of fragments of ma- 
chinery in the possession of the 
defendant, in aid of the proper prep- 
aration of the plaintiff for a trial 
of a suit at law for personal injuries 
caused by the defendant's negli- 

In the interesting case of Will- 
iams v. Phiel, 66 Fla. 192, 63 South. 
658, the discovery sought was aided 
by the appointment of a receiver. 
This was an action for discovery in 
aid of an action at law for royalties 
for phosphate rock taken from 
land in defendant's possession. The 
court appointed a receiver to go on 
the property, erect a phosphate 
plant thereon, and actually mine, in 
order to see if there was merchant- 
able phosphate rock. 

The principle was pushed to the 
extreme in the case of Mutual Life 
Ins. Co. V. Griesa, 156 Fed. 398. 
There the courf aided a life insur- 
ance company in establishing its de- 
fense, the suicide of the decedent, 
by ordering the exhumation of the 
body — a very questionable ruling; 
which the court of appeals (Griesa 
V. Mutual Life Ins. Co., 169 Fed. 
509, 94 C. C. A. 635), declined to 


be in his possession, and wMcli are liable to a discovery. 
I shall state the particular rules regulating the operation 
of this doctrine, without repeating those which are com- 
mon to it, and to all other kinds of discovery.^ It should 
be carefully borne in mind that the doctrine concerning 
the production and inspection of documents relates entirely 
to their disclosure for the purjDose of being used as evi- 
dence, or to aid in the trial of a pending or contemplated 
litigation, and has no connection whatever with the owner- 
ship of or final right of possession to the documents in 
question.^ In most instances, the ownership of the docu- 
ments sought to be produced will not be at all in issue. 
But even in an action expressly brought to establish the 
plaintiff's title to documents and to recover their posses- 
sion, the production of them before the hearing must be 
governed by the settled rules as to discovery. The plain- 
tiff has otherwise no right to possess or to see them until a 
decree is rendered in his favor; for such right is the very 
matter in issue, and to decide that it existed would be to 
decide the whole merits of the controversy upon a prelim- 
inary application. It is well settled, therefore, that the 
matter of the production and inspection of documents de- 
pends upon the same principles and doctrines which govern 
discovery in general.^ 

§ 205, 1 The rules as to materiality, as to purposes for which a dis- 
closure is proper, as to what is privileged, and the like, apply with equal 
force to this and to other instances of discovery. In fact, a large number 
of the decisions already cited illustrating these rules relate directly to the 
production of documents, 

§ 205, 2 By the original chancery practice, an interrogatory or inter- 
rogatories, more or less specific according to the plaintiff's choice, are in- 
serted in the bill, asking the defendant whether he has any documents, or 
such and such particular documents, in his possession. If his answer 

§205, (b) Cited to this effect in defense in litigation pending or con- 
Reynolds V, Burgess Sulphite Fibre templated. Fuller v. Hollander, 61 
Co., 71 N. H. 332, 93 Am. St. Rep, N. J. Eq. 648, 88 Am. St. Rep. 456, 
535, 57 L. R. A. 949, 51 Atl. 1075. 47 Atl. 646 (citing Pom. Eq. Jur., 
An inspection of books, etc., can be §§ 190-209). 
had only in aid of a prosecution or 


§ 206. It follows from this fact that the production of 
documents rests wholly on the defendant 's^ own admis- 
sions, contained either in his answer to the bill, or in his 
answers to interrogatories, or in his affidavit. If his an- 
swers or his affidavit are evasive or insufficient, he may 
be called upon to make them more specific, and to admit or 
deny; but when he has once directly denied the possession 
of documents, or their materiality to the plaintiff's case, the 
court will not compel their production. The truth of the 
defendant's statements cannot be contested, either by his 
own cross-examination, or by means of any contradictory 
evidence offered on the part of the plaintiff.^ The admis- 
sion authorizing an order to produce must cover two facts, 
— the possession of the documents and their materiality. 
Manual possession is not essential. It is enough if the 
documents are either in the actual possession of the de- 
admits his possession of material documents, an order is made, on the 
plaintiff's motion, for their production, so that they may be inspected. 
Under the more recent practice, the defendant's admissions are made in his 
answer to interrogatories filed, or in his affidavit made in reply to the 
plaintiff's motion. 

§ 206, 1 1 say the defendant's admission, because it is ordinarily the de- 
fendant who is called upon to produce. But the same rule applies alike 
to the plaintiff when the defendant files interrogatories and moves for a 
disclosure and production by the plaintiff, without a resort to a cross-bill 
for a discovery, as is pei-mitted by the modern practice in England and in 
many of the states. 

§ 206, 2 Wright v. Pitt, L. R. 3 Ch. 809, 810, per Page Wood, L. J. 
"The general rule is, that the party seeking discovery of documents must 
be satisfied with his opponent's affidavit on the subject, and cannot cross- 
examine or give evidence contradicting it": Reynell v. Sprye, 1 De Gex, 
M. & G. 656 ; and see Robbins v. Davis, 1 Blatch. 238. There is, how- 
ever, one exception to this rule. Notwithstanding the denials of the de- 
fendant's affidavit that he has any other documents, if the court has a 
"reasonable suspicion," arising from other admissions of the affidavit or 
of his answer, that the defendant must have other documents in his pos- 
session, it may compel him to make a further affidavit containing more 
specific statements: Saull v. Browne, L. R. 17 Eq. 402; Noel v. Noel, 1 
De Gex, J. & S. 468; for the exact limitations of this exception, see Wright 
V. Pitt, L. R. 3 Ch. 809, 810. 


fendant, or are under his control; that is, are in the custody 
of an attorney, agent, or other third person, whose custody 
of tliem the defendant can, by the exercise of his lawful 
IDOwers, control, or from whom he can, by the exercise of 
such powers, obtain the possession himself. The rule is 
the same even when the third person has some lien on the 
papers.3 But if the documents belong wholly or in part to 
a third jDerson not a party to the suit, or if they are in the 
joint possession of the defendant and of some third person 
not a party to the suit by virtue of the latter 's separate 
interest or right in them, their production will not be com- 
pelled without the consent of such third person.* 

§ 207. Since the same rules as to materiality, privilege, 
and the like, which govern discovery, apply to the produc- 

§206, 3 Vale v. Oppert, L. R. 10 Ch. 340, 342 ;« an attorney cannot 
set up his lien on the documents as against a party's right to their produc- 
tion; and to the same effect is Belaney v. Ffrench, L. R. 8 Ch. 918.* As 
to the production of documents in the custody of third persons, etc., see 
also Ex parte Shaw, Jacob, 270 ; Rodick v. Gandell, 10 Beav. 270 ; Palmer 
V. Wright, 10 Beav. 234; North v. Huber, 7 Jur., N. S., 767; In re 
Williams, 7 Jur., N. S., 323; Liddell v. Norton, 23 L. J. Ch. 169; Bethell 
V. Casson, 1 Hem. & M. 806 ; Morrice v. Swaby, 2 Beav. 500 ; Lady Beres- 
ford V. Driver, 14 Beav. 387; Robbins v. Davis, 1 Blatch. 238. 

§ 206, 4 Hadley v. McDougal, L. R. 7 Ch. 312 ; but the nature and extent 
of such third person's ownership must be explained when this excuse is 
set up : Bo\'ill v. Cowan, L. R. 5 Ch. 495 ; as to the non-production of 
documents partly belonging to third person, or in joint possession of third 
person, see also Warrick v. Queen's College, Oxford, L. R. 4 Eq. 254; 
Vyse V. Foster, L. R. 13 Eq. 602 ; Edmonds v. Foley, 30 Beav. 282 ; Robert- 
son v. Shewell, 15 Beav. 277; Morrell v. Wootten, 13 Beav. 105; Chant 
V. Brown, 9 Hare, 790; Ford v. Dolphin, 1 Drew. 222; Penney v. Goode, 
1 Drew. 474; Taylor v. Rundell, Craig & P. 104; Murray v. Walter, Craig 
& P, 114. But the mere fact that third persons are interested in the 
documents is not an excuse for their non-production : Kettlewell v. Bar- 
stow, L. R. 7 Ch. 686; Hercy v. Ferrers, 4 Beav. 97; Hopkinson v. Lord 
Burghley, L. R. 2 Ch. 447. 

§206, (a) See, also, Lewis V. Pow- (documents in possession of coun- 
ell, (1897) 1 Ch. 679; Lacoss r. Town sel). 

of Lebanon (N. H.), 101 Atl. 364 §206, (b) See, also, In re Hawkes, 

(1898) 2 Ch. 1, reviewing the cases. 


tion of documents, it follows that in order for the plaintiff 
to be able to compel the production and inspection of the 
documents admitted to be in the defendant's possession, 
their materiality to the plaintiff's case must also be ad- 
mitted by the defendant. If, therefore, the defendant, hav- 
ing admitted certain documents to be in his possession, or 
having furnished a list of them, definitely denies that they 
are, or that any portion or provision of them is, material 
to or relates to the plaintiff's case, he is freed from the obli- 
gation of producing them.^ As has already been explained, 
the ground upon which the plaintiff's right to the produc- 
tion of documents, as well as to any other discovery, must 
rest is, that they relate to and are material to his own case, 
or to the relief which is demanded in his suit; he has no 
right to a discovery of the defendant's evidence, nor to the 
production or inspection of papers connected alone with the 
defendant's title. If, however, the documents are material 
to his own case or to the relief he demands, the fact that 
they may also be evidence for defense, or may tend to sup- 
port the defendant's title or contention, does not prevent 
the plaintiff from compelling their production, 2 b in apply- 

§ 207, 1 But, under the circumstances described, the defendant's state- 
ment on oath that he believes the documents contain nothing relating to 
the plaintiff's case, is not enough; he must distinctly and definitely deny 
the fact; Atty.-Gen. v. Corp'n of London, 2 Macn. & G. 247; as examples 
of the rule stated in the test, and of its various applications, see ]\Iinet 
V. Morgan, L. R. 8 Ch. 361, per Lord Selborne; Kettlewell v. Barstow, 
L. R. 7 Ch. 686; Patch v. Ward, L. R. 1 Eq. 436, 439.** 

§ 207, 2 See ante, §§ 198, 201, 202. 

§ 207, (a) The defendant's denial 74 Ohio St. 1, 6 L, R. A. (N. S.) 325, 

of the materiality of the documents 77 N. E. 276, the rule is stated that 

will not Be taken as conclusive if plaintiff is entitled to the production 

the court can see from the nature of of such documents as are material 

the case or of the documents that and necessary to his case, but not to 

the party has misunderstood the the discovery of the manner in 

effect of the documents: Roberts v. which defendant's case is to be es- 

Oppenheim, L. R. 26 Ch. Div. 724. tablished, nor of evidence which 

§ 207, (b) See, also, Dock v. Dock, relates exclusively to defendant's 

180 Pa. St. 14, 57 Am. St. Eep. 617, case. 
36 Atl. 411. In re J. H. Schoepf, 


ing this principle to a variety of circumstances, several 
special rules have been established by the decisions which 
are found in the f oot-note.^ 

§ 208. IV. When, How Far, and for Whom may the 
Answer in the Discovery Suit be Used as Evidence.^ — If the 

§ 207, 3 A defendant is not, in general, required to produce his own title 
deeds, which are evidence only of his own title; and therefore, in suits 
against a mortgagee to redeem, or other suits against him to reach the 
land, he is not bound to produce the title deeds which have been delivered 
to him, until the entire mortgage debt, interest and costs, have been paid 
in full: Chichester v. Marquis of Donegal, L. R. 5 Ch. 497; Minet v. 
Morgan, L. R. 11 Eq. 284; Patch v. Ward, L. R. 1 Eq. 436; Thompson 
V. Engle, 4 N. J. Eq. 271 ; Cullison v. Bossom, 1 Md. Ch. 95. This gen- 
eral rule is subject to an exception growing out of the doctrine as to dis- 
covery being material to the plaintiff's contention; viz., if a prima facie 
case is made out by the plaintiff impeaching the validity of defendant's 
title deed on ground of fraud and the like, or that the defendant's deed 
contains some clause or provision operating in favor of the plaintiff's 
claim, in such cases a production of the deed will be compelled, for it then 
becomes evidence material to the plaintiff's case : Republic of Costa Rica 
V. Erlanger, L. R. 19 Eq. 33, 44, 45, per Malins, V. C. ; Beckford v. Wild- 
man, 16 Ves. 438 ; Balch v. Symes, Turn. & R. 87 ; Bassf ord v. Blakesley, 
6 Beav. 131, 133; Kennedy v. Green, 6 Sim. 6; Latimer v. Neate, 11 
Bligh, 112, 4 Clark & F. 470; Follet v. Jefferyes, 1 Shn., N. S., 1; Free- 
man V. Butler, 33 Beav. 289 ; Crisp v. Platel, 8 Beav. 62 ; Cullison v. 
Bossom, 1 Md. Ch. 195. A mortgagee is, however, always required to 
produce the mortgage itself under which he holds, and suffer it to be in- 
spected by the mortgagor: Patch v. Ward, L. R. 1 Eq. 436, 439. If a 
defendant is a public officer and has official custody of public documents, 
he will not be required to produce them by way of answer: Salmon v. 
Claggett, 3 Bland, 145. It was held in Boyd v. Petrie, L. R. 3 Ch. 818, 
that an application by either party before trial, to have a specified docu- 
ment in the hands of his adversary produced and submitted to the inspec- 
tion of intended witnesses of the party applying, so that they may be able 
to testify concerning it at the trial, is a very special application, and must 
be supported by an affidavit of very special circumstances showing the 
necessity of such a course. 

§208, (a) Cited in District of are not conclusive against the other 

Columbia v. Robinson, 180 U. S. 92, party at law. Cited, also, in Bcem 

21 Sup. Ct. 283, to the effect that v. Farrell (Iowa), 108 N. W, 1044. 
the answers to the bill of discovery 


suit is one for discovery alone without relief, in aid of some 
action or proceeding in a court of law, and the answer is 
used as evidence on the trial of such action, its use is en- 
tirely governed by the legal rules applicable to such species 
of testimony. It is, in fact, the admissions of one party to 
the controversy, proved by his adversary, differing from 
ordinary admissions only by its more formal and elaborate 
character. It follows, therefore, that if the party obtaining 
the discovery reads any portion of the answer in evidence, 
the whole of it must be read on the demand of the one who 
made it, so that the jury may be possessed of all his state- 
ments and explanation or qualification of his admissions.^ 
Very different and special rules have been established as 
to the effect and use of the defendant's answer for purposes 
of evidence, both on behalf of the complainant and of him- 
self, in equity suits for relief as well as for a discovery. 
As the answer in ordinary equity suits may always consist 
of two parts, — that which is purely matter of pleading, con- 
sisting of denials of the plaintiff's allegations, and affirma- 
tive averments of the defendant's case; and that which is 
strictly matter of evidence, consisting of answers to the 
interrogatories contained in the plaintiff's bill, — it is plain 
that this subject belongs wholly to the system of procedure, 
the pleading and the evidence, prevailing in courts of 
equity, and is not embraced within the scope of the present 

§ 208, 1 Fant v. Miller, 17 Gratt. 187; Hart v. Freeman, 42 Ala. 567. 
Where the American courts have assumed the jurisdiction to go on and 
give final relief on the ground of the application to them for discovery, 
although the relief is legal in its nature, and could be adequately obtained 
at law, the same rule as to i;sing the answer in evidence has been applied: 
Shotwell v. Smith, 20 N. J. Eq. 79 ; Holmes v. Hohnes, 36 Vt. 525 ; Lyons 
V. Miller, 6 Gratt. 439, 52 Am. Dec. 129. 

§ 208, 2 See, on this subject, Adams's Eq. 20-22 ; Bartlett v. Gillard, 3 
Russ. 149, 156; Freeman v. Tatham, 5 Hare, 329; East v. East, 5 Hare, 
343; East India Co. v. Donald, 9 Ves. 275; Savage v. Brocksopp, 18 Ves. 
335; McMahon v. Burehell, 2 Phill. Ch. 127; Glenn v. Randall, 2 Md. Ch. 
220; Fant v. Miller, 17 Gratt. 187; Swift v. Dean, 6 Johns. 523; Clason 


§ 209. Modem Statutory Methods. — In the foregoing 
paragraphs I have collected the rules which have been 
settled by courts possessing the equitable jurisdiction, and 
acting in conformity with the principles and methods of 
the chancery system of procedure, both concerning the use 
of ''suits for discovery" alone, or properly so called, and 
concerning the subject-matter of the discovery of facts, and 
of the production of documents, whether such discovery 
and production are obtained in ''suits for discovery" 
proper, or in ordinary equitable suits for relief as well as 
discovery. It has also been shown that the same doctrines 
in relation to the subject-matter of the discovery and the 
production of documents are still in force under the pro- 
cedure now prevailing in England and in some of our states, 
which has abolished the old modes of discovery, either by 
separate suit or by the defendant's answer in suits for re- 
lief, and has substituted in its place the use of interroga- 
tories filed in the progress of a suit, by which either party 
may probe the conscience of his adversary, and obtain evi- 
dence from him as an ordinary proceeding in the litiga- 
tion.i In many of the states, however, where a discovery, 
as an ordinary step in the cause, is not provided for other- 
wise than by the oral examination of the opposite party as 
a witness at the trial itself, there are statutes which author- 
ize and regulate certain special applications to the court 
by motion or petition for a preliminary examination of the 
opposite party, in order to obtain facts necessary to the 

V. Morris, 10 Johns. 524; Stafford v. Bryan, 1 Paige, 239; Page v. Page, 
8 N. H. 187; Daniel v. Mitchell, 1 Story, 173; Hughes v. Blake, 6 Wheat. 
453; Union Bank v. Geary, 5 Pet. 99; Chance v. Teeple, 4 N. J. Eq. 173; 
Myers v. Kinzie, 26 111. 36; White v, Hampton, 10 Iowa, 238; Hart v. 
Freeman, 42 Ala. 567; Eaton's Appeal, 66 Pa. St. 483; as to the effect of 
the plaintiff's waiver of an answer under oath: Sweet v. Parker, 22 
N. J. Eq. 453 ; Tomlinson v. Lindley, 2 Ind. 569. 

