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 Library 
 
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 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924024706396 
 
A TREATISE 
 
 EQUITABLE JUKISDICTION 
 
 OF THE 
 
 COUETS OF PENNSYLVANIA; 
 
 NOTES OP PMIADING AND P-RACTICE IN EQUITY 
 
 APPENDIX OF PRACTICAL FORMS. 
 
 BY FREDERICK C. MIGHTLY, ESQ. 
 
 AUTHOR OF "THE LAW OF COSTS," "NISI PSIUS REPORTsT'eTC. ; EDITOR OF "PURDON'S DIGEST/' ETC. 
 
 " To no human science better than to the Law, can be applied the precepts of aacred wisdom in regard to 
 zoal and constancy in the search for truth. Hera the race may not be Lo the swift; but assuredly, the 
 
 battle will be to the strong."— Story. 
 
 PHILADELPHIA: 
 KAY & BROTHER, LAW BOOKSELLERS AND PUBLISHERS. 
 
 17 & 19 SOUTH FIFTH STREET, EAST SIDE, 
 FIRST STORE ABOVE CHESTNUT, 
 
 1855. 
 
c. 
 
 Entered according to the Act of Congress, in the year 1855, ty Kay & Brother, in the Office of 
 
 the Clerk of the District Court of the United States in and for the Eastern District of Pennsylyartia. 
 
 J*f-:7»ELL UH'VE1%'"7' 
 
 ^r 1£ 
 
 
 WILLIAM K YOUNG, PKIXTLK. 
 
PREFACE 
 
 The conflict which, for so many centuries, has been 
 waged between the Professors of the Common Law, and 
 tliose of the Civil Law of Imperial Rome, from which our 
 system of Equity is mainly derived, has not yet ceased. 
 It is but the other day, that one of the most eminent of 
 Pennsylvania jurists declared, that "it was no ignorant 
 prejudice, but high political wisdom, which caused our 
 ancestors to refuse a Court of Chancery any place among 
 their judicial institutions." 
 
 And this prejudice, for it is nothing more, is, by the 
 opponents of Equity, based on the supposed arbitrary 
 principles of the Civil Law, from which it has been 
 adapted to our own wants and habits. The two main 
 objections which are urged against the Civil Law are^ 
 first, the celebrated political maxim of the Institutes, 
 "■quod principi placuit, hgis habet vigorein;" and second- 
 ly, that it teaches that all Governments derive their 
 authority from Divine Eight, and not from the will of 
 the governed; which is asserted to be the teaching ex- 
 clusively of the Common Law. 
 
 Both of these are founded on misapprehension; as to 
 the first, of the meaning of the text of the Institutes; 
 
IV PREFACE. 
 
 and as to the second, of the political maxims of the ci- 
 vilians. That celebrated and most learned doctor, St. 
 Thomas Aquinas, than whom there could be no higher 
 authority on such a point as this, in his Treatise on 
 Laws, defines law to be, " a rule dictated by reason, the 
 aim of which is the public good, and promulgated by 
 him who has the care of society;" {giwedam rationis or- 
 dinatio ad bonwn commune, et ah eo qui curam communita- 
 tls habet promidgata.) Here the maxim of the Institutes 
 is corrected; law is shown to be a rule dictated by rea- 
 son, and not a pure effect of the will ; the idea of despo- 
 tism and force is banished from the definition. 
 
 In regard to the second objection which is urged 
 against the Civil Law, that it teaches that Governments 
 derive their authority from Divine Eight, it should be 
 enough to refer to a fact not generally known, namely, 
 that Suarez maintained, against that great advocate of 
 divine right. King James the first of England, the propo- 
 sition that princes receive power mediately from God, but 
 immediately from the people. A doctrine which is also 
 distinctly enforced and maintained by numerous conti- 
 nental theologians and jurists. 
 