§ 209, 1 It is very remarkable that this simple, direct, and efficacious 
mode of obtaining evidence to be used on the trial has not been adopted 
as an ordinary proceeding in the progress of a litigation in all the states 
where the reformed system of procedure prevails. 


proper framing of the cause of action or defense in the 
applicant's pleading, or to compel the preliminary produc- 
tion and inspection of books and documents, or to ac- 
complish some other similar special jDui'iDose. As these 
collateral proceedings are wholly regulated by the statutes 
which create them, their discussion belongs to books pro- 
fessedly treating of practice, and does not come within the 
scope of the present work, except so far as the matters of 
which a discovery may be compelled, and those which are 
privileged from disclosure, are embraced within the doc- 
trines hereinbefore explained. I have, however, placed in 
the foot-note some of the more important decisions inter- 
preting these statutory provisions.^ a 

§ 209, 2 The following are some of the most important and recent deci- 
sions, which will put the reader upon the track of other and earlier au- 
thorities. It wUl be seen that upon all matters affecting the merits, what 
disclosures may be compelled, materiality, privilege, etc., the courts uni- 
formly hold that these statutory proceedings take the place of the equity 
suit for a discovery, and are governed by substantially the same rules. 
1. Proceeding for the examination of the opposite party: Glenuy v. Sted- 
well, 51 How. Pr. 321. (The plaintiff in a pending action may examine 
the adverse party before service of the complaint, and for the purpose 
of obtaining facts on which to frame a complaint. The proceeding is in- 
tended to take the place of the equity suit for a discovery, and maj' be 
used whenever and for whatever purpose a discovery could be made.) 
Plaintiff may examine the opposite party before issue is joined : Hadley 
V. Fowler, 12 Abb. Pr., N. S., 244; Havemeyer v. Ingersoll. 12 Abb. Pr.. 
N. S., 301; McVickar v. Greenleaf, 1 Abb. Pr., N. S., 452, 7 Rob. (N. Y.) 
657, overruling Bell v. Richmond, 4 Abb. Pr., N. S., 44, 50 Barb. 571; 
as to what defendant may be compelled to answer, see Dambman v. 
Butterfield, 4 Thoniii. & C. 542; as to disclosure tending to render defend- 

§ 209, (a) In Ex parte Boyd, 105 the Revised Statutes which provides 

U. S. 647, it was held that the stat- that "the party recovering judgment 

utes of New York authorizing the in any common-law cause in any cir- 

examination of a debtor upon pro- cuit or district court shall be entitled 

ccedings supplemental to execution to similar remedies upon the same, 

was not a mere statutory interfer- by execution or otherwise, to reach 

ence with the equitable remedies for the property of the judgment debtor, 

a discovery, and that consequently as are now provided in like causes 

they were available in the federal by the laws of the state." 
courts, by virtue of section 916 of 



§210.a This Jurisdiction Described.— While the first 

, branch of the auxiliary jurisdiction deals with the matter 
of obtaining evidence from the parties themselves, the 
second branch comprises the methods of examining wit- 
nesses who are not parties, and of preserving their evidence 
for future use at the trial of actions at law, or at the hear- 
ing of suits in equity. This branch of the auxiliary juris- 
diction was doubtless established in aid of proceedings at 
law, although its methods may also be used in suits strictly 
equitable. Where a right now exists, which is likely to be 
disputed or contested at some future time, but no action can 
yet be brought for the purpose of establishing it, and there 

ant liable for penalties, etc., see United States v. Hughes, 12 Blateh. 553. 
2. Compelling production and inspection of documents: Merchants' Nat. 
Bank v. State Nat. Bank, 3 Cliff. 201 ; United States v. Hughes, 12 Blatchf. 
553 ; Livingston v. Curtis, 12 Hun, 121, 54 How. Pr. 370, oven-uling Piatt v. 
Piatt, 11 Abb. Pr., N. S., 110; Cutter v. Pool, 54 How. Pr. 311; New Eng- 
land Iron Co. V. New York Loan, etc., Co., 55 How. Pr. 351 ; Mott v. Con- 
sumers' lee Co., 2 Abb. N. C. 143, 52 How. Pr. 148, 244; Morgan v. Morgan, 
16 Abb. Pr., N. S., 291 ; Central Nat. Bank v. White, 37 N. Y. Super. Ct. 
297; Whitworth v. Erie R. R., 37 N. Y. Super. Ct. 437; Holtz v. Schmidt, 
34 N. Y. Super. Ct. 28; Rice v. Ehele, 55 N. Y. 518; Thompson v. Erie 
R. R., 9 Abb. Pr., N. S., 212, No. 2, 9 Abb. Pr., N. S., 230; Williams 
Mower, etc., Co. v. Raynor, 38 Wis. 132; Noonan v. Orton, 28 Wis. 386; 
Whitman v. Weller, 39 Ind. 515; O'Connor v. Tack, 2 Brewst. 407 (a full 
and instructive case) ; Esbach v. Lightner, 31 Md. 528. 3. What facts, 
etc., must he shown in the application; tvhat the order must contain: 
Cutter V. Pool, 54 How. Pr. 311; New England Iron Co. v. New York 
Loan, etc., Co., 55 How. Pr. 351; Mott v. Consumers' Ice Co., 52 How. 
Pr. 148; Central Crosstown R. R. v. Twenty-third St. R. R., 53 How. Pr. 
45; Central Nat. Bank v. White, 37 N. Y. Super. Ct. 297; Whitworth v. 
Erie R. R., 37 N. Y. Super. Ct. 437; Holtz v. Schmidt, 34 N. Y. Super. 
Ct. 28; Rice v. Ehele, 55 N. Y. 518; Hauseman v. Sterling, 61 Barb. 347; 
Phelps V. Piatt, 54 Barb. 557; Thompson v. Erie R. R., 9 Abb. Pr., N. S., 
212, 230; Williams Mower, etc., Co. v. Raynor, 38 Wis. 132; Whitman 
V. Weller, 39 Ind. 515; O'Connor v. Tack, 2 Brewst. 407; Esbach v. 
Lightner, 31 Md. 528. 4. Other points of practice: Noonan v. Orton, 28 
Wis. 386 ; Whitman v. Weller, 39 Ind. 515. 

§ 210, (a) Sections 210 et seq. are trie Co. v. Superior Court, 155 Cal. 
cited in San Francisco Gas & Elec- 30, 17 Ann. Cas. 933, 99 Pac. 359. 


is danger that all the witnesses will have died, and the evi- 
dence by which alone it can be supported will have dis- 
appeared before that time arrives at which an action can 
be brought, the common law furnished no means for taking 
the testimony of the witnesses in anticipation. To prevent 
such a failure of justice, the auxiliary jurisdiction of equity 
contrived the suit for perpetuating the testimony of wit- 
nesses under such circumstances. Again, where a suit at 
law has actually been commenced, but has not reached the 
time for trial, and there is danger lest the evidence of cer- 
tain material witnesses should be lost, from their extreme 
age, or from their being sick, or from their being about to 
leave the country, and also where in such a suit mate- 
rial witnesses are actually in a foreign country, so that their 
attendance cannot be compelled, nor their testimony taken 
upon deposition by any modes which the common law had 
furnished, the auxiliary jurisdiction supplied the defect by 
means of a suit to take the testimony of the witnesses de 
bene esse in the one case, and a suit to take the testimony 
of the witnesses in foreign countries upon a commission 
issued out of chancery in the other case.^ As these three 
equitable proceedings were very cumbrous, and as they 
have been practically superseded, even if not expressly 
abolished, both in England and in most of the states, by 
more simple, direct, and efficacious statutory methods, a 
very brief description of them will suffice. 

§ 211. I. Suit to Perpetuate Testimony.^ — A suit to per- 
petuate testimony could only be maintained where the 
plaintiff had at the time some right vested or contingent, 
to which the testimony would relate; but such right could 
not then be investigated, established, or defended by an 
action at law. As the foundation of the suit, the plaintiff 
in it, not yet being in possession of the property in question, 

§ 210, 1 Jeremy's Eq. Jur., b. 2. chap. 2, pp. 270-280. 

§ 211, (a) Cited with approval iu Winter v. Elmore, 88 Ala. 555, 7 South. 


might have a future interest, to take effect only upon the 
happening of some future and perhaps contingent event; 
or he might have an immediate present interest, being in 
possession of the property, and his possession not yet actu- 
ally disturbed, but threatened with disturbance or contest, 
by the defendant, at some future time; in either of which 
cases he could immediately bring no action at law to main- 
tain or defend his right.i As to the nature of the plain- 
tiff's interest, it might be in real or in personal property, 
or in mere personal demands, and might be such that the 
testimony sought would be used in support of a cause of 
action or of a defense at law.2 But as the law stood inde- 
pendent of statute, the plaintiff must have an interest 
recognized and maintainable by the law, although it might 

§211, 1 Jeremy's Eq, Jur. 277; Dursley v. Fitzhardinge, 6 Ves. 251; 
Angell V. Angell, 1 Sim. & St. 83. Mr. Justice Story, in his treatise on 
Equity Jurisprudence, section 1513, in comparing "bills to take testimony 
de bene esse" with "bills to perpetuate testimony," uses the following lan- 
guage: "There is this broad distinction between bills of this sort [to 
examine de bene esse'] and bills to perpetuate testimony, that the latter are 
and can be brought by persons only who are in possession under their 
title, and who cannot sue at law. But bills to take testimony de bene esse 
may be brought, not only by persons in possession, but by persons who 
are out of possession, in aid of the trial at law"; citing, among others, 
Jeremy's Eq. Jur. 277, 278. This statement of the learned commentator, 
restricting bills to perpetuate testimony to persons who are in possession 
under their title, is a grave error, and is in direct variance with the 
authorities cited in its support, and with the general doctrine as laid down 
by text-writers and courts. Mr. Jeremy, at the page cited (p. 277), says: 
"From these observations it will appear that the proceedings for the ex- 
amination of witnesses de bene esse, and in perpetuation of testimony, 
are very distinct. The court, it will be seen, gives aid of the former kind, 
. . . and of the latter kind where the party applying for it is in possession, 
but anticipates an aggression upon his enjoyment at a future time when 
his adversary shall have gained sufficient advantage by delay, or is out of 
possession, and has, at present, no right of action, but designs himself, 
when such a right shall accrue, to commence proceedings at law." See 
also, to the same effect, Adams's Eq. 23. 

§ 211, 2 Earl of Suffolk v. Green, 1 Atk. 450. 


be very small, remote, and contingent.^ Therefore if the 
plaintiff has only a possibility or an expectancy, no matter 
how probable and actually valuable, he could not maintain 
the suit; as in case of an heir at law during the life of his 
ancestor.'* In England the right of the plaintiff to main- 
tain the proceeding with respect to the nature of his inter- 
est has been enlarged by statute ; which embraces those who 
have mere possibilities, as well as those who have actual 
interests.^ If the right, interest, or claim could possibly 
be made the subject of an immediate judicial investigation 
in an action brought by the party who commences a suit to 
perpetuate testimony, such suit would for that reason be 
dismissed ; but if the party cannot possibly bring the matter 
before a court so that his right or claim may be adjudicated 
upon at once, the equity suit to perpetuate the testimony 
can be maintained. The reason given by the cases is, that 
the only evidence in support of the plaintiff 's rights might 
be lost by the death of his witnesses ; and the adverse party 
might delay to move in the matter for the very purpose of 
obtaining the advantage resulting from such an event. ^ ^ 

§ 211, 3 Dursley v. Fitzhardinge, 6 Ves. 251 ; Allan v. Allan, 15 Ves. 
134-136; Earl of Belfast v. Chichester, 2 Jacob & W. 451, 452; Towa- 
shend's Peerage Cases, 10 Clark & F. 289. 

§ 211, 4 Even though the ancestor was a lunatic. See cases in last note; 
also Sackvill v. Aylesworth, 1 Vern. 105, 106. And see In re Tayleur, 
L. R. 6 Ch. 416. 

§ 211, 5 Stat. 5 & 6 Vict., chap. 69, which enacts that "any person who 
would, under the circumstances alleged by him to exist, become entitled, 
upon the happening of any future event, to any honor, title, dignity, or 
office, or to any interest or estate in any propertj'^, real or personal, the 
right or claim to which cannot by him be brought to trial before the hap- 
pening of such event, shall be entitled to file a bill to perpetuate any tes- 
timony which may be material for establishing such claim or right." See 
Campbell v. Earl of Dalhousie, L. R. 1 H. L. S. 462. 

§ 211, 6 Angell v. Angell, 1 Sim. & St. 83 ; EUice v. Roupell, 32 Beav. 
299; Earl Spencer v. Peek, L. R. 3 Eq. 415. 

§ 211, (b) See, also, West v. Lord bill to perpetuate testimony is rec- 
Sackville, (1903) 2 Ch. 378. The ognized, and not limited, by U. S. 


The mode of examining the witnesses is by deposition simi- 
lar to that pursued in other equity suits. The cause does 
not proceed any further than the examination of the wit- 
nesses ; the suit is then really at an end. The only further 
step is the ''publication of the evidence," as it is called in 
the chancery practice, by which the parties have access to^ 
and become entitled to use the testimony. This ''publica- 
tion" is made by an order of the court; but such an order 
cannot be obtained except for the purpose of using the 
testimony in some action, nor can it be obtained, as a gen- 
eral rule, even for that purpose until after the death of the 
witnesses whose depositions are sought to be used. This 
latter rule can only be evaded on very special grounds, by 
showing that although the witnesses are still living their 
examination in the action is morally impossible.'^ 

§ 212. Statutory Modes. — As this particular instance of 
the auxiliary jurisdiction of equity is wholly based upon 
the mode of taking the testimony of witnesses by written 
depositions, which prevailed in the original chancery prac- 
tice, it would seem to follow as a necessary result that the 
equitable suit to perpetuate testimony has been abrogated 
in all those American states where the reformed procedure 
has been adopted by which the method of taking testimony 
of witnesses in the form of written depositions, as well in 
equitable suits as in legal actions, is abolished. This man- 
ner of obtaining the evidence being no longer the character- 

§ 211, 7 Angell v. Angell, 1 Sim. & St. 83; Morrison v. Arnold, 19 Ves. 
670 ; Bamsdale v. Lowe, 2 Russ. & M. 142. As to the practice, see further, 
Att'y-Gen. v, Ray, 2 Hare, 518 ; Beavan v. Carpenter, 11 Sim. 22 ; Wright 
V. Tatham, 2 Sim. 459. It has been held that the testimony thus per- 
petuated may be used in the court of a foreign country: Morris v. Morris, 
2 PhiU. Ch. 205. 

Eev. Stats., § 866; Westinghouse y. Booker, 20 Ga, 777, 780; May v. 

Machine Co. v. Electric Storage Bat- Armstrong, 3 J. J. Marsh. (26 Ky.) 

tery Co., 170 Fed. 430, 25 L. E. A. 261, 20 Am. Dec. 137; Hall v. Stout, 

(N. S.) 673, 95 C. C. A. 600, revets- 4 Del. Ch. 269, 272; and New York 

ing 165 Fed. 992 (testimony to meet & Bait. Coffee Polishing Co. v. New 

defendants' threatened suit for in- York Coffee Polishing Co., 9 Fed. 

fringeraent of patent); citing Booker 578, 20 Blatchf. 174. 


istic of any class of suits in those states, the ancient exer- 
cise of the auxiliary jurisdiction for preserving evidence 
by a suit would seem to be impossible. In the other states, 
also, which have not adopted the reformed procedure, the 
special statutory proceedings for the perpetuation of testi- 
mony have virtually displaced and rendered obsolete the 
equitable suit for that purpose.^ 

§ 213. II. Suits to Take the Testimony of Witnesses de 
Bene Esse, and of Witnesses in a Foreign Country.^ — A suit 
to take testimony de bene esse is maintained in aid of a 
pending action at law to examine a witness who is very 
aged, or who is sick, or who is about to depart from the 
country, or a person who is the only witness to a material 
fact in the cause, although neither aged nor sick ; the ground 
of such proceeding being the evident danger lest the evi- 
dence should be entirely lost to the party by a delay. ^ 
There is a very clear line of distinction between this suit 
and that to perpetuate testimony. While the latter could 
only be brought by a party who had no present immediate 
cause of action, this suit to take testimony de bene esse can 
only be maintained by one who has an existing cause of 
action or defense, and while the action of law is pending.^ 

§ 213, 1 Jeremy's Eq. Jur. 271-273 ; Angell v. Angell, 1 Sim. & St. 83, 

92, 93 ; Fitzluigh v. Lee, Amb. 65 ; Rowe v. , 13 Ves. 261 ; Cholmon- 

delay v. Orford, 4 Brown Ch. 157; Shirley v. Earl Ferrers, 3 P. Wms. 
77; Pearson v. Ward, 1 Cox, 177; Pricliard v. Gee, 5 Madd. 364. Such 
an examination may also be had, under like circumstances, in a pending 
equity suit, before it is at issue, so that the examination can take place 
in the ordinary manner. See Frere v. Green, 19 Ves. 320; Cann v. Cann, 
1 P. Wms. 567; Hope v. Hope, 3 Beav. 317; Mcintosh v. Great West R'y, 
1 Hare, 328. 

§213, 2 Angell v. Angell, 1 Sim. & St. 83; but Phillips v. Carew, 1 
P. Wms. 117, holds that the action at law need not yet be begun; that it 

§ 212, (a) In Winter v. Elmore, 88 reach the testimony of witnesses 

Ala. 555, 7 South. 250, it is held only, and not of parties, 

that the statutory proceedings which § 213 (a) Cited with approval in 

take the place of suits to perpetuate Winter v. Elmore, 88 Ala. 555, 7 

testimony, and to take testimony de South. 250. 
iene esse, are intended, like them, to 

§ § 214, 215 EQUITY JURISPRUDENCE. 324 

After the depositions are completely taken, they cannot be 
read as evidence at the trial, unless it is shown that the 
witness is dead, or is beyond the jurisdiction, or is too phys- 
ically infirm, or is otherwise incapable of attending" to 
testify in person.^ 

§ 214. The suit to examine witnesses in a foreign coun- 
try upon a commission issued for that purpose, in aid of a 
pending action at law, is founded upon the original lack of 
any power in the common-law courts to grant such commis- 
sions. The name indicates the nature and extent of the 
proceeding. It is in fact a branch or modification of the 
suit to take testimony de bene esse, and is governed by the 
rules applicable to that suit, except the witnesses in foreign 
countries to be examined need not be aged nor sick. The 
inability to reach them, or to compel their personal attend- 
ance by any legal process, is the ground upon which the 
jurisdiction rests. ^ 

§ 215. Statutory Modes. — Both of these modes of taking 
testimony through an equitable suit have become entirely 
obsolete throughout the United States. Ample powers were 
long ago conferred by statute upon the various courts of 
law, to permit and direct the testimony of aged, or infirm, 
or other witnesses to be taken preliminary to the trial in 
any pending proceeding, under all the circumstances which 
would have authorized a suit to take the testimony de bene 
esse, and also to permit and direct the issuing of commis- 
sions to other states and to foreign countries, for the pur- 
may be only contemplated. This ruling was sharply criticised and con- 
demned by Sir John Leach, in Angell v. Angell, 1 Sim. & St. 83, and its 
authority shaken. 

§ 213, 3 Harris v. Cotterell, 3 Mer. 680 ; Gason v. Wordsworth, 2 Yes. 
Sr. 336; Dew v. Clark, 1 Sim. & St. 108; Webster v. Pawson. Dick. 540. 

§ 214, 1 Grinnell v. Cobbold, 4 Sim. 546 ; Moodalay v. Morton, 1 Brown 
Ch. 469; Angell v. AngeU, 1 Sim. & St. 83, 93; Mendizabel v. Machado, 
2 Sim. & St. 483 ; Thorpe v. Macauley, 5 Madd. 218, 231 ; Devis v. Turn- 
bull, 6 Madd. 232. 


pose of taking the testimony of absent witnesses, under like 
circumstances. These statutory methods, being more 
simple, speedy, and efficacious, have wholly superseded this 
branch of the auxiliary jurisdiction of equity.^ 

§ 215, (a) This paragraph is cited in Becker v. Frederick W. Lipps Co., 
(Md.), 101 Atl. 783. 






§ 216. Questions to be examined stated. 

§ 217. Inadequacy of legal remedies is the very foundation of the con- 
current jurisdiction. 

§ 218. Is only the occasion for the rightful exercise of the exclusive 

§219. Operation of the principle upon the exclusive jurisdiction; does 
not affect the first branchy which deals with equitable estates 
and interest's. 
§§ 220, 221. Is confined to the second branch, which deals with equitable 

§ 222. Summary of the equity jurisdiction as affected by the inade- 
quacy of remedies. 

§ 216. Questions Stated. — ^Having thus described the 
three main divisions into which the equitable jurisdiction of 
courts clothed with chancery powers is separated, it be- 
comes important to examine with more fullness some of 
the general rules which govern this jurisdiction, and the 
courts in its exercise. It is especially important that we 
should determine with exactness the true operation and 
effect of the principle, so constantly quoted, and even em- 
bodied in statutory legislation, that the equitable jurisdic- 
tion can only be resorted to when the legal remedies are 
insufficient and inadequate.^ How far and under what cir- 
cumstances is this principle the foundation of the equitable 
jurisdiction, the essential fact upon which its very existence 
depends? and how far is it simply a rule — although a funda- 

§216 (a) See, also, ante, §§ 132. 133. 


mental rule — regulating and controlling the proper exer- 
cise of that jurisdiction? I purpose, in the first place, to 
give the answer to those questions. 

§ 217. Inadequacy of Legal Remedies the Founda.tion 
of the Concurrent Jurisdiction. — The insufficiency and in- 
adequacy of the legal remedies to meet the requirements of 
justice under any given state of circumstances, where tlie 
primary rights, interests, or estates of the litigant parties 
to be enforced or maintained are wholly legal, constitute 
the foundation of the concurrent jurisdiction of equity to in- 
terfere under those circumstances, they are the essential 
facts upon which the existence of that jurisdiction depends. 
Since the primary rights, interests, or estates of the liti- 
gant parties are legal, those parties are, of course, entitled 
to go into a court of law and obtain the remedies which it 
can furnish. But it is solely because these legal remedies 
are, under the assumed circumstances, inadequate to do 
complete justice, by reason of the imperfection of the judi- 
cial methods adopted by the law courts, that the courts of 
equity have also the power to interfere and to award, in 
pursuance of their own judicial methods, remedies which are 
of the same general kind as those granted by the courts of 
law to the same litigant parties under the same circum- 
stances. ■ This is the essential element of the concurrent 
jurisdiction; its very existence thus depends upon the 
inadequacy of the legal remedies given to the litigant par- 
ties, under the same circumstances upon which the equity 
tribunal bases its adjudication. This proposition has been 
sufficiently explained in the preceding sections.^ 

§ 218. Is the Occasion Only of the Exclusive Jurisdiction. 
There is, however, a radical difference between the opera- 
tion of this inadequacy of legal remedies upon the 
concurrent equitable jurisdiction and upon the exclusive 
jurisdiction, although the direct results of the operation 
in both cases may be apparently the same; and it is the 

§217, (a) See §§ 139, 173, 176, 180. 


neglect to observe this distinction which has tended more 
than anything else to involve the whole subject in confu- 
sion. The exclusive equitable jurisdiction, or the power 
of the courts to adjudicate upon the subject-matters coming 
within that jurisdiction, exists independently of the ade- 
quacy or inadequacy of the legal remedies obtainable under 
the circumstances of any particular case. It exists, as has 
been shown in a preceding section, from one or the other 
of two facts: either, first, because the primary rights, in- 
terests, or estates of the complaining party, which are to 
be enforced or protected, are equitable in their nature, and 
are therefore not recognized by the law so as to be cog- 
nizable in the law court; or second, because the remedies 
asked by the complaining party are such as are adminis- 
tered alone by courts of equity, and are therefore beyond 
the competency of the courts of law to grant. Whenever 
either of these two facts is involved in the circumstances of 
a judicial controversy^, the jurisdiction of equity over the 
subject-matter of such controversy is, and from the nature 
of the case must be, exclusive. But because the equitable 
jurisdiction in certain kinds of circumstances is exclusive, 
it does not follow that the jurisdiction can be properly ex- 
ercised in every individual case involving or depending 
upon such circumstances. The power of a tribunal to adjudi- 
cate upon a class of facts to which a certain individual case 
belongs is not identical with the due and proper exercise 
of that power, according to the established rules of juris- 
prudence, by a judgment maintaining the alleged right and 
conferring the demanded remedy. This proposition is self- 
evident, is a mere commonplace truism; and yet it has been 
ignored in much that has been said concerning the equitable 
jurisdiction. The distinction thus stated clearly shows 
the manner in which the inadequacy of legal remedies under 
a given condition of circumstances operates upon and af- 
fects the exclusive equitable jurisdiction. Such inadequacy 
simply furnishes the occasion upon which much of the ex- 
clusive jurisdiction may properly be resorted to; it is the 


rule, in many instances, for the proper use of the exclusive 
jurisdiction in accordance with the settled doctrines of 
equity jurisprudence; that jurisdiction can only be duly 
and reg-ularly exercised, in many instances, by an affirma- 
tive adjudication upon the alleged rights and an award of 
equitable remedies, when the legal remedies obtainable 
under the same facts are inadequate to promote the ends of 
justice. 1* 

§ 219. Operation of the Principle upon the Exclusive 
Jurisdiction. — The foregoing statement is so general and 
vague as to be of little practical benefit; it is necessary, 
therefore, to define the principle more exactly, and to 
ascertain, if possible, what portions of the exclusive juris- 
diction thus depend for their due and proper exercise upon 
the inadequacy of legal remedies and the insufficiency of 
legal methods. The exclusive jurisdiction consists, as has 
been shown, of two distinct branches, namely: 1. "Wliere 
the primary rights, interests, or estates of the complaining 
parties are wholly equitable; and 2. "Where the primary 
rights, interests, or estates are legal, but the remedies 
sought and obtained are wholly equitable. The principle 
that the inadequacy of legal remedies furnishes the occa- 
sion for a resort to the equitable jurisdiction and the rule 
for its proper exercise does not extend to the first branch 
or division of the exclusive jurisdiction. The exercise of 
the power, in cases belonging to this first branch, to adju- 
dicate upon, maintain, enforce, or protect purely equitable 
primary rights, interests, or estates does not at all depend 
upon any insufficiency or inadequacy of legal methods and 
remedies, but solely upon the fact that these primary 
rights, interests, or estates are wholly equitable, are not 
recognized by the law nor cognizable by the courts of law, 

§ 218, 1 Earl of Oxford's Case, 1 Ch. Rep. 1, 2 Lead. Cas. Eq. 1291 ; 
Southampton Dock Co. v. Southampton, etc., Board, L. R. 11 Eq. 254; 
Rathbone v. Warren, 10 Johns. 587 ; King v. Baldwin, 2 Johns. Ch. 554. 

§218 (a) See, also, ante, §§ 137, 138, 139, note, 173. 


and there is therefore no other mode of maintaining and 
enforcing them except by the courts of equity. Wherever 
the complaining party has purely equitable primary rights, 
interests, or estates according to the doctrines and prin- 
ciples of the equity jurisprudence, courts having equitable 
powers do and must exercise their exclusive jurisdiction 
over the case, entirely irrespective of the adequacy or in- 
adequacy of legal remedies, for the plain and sufficient rea- 
son that the litigant party cannot possibly obtain any legal 
remedies under the circumstances ; the courts of law do not 
recognize his rights, and cannot adjudicate upon nor pro- 
tect his interests and estates. One or two examples will 
illustrate the correctness and the generality of this state- 
ment. In the case of a trust created in lands, the estate 
of the cestui que trust is purely an equitable one, of which 
law courts refuse to take cognizance. He is therefore 
always entitled to the aid of a court of equity in establish- 
ing, maintaining, and enforcing his estate according to the 
nature of the trust and the doctrines of equity jurispru- 
dence which regulate it, and to obtain such remedies as the 
circumstances may require; and the question never is 
asked, nor could be asked, whether the remedies given him 
by a court of law are or are not adequate, since all legal 
remedies are to him impossible.^ ^ Again, in case of an 
equitable assignment, — as, for example, the equitable as- 
signment of a particular fund or a portion thereof by means 
of an unaccepted order on the depositary, — the interest of 
the assignee in the fund is a purely equitable ownership, 
and he is always entitled to maintain an action in a court 

§ 219, 1 It will be understood, of course, that I am speaking of the 
equity jurisdiction, unaffected by any particular statutes. There may be 
legislation in the various states similar to the statute of Georgia already 
referred to [§ 137, note], which pei'mits the holder of a "complete equity" 
in land, e. g., the vendee under a land contract who has paid the purchase 
price, to maintain the legal action of ejectment, in order to recover pos- 
session of the land. 

§219, (a) The text is cited, to this effect, in Warren v Warren, 75 N. J. 
Eq. 415, 72 Atl. 960. 


of equity, although the actual relief which he obtains is 
legal in its nature^ being simply a recovery of money. The 
proper exercise of the equitable jurisdiction under such 
circumstances cannot depend upon any inadequacy of legal 
remedies, since a court of law would not acknowledge any 
right or interest of the assignee. ^ A well-settled doctrine 
concerning the interference with actions at law by injunc- 
tion furnishes a further illustration. If the defendant in 
an action at law has an equitable interest or estate in the 
property, or an equitable right in the subject-matter, which, 
according to the established rules of equity jurisprudence, 
should prevent a recovery against him, but which, being 
purely equitable, cannot be set up as a defense in the pro- 
ceeding before a court of law, he can invoke the exclusive 
jurisdiction of a court of equity, without regard to any 
legal defenses which he may have, and can procure the ac- 
tion at law to be restrained, and his own equitable interest 
to be established and enforced by means of appropriate 
equitable reliefs, because such equitable interest is not 
recognized by the law nor cognizable by the legal tribunals.^ 

§ 219, 2 Rodick V. Gandell, 1 De Gex, M. & G. 763 ; Ex parte Imbert, 
1 De Gex & J. 152; Mandeville v. Welch, 5 Wheat. 277, 286; Gibson v. 
Finley, 4 Md. Ch. 75; Wheatley v. Strobe, 12 Cal. 92, 98, 73 Am. Dec. 
522; Shaver v. West. U. T. Co., 57 N. Y. 459, 464; and see cases cited 
ante, under § 169. 

§ 219, 3 Earl of Oxford's Case, 1 Ch. Rep. 1, 2 Lead. Cas. Eq. 1291 ; 
Pyke V. Northwood, 1 Beav. 152; Newlands v. Paynter, 4 Mylne & C. 
408; Langton v. Horton, 3 Beav. 464, 1 Hare, 549; East India Co. v. 
Vincent, 2 Atk. 83; Stiles v. Cowper, 3 Atk. 692; Jackson v. Cator, 5 
Ves. 688; Pilling v. Armitage, 12 Ves. 85; Young v. Reynolds, 4 Md. 
375; Ross v. Harper, 99 Mass. 175; Fanning v. Dunham, 5 Johns. Ch. 
122, 9 Am. Dec. 283 ; Edwards v. Varick, 1 Hoff. Ch. 382, 11 Paige, 290, 

5 Denio, 664, 679; Hibbard v. Eastman, 47 N. H. 507, 93 Am. Dec. 467; 
Miller v. Gaskins, 1 Smedes & M. Ch. 524; Smith v. Walker, 8 Smedes 

6 M. 131; Wilson v. Leigh, 4 Ired. Eq. 97; Rees v. Berrington, 2 Ves. 
540; Williams v. Price, 1 Sim. & St. 581; Capel v. Butler, 2 Sim. & St. 
457; Hayes v. Ward, 4 Johns. Ch. 123, 8 Am. Dec. 554; Viele v. Hoag, 
24 Vt. 46; Gallagher v. Roberts, 1 Wash. C. C. 156, 328; Boardman v. 
Florez, 37 Mo. 559. 


Such illustrations might be indefinitely multiplied. They 
are, however, sufficient to show that, so far as the exclusive 
jurisdiction of equity is concerned with equitable estates, 
interests, and primary rights alone of the complaining 
party, and therefore belongs to the first branch, its exer- 
cise does not depend upon any consideration of the ade- 
quacy or inadequacy of legal remedies, but depends upon 
and is controlled by the doctrines and rules of the equity 
jurisprudence. Such jurisdiction both exists and is exer- 
cised because the equitable estates, interests, or rights of 
the litigant party exist, and can be established, protected, 
and enforced by no other judicial means and instrumen- 

§ 220. It is otherwise with the second branch of the ex- 
clusive jurisdiction, as above described, where the primary 
rights, interests, or estates of the complaining party are 
legal in their nature, but the remedies sought by him are 
entirely equitable. Where a person has a legal primary 
right, he is not always, and as a matter of course, entitled 
to go into a court of equity set its -jurisdiction in motion, 
and obtain the equitable remedies appropriate to maintain 
or protect his right. Since his estates, interests, or pri- 
mary rights are legal, he can always, in case of their in- 
fringement or violation, demand and recover the legal 
remedies which are conferred by courts of law under the 
circumstances. Whether he may also demand and recover 
the proper equitable remedies depends upon other consid- 
erations. Although the jurisdiction of courts of equity to 
grant these equitable remedies in all such cases is exclu- 
sive, because courts of law (except as authorized by 
modern statutes) have no power to grant them, yet the 
courts of equity will not, in every instance, exercise their 
jurisdiction. The proper exercise of the jurisdiction in 
every case of this kind — but not the jurisdiction itself — 
depends upon the question whether the legal remedies 
which the party can obtain from courts of law upon the 


same facts and circumstances are inadequate to meet the 
ends of justice, — insufficient to confer upon him all the re- 
lief to which he is justly entitled. If the legal remedies 
administered by the judicial machinery and methods 
adopted in the law courts are fully adequate to establish, 
protect, and enforce the party's legal estates, interests, 
and rights, a court of equity will not interfere in his behalf 
with the purely remedial branch of its exclusive jurisdic- 
tion; if the legal remedies, either from their own essen- 
tial nature or from the imperfection of the legal procedure, 
are inadequate, then a court of equity will interpose, and 
do complete justice by granting the appropriate equitable • 
remedies which it alone is competent to confer.^ Examples 
taken from the decided cases in which the various kinds of 
equitable remedies have been decreed would clearly show 
that the dicta of judges and the rules laid down by courts 
concerning the general dependence of the equitable juris- 
diction upon the inadequacy of legal remedies, however 
conflicting they may appear to be, are all embraced within 
and rendered harmonious and consistent by the foregoing 
principle ; they all become particular applications and illus- 
trations of this principle.^ A few such instances must 
suffice for explanation. 