 These facts ought to be sufficient to correct the un- 
 founded prejudice which exists on the part of the Com- 
 mon Lawyers; and to lead to a more general study of 
 that great monument of human wisdom, the Civil Law, 
 and of our own system of Equity, as based upon it. 
 
 As the Legislature of Pennsylvania has now, by an 
 enlightened course of enactment, extended, from time 
 
PEEFACE. V 
 
 to time, the Equitable Jurisdiction of the Courts of this 
 State, so as to bring within the cognizance of Equity a 
 vast multitude of cases, which had formerly to be set- 
 tled by means of fictions engrafted upon the forms of 
 common law procedure; the Author, having long felt, in 
 his own practice, the want of a book devoted to the 
 Equitable Practice of the Courts of Pennsylvania, and 
 having collected many authorities and notes of practice, 
 for his private use ; has been induced to throw them into 
 their present shape, in hopes that his professional bre- 
 thren may find their burdens somewhat lightened, by 
 having the equitable principles established by the Penn- 
 sylvania Cases presented to them in an accessible form. 
 
 That the reader will here find much that is new, is 
 not to be expected; the book would be valueless if it 
 were so. All that the Author has attempted, is to show 
 the law as it is ; not to give his own speculations upon 
 what it ought to be. In very few instances has he ven- 
 tured to make suggestions of his own. 
 
 Questions of Equity Pleading and Practice have, as 
 yet, rarely arisen in our Courts ; upon this branch of the 
 subject, therefore, he could but select from the most ap- 
 proved works, such principles as he judged most in ac- 
 cordance with right reason, and least dependent upon 
 mere technicality; and which, it is presumed, will be 
 adopted by our own Courts, when like questions shall 
 here arise. The Precedents have been selected with 
 much care from books of authority, and from the records 
 of the Pennsylvania Courts, and are such as were 
 
VI PREFACE. 
 
 thouglit would prove most acceptable and useful to the 
 Equity Draftsman : they are as full as the limited space 
 devoted to them in the Appendix would admit. 
 
 The Author sincerely hopes that his work may not 
 only serve to lighten the labours of the Practitioner; 
 but also as a guide to the Student in his researches in 
 the field of Equity Jurisprudence. 
 
 F. C. B. 
 
 Philadelphia, August 1855. 
 
TABLE OP CONTENTS. 
 
 BOOK I. 
 
 EQUITABLE PRINCIPLES AND JURISDICTION. 
 
 CHAPTER I. 
 Historical view of Equity In Pennsylvania, 
 
 Accident, 
 Mistake, 
 Actual Fraud, 
 Constructive Fraud, 
 Account, 
 Administration, 
 Dower and Partition, 
 Marshalling of Securities, 
 
 CHAPTER n. 
 CHAPTER ni. 
 CHAPTER rV. 
 CHAPTER V. 
 CHAPTER VI. 
 CHAPTER VII. 
 CHAPTER Vni 
 CHAPTER IX. 
 
 CHAPTER X. 
 Corporations and Partnersliips, 
 
 25 
 
 51 
 
 59 
 
 69 
 
 87 
 
 118 
 
 137 
 
 147 
 
 161 
 
 169 
 
Vm CONTENTS. 
 
 CHAPTEK XI. 
 
 Specific Performance, . . 184 
 
 CHAPTER Xn. 
 Specific Performance of Decedents' Contracts, 217 
 
 CHAPTEE Xin. 
 Interpleader, ..... 226 
 
 CHAPTER XrV. 
 Bills Quia Timet, .... .234 
 
 CHAPTER XV. 
 Injunctions, .... 240 
 
 CHAPTER XVI. 
 Trusts, .266 
 
 CHAPTER XVII. 
 
 Marriage Settlements, . . . . .279 
 
 CHAPTER XVm. 
 Mortgages, ....... 284 
 
 CHAPTER XIX. 
 Assignments, .... 295 
 
 CHAPTER XX. 
 Wills, 302 
 
 CHAPTER XXI. 
 Charities, ...... 328 
 
 CHAPTER XXn. 
 Implied Trusts, .... .337 
 
 CHAPTER XXm. 
 Of Trustees, .... 353 
 
 CHAPTER XXIV. 
 Infants, Lunatics, and Married Women, . . 361 
 
 CHAPTER XXV. 
 Discovery, ..... .378 
 
 CHAPTER XXVI. 
 Perpetuation of Testimony, . . . 395 
 
CONTENTS. IX 
 
 BOOK II. 
 
 EQUITY PLEADING AND PRACTICE. 
 
 CHAPTER I. 
 Parties, ....... 401 
 
 CHAPTER n. 
 
 Bills in Equity, '...... 423 
 
 CHAPTER ni. 
 Process and Appearance, ..... 440 
 
 CHAPTER IV. 
 Of tte Defence, ...... 450 
 
 CHAPTER V. 
 Demurrers, ..... . 455 
 
 CHAPTER VI. 
 Pleas, ....... 469 
 
 CHAPTER VII. 
 Answers, ....... 490 
 
 CHAPTER Vm. 
 
 Exceptions to Answers, ... . 502 
 
 CHAPTER IX. 
 Amendments, ...... 508 
 
 CHAPTER X. 
 Replications, ...... 513 
 
 CHAPTER XI. 
 Evidence, ..... . 515 
 
 CHAPTER XII. 
 Hearing and Decree, ... .528 
 
 CHAPTER Xni. 
 Execution, ..... . 533 
 
 CHAPTER XIV. 
 
 Feigned Issues, . . . . .537 
 
Master's Office, 
 Costs, 
 
 Eehearings, . 
 Appeals, 
 
 Supplemental Bills, 
 Bills of Eevivor, 
 Bills of Keview, 
 Cross-Bills, . 
 
 CONTENTS. 
 CHAPTER XV. 
 
 CHAPTER XVI. 
 CHAPTER XVn. 
 CHAPTER XVIII. 
 
 CHAPTER XIX. 
 
 CHAPTER XX. 
 
 CHAPTER XXI. 
 CHAPTER XXn. 
 
 CHAPTER XXni. 
 
 Interlocutory Applications, . 
 
 Receivers, 
 
 CHAPTER XXIV. 
 
 CHAPTER XXV. 
 
 Payment of Money into Court, 
 
 CHAPTER XXVI. 
 Production of Documents, . 
 
 Orphans' Court, 
 Auditors, 
 
 CHAPTER XXVII. 
 CHAPTER XXVIII. 
 
 APPENDIX. 
 
 Equity Precedents, . 
 Rules of Equity Practice, 
 Equity Fee Bills, 
 
 542 
 548 
 557 
 562 
 576 
 588 
 595 
 603 
 607 
 612 
 
 620 
 624 
 629 
 646 
 
 650 
 715 
 735 
 
TABLE or CASES, 
 
 Ackla V. Ackla, 293. 
 
 Adams, Bank of Virginia v., 167, 172, 
 
 413, 460. 
 Adams v. Beach, 49, 229, 461. 
 Adams, Brisbane v., 90. 
 Adams v. Smith, 47. 
 Adams, Telford v., 112. 
 Agar V, Fairfax, 153. 
 Agnew V. Bell, 132. 
 Aguew, Leech v., 83. 
 Aiken, Finley «;., 26, 27, 28, 49, 64, 188, 
 
 192, 461, 573. 
 Ake's Appeal, 139. 
 