§ 220, 1 I do not mean that in their dicta and statements of rules 
concerning the equitable jurisdiction, the judges have always consciously 
recognized this principle, and have expressly drawn the distinction formu- 
lated in the text, viz., that while the inadequacy of legal remedies is the 
fact upon which the concurrent jurisdiction exists, it simply furnishes the 
occasion and rule for the exercise of the exclusive jurisdiction, and fur- 
thermore, that the application of this latter doctrine, by which the actual 
exercise of the exclusive jurisdiction is made to depend upon the inade- 
quacy of legal remedies, is confined to one branch alone of that jurisdiction, 
tlie branch which is concerned with the granting of purely equitable reme- 
dies in cases where the primary rights of the complaining party are legal, 

§ 220, (a) The text is quoted in (quieting title) ; and cited in Bank- 
Brady V. Carteret Realty Co., 70 ers' Reserve Life Co. v. Omberson, 
N. J. Eq. 748, 118 Am. St. Rep. 778, 123 Minn. 285, 48 L. E. A. (N. S.) 
8 L. R. A. (N. S.) 866, 64 Atl. 1078 265, 143 N. Wl 735. 


§ 221. a The well-settled rules concerning the restraint of 
actions at law by means of injunction furnish a great 
variety of examples. When the defendant in an action at 
law has some equitable interest or right which, being estab- 
lished according to the doctrines of equity jurisprudence, 
would prevent the recovery at law against him, then a 
court of equity will, as a matter of course, take cognizance 
of the matter, entertain a suit on his behalf, and enjoin the 
action at law, in order that it may, by the proper equitable 
remedies, maintain, protect, or enforce the equitable right 
held by such party. i But, on the other hand, when the 
.right or interest on which the defendant in the action at 
law relies is legal in its nature, so that it may be set up by 
way of defense in such action, and may be adjudicated 
upon by the court of law, and the defendant is prevented 
or hindered from thus presenting or availing himself of 
his legal defense by means of some collateral or extrinsic 
matter, such as fraud, duress, mistake, ignorance, negli- 
gence, and the like, or the defense itself, although legal, 
involves some matter of equitable cognizance, such as 
fraud, mistake, or accident, — whether a court of equity 
will then interpose in aid of the party, will take cognizance 
of the controversy, and enjoin the action at law, in order 
that the legal right of the defendant therein may be ren- 
dered effective so as to prevent a recovery against him, 
always depends upon the question whether the legal rem- 
edies which the litigant party, under the circumstances of 
the case, has obtained from the court of law, or might have 

and does not extend to the other branch, which deals with cases where 
the primary rights of the party are wholly equitable. But I claim that 
the principle formulated and distinctions thus stated in the text are 
implicitly and necessarily contained in and established by the judicial 
dicta and rules, and produce an orderly and consistent system out of 
materials which, on the surface, appear to be unarranged and conflicting. 
§ 221, 1 See ante, § 219. 

§ 221, (a) This paragraph of the 48 L, E. A. (N. S.) 265, 143 N. W. 
text is cited in Bankers' Eeserve 735. 
Life Co. V. Omberson^ 123 Minn. 285, 


obtained by the use of due dilig-enoe, are inadequate to 
attain tlie ends of justice ; in otlier words, whether the re- 
fusal of a court of equity to interpose would, from the 
insufficiency of the legal relief, or the imperfection of the 
legal procedure, work a substantial injustice to the liti- 
gant party under all the facts of this case. 2 In both these 
classes of cases the equitable jurisdiction is exclusive, since 
a court of equity alone has power to grant the remedy of 
injunction ; in the first, the jurisdiction is always exercised 
as a matter of right, in the second, its exercise is supple- 
mentary to the judicial methods existing at the law, and is 
called into operation only when those methods fail to give 
complete relief.^ Additional examples may be found in 
the established rules concerning the use of the injunction. 
The jurisdiction to restrain torts to property, real or per- 
sonal, nuisances, trespasses, and the like, by injunction, is 
exclusive, although the estate of the complaining party 
which is interfered with, and which he seeks to protect, is 
legal, and he is entitled to the legal remedy of compen- 
satory damages, yet the preventive remedy which he de- 
mands for the protection of his property is wholly equi- 
table, and can only be administered by courts of equity 

§ 221, 2 Earl of Oxford's Case, 1 Ch. Rep. 1, 2 Lead. Cas. Eq. 1291 
Harrison v. Nettleship, 2 Mylne & K. 423; Hardinge v. Webster, 1 Drew 
& S. 101 ; Simpson v. Lord Howden, 3 Mylne & C. 108, per Lord Gotten- 
ham; Curtess v. Smalridge, 1 Eq. Cas. Abr. 377, pi. 1; Stephenson v, 
Wilson, 2 Vern. 325; Blaekhall v. Combs, 2 P. Wms. 70; Protheroe v 
Forman, 2 Swanst. 227, 233 ; Holworthy v. Mortloek, 1 Cox, 141 ; Stevens 
V. Praed, 2 Ves. Jr. 519; Ware v. Horwood, 14 Ves. 31; Holmes v 
Stateler, 57 111. 209; Foster v. Wood, 6 Johns. Ch. 89; Marine Ins. Co 
V. Hodgson, 7 Cranch, 332; Hendrickson v. Hinckley, 17 How. 445 
Danaher v. Prentiss, 22 Wis. 311; Forsythe v. McCreight, 10 Rich. Eq 
308; Wilsey v. Maynard, 21 Iowa, 107; Day v. Cnmmings, 19 Vt. 496 
Vaughn v. Johnson, 9 N. J. Eq. 173; Harrison v. Davenport, 2 Barb. Ch 
77; Pen-ine v. Striker, 7 Paige, 598; Powell v. Watson, 6 Ired. Eq. 94; 
Hood V. N. R. R. Co., 23 Conn. 609; Clapp v. Ely, 10 N. J. Eq. 178. 

§ 221, 3 It is for this reason that some writers have classified all cases 
in which the exercise of the jurisdiction depends upon the inadequacy of 
legal remedies under the head of the "concurrent" jurisdiction. 


Tlie general doctrine is well established that this exclusive 
jurisdiction will not be exercised in any case for the pur- 
pose of enjoining trespasses and other tortious acts to 
property, at the suit of one having the legal estate, un- 
less the legal remedy — compensatory damages — is inade- 
quate, under the circumstance of the case, to confer com- 
plete relief upon the injured party. ^ Another illustration 
may be found in the doctrines concerning the remedy of 
specific performance of contracts. The jurisdiction to en- 
force performance of contracts specifically is exclusive, 
for the remedy itself is most distinctively equitable and 
comjDletely beyond the judicial methods of the law courts; 
yet the complaining party has a legal primary right cre- 
ated by the contract, and upon its violation is always en- 
titled to the relief afforded by an action at law, — compen- 
satory damages, — even "though such damages are -only 
nominal. The doctrine is fundamental that this jurisdic- 
tion will be called into operation, and the specific perform- 
ance will be decreed only in those classes of cases in which, 
according to the views taken by the equity court, the legal 
remedy of compensatory damages is, from its essential 
nature, insufficient, and fails to do complete justice between 

§ 221, 4 Garth v. Cotton, 1 Ves. Sr. 524, 546, 1 Dick. 183, 3 Atk. 751, 
1 Lead. Cas. Eq. 955, 987-1027; Jesus College v. Bloome, 3 Atk. 262, 
Amb. 54; Van Winkle v. Curtis, 3 N. J. Eq. 422; Weigel v. Walsh, 45 
Mo. 560; Musselman v. Marquis, 1 Bush, 463, 89 Am. Dec 637; Hicks 
V. Compton, 18 Cal. 206 ; Cause v. Perkins, 3 Jones Eq. 177, 69 Am. Dec. 
728; Livingston v. Livingston, 6 Johns. Ch. 497, 499, 500, 10 Am. Dec. 
353, and eases cited; Hawley v. Clowes, 2 Johns. Ch. 122; De Veney v. 
Gallagher, 20 N. J. Eq. 33; Coe v. Lake Mfg. Co., 37 N. H. 254, and 
cases cited; Burnham v. Kempton, 44 N. H. 78; Gallagher v. Fayette 
Co. R. R., 38 Pa. St. 102; Johnson v. Conn. Bank, 21 Conn. 148, 157; 
Hardesty v. Taft, 23 Md. 512, 530, 87 Am. Dec. 584; Mechanics' and 
Traders' Bank v. De Bolt, 1 Ohio St. 591; Eastman v. Amoskeag Mfg. 
Co., 47 N. H. 71, 78; Watson v. Sutherland, 5 Wall. 74, 78; Parker v. 
Winnipiseogee Co., 2 Black, 545, 550, and cases cited; Creely v. Bay 
State Brick Co., 103 Mass. 514; Morgan v. Palmer, 48 N. H. 336; Jenks 
V. Williams, 115 Mass. 217; Walker v. Zom, 50 Ga. 370; Ziegler v. 
Beasley, 44 Ga. 56. 


the litigant parties. ^ It is true that in applying this doc- 
trine the courts of equity have established the further rule 
that in general the legal remedy of damages is inadequate 
in all agreements for the sale or letting of land, or of any 
estate therein; and therefore in such class of contracts the 
jurisdiction is always exercised, and a specific perform- 
ance granted, unless prevented by other and independent 
equitable considerations which directly affect the rem- 
edial right of the complaining party; but this result does 
not interfere with nor modify the principle which is under 
discussion.6 ^ Another illustration may be drawn from 

§ 221, 5 Pomeroy on Specific Performance of Contracts, § § 9-27. 

§ 221, 6 Various and sometimes very insufficient reasons have been 
given by judges for the foregoing rule, that the legal remedy is always to 
be regarded as inadequate in contracts relating to real estate, while on the 
other hand it is generally to be regarded as adequate in contracts relating 
to personal property. The distinction stated in the text, and which I am 
illustrating, may perhaps furnish a complete explanation. In an agree- 
ment for the sale of land, the vendee, in addition to his legal primary 
right, also obtains, in pursuance of the equitable doctrine of conversion, 
an equitable estate in the land, — an estate which equity regards as the 
real beneficial ownership, burdened simply or encumbered with the lien 
of the unpaid purchase price. Being thus the holder of the equitable 
estate in the subject-matter, the equitable owner of the land, he is, accord- 
ing to the doctrine stated in the text, entitled as a matter of course to 
the aid of a court of equity in protecting such estate and in clothing 
him with the legal title by means of a conveyance from the vendor. The 
exercise of the jurisdiction does not then depend, as it does when the 
jurisdiction is merely to confer equitable relief, upon the inadequacy of 
The legal remedy, but is rather a matter of equitable right in the vendee. 
The same rule is ajoplied in cases of similar contracts to the vendor, partly 
because he acquires an equitable ownership of the purchase price, and 
partly because of the doctrine of mutuality. In the contracts relating to 
personal property, the equitable principle of conversion is not applied 
with the same strictness and with all the consequences as in contracts 

§221, (b) The text is quoted in v. Canadian Telegraphone Co., 103 

Maryland Clay Co. v. Simpers, 96 Me. 444, 69 Atl. 767. Note 6 is cited 

Md. 1, 53 Atl. 424, and cited in in Matthea v. Wier (Del.), 84 Atl. 

Christiansen v. Aldrich (Mont.), 76 878. 
Pac. 1007; and in Telegraphone Corp. 


the doctrines concerning tlie cancellation or surrender of 
written instruments on the ground of some actual fraud 
either in their original execution or in their subsequent 
use. Such remedy is entirely equitable; but when the in- 
jured party has a legal estate in the subject-matter or a 
legal primary right, he may set up the actual fraud as a 
defense in an action at law, if his legal title is thereby 
attacked, or a recovery is thereby sought against him on 
the instrument. Whether, under these circumstances, and 
at the suit of a party holding a legal interest or a legal 
primary right, the exclusive jurisdiction will be exercised 
for the purpose of protecting his estate or maintaining 
his right, by decreeing a cancellation or a surrender of the 
instrument thus atfected by fraud, depends upon the ques- 
tion whether the legal remedies, either affirmative or de- 
fensive, open to the party, are inadequate to promote the 
ends of justice, and to afford him complete relief.'^ '^ In the 

relating to real estate. The further rule, that the granting a specific 
performance in all cases depends upon certain equitable grounds affecting 
the remedial right of the plaintiff, or, to use the common but misleading 
expression, that it depends upon the judicial discretion of the court, plainly 
does not interfere with this view. See Pomeroy on Specific Performance 
of Contracts, §§ 35-43. 

§ 221, 7 Hamilton v. Cummings, 1 Johns. Ch. 517; Bushnell v. Hart- 
ford, 4 Johns. 301; Dale v. Roosevelt, 5 Johns. 174; Mitler v. Mitler, 18 
N. J. Eq. 270, 19 N. J. Eq. 257, 457; Town of Glastonbury v. McDonald, 
44 Vt. 453; Bissell v. Beckwith, 33 Conn. 357; Hall v. Whiston, 5 Allen, 
126; Martin v. Graves, 5 Allen, 601; Sherman v. Fitch, 98 Mass. 59; 
Ferguson v. Fisk, 28 Conn. 501; McHenry v. Hazard, 45 N. Y. 580. In 
Hamilton v. Cummings, 1 Johns. Ch. 517, Chancellor Kent stated the 
rule concerning the exercise of the jurisdiction as follows : "Perhaj:)s the 
cases may all be reconciled on the general principle that the exercise of 
this power is to be regulated by sound discretion, as the circumstances of 
the individual cases may dictate, and that the resort to equity, to be 
sustained, must be expedient, either because the instrument is liable to 
abuse from its negotiable character, or because the defense, not arising 
upon its face, may be difficult or uncertain at law, or from some other 

§221, (c) The text is cited to this son, 134 Ala. 626, 33 South. 6; Hosier 
effect in Druon v. Sullivan, 66 Vt. v. Walter, 17 Okl. 305, 87 Pac, 877. 
609, 30 Atl. 98; Andrews v. Frier- 


same manner, where a bill of exchange, promissory note, 
or other negotial)le security has been obtained by fraud, 
conversion, or other like manner which would create a 
valid defense at law as between the original parties, the 
acceptor, maker, or other party apparently liable on the 
instrument may invoke this jurisdiction of equity, before 
the maturity of the paper, against the holder, and procure 
an injunction restraining him from making any transfer 
to a bona fide purchaser, and even the final relief of a can- 
cellation or surrender; because in such a case, if the pres- 
ent unlawful holder, although the legal defense to an ac- 
tion by him would be perfect, should transfer the security 
to a bona fide purchaser, such legal defense would be cut 
off, and the injured party would be without adequate and 
complete remedy in a court of law.<^ This doctrine ex- 
tends, under similar circumstances, to the transfer of lands, 
goods, and things in action to a bona fide purchaser, where 
the rights and equities of the original grantor, vendor, or 
owner would be cut off, and he would be deprived of com- 

special circumstances peculiar to the case, and rendering a resort to chan- 
cery proper and clear of all suspicion of any design to promote expense 
and litigation." I would remark that the statement in this extract that 
the exercise of the jurisdiction is a matter of ''discretion" in the court, 
wliieh was a favorite mode of expression among some equity judges of a 
former day, is very misleading, no matter how much the word is guarded 
by adding "sound" or "judicial." No part of the regular jurisdiction of 
equity can depend upon the "discretion" of the judge, if the word is 
used in any signification properly belonging to it. In Martin v. Graves, 5 
Allen, 601, the court thus stated the general rule: "Whenever a deed or 
other instrument exists, which may be vexatiously or injuriously used 
against a party after the evidence to impeach or invalidate it is lost, or 
which may throw a cloud of suspicion over his title or interest, and he 
cannot immediately protect or maintain his right by any course of pro- 
ceedings at law, a court of equity will afford relief by directing the instru- 
ment to be delivered up and canceled, or by making any other decree 
which justice and the rights of the parties may require." 

§221, (d) The text is cited in 98 (cancellation of negotiable instm- 

Louisville, N. A. «& C. R. R. Co. v. ments not generally granted when 

Ohio Val. I. & C. Co., 57 Fed. 42, 45; applied for after their maturity). 
Druon v. Sullivan, 66 Vt. 609, 30 Atl. 


plete relief at law, as against the bona fide transferee.^ 
Similar illustrations might be taken from the settled rules 
concerning the use of the exclusive jurisdiction to grant 
the remedies of reformation, re-execution, interpleader, 
and other strictly equitable remedies, in order to maintain, 
protect, and enforce estates, interests, and primary rights 
of the complaining party, which are legal in their nature; 
but the foregoing examples are sufficient to explain the dis- 
tinction, and to show the generality of the principles stated 
in the preceding paragraph. 