 Akewright, Mather's Lessee »., 36, 44. 
 Albright, Lancaster Co. Bank v., 76, 77. 
 Alden, Capen v., 124. 
 Alexander, United States v., 429. 
 Alice V. Morte, 53. 
 Allen, Burke v., 114. 
 Allen V. Kyle, 385, 387. 
 Allison V. Wilson, 213, 346. 
 Alny V. Deschamps, 190. 
 Alricks, Newbaker v., 160. 
 Alston V. Munford, 141. 
 Alter, Berghaus v., 123. 
 Amies, Dull v., 381, 382. 
 Anders, Zimmerman v., 329. 
 Anderson's Executors v. Long, 43. 
 Anderson, Stedwell v., 65. 
 Anderson v. Tompkins, 180. 
 Angel V. Angel, 397. 
 Anspach, Le Texier v., 384. 
 Arcedeckne, Lincoln, Earl of, v., 209. 
 Armstrong, Com. v., 365. 
 Armstrong's Estate, 556. 
 Arrington, Wall v., 66. 
 Ai-thurs, Kramer v., 180, 181, 389. 
 Asay V. Hoover, 285, 307. 
 Ash, Biddle v., 246, 248, 280. 
 Ashton, Hood v., 176. 
 Asslin, Hamilton v., 66. 
 Attorney-General v. Cleaver, 247. 
 Attorney-General v. Erie and N. E. 
 
 Railroad Co., 170. 
 Attorney-General v. Rush, 171. 
 Attorney-General o. The ShefiSeld Gas 
 
 Consumers' Co., 247. 
 Audland, Keguault v., 232. 
 
 Auwerter v. Mathiot, 48. 
 
 Axe, Hoar v., 374. 
 
 Aycineiia o. Peries, 47, 48, 438. 
 
 Bacher, Washington Beneficial Society 
 
 !>., 172. 
 Baden v. Pembroke, 212. 
 Badgley v. Beale, 93. 
 Bagaley, Watson v., 296. 
 Baggs, Peebles v., 381, 386, 446, 556. 
 Bagshaw v. Spencer, 298. 
 Bailey v. Brownfleld, 161. 
 Bainbridge v. Wilcocks, 135, 136. 
 Baird v. Corwin, 115. 
 Baird's Appeal, 271. 
 Baker v. Biddle, 380, 386, 459, 460. 
 Baker t). Hill, 212. 
 Baker v. Matlack, 92. 
 Baker's Appeal, 113, 177, 179. 
 Baker, Vandever v., 159. 
 Baker v. Williamson, 520, 537, 538, 
 
 540, 545. 
 Baldy v. Stratton, 93. 
 Balfour v. Welland, 325. 
 Ball, Hodson v., 596. 
 Ball, Sansom v., 131. 
 Ballon, Hiriart v., 563. 
 Balsbaugh v. Frazer, 43. 
 Baltimore and Ohio Railroad Co., Che- 
 sapeake and Ohio Canal Co. v., 264. 
 Baney v. Killmer, 317. 
 Bank v. Donaldson, .540. 
 Bank v. Fordyce, 299, 300. 
 Bank of Kentucky v. Schuylkill Bank, 
 
 126, 169, 214, 403, 460, 464, 4r.5, 
 
 509, 578. 
 Bank of Pennsylvania, Com. v., 49, 167, 
 
 256, 261, 262. 
 Bank of Pennsylvania v. Com., 170. 
 Bank of Pennsylvania, Manufacturers 
 
 and Mechanics' Bank v., 106, 387. 
 Bank of Pennsylvania v. Potius, 133. 
 Bank of Pennsylvania v. Wise, 127, 128. 
 Bank of Pittsburgh, Cromwell v. , 292. 
 Bank of United States v. Biddle, 121 
 
 122, 126, 380, 383, 431, 456, 493, 
 
 590. 
 Bank of Utica, Cahoon v., 429. 
 
Xll 
 
 TABLE OF CASES. 
 