§ 222. Summary of the Jurisdiction as Affected by the 
Principle. — The principle which has been thus explained in 
the preceding paragraphs of this chapter, and which is not 
a mere speculative theory, but is fully sustained by settled 
rules taken from every part of the equity jurisprudence, 
presents the entire equitable jurisdiction in the form of 
a simple, well-defined, and consistent system, the result of 
a few plain and harmonious rules. Laying out of view for 
the present that special branch of equity which is called the 
''auxiliary jurisdiction," and which has become obsolete 
except in a few of our American states, the administration 
of the equitable jurisdiction, and the resulting doctrines 
which make up the equity jurisprudence, may be separated, 
according to a natural order, into four distinct classes, 
namely : 1. Where the primary right or interest of the com- 
plaining party which has been invaded is purely equi- 
table, — one which the doctrines of equity jurisprudence 
alone create and recognize, — and his remedial right and 
the remedies which he obtains are also wholly equitable; 
for example, where an equitable owner of land, under the 

§ 221, 8 Hamilton v. Cnmmings, 1 Johns. Ch. 517 ; Delafield v. Illinois, 
26 Wend. 192; Van Doren v. ISIayor of New York, 9 Paige, 389; Cox 
V. Clift, 2 N. Y. 118; Town of Glastonbury v. McDonald, 44 Vt. 453; 
Bank of Bellows Falls v. Rutland, etc, R. R. Co., 28 Vt. 470; Franklin 
V. Green, 2 Allen, 520 ; Sherman v. Fitch, 9S Mass. 59 ; Poor v. Carleton, 
3 Sum. 70; Ferguson v. Fisk, 28 Conn. 501; Mitler v. Mitler, 18 N. J. Eq. 
270, 19 N. J, Eq. 257; Peirsoll v. Elliott, 6 Pet. 95. 


doctrines of trust or of conversion, procures llie declar- 
ative relief establishing his estate, and the relief of spe- 
cific performance by means of a conveyance of the legal 
title. 2. Where the primary right or interest of the com- 
plaining party is in like manner equitable, and the rem- 
edies which he asks and receives are legal; that is, are 
of the same kind as those conferred by courts of law; for 
example, where the equitable owner of a fund, through an 
equitable assignment, establishes his ownership and re- 
covers the fund by a final judgment which is simply pecu- 
niary. 3. Where the primary right or interest of the 
complaining party is legal, — one which is created by the 
law, and cognizable by the law courts, — and his remedial 
right, and the remedies which he procures, are entirely 
equitable; for example, where the legal owner of property 
obtains protection to his possession or enjoyment by means 
of injunction against tortious acts, or against wrongful 
proceedings at law, or protects his title from disturbance, 
or himself from wrongful demands, by means of the rem- 
edy of cancellation, and the like. 4. Where the primary 
right or interest of the complaining party is legal, recog- 
nized and maintainable by the law courts, and the remedies 
which he obtains are also legal, — of the same kind as those 
administered and conferred by the courts of law, — recov- 
eries of money, or of specific lands or chattels; for 
example, where a surety sues his principal, under his right 
of exoneration, to recover back the money paid out on 
behalf of such principal, or sues his co-surety to recover 
money, under his right of contribution ; or where an owner 
in common of land by a legal estate therein recovers his 
own specific portion by a partition, and the like. All pos- 
sible cases of equity may be referred to one or the other 
of these four divisions. The first three belong to the 
"exclusive" jurisdiction; the fourth constitutes the ''con- 
current" jurisdiction. Furthermore, in the first and 
second, the jurisdiction is not only exclusive, but is exer- 
cised as a matter of right in behalf of the complaining 


party whenever he has an equitable estate, interest, or 
primary right, according to the doctrines of equity juris- 
prudence. In the third division, although the jurisdiction 
always exists and is exclusive, it is not exercised on behalf 
of the complaining party as a matter of right in him; its 
proper exercise depends upon the inadequac}^ of the legal 
remedies which he might obtain to do him complete jus- 
tice. Finally, in the fourth division, the very existence 
as well as the exercise of the jurisdiction, being concurrent, 
depends upon the inadequacy of the remedies which the 
party could obtain from a court of law, owing partly to the 
form of those remedies themselves, and partly to the im- 
perfection of the legal mode of procedure. 



§ 223. General doctrine as to discovery as a source of eoneurrent and 

an occasion for exclusive jurisdiction. 

§§ 224, 225. Early English rule. 

§ 226. Present English rule. 

§§ 227-229. Broad rule established in some American states. 

§ 229. The limitations of this rule. 

§ 230. The true extent and meaning of this rule examined. 

§ 223. General Doctrine.^ — It has already been shown 
that, under the general jurisdiction of equity, a suit of dis- 
covery alone without relief might be maintained in order 
to procure admissions from the defendant to be used on 

§ 223, (a) This and the following This paragraph is cited in Nixon 

sections are cited in Yates v. Stu- v. Clear Creek Lumber Co., 150 Ala. 

art's Adm'r, 39 W. Va. 124, 19 S. E. 602, 9 L. R. A. (N. S.) 1255, 43 

423; Collier v. Collier (N. J. Eq.), 33 South. 805 j Daab v. New York C. & 

Atl. 193; In Re Beckwith, 203 Fed. H. E. E. Co., 70 N. J. Eq. 489, 62 

45, 121 C. C. A. 381; Griesa v. Atl. 449 (Stevenson, V. C); State 

Mutual Life Ins. Co., 169 Fed. 509, v. Chicago & N. W. R. Co., 132 Wis. 

94 C. C. A. 035, reversing 156 Fed. 345, 112 N. W. 515. 


the trial of an action at law between the same parties ; and 
that in every equitable suit brought for any purpose of 
relief over which a court of equity has jurisdiction, the 
plaintiff may make his pleading a means of discovery, and 
may compel the defendant to disclose facts within his 
knowledge material to the issue, which can be used as evi- 
dence on the hearing. In addition, however, to these 
original and strictly proper functions of discovery, the doc- 
trine has been established in many of the American states, 
and to a very limited and partial extent in England, that 
discovery itself is, under certain circumstances, an inde- 
pendent source or foundation of the equitable jurisdiction 
to adjudicate upon matters and to award reliefs which are 
otherwise purely legal. In other words, that, under cer- 
tain circumstances, where the plaintiff has asked and ob- 
tained a discovery, the court of equity may go on and 
decide the whole issue, and, grant the requisite remedies, 
although the subject-matter of the controversy and the 
primary rights and interests of the party are wholly legal 
in their nature, and the remedies conferred are of such a 
kind as a court of law can administer. A fortiori, then, 
may discovery be a proper occasion for exercising the 
jurisdiction in cases belonging to the exclusive jurisdiction, 
where an equitable remedy is needed in support of a legal 
right or interest. This doctrine has, of course, become 
obsolete wherever the auxiliary suit for a discovery has 
itself been abolished; but since the doctrine prevailed in 
some states which still retain the separate equity jurisdic- 
tion, and the ancillary method of discovery as an incident 
thereof, some discussion of it seems to be necessary. 

§ 224. Early English Rule. — The earlier English cases 
fail to establish any rule, and leave the matter in a condi- 
tion of uncertainty. There are dicta of eminent judges and 
some decisions which undoubtedly go to the length of hold- 
ing, as a general proposition, that wherever a party is en- 
titled to and obtains a discovery in a suit brought directly 
and primarily for that purpose, the court of equity will go 


on and decide the issues and grant the requisite relief, 
although the subject-matter of the controversy and the pri- 
mary rights involved and the reliefs conferred are not 
otherwise within even the concurrent equitable jurisdiction, 
but are cognizable by the courts of law, and the legal rem- 
edies obtainable in the particular case are adequate. This 
conclusion is said to result from the doctrine that when a 
court of equity has obtained jurisdiction of a cause for any 
purpose, it will go on and determine the entire matters in 
dispute, in order to avoid a multiplicity of suits. ^ These 
expressions of judicial opinion are certainly very loose, 
and unless carefully limited, would extend the equitable 
jurisdiction far beyond its legitimate boundaries. The 
doctrine has therefore been stated in a much more guarded 
and restricted manner. An early treatise of high author- 
ity, after admitting the impossibility of extracting a more 
definite rule from the conflicting decision, says: ''The 
court, having acquired cognizance of the suit for the pur- 
pose of discovery, will entertain it for the purpose of re- 
lief, in most cases of fraud, account, accident, and mis- 
take. "2 Later decisions have been still more guarded, 

§ 224, 1 The earlier English cases and dicta are by no means unanimous 
in supporting this conclusion; some of them are directly opposed to it, 
and there is an irreconcilable conflict among them : See Adiey v. Whit- 
stable, 17 Ves. 329, per Lord Eldon; Ryle v. Haggle, 1 Jacob & W. 234, 
236, 237, per Sir Thomas Plumer; McKenzie v. Johnston, 4 Madd. 373, 
per Sir John Leach; Parker v. Dee, 2 Cas. Ch. 200, 201, per Lord Not- 
tingham; Jesus College v. Bloom, 3 Atk. 262, 263, Amb. 54; Geast v. 
Barker, 2 Brown Ch. 61; Duke of Leeds v. New Radnor, 2 Brown Ch. 388, 
519; Bishop of Winchester v. Knight, 1 P. Wms. 406; Kemp v. Pryor, 
7 Ves. 248, 249, per Lord Eldon. 

§ 224, 2 Fonblanque's Equity, b. 1, chap. 1, § 3, note /; "The concur- 
rence of jurisdiction may, in the gi'eater number of cases in which it is 
exercised, be justified by the propriety of preventing a multiplicity of 
suits ; for as the mode of proceeding in courts of law requires the plaintiff 
to establish his case without enabling him to draw the necessary evidence 
from the examination of the defendant, justice could never be attained 
at law in those cases where the principal facts to be proved by one party 
are confined to the knowledge of the other party. In such cases, there- 


and seem to reject discovery as a distinct and independent 
source or foundation of the equitable jurisdiction in any 
cases ; that is, to deny that relief would be granted merely 
as a consequence of discovery in any case which did not 
otherwise come within some recognized branch of the equi- 
table jurisdiction, either exclusive or concurrent.^ 

fore, it becomes necessary for the party wanting such evidence to resort 
to the extraordinary powers of a court of equity, which will compel the 
necessary discovery; and the court, having acquired cognizance of the 
suit for the purpose of discovery, will entertain it for the purpose of 
relief in most cases of fraud, account, accident, and mistake." 

§ 224, 3 Thus in Pearce v. Creswick, 2 Hare, 293, per Wigram, V. C. : 
"The first proposition relied upon by the plaintii3f in support of the equity 
of his bill was this, that the case was one in which the right to discovery 
would carry with it the right to relief. And undoubtedly dicta are to be 
met with tending directly to the conclusion that the right to discovery may 
entitle a plaintiff to relief also. In Adley v. The Whitstable Co., 17 Ves. 
329, Lord Eldon says: 'There is no mode of ascertaining what is due 
except an account in a court of equity; but, it is said, the party may 
have discovery, and then go to law. The answer to that is, that the right 
to the discovery carries along with it the right to relief in equity.' In 
Ryle V. Haggle, 1 Jacob & W. 236, Sir Thomas Plumer said : 'When it is 
admitted that a party comes here properly for the discovery, the court 
is never disposed to occasion a multiplicity of suits by making him go 
to a court of law for the relief.' And in McKenzie v. Johnston, 4 Madd. 
373, Sir. John Leach says: 'The plaintiff can only learn from this dis- 
covery of the defendants how they have acted in the execution of their 
agency, and it would be most unreasonable that he should pay them for 
that discovery, if it turned out that they had abused his confidence; yet 
such must be the case if a bill for relief will not lie.' Now, in a case in 
which I think that justice requires the court, if possible, to find an equity 
in this bill, to enable it, once for all, to decide the question between the 
parties, I should reluctantly deprive the plaintiff of any remedy to which 
the dicta I have referred to may entitle him. But, I confess, the argu- 
ments founded upon these dicta appear to me to be exposed to the objection 
of proving far too much. They can only be reconciled with the ordinary 
practice of the court, by understanding them as having been uttered with 
reference in each case to the subject-matter to which they were applied, 
and not as laying down any abstract proposition so wide as the plaintiff's 
argument requires. I think this part of the plaintiff's case cannot be 
stated more highly in his favor than this, that the necessity a part}' may 
be under (from the very nature of a given transaction) to come into 


§ 225.a If it be generally true that a court "having ac- 
quired jurisdiction of a suit for the purpose of discovery 
will entertain it for purpose of relief in most cases of fraud, 
account, accident, and mistake," what is the real signifi- 
cance of this proposition? It does not assert that mere 
discovery is an independent source of jurisdiction in any 
case ivhere it would not otlierivise exist; it simply regards 
a discovery obtained as the proper occasion for exercising 
the jurisdiction, sometimes exclusive, sometimes concur- 
rent, in certain classes of cases where such jurisdiction al- 
ready exists, — that is, may be exercised, — in pursuance of 
settled doctrines of the equity jurisprudence. In many 
cases of fraud, mistake, or accident, the exclusive jurisdic- 
tion exists to award purely equitable remedies in support 
of legal interests and primary rights of the plaintiff; and 
such jurisdiction will be exercised in these cases, accord- 
ing to the principle heretofore explained, whenever the 
legal remedies obtainable therein are inadequate. Also, 
in many cases of fraud, mistake, accident, or account, the 
concurrent jurisdiction exists to award remedies of a kind 
which are purely legal, such as pecuniary recoveries, in 
support of the legal interests and primary rights of the 
plaintiff, whenever the remedies obtainable from a court 
of law are inadequate, through the imperfection of the 
legal modes of procedure. Now, the proposition quoted 
above simply asserts that in all cases falling within either 
of the two classes last mentioned, in all such cases belong- 
ing either to the exclusive or to the concurrent jurisdic- 
tion, the very fact that a discovery is necessary for the 

equity for discovery, is a circumstance to be regarded in deciding upon 
the distinct and independent question of equitable jurisdiction; further 
than this I have not been able to follow this branch of the plaintiff's 
argument." And see Mitchell v. Greene, 10 Met. 101; Pease v. Pease, 
8 Met. 395. 

§ 225, (a) This paragrapt is cited GOl, 117 Pac. 767 (account) ; State 

in Mutual Life Ins. Co. v. Griesa, v. Chicago & N. W. R. Co., 132 Wis. 

156 Fed. 398; California Raisin 315, 112 N. W. 515. 
Growers' Assn. v. Abbott, 160 Cal. 


plaintiff, and is obtained by him, shows of itself, and in- 
dependent of any other considerations, that the case is one 
in which the ordinary remedies at law are inadequate, 
and therefore that the equitable jurisdiction is proper in 
such case. In other words, the discovery obtained in such 
cases belonging to the exclusive jurisdiction is of itself 
a fact showing that the legal remedies are inadequate to 
do complete justice to the parties therein, and that the 
exercise of the exclusive jurisdiction, by conferring equi- 
table remedies, is both proper and necessary. Also, the 
discovery obtained in such cases belonging to the concur- 
rent jurisdiction is of itself a fact showing that the reme- 
dies recoverable at law by the parties therein are inade- 
quate, and that the concurrent equitable jurisdiction of 
the controversy exists, and should be enforced by decid- 
ing all the issues and awarding the appropriate reliefs, al- 
though they may be of the same kind as those conferred at 
law. This view, as it seems to me, removes all conflict ap- 
pearing in the English decisions and dicta, and brings the 
effect of discovery into a complete harmony with the 
general principles concerning jurisdiction. It rejects the 
notion that the mere fact of discovery has any power to en- 
large the equitable jurisdiction, or to extend that jurisdic- 
tion, whether exclusive or concurrent, to any cases in which 
it does not otherwise exist; on the other hand, it admits 
that, in cases otherwise belonging either to the exclusive or 
the concurrent jurisdiction, a discovery obtained may be 
the determining fact upon which the proper exercise of that 
jurisdiction depends, — the fact which, without any other 
accident, renders the legal remedies inadequate, and thus 
sets in motion the judicial machinery of equity. 

§ 226. Present English Rule. — The conclusion thus 
reached is fully sustained by the more modem English 
decisions. The rule fully settled by the English courts, 
]:efore the auxiliary jurisdiction over discovery was finally 
abolished by the supreme court of judicature act,i was, that 

§ 226, 1 See ante, § 193. 


if the controversy and the issues involved in it are not 
otherwise within the equitable jurisdiction, either exclusive 
or concurrent, and the legal remedies obtaina1)le in the case 
are adequate, a bill properly for discovery without any re- 
lief, in aid of a pending- or expected action at law, can alone 
be maintained; and if in such a bill the plaintiff demands 
relief, either general or special, the whole is demurrable. ^ 
This rule confines discovery to its legitimate function of 
furnishing evidence, and prevents it from operating to ex- 
tend the equitable jurisdiction to causes which would other- 
wise be solely cognizable at law. 

§ 227. American Rule. — A very different doctrine has 
been asserted and perhaps established by the courts of sev- 
eral American states, in which the separate jurisdiction of 
chancery formerly existed, and of other states in which 
such separate jurisdiction is still preserved; and the doc- 
trine thus affirmed has sometimes been spoken of by 
writers and judges as the distinctively American doctrine 
on the subject. It may well be doubted, however, whether, 

§ 226, 2 Foley v. Hill, 2 H. L. Cas. 28, 37; Morris v. Morgan, 10 Sim. 
341; Benyon v. Nettlefold, 3 Maen. & G. 94; Deare v. Attorney-General, 
1 Younge & C. 205, 206; Albretcht v. Sussman, 2 Ves. & B. 328; and 
see Story's Eq. PL, § 312, note 3, and cases there cited. The same doe- 
trine as to the effect of discovery upon the jurisdiction has been adopted 
in some American states : Mitchell v. Greene, 10 Met. 101 ; Pease v. 
Pease, 8 Met. 395 ; Little v. Cooper, 10 N. J. Eq. 273 ; Miller v. Scammon, 
52 N. H. 609, 610; Stone v. Anderson, 26 N. H. 506» .518; Stevens v. 
Williams, 12 N. H. 246 ; Tappam v. Evans, 11 N. H. 311, 325.* 

§ 226, (a) See, also, De Bevoise v. and relief are sought, but the only 
H. & W. Co. (N. J. Eq.), 58 Atl. 91; ground for equitable relief appears 
People's Nat. Bank v. Kern, 193 Pa. to be a discovery of evidence to be 
St. 59, 44 Atl. 331; India Eubber used in the enforcement of a purely 
Co. V. Consol. Rubber Tire Co., 117 legal demand, the jurisdiction can- 
Fed. 354; Safford v. Ensign Mfg. not be sustained." But § 225, supra, 
Co. (C. C. A.), 120 Fed. 480, 483. In is said not to apply in the federal 
the last case it is stated that the courts where the legal remedy for 
federal equity practice is modeled on fraud is adequate; Griesa v. Mutual 
the established English practice, and Life Ins. Co., 1G9 Fed. 509, 94 C. 0. 
that "in a case in which discovery A. 635. 


with all the limitations and exceptions which have been 
suggested, any doctrine can be considered as having been 
fairly established by a preponderance of judicial decisions 
(not of mere dicta) which goes beyond the general proposi- 
tion quoted in a preceding paragraph, at one time admitted 
by English text-writers. ^ The rule has been asserted by 
many American courts in very general terms, that when- 
ever a court of equity has obtained jurisdiction of a cause 
for any one purpose, it may retain such cause for the pur- 
pose of adjudicating upon all the matters involved, and of 
granting complete relief. As a consequence of this prin- 
ciple, whenever the court can entertain a suit for discov- 
ery, and a discovery is obtained, the court will go on and 
decide the whole issue, and will grant to the plaintiff, if he 
has prayed for it, whatever relief is proper, even though 
such relief is legal in its kind, and could have been obtained 
by an action at law.^ a These general expressions would 

§ 227, 1 Ante, § 224. I refer to the general proposition laid down in 
Fonblanque's Equity, that when the court has acquired jurisdiction for a 
discovery, it will entertain jurisdiction for relief in most cases of fraud, 
accident, mistake, and account. 

§ 227, 2 Rathbone v. Warren, 10 Johns. 587, 596 ; King v. Baldwin, 
17 Johns. 384, 8 Am. Dec. 415; Gelston v. Hoyt, 1 Johns. Ch. 543; Sey- 
mour V. Sejrmour, 4 Johns. Ch. 409; Shepard v. Sanford, 3 Barb. Ch. 
127; Sanborn v. Kittredge, 20 Vt. 632, 50 Am. Dec. 58; Holmes v. Holmes, 
36 Vt. 525; Traip v. Gould, 15 Me. 82; Isham v. Gilbert, 3 Conn. 166; 
Middletown Bank v. Russ, 3 Conn. 135, 139, 8 Am. Dec. 164; Lyons v. 

§ 227, (a) The text is cited in Col- 36 Atl. 411 (on a bill for discovery 
lier V. Collier (N. J. Eq.), 33 Atl. and production of private letters, 
103. See, also, Wallis v. Skelly, 30 recovery of the letters maj^ be de- 
Fed. 747; New York Ins. Co. v. creed); Lancy v. Randlett, 80 Me. 
Roulet, 24 Wend. 505 (opinion of 169, 6 Am. St. Rep. 169. See, fur- 
Senator Edwards); Wood v. Hudson, ther, Elliott v. Kyle, 176 Ala. 167, 
96 Ala. 469, 11 South. 530; Thomp- 57 South. 752 (creditors' bill for dis- 
son v. Whitaker Iron Co., 41 W. Va. covery of assets and complete re- 
574, 23 S. K 795; Smith v. Smith's lief); Woods v. Riley, 72 Miss. 73, 
Adm'r, 92 Va. 696, 24 S. E. 280; 76, 18 South. 384 (under Mississippi 
Roanoke St. R'y Co. v. Hicks, 96 Const. 1890, § 160) ; Keystone Lum- 
Va. 510, 32 S. E. 295; Dock v. Dock, ber Yard v. Yazoo & M. V. R. Co., 96 
180 Pa. St. 14, 57 Am. St. Rep. 617, Miss. 116, Ann. Cas. 1912A, 801. 50 


seem to extend the concurrent jurisdiction of equity almost 
without limit, over matters ordinarily cognizable at law. 
It is not a little remarkable that courts which, in relation 
to some matters, have shown a strong tendency to restrict 
the equitable jurisdiction, upon the alleged ground that 
the remedies at law are adequate, should thus have opened 
the door for an apparently indefinite extension of the juris- 
diction over large classes of cases in which, excepting the 
single incident of a discovery of evidence, the legal reme- 
dies are confessedly adequate.^ 

Miller, 6 Gratt. 438, 52 Am. Dec. 129; Chichester's Executors v. Vass's 
Administrators, 1 Munf . 98, 4 Am. Dec. 531 ; Sims v. Aughtery, 4 Strob. 
Eq. 121; Ferguson v. Waters, 3 Bibb, 303; Brooks v. Stolley, 3 McLean, 
523 ; Warner v. Daniels, 1 Wood. & M. 90 ; Foster v. Swasey, 2 Wood & M. 
217; Hepburn v. Dunlop, 1 Wheat. 197; Russell v. Clark's Executors, 
7 Crunch, 69. In the last-named case, the United States supreme court 
went so far as to announce the following universal rule: "That if certain 
facts essential to the merits of a claim purely legal be exclusively within 
the knowledge of the party against whom that claim is asserted, he may 
be required in a court of chancery to disclose those facts; and the court, 
being thus rightfully in possession of the cause, will proceed to determine 
the whole matter in controversy." 

§ 227, 3 The extreme reluctance of some American courts to extend the 
jurisdiction of equity, even where such extension consists solely in apply- 
ing familiar principles to new conditions of fact, is in marked contrast 
with the freedom shown by English chancery judges in developing the 
equity jurisprudence. An illustration may be seen in their refusal to use 
the injunction to restrain trespasses, or to restrain the breach of con- 
tracts, or to use the mandatory injunction, in many instances where such 
use has become common in England. In the face of this tendency, the 

South. 445. But see People's Nat. when discovery is sought and is 
Bank v. Kern, 193 Pa. St. 59, 44 material to the relief. Yates v. 
Atl. 331. In Miller v. U. S. Casu- Stuart's Adm'r, 39 W. Va. 124, 19 
alty Co., 61 N. J. Eq. 110, 47 Atl. S. E. 423. See, also, Stitzer v. 
509, it was said that "the court has Fonder, 214 Pa. 117, 63 Atl. 421. 
not jurisdiction to decree relief upon It is frequently stated that equity 
a purely legal claim under the gen- will take jurisdiction of accounts 
eral prayer for relief" in a bill for when discovery is necessary. La- 
discovery. It has been held that fever v. Billmyer, 5 W. Va. 33; Coff- 
equity will take jurisdiction of ae- man v. Sangston, 21 Gratt. 263. 
counts which are all on one side only 


§ 228. It is plain that tins doctrine, although expressed 
in such broad terms, cannot be intended to operate in all of 
its generality. Taken literally and without limitation, it 
would break down the barriers between the jurisdictions in 
equity and at law, and would virtually render the equitable 
jurisdiction universal by bringing every judicial contro- 
versy within its scope. Before the modern legislation con- 
cerning witnesses and evidence, the actions at law were 
very few in which one or the other of the parties might not 
be aided by a discovery, and might not, in conformity with 
settled rules, maintain a suit for a discovery. If a discov- 
ery, therefore, rightfully demanded and obtained, were of 
itself sufficient to bring the entire cause within the jurisdic- 
tion of chancery for final adjudication upon its merits, it 
is plain that almost every kind and class of purely legal 
actions could thus be brought within the equitable concur- 
rent jurisdiction; and the fundamental principle, that the 
concurrent equitable jurisdiction only exists in cases where 
the legal remedies are inadequate, would practically be 
abrogated, — would become an empty formula. This con- 
clusion, which is a necessary deduction from the assumed 
premises, shows that the premises themselves are false. 
The doctrine of which it is a consequence cannot be true in 
all the generality of its statement.^ 

adoption by the same courts of a general rule, which, if not limited, would 
sweep almost every case at law within the equitable jurisdiction, is, to say 
the least, very remarkable. 

§ 228, 1 See Foley v. Hill, 2 H. L. Cas. 28, 37, per Lord Cottenham, 
where this able chancellor thus described the effect of the notion that 
discovery alone is a source of jurisdiction : "It is not because you are 
entitled to discovery that therefore you are entitled to an account. That 
is entirely a fallacy. That would, if carried to the extent to which it 
would be carried by the argument, make it appear that every case is a 
matter of equitable jurisdiction, and that where a plaintiff is entitled to a 
demand he may come to a court of equity for a discovery. But the rule 
is, that where a case is so complicated, or where from other circumstances 
the remedy at law will not give adequate relief, then the court of equity 
assumes jurisdiction." As this case was one for an accounting, the chan- 
cellor, in his remarks, was speaking- directly of the remedy for an account. 




§ 229. Limitations were therefore established which 
very much restricted the operation of the doctrine. In the 
first place, the rule is settled in those American courts 
which admit the general doctrine that when the action is 
one cognizable at law, in which the rights and remedies are 
legal, and which does not otherwise belong to the equitable 
jurisdiction, but which the plaintiff brings in a court of 
equity under the doctrine that a discovery of itself enables 
equity to extend its concurrent jurisdiction over the whole 
cause, he must allege that the facts concerning which he 
seeks a disclosure are material to his cause of action, and 
that he has no means of proving those facts by the testi- 
mony of witnesses or by any other kind of evidence used in 
courts of law, that the only mode of establishing them is by 
compelling the defendant to make disclosure, and therefore 
that a discovery by suit in equity is indispensable. ^ With- 
out these allegations the plaintiff cannot avail himself of 
the doctrine, and obtain relief as a consequence of the dis- 

§229, (a) Cited to this effect in 
Thompson v. Whitaker Iron Co., 41 
W. Va. 574, 23 S. E. 795; Lancey v. 
Eandlett, 80 Me. 169, 6 Am. St. Rep. 
169, 13 Atl. 686; cited, also, in 
United Cigarette Mach. Co. v. Wins- 
ton Cigarette Mach. Co., 194 Fed. 
947, 114 C. C. A. 583. To the same 
effect, see Marsh v. Davison, 9 Paige. 
580; Eobson v, Doyle, 191 111. 566, 
61 N. E. 435 (dictum); Wolf v. Un- 
derwood, 96 Ala. 329, 11 South. 344; 
Shackelford v. Bankhead, 72 Ala. 
476; Sullivan v. Lawler, 72 Ala. 74; 
Pollak V. H. B. Claflin Co. (Ala.), 
35 South. 645 (citing Guice v. Par- 
ker, 46 Ala. 616; Dickinson v. Lewis, 
34 Ala. 638, 645; Continental Life 
Ins. Co. v. Webb, 54 Ala. 688; Vir- 
ginia A. M. & M. Co. V. Hale, 93 
Ala. 542, 9 South. 256). See. also, 
the following recent cases: United 
States V. Bitter Eoot Development 
Co., 200 U. S. 451, 50 L. Ed. 550, 26 
Sup. Ct. 318; King v. Livingston 

Mfg. Co., 180 Ala. 118, 60 South. 143; 
Gayle v. Pennington, 185 Ala. 53, 64 
South. 572 (bill did not show that 
a proper attempt had been made by 
plaintiff to obtain information from 
original sources); Blessing v. Smith, 
74 N. J. Eq. 593, 70 Atl. 933; Frank- 
lin Township v. .Jones, 80 N. .T. Eq. 
517, 85 Atl. 347; Drape v. Coleman, 
233 Pa. St. 585, 82 Atl. 957; Logan 
V. Ballard, 61 W. Va. 526, 57 S. E. 
143; Dudley v. G. W. Niswander & 
Co., 65 W. Va. 461, 64 S. E. 745 
(showing of necessity sufficient in 
this case); Price v. Laing, 67 W. 
Va. 373, 68 S. E. 24. "To make 
his prayer for discovery a ground 
of equitable jurisdiction, plaintiff 
should allege his inability to estab- 
lish at law the facts of which the 
discovery is sought. It would have 
been otherwise were the bill merely 
for a discovery." Cecil Nat. Bank 
v. Thurber, 59 Fed. 913, 8 C. C. A. 
365, 8 U. S. App. 496. In Brown v. 


covery. Nor are these allegations a mere empty form, a 
mere fiction of pleading ; they may be controverted, must be 
supported by proof, and if disproved, the whole foundation 
for the equitable interference in the case would fail.i ^ In 

§ 229, 1 Gelston v. Hoyt, 1 Johns. Ch. 543 ; Seymour v. Seymour, 4 
Johns. Ch. 409; Laight v. Morgan, 1 Johns. Cas. 492, 2 Caines Cas. 344; 
Bank of U. S. v. Biddle, 2 Pars. Cas. 31; Lyons v. Miller, 6 Gratt. 427, 
438, 52 Am. Dec. 129; Duvals v. Ross, 2 Munf. 290, 296; Bass v. Bass, 
4 Hen. & M. 478 ; Pryor v. Adams, 1 Call, 382, 1 Am. Dec. 533 ; Stacy 
V. Pearson, 3 Rich. Eq. 148, 152; Sims v. Aughtery, 4 Strob. Eq. 103, 
121 ; Merchants' Bank v. Davis, 3 Ga. 112 ; Bullock v. Boyd, 2 A. K. Marsh. 
322; Emerson v. Staton, 3 T. B. Mon. 116, 118. In an early case, Chan- 
cellor Kent, through a mistaken view concerning discovery, held that 
these same allegations by the plaintiff are essential in every equity suit 
for a mere discovery alone without any relief, in aid of a pending or 
expected action at law, and that if such averments are omitted from the 
bill, the sv;it for a discovery must fail : Gelston v. Hoyt, 1 Johns. Ch. 543. 
This erroneous ruling was followed by the same court in Seymour v. 
Seymour, 4 Johns. Ch. 409; Leggett v. Postley, 2 Paige, 599; and by 
other courts in other cases. But this mistaken view has been corrected, 
and these decisions overruled, and the requirement given in the text con- 
fined to cases where the plaintiff demands relief legal in its nature as a 
direct consequence of the discovery: March v. Davison, 9 Paige, 580; 
Vance v. Andrews, 2 Barb. Ch. 370. And see other cases, ante, § 197, 
note, where this point is more fully explained. 

Swann, 10 Pet. 497, the court said: that the facts are known to the de- 

"The courts of common law having fendant, and ought to be disclosed 

full power to compel the attendance by him, and that the complainant is 

of witnesses, it follows that the aid unable to prove them by other tes- 

of equity can alone be wanted for timony; and when the facts are de- 

a discovery in those cases where sired to assist a court of law in the 

there is no witness, to prove what is progress of a case, it should be 

sought from the conscience of the affirmatively stated in the bill that 

interested party. Courts of chan- they are wanted for such purpose." 

tery have, then, established rules This was a case for discovery and 

for the exercise of this jurisdiction, relief. 

to keep it within its proper limits, § 229, (b) The text is quoted in 

and to prevent it from encroaching Larkey v. Gardner, 105 Va. 718, 54 

upon the jurisdiction of the courts S. E. 886 (must aver that discovery 

of common law. The rule to be ap- is indispensable); cited to the same 

plied to a bill seeking for discovery point in Prewett v. Citizens' Nat. 

from an interested party is that the Bank, 66 W. Va. 184, 135 Am. St. 

complainant shall charge in his bill Rep. 1019, 66 S. E. 231. 


the second place, if the defendant by his answer fully 
denies all the allegations of fact with respect to which a 
discovery is demanded, the whole suit must fail; the court 
of equity cannot grant the relief prayed for, since its juris- 
diction to give relief in such causes, according to the very 
assumption, rests upon the fact of a discovery rightfully 
obtained.2 c 

§ 230. True Meaning of the American Rule. — By means 
of these two restrictive rules, the general expressions of 
the American judges, before quoted, are very much limited, 
and their operation is brought within much narrower 

§ 229, 2 This results from the general principle concerning all dis- 
covery, stated in a preceding section, that the actual discovery obtainable 
by the plaintiff depends upon the disclosures of the defendant in his 
answer. While the defendant can be compelled to answer every material 
averment and interrogatory of the bill, distinctly and squarely, what he 
shall answer rests within his own conscience. His answer cannot, for 
the purpose of discovery merely, — that is, considered merely as evidence, — • 
be controverted. If he distinctly denies all the allegations of the plain- 
tiff, that is the end of the discovery, and as a matter of necessaiy conse- 
quence, an end of the relief in this class of suits. See ante, §§ 204, 206; 
Russell V. Clarke's Ex'rs, 7 Craneh, 69; Ferguson v. Waters, 3 Bibb, 303; 
Robinson v. Gilbreth, 4 Bibb, 184. 

§ 229, (c) In Buzard v. Houston, See, also, Cecil Nat. Bank v. Thurber, 
119 U. S. 355, 7 Sup. Ct. 249, tlie 59 Fed. 913, 8 C. C. A. 365, 8 U. S. 
court said: "It is enough to say that App. 496; Hale v. Clarkson, 23 Gratt. 
the case clearly falls within the 42; Collins v. Sutton, 94 Va. 127, 26 
statement of Chief Justice Marshall: S. E'. 415. A bill seeking discovery 
'Biit this rule cannot be abused by should not be retained after the an- 
being employed as a mere pretext swer has denied the matter sought, 
for bringing causes, proper for a Walker v. Brown, 58 Fed. 23; Brown 
court of law, into a court of equity. v. Swann, 10 Pet. 497; Insurance Co. 
If the answer of defendant discloses v. Stanchfield, 1 Dill. 424. Of course^ 
nothing, and the plaintiff supports if the bill is brought for discovery 
himself by evidence in his own pos- and equitahle relief, it may be re- 
session, unaided by the confessions tained for the latter purpose when 
of defendant, the established rules the first purpose fails, if it states a 
limiting jurisdiction require that he case calling for the exercise of equi- 
should be dismissed from the court table jurisdiction. Bouton v. Smith, 
of chancery, and permitted to as- 113 111. 481. 
sert his rights in a court of law.' " 


bounds. The so-called American doctrine concerning the 
effect of discovery upon the equitable jurisdiction is thus 
practically as follows : Wlienever, in a controversy purely 
legal, depending upon legal interests and primary rights of 
the plaintiff, and seeking to obtain final reliefs which are 
wholly legal, the plaintiff prays for a discovery as a pre- 
liminary relief, and alleges and proves that such a dis- 
covery is absolutely essential to the maintenance of his 
contention; that there is no other mode of obtaining the 
requisite proofs to sustain his cause ; that he is utterly un- 
able to establish the issues on hi^ part by the testimony of 
witnesses, or by any other kind of evidence admissible in 
courts of law, — so that an action at law is utterly imprac- 
ticable ; and whenever, in such case, the defendant does not 
wholly deny the facts which the plaintiff alleges as the 
l)asis of his recovery, but makes an actual discovery by his 
answer disclosing a right of action in the plaintiff, — then 
the court of equity having jurisdiction of such a case to 
compel a discovery acquires a jurisdiction over it for all 
purposes, and may go on and determine all the issues, and 
decree full and final relief, although the relief so given is 
of the same kind as that granted by courts of law in similar 
controversies. 1 * It is plain, therefore, that the doctrine 

§ 230, 1 Gelston v. Hoyt, 1 Johns. Ch. 543 ; Seymour v. Seymour, 4 
Johns. Ch. 409; Rathbone v. Warren, 10 Johns. 587, 596; Shepnrcl v. 
Sanford, 3 Barb. Ch. 127; Sanborn v. Kittredge, 20 Vt. 632, 50 Am. Dec. 
58; Holmes v. Hohnes, 36 Vt. 525; Traip v. Gould, 15 Me. 82; Isliam v. 
Gilbert, 3 Conn. 166; Middletown Bank v. Russ, 3 Conn. 135, 139, 8 
Am. Dec. 161; Bank of U. S. v. Biddle, 2 Pars. Cas. 31; Lyons v. Miller, 
6 Gratt. 427, 438, 52 Am. Dec. 129; Duvals v. Ross, 2 Munf. 290, 296; 
Stacy V. Pearson, 3 Rich. Eq. 148, 152; Sims v. Aughtery, 4 Strob. Eq. 
103, 121 ; Brooks v. Stolley, 3 McLean, 523 ; Warner v. Daniels, 1 Wood. 
& M. 90; Foster v. Swasey, 2 Wood. & M. 217; Russell v. Clark, 7 Crauch, 

§230, (a) Quoted in Virfrinia & A. a casualty insurance company to ob- 

Min. & Mfg. Co. V. Hale, 93 Ala. 542, tain inspection of insured's books, 

9 South. 256; Sloss-Sheffield Steel & the premium depending on tho 

Iron Co. V. Maryland Casualty Co., amount of the insured's payroll, and 

167 Ala. 557, 52 South. 751 (suit by the information being obtainable in 


thus narrowed rests solely upon the essential fact that the 
successful prosecution of an action at law, and the recovery 
by the plaintiff of the reliefs to which he is justly entitled 
in a court, of law, are rendered wholly impossible by tlia 
operation of the arbitrary rules of the law concerning tha 
examination of witnesses, the testimony of the parties 
themselves, and the production of evidence generally.^ 

§ 230, 2 It should be remembered that at the time when this equity doc- 
trine was established the rules of the law concerning evidence were ex- 
tremely arbitrary, and productive of great injustice. Actions at law 
based upon the plainest right might frequently fail from the impossibility 
of i^roving the facts in conformity with the legal rules of evidence. Not 
only were parties to actions unable to testify for themselves or for their 
opponents, but all persons having any pecuniary interest in the event of 
the action were disabled; the door was closed against the admission of the 
truth from many directions. An appeal to the powers of equity to 
compel a discovery from the opposite party was therefore the only possible 
mode in very many instances of eliciting the facts which would make out 
the plaintiff's cause of action in suits of a purely legal nature. It is 
true, there was no absolute necessity of allowing the equity court to go 
on and decide the whole cause after a discovery was made. In such cases, 
as well as in all others where a separate bill of discovery had been filed, 
after the discovery was made the plaintiff might return to a court of law, 
prosecute his legal action in that tribunal, and use the defendant's answer 
containing the discovery as evidence to support his own side on the trial 
of that action. This latter practice became finally settled in England, as 
has already been shown. The other practice of the equity courts in this 
countr}% in assuming jurisdiction to decide the entire issues, and to decree 
complete relief, where a discovery had actually been made in cases ivhich 
could not have 'been tried at law without such discovery, was doubtless 
adopted from motives of policy and of benefit to the parties themselves, 
since they were thereby saved from the labor, time, and expense of a 
second action and trial at law, after they had already in effect tried the 
entire matters in difference between them. Still the doctrine deprived 
parties of their right to a jury trial, under circumstances which did not 
render such deprivation at all necessaiy. After a discovery was once 
obtained, a trial of the issues at law by a jury was as practicable as in 
any other kinds of legal controversies. 

no other way). Cited in Wood v. Becker r. Frederick W. Lipps 

Hudson, 96 Ala. 469, 11 South. 530; Co. (Md.), 101 Atl. 783 (bill for 

Daab v. New York Cent. & H. R. B. discovery and accounting not sus- 

Co., 70 N. J. Eq. 4S9, 62 Atl. 449; tained). 


The question then arises, What effect has been produced 
upon this particular doctrine by the modem legislation, 
which authorizes the examination of parties on the trial of 
actions, abolishes the disabilities of witnesses, and removes 
the other legal restrictions upon the admissibility of evi- 
dence? In my opinion, the necessary effect of such legis- 
lation has been to abrogate the doctrine altogether, even in 
those states where ** discovery" is still retained. In fact, 
the foundation upon which this peculiar American doctrine 
concerning the effect of discovery in the classes of cases 
above described was rested by the courts, has been wholly 
swept away by these refonnatory statutes. It is simply 
impossible for a plaintiff now to allege with truth, and of 
course impossible for him to prove in any controversy legal 
in its nature, that a discovery by means of a suit in equity 
is essential to his maintaining his cause of action, and that 
he is unable to establish the issues on his part by the testi- 
mony of witnesses, and by other evidence admissible in 
courts of law. If a plaintiff has a legal cause of action, and 
can substantiate it by means of a discovery obtained from 
his opponent in equity, then it must necessarily follow that 
he can substantiate it on the trial of the same controversy 
at law by means of the examination of his opponent as a 
witness; and furthermore, he can examine on the trial at 
law all other persons whose testimony is material. In 
short, the plaintiff's allegations that he has a legal cause 
of action, and that he can sustain it by means of a discov- 
ery, made by the defendant, of facts within the latter 's own 
knowledge, would, of necessity, show that he could main- 
tain the same cause of action at law, by means of the testi- 
mony which the defendant could be compelled to give as a 
witness on the trial thereof in a court of law. It is true 
that the principle is well settled that when a court of equity 
had jurisdiction over a certain subject-matter, it does not 
lose such jurisdiction when courts of law have subsequently^ 
acquired the same jurisdiction. In my opinion, the matter 
under consideration does not come within the operation of 


this principle. It is not the case of a jurisdiction held by 
courts of equity which courts of law did not originally 
possess, but have now obtained. By the very assumption, 
the controversy^ the cause of action, and the reliefs de- 
manded are all legal in their nature; courts of law always 
had jurisdiction over them. The only difficulty was, that 
by reason of certain arbitrary rules of law concerning evi- 
dence, the jurisdiction of the law courts over this particular 
class of legal controversies could not be exercised so as to 
do full justice, until the defective legal rules of evidence 
had been aided or supplemented by means of a discovery in 
equity ; when this discovery was once made, and the proper 
evidence was thereby obtained, the jurisdiction at law could 
then be exercised, and complete justice could be done by its 
trial and judgment, as much as in any other legal contro- 
versies. Since the particular equity doctrine under dis- 
cussion arose, not from the absence of a jurisdiction at law, 
but merely from certain hindrances to its useful exercise, 
and since this doctrine depended for its existence and! 
operation upon certain rules of evidence, it is not, in my 
opinion, embraced within the protection of the general prin- 
ciple as to jurisdiction quoted above ; it seems to me to have 
been necessarily abrogated by the sweeping changes ef- 
fected in the legal rules of evidence by modem statutes. ^ 

§ 230, 3 Miller v. Scammon, 52 N. H. 609, 610, which fully supports 
these conclusions.'* It is true that it has been held in some states that 
the jurisdiction of equity to entertain "bills of discovery," properly so 
called, has not been abrogated by the legislation in question. But assum- 
ing that these decisions are correct, they do not, as it seems to me, 
determine the present question. Equity had a well-settled, independent 
jurisdiction to entertain "bills for discovei-y," technically so called. This 
jurisdiction had existed from the earliest periods of the English court of 
chancery; it was exclusive; the law courts had no such power. Even the 
modem legislation has not conferred upon the law courts a jurisdiction 
to entertain any such suits, but has only removed the disabilities which 
prevented parties and other persons from testifying on trials of actions. 

§230, (1») See, also, § 302. See ber Co., 150 Ala. 602. 9 L. R. A. 
however, Nixon v. Clear Creek Luni- (N. S.) 1255, 43 South. 805. 





§ 231. The doctrine as applied in the concurrent jurisdiction, 

§ 232. As applied in the exclusive jurisdiction. 

§ 233. Limitations on the doctrine. 

§§ 234-241. Illustrations of the doctrine. 

§ 234. In cases of discovery. 

§ 235. In cases of administration. 

§ 23ff. In cases of injunction. 

§ 237. In cases of waste, nuisance, damages. 

§§ 238-241. In various other cases. 

§ 242. Effect of the reformed procedure on the doctrine. 

§ 231. a As Applied to the Concurrent Jurisdiction. — 

The rule has already been stated, as one of the foundations 
of the concurrent jurisdiction, that where a court of equity 
has obtained jurisdiction over some portion or feature of a 
controversy, it may, and will in general, proceed to decide 
the whole issues, and to award complete relief, although the 
rights of the parties are strictly legal, and the final remedy 
granted is of the kind which might be conferred by a court 
of law.^ ^ This principle is, however, of much wider appli- 

It may well, then, be argued, and perhaps held, that a particular jni-is- 
diction which had belonged to chancery courts from their earliest periods 
had not been impliedly abolished by statutes whose only express object 
was to alter certain rules of evidence. The doctrine discussed in tlie 
text, on the other hand, has no foundation nor 'existence, except as a 
special result of those ancient rules of evidence which the statute lias 
changed. Deduced as a direct consequence from those prohibitory rules, 
it must, as it seems to me, fall with them. 
§ 231, 1 See ante, § 181. 

§231, (a) Sections 231-242 are Cases, 172 Fed. 792, 97 C. C. A. 214; 

cited in St. Croix Timber Co. v. Settle v. Settle, 141 N. C. 553. 54 

Joseph, 142 Wis. 55, 124 N. W. 1049. S. E. 445; Wade v. Major, 36 N. D. 

§ 231, (b) Quoted in Carmichael v. 331, L. R. A. 1917E, 633, 162 N. W. 

Adams, 91 Ind. 526; The Salton Sea 399, dissenting opinion; quoted, in 


cation, extending in its operation to both the concurrent 
and the exclusive jurisdictions; and it requires, therefore, 
a more full discussion. In its application to the concurrent 
jurisdiction, this principle forms, as has been already 
shown, one of the very foundations upon which that juris- 
diction sometimes rests; and it is then something more 
than merely an occasion or condition of fact for the proper 
exercise of the jurisdiction. In other words, where the 
primary rights and cause of action of the complaining 
party are legal, and the remedy which he asks and obtains 
is of the kind given by courts of law, the concurrent juris- 
diction of equity to interfere and adjudicate upon the con- 
troversy may exist by virtue of this principle ; it may alone 
determine the inadequacy of legal remedies upon which the 
very existence of the concurrent jurisdiction always de- 
pends. It may be remarked that the instances in which the 
concurrent jurisdiction results from the operation of this 
principle, at least in the United States, are most frequently 
cases of accounting or of discovery followed by relief.^ e 

§ 232. As Applied in the Exclusive Jurisdiction. — The 

principle is also frequently applied in cases belonging to 
the exclusive jurisdiction, and it then furnishes an occa- 
sion for the proper exercise of that jurisdiction by the 
granting of complete final relief which is purely equitable 
in its nature. In such instances, where the primary rights 
and interests of the complaining party are legal, and the 
court has jurisdiction over some part of the controversy, 
or to grant some partial or incidental equitable relief, it 
may, under the operation of this principle, and generally 

§ 231, 2 See cases cited ante, under § 181. 

substance, in Shultz v. Shively. 72 land Farm & Land Co. (Mo. App.), 

Or. 450, 143 Pac. 1115. Cited in 190 S. W. 419; Castle v. Gleason, 35 

Field V. Holzman, 93 Ind. 205; Freer S. D. 98, 150 N. W. 895. 

V. Davis, 52 W. Va. 1, 94 Am. St. §231, (c) Quoted in Kansas City 

Rep. 895, 43 S. E. 164 (dissenting N. W. R. R. Co. v. Caton, 9 Kan. 

opinion); Collier v. Collier (N. J. App. 272, 60 Pac. 544. 

E'q.), 33 Atl. 193; Buckner v. Mid- 


will, go on and decide all the issues, and award the final 
equitable relief which is necessary to meet the ends of jus- 
tice, and which belongs to the exclusive jurisdiction of the 
court.i "While, therefore, the same general doctrine, ex- 
pressed in the same formula, is equally applicable to cases 
of the concurrent and of the exclusive jurisdiction, yet its 
operation, as furnishing a ground for the judicial action, 
is very different in the two jurisdictions. 

§ 233. Limitations. — This principle is not, however, uni- 
versal in its application, either to the concurrent or to the 
exclusive jurisdiction. The following is an illustration of 
the limitation : A statute of Mississippi gave special power 
to the court of chancery to entertain suits to remove a cloud 
from title of land, where, after the cloud was removed, all 
the right and estate of the parties would be strictly legal, 
and the further remedies of the plaintiff would be such as 
are always obtainable by an action of ejectment, or an ac- 
tion for use and occupation.^ It has been held that in an 
equitable suit brought under this statute, in order to re- 
move a cloud, the court did not obtain jurisdiction to go on 

§232, 1 Jesus College v. Bloom, 3 Atk. 2G2, 263, Amb, 54; Yates v. 
Hambly, 2 Atk. 237, 360; Ryle v. Haggle, 1 Jacob & W. 234, 237; Corp'n 
of Carlisle v. Wilson, 13 Ves. 276, 278, 279 ; Adley v. Whitstable Co., 17 
Ves. 315, 324 ; McKenzie v. Johnston, 4 Madd. 373 ; Rathbone v. Warren, 
10 Johns. 587, 596; King v. Baldwin, 17 Johns. 384, 8 Am. Dec. 415; 
Cornelius v. Morrow, 12 Heisk. 630; Farrar v. Payne, 73 111. 82, 91; 
Pratt V. Northam, 5 Mason, 95, 105; Thompson v. Brown, 4 Johns. Ch. 
619, 631-643; Walker v. Morris, 14 Ga. 323, 325; Handley's Ex'r v. 
Fitzhugh, 1 A. K. Marsh. 24; Keeton v. Spradling, 13 Mo. 321, 323; 
State of Mo. v. McKay, 43 Mo. 594, 598; Bonder's Appeal, 57 Pa. St. 
498, 502; Sanborn v. Kittredge, 20 Vt. 632, 636, 50 Am. Dec. 58; Zetelle 
V. Myers, 19 Gratt. 62, 67 ; Ferguson v. Waters, 3 Bibb, 303 ; Middletown 
B'k V. Russ, 3 Conn. 135, 140, 8 Am. Dec. 164; Isham v. Gilbert, 3 Am. 
Dec. 166, 170, 171; Armstrong v. Gilchrist, 2 Johns. Cas. 424, 430, 431; 
Hawley v. Cramer, 4 Cow. 717; Oelrichs v. Spain, 15 Wall. 211, 228; 
Clarke v. White, 12 Pet. 178, 187, 188; Hepburn v. Dunlop, 1 Wheat. 179, 
197; Phelps v. Harris, 51 Miss. 789, 794; EzeUe v. Parker, 41 Miss. 520, 
526, 527. 

§ 233, 1 Miss. Rev. Code, p. 541, art. 8. 


and decide conflicting claims to tlie purely legal estate in 
the land, or award possession, or a recovery of rents and 
profits, all of which belonged to the cognizance of a court of 
law in an action of ejectment.^ From these cases, the rule 
would seem to result, that wherever a special power, not 
existing as a part of the general jurisdiction, is conferred 
by statute to grant some particular, specified, equitable 
remedy, the exercise of this statutory power, in a suit 
brought for that purpose, does not draw after it the addi- 
tional power to decide the remaining portions of a contro- 
versy which are purely legal, and to determine rights and 
award remedies which belong specially to the cognizance 
of the law courts, — such, for example, as conflicting legal 
titles to tracts of land, and recovery of possession, or of 
rents and profits.^' 

§ 233, 2 Phelps V. Harris, 51 Miss. 789, 794; Ezelle v. Parker, 41 Miss. 
520, 526, 527. In the former of these cases, after stating the objects of 
such suits, and what the plaintiff must show, and that under form of such 
suits a court of equity cannot assume jurisdiction to try mere conflicting 
legal titles to land, Peyton, C. J., says (p. 794) : "Hence the jurisdiction 
to remove clouds, doubts, and suspicions from over the title of the rightful 
owner of real estate conferred by the statute upon the court of chancery, 
does not, as an incident to it, authorize that court to take jurisdiction of 
the whole controversy in relation to the title to the land, the right of pos- 
session, the rents, issues, and profits, and thus usurp the jurisdiction 
belonging to the courts of law." In Ezelle v. Parker, 41 Miss. 520, Mrs. 
Parker, a married woman, had, by her own separate deed, in which her 
husband did not join, conveyed land owned by her to Ezelle, who had paid 
for it in confederate money, and was in possession. Mrs. P. and her 
husband sued in equity to cancel such deed as a cloud upon Mrs. P.'s title, 
and to recover possession of the land, and for an account of the rents and 

§ 233, (a) The principle appears to right, for the purpose of complete 

be much more sparingly applied by relief." Brown v. Edsall, 9 N. J. 

the courts of New Jersey than by Eq. 257; Lodor v. McGovern, 48 

the courts of other states; thus, it is N. J. Eq. 275, 27 Am. St. Rep. 446, 

stated that "a court of chancery in 22 Atl. 199; Collier v. Collier (X. J. 

this state has never adopted the Eq.), 33 Atl. 193. See, also, Hubatka 

principle that, because its jurisdic- v. Maierhoefer (N. J. Eq.), 65 Atl. 

tion has once rightfully attached, it 1002. 
will retain the cause as a matter of 


§ 234. Illustrations. — In order to illustrate the operation 
of the general principle, and to show the variety and extent 
of the cases in which it has been applied, I add a consider- 
able number of examples, most of which are taken from 
American decisions. Where a plaintiff has demanded and 
obtained a discovery under the circumstances described in 
preceding paragraphs, it is well settled that the court will 
go on and decide the whole controversy and grant final re- 
lief in cases involving fraud or mistake, and in those where 
the relief consists in an accounting and payment or dis- 
tribution, if the case possesses some equitable incident or 
feature which might have brought it within either branch 
of the equitable jurisdiction, independent of the fact of a 
discovery.! How far some American courts have gone be- 
yond this limit, and have assumed to apply the principle 
and to decide all the issues, after a discovery, in cases pos- 
sessing no other equitable feature or incident, has already 
been fully described. ^ The particular remedy of a discov- 
ery is also, to some extent at least, the foundation of the 
established jurisdiction of equity over the administration 
of the personal estates of deceased persons. It has fre- 
quently been held that where a creditor, or a legatee, or a 
distributee brought a suit in equity to obtain a discovery 
of assets in the hands of the personal representatives, the 
court, having thus obtained a jurisdiction of the matter 

profits. Held, that the court would set aside the deed as a cloud, but 
could not go on and deei'ee a recovery of possession and payment of the 
rents and profits. The latter relief could be obtained only by an action at 

§234, IHandley's Ex'r. v. Fitzhugh, 1 A. K. Marsh. 24; Sanborn v. 
Kittredge, 20 Vt. 632, 636, 50 Am. Dec. 58; Chichester's Ex'r v. Vass's 
Adm'r, 1 Munf. 98, 4 Am. Dec. 531; Ferguson v. Waters, 3 Bibb, 303; 
Middletown Bk. v. Russ, 3 Conn. 135, 140, 8 Am. Dec. 164; Isham v. 
GUbert, 3 Conn. 166, 170, 171; Armstrong v. Gilchrist, 2 Johns. Gas. 424, 
430, 431; Hawley v. Cramer, 4 Cow. 717, 728; but see Little v. Cooper, 
10 N. J. Eq. 273, 275 ; Brown v. Edsall, 9 N. J. Eq. 256. And see ante, 
§§ 224-226. 

§ 234, 2 See ante, §§ 227-229. 


for tills special purpose, would go on and make a full de- 
cree of administration, of accounting from the executors 
or administrators, and of final settlement and distribu- 
tion.3 a 

§ 235. Altliougli the legislation of most of the states 
has either expressly or practically taken the general juris- 
diction of administration from the courts of equity, and has 
conferred it upon courts of probate under minute statutory 
regulation, still, whenever a court of equity takes cogni- 
zance of a decedent's estate for any special purpose, or to 
grant any special relief not within the power of the probate 
court, such as the construction of a will, the setting abide 
of some fraudulent transaction of an executor or adminis- 
trator, the restraining of an executor's or administrator's 
wrongful acts by injunction, and the like, it has been held in 
many states that the court of equity, having thus acquired 
a jurisdiction of the estate for this particular purpose. 
may and should, notwithstanding the statutory system, go 

§ 234, 3 Pratt v. Northam, 5 Mason, 95, 105 ; Yates v. Hambly, 2 Atk. 
237, 360; Jesus College v. Bloom, 3 Atk. 262, 263, per Lord Hardwieke; 
Thompson v. Brown, 4 Johns. Ch. 619, 631, 643; Pearson v. Darringlon, 
21 Ala. 169; Walker v. Morris, 14 Ga. 323, 325; Martin v. Tidwell, 36 
Ga. 332, 345; Keeton v. Spradling, 13 Mo. 321, 323; Gilliam v. Chancellor, 
43 Miss. 437, 448, 5 Am. Rep. 498. In Pratt v. Northam, 5 Mason, 95, 
Story, J., held that the United States circuit court, as a court of equity, 
has jurisdiction in a suit by a legatee or distributee against an executor or 
administrator for an administration and settlement of the estate, under 
the established general authority of chancery, notwithstanding any local 
state legislation on the subject. As to the origin of this jurisdiction of 
chancery, he said (page 105) : "The original gi'ound seems to have been 
that a creditor, or other party in interest, had a right to come into 
chancery for a discovery of assets, and being once rightfully there, he 
sliould not be turned over to a suit at law for final redress. For purposes 
of complete justice, it became necessary to conduct the whole administra- 
tion and distribution of assets under the superintendence of the court of 
chancery, when it once interfered to grant relief in such cases." 

§234, (a) The text is cited in Sanders v. Soutter, 126 N. Y. 193, 27 
N. E. 263. 


on and decree a complete administration, settlement, and 
distribution of the entire estate, in the same manner in 
which it would have proceeded under the original jurisdic- 
tion of chancery prior to the legislation. ^ «• In some of the 

§ 235, 1 Cowles v. Pollard, 51 Ala. 445, 447 ; Youmans v. Youmans, 26 
N. J. Eq. 149, 154 ; Pearson v. Darrington, 21 Ala, 169 ; Walker v. Morris, 
14 Ga. 323, 325 ; Martin v. Tidwell, 36 Ga. 332, 345 ; Keeton v. Spradling, 
13 Mo. 321, 323; Gilliam v. Chancellor, 43 Miss. 437, 448, 5 Am. Rep. 
498. Cowles v. Pollard, 51 Ala. 445, is a very important ease in its 
bearing upon the statutory system which exists in many states. Peters, 
C. J., said (p. 447) : "It is now well settled in this state that when the 
trusts of a will are doubtful, or the personal representative may have 
difficulty or be embarrassed in the execution of such trusts, a court of 
equity will at his instance take jurisdiction to construe the will, and to 
aid and direct the executor or administrator in the performance of his 
duties: Sellers v. Sellers, 35 Ala. 235; Trotter v. Blocker, 6 Port. 269. 
And when a court of chancery once takes jurisdiction on any ground of 
equitable interposition, the cause will be retained, and the administration 
will be conducted and finally settled in that court: Stewart v. Stewart, 
31 Ala. 207; Wilson v. Crook, 17 Ala. 59; Hunley v. Hunley, 15 Ala. 91. 
In such a suit the chancellor will apply the law regulating the conduct 
and settlement of administrations in the court of probate, but he will pro- 
ceed according to the rules and practice of a court of equity : Hall v. 
Wilson, 14 Ala. 295; Taliaferro v. Brown, 11 Ala. 702." In Youmans 
V. Youmans, 26 N. J. Eq. 149, 154, it was also held that, in a suit to 
construe a will and for directions to the executor, all parties interested 
being joined, the court would go on and adjust and finally settle the 
accounts of the executor; citing Mallory v. Craige, 15 N. J. Eq. 73. In 
Keeton v. Spradling, 13 Mo. 321, 323, the suit was brought by next of 
kin to set aside a decree of the court of probate obtained by the admin- 
istrator through fraud, and the court held that having obtained juris- 
diction for this particular purpose, it would go on and give full relief 

§235, (a) The text is quoted in such relief may and ean only be ob- 
Settle v. Settle, 141 N. C. 553, 54 tained from a court of equity; and 
S. E. 445. The text is cited and that in an action brought for such 
followed in Sanders v. Soutter, 126 purpose the court, in the exercise of 
N. Y. 193, 27 N. E'. 263. It was its concurrent jurisdiction with the 
there held that a surrogate's court surrogate's court, may grant full re- 
has no power to annul or set aside, lief, and decree an accounting by 
on the ground of fraud, a release executors, and a settlement and dia- 
executed by parties interested in an tribution of the estate, 
estate to the executors thereof; that 


states this power of a court of equity to go on and control 
the entire administration of the estate and decree a final 
settlement and distribution, whenever it has thus obtained 
a jurisdiction for some special purpose, is doubtless limited 
or prohibited by the statutes. The language of the stat- 
ute conferring general power over the whole subject of ad- 
ministration upon the probate court is so broad, minute, 
and peremptory that the general powers and jurisdiction 
originally belonging to chancery over the settlement of 
decedents' estates are completely taken away, and are 
wholly transferred into the exclusive cognizance of the pro- 
bate court, and are exercised by it in accordance with the 
minute and compulsory provisions of a statutory system. 
In these states, and by virtue of these statutes, if a court 
of equity obtains jurisdiction over the subject-matter of a 
decedent's estate for any special purpose not within the 
competency of the probate court, such as the construction 
of a will, the control and enforcement of a trust, the can- 
cellation of some fraudulent conveyance made by an execu- 
tor or administrator, and the like, its functions will be 

by a final decree for an accounting by the administrator, settlement of 
the estate, and distribution of the assets. GUliam v. Chancellor, 43 Miss. 
437, 448, 5 Am. Rep. 498, is also a very important decision respecting the 
equity powers under the legislation concerning administration. It holds 
that the jurisdiction given by the Mississippi statutes to the probate 
court is exclusive, and the court of chancery is thereby deprived of its 
original general jurisdiction over administration; citing Blanton v. King, 
2 How. (Miss.) 856; Carmichael v. Browder, 3 How. (Miss.) 252. But 
whei'e, as in this case, a widow claimed under an antenuptial contract 
with her husband, and also a legacy given by his will, and the executor 
insisted that the legacy was in satisfaction of the antenuptial portion, 
the court held that equity had exclusive jurisdiction to decide the widow's 
rights under the antenuptial agreement; and thus having jurisdiction over 
a portion of the controversy, the court would decide all the mattei's in 
issue between her and the executor growing out of the will, and would 
enjoin an action brought by her in the probate court to recover the legacy, 
and would determine all her rights and claims under the will and under 
the nuptial contract in the one equity suit. The other cases cited above 
all maintain the doctrine stated in the text. 


limited to matters whicli are necessary to render this 
special relief complete and effectual ; it will not be allowed 
to go on to a full and final administration and settlement 
of the estate as a whole. Such administration and settle- 
ment, after receiving the aid of the special relief furnished 
by the decree in equity, can be accomplished by the pro- 
bate court alone, to whose exclusive cognizance they have 
been intrusted by the statute.^ 

§ 236. Another extensive class of cases in which the 
principle has been applied embraces suits brought to en- 
join the further prosecution of a pending action at law, 
or the enforcement of a judgment recovered at law, either 
on the ground of some equitable defense not cognizable 
by the law court, or on the ground of some fraud, mistake, 
ignorance, or other incident of the trial at law, which ren- 
dered the legal judgment inequitable. In such cases the> 
court of equity, having obtained jurisdiction of the cause 
for the purpose of an injunction, may decide the whole 
controversy and render a final decree, even though all the 
issues are legal in their nature, capable of being tried by 
a court of law, and the legal remedies therefor are ade- 
quate. ^ ^ In fact, the rule is more general still in its opera- 

§ 235, 2 Gilliam v. Chancellor, 43 Miss. 437, 448, 5 Am. Rep. 498, and 
cases cited. This seems to be the system prevailing in a considerable 
number of states. 

§ 236, 1 Cornelius v. Morrow, 12 Heisk. 630 ; Mays v. Taylor, 7 6a. 
238, 243, 244; Rust v. Ware, 6 Gratt. 50, 52 Am. Dec. 100; Billups v. 
Sears, 5 Gratt. 31, 37, 38, 50 Am. Dec. 105 ; Parker v. Kelly, 10 Smedes 
& M., 184; Oelriehs v. Spain, 15 Wall. 211, 228. In the very recent 
case of Cornelius v. Morrow, 12 Heisk. 630, which was a suit to enjoin 

§236, (a) Suits to Enjoin Actions §§ 236-240 are cited in Hagen v. 

or Judgments — Full Relief. — Cited in Lyndonville Nat. Bk., 70 Vt. 543, 

Coons V. Coons, 95 Va. 434, 64 Am. 556, 67 Am. St. Eep. 680, 689, 41 

St. Rep. 804, 28 S. E. 885; United Atl. 1046, 1051. See, also, Ducktown, 

States Min. Co. v. Lawson, 115 Fed. S. C, & S. Co. v. Barnes (Tenn.), 60 

1005; Fife v. Gate, 85 Vt. 418. 82 S. W. 593; W. V. Davidson Lumber 

Atl. 741 (although the injunction Co. v. Jones (Tenn. Ch. App.). 62 

covers only part of the controversy). S. W. 386; Hickman v. White (Tex. 


tion, and extends to all suits brought to obtain the special 
relief of injunction, and is not confined to suits for the 
purpose of enjoining actions or judgments at law. It may 

a judgment recovered at law by default, on a note, it was held that where 
defendant at law has a legal defense available at law, but not free from 
difficulty in its establishment, and a second defense wholly equitable, he 
may resort to equity at once, enjoin the action or judgment at law, and 
have all the issues tried in the equity suit. In Mays v. Taylor, 7 Ga. 
238, 243, 244, which was a suit to enjoin a judgment at law and the 
execution thereon, on the ground that the judgment creditor had violated 
an agreement made with the complainant (the judgment debtor) concern- 
ing the issuing of an execution and the enforcement of the judgment, the 
court held that the complainant could have had an adequate remedy at 
law by an action for damages for the breach of such agreement, but 
still, as equity had jurisdiction for the purpose of enjoining the execution, 
the court would retain and decide the whole cause, and grant full relief to 
the complainant. It therefore decreed that defendant should repay all 
the money which had been collected on the execution in violation of the 
agreement.** In Rust v. Ware, 6 Gratt. 50, 52 Am. Dec. 100, which was 
a suit to enjoin a judgment at law on ground of a palpable mistake by 
the jury and newly discovered evidence, it was held that as the court 
had a jurisdiction to enjoin the judgment, it would retain and decide the 
whole cause on the merits, and not send it back for a new trial at law. 
In Billups V. Sears, 5 Gratt. 31, 37, 38, 50 Am. Dec. 105, the facts were 
similar and the ruling the same. 

Civ. App.), 29 S. W. 692; Houston possession have been retained for 

Rice Milling Co. v. Hankamer, 43 full relief. Probert v. McDonald, 2 

Tex. Civ. App. 576, 97 S. W. 119; S. D. 495, 39 Am. St. Rep. 796, 51 

Butler V. Scottish-American Mort- N. W. 212; Leighton v. Young, 52 

gage Co., 93 Miss. 215, 46 South. 829. Fed. 439, 18 L. R. A. 266, 3 C. C. A. 

In Gulf, C. & S. F. R. R. Co. v. 176, 10 U. S. App. 298. Compare 

Schneider (Tex. Civ. App.), 28 S. W. Deepwater R. Co. v. D. H. Motter 

260, an injunction was issued against & Co., 60 W. Va. 55, 116 Am. St. 

the enforcement of a judgment of a Rep. 873, 53 S. E. 705 (A sues B on 

justice of the peace, bul the court contract, and A's creditors garnish 

retained the case to try the original B; injunction on B's behalf against 

cause of action, although the amount the creditors should not draw A's 

involved was less than the limit of suit into equity, as it ia an inde- 

jurisdiction. In Coons v. Coons, 95 pendent matter and can best be 

Va. 434, 64 Am. St. Rep. 804, 28 tried by jury). 

S. E. 885, it was held that a hill to §236, (b) See, also, the similar 

enjoin an award of arbitrators may case, Everett v. Tabor, 127 Ga. 103, 

be retained for legal relief. Bills to 119 Am. St. Rep. 324, 56 S. E'. 123. 
enjoin execution sales and writs of 


be stated as a general proposition, that wherever the 
court of equity has jurisdiction to grant the remedy of in- 
junction for some special purpose, even though the injunc- 
tion covers only a portion of the controversy, it may go on 
and decide all the issues, and make a final decree granting 
full relief.2 c 

§ 236, 2 People v. Chicago, 53 111. 424, 428 ; Armstrong v. Gilchrist, 2 
Johns. Cas. 424, 430, 431; Jesus College v. Bloom, 3 Atk. 262, 263, per 
Lord Hardwicke. People v. Chicago, 53 111. 424, 428, is a strong case. 
A statute required that all the proceedings of the city common council 
should be published in the German newspaper having the largest circula- 
tion. The common council designated a certain German newspaper. Tlie 
owners of another paper claimed to be entitled, and brought a suit in 
chancery against the city officers and the designated paper, praying an 
injunction and general relief. The court held "that while there may be 
grave doubts whether a court of equity would take jurisdiction for the 
mere purpose of compelling the proper execution of the statute in ques- 
tion on the part of the common