 Bank of Virginia v. Adams, 167, 
 
 413, 460. 
 Bank c. Perdriiiux, 443. 
 Banner, Massey v., 126. 
 Baptist Churcli v. Scannell, 167. 
 Barber v. Carey, 54. 
 Barbour, Randolph v., 569. 
 Barclay, Ross v., 304. 
 Bard, Fort «;., 563. 
 Barlow v. Grant, 367. 
 BarndoUar, Tate v., 38. 
 Barnes, Say's Executors t;., 97. 
 Barnet, Ronneli;., 321. 
 Barnet, Wisner v., 411, 415, 461. 
 Barnhart, Christy v., 199. 
 Barnitz v. Smith, 348. 
 Barr v. Weld, 336. 
 Barret v. Blagrave, 250. 
 Barret, Hudson k., 174. 
 Barrington v. Justice, 245. 
 Bartlett, Gompertz v., 299. 
 Barton n. Bouyier, 210. 
 Barton's Estate, 357. 
 Barwich, Say j'., 204, 
 Baselly, Huguenin v,, 100. 
 Bate V. Graham, 419. 
 Bate, Megarge v., 442. 
 Bauert, Eckartj;., 444. 
 Bavington, Pepper ?)., 538. 
 Baxter v. Earl of Portsmouth, 80. 
 Bajard, Waldron v., 381, 386, 493. 
 Bayne, Trimmer v., 321. 
 Baynton, Com. v., 125. 
 Beach, Adams v., 49, 229, 461. 
 Beale v. Badgley, 93. 
 Be.ale v. Com., 410. 
 Reals V. See, 80. 
 Bear e. "Whisler, 347, 348,349. 
 Beatty, Fitzpatrick v.^ 72. 
 Be.aumont's Case, 369. 
 Beaver, Fleming v., 133. 
 Beaver, Lehr c, 27, 42. 
 Beazley, Wilford v., 218. 
 Beck V. Uhrich, 389, 390. 
 Bedell v. Hoffman, 226. 
 Beebe v. Boswell, 616. 
 Beekman Iron Co., Many v., 468. 
 Beepon v. Beeson, 104, 105, 215. 
 Begnold v. Audland, 232. 
 Belden, Philips v., i:t5. 
 Belding, Everett i'., G19. 
 Bell, Agnew v.^ 13'-'. 
 Bell V. Legget, 94. 
 Bell, Livingston i\, 295. 
 Bell ji. Newman, 178. 
 Bellaers, ^\illcox»., 209. 
 Bellas V. Hays, 64, 
 Bellas V. W-Carty, 114, 389. 
 BfUows V. Stone, 510. 
 Benedict v. Lynch, 189. 
 
 172, 
 
 Benedict v. Montgomery, 372. 
 
 Bennet v. Smith, 84, 377. 
 
 Bennett, JMountain v., 204. 
 
 Bennett v. Robinson, 89. 
 
 Bennett's Appeal, 446. 
 
 Bensell v. Chancellor, 79. 
 
 Be'.:tly, Longwell v., 212. 
 
 Benton v. Stewart, 257. 
 
 Berghaus v. Alter, 123. 
 
 Berners, Werne v., 882, 493. 
 
 Berrington, Pnce v., 72, 
 
 Betz V. Heebner, 300, 
 
 Bevan, Borrekins v., 74. 
 
 Bevan v. Lewis, 176, 
 
 Bevans v. The Turnpike, 1C7, 387, 392. 
 
 Biays v. Union Ins. Co., 77, 
 
 Biddle v. Ash, 246, 248, 280, 
 
 Biddle, Baker v., 380, 386, 459, 460, 
 
 Biddle, Bank of United States v., ]21, 
 122, 126, 380, 383, 431, 456, 493,590. 
 
 Biddle v. Moore, 438. 
 
 Biffle, Smilie t>,, 479, 480. 
 
 Bigger, Wilson v., 312, 
 
 Biggleston v. Grubb, 321, 
 
 Billing ti, Southee, 101. 
 
 Billington ». Welsh, 352. 
 
 Bingley, Williams v., 176. 
 
 Bird V. NefF, 227, 232. 
 
 Biscoe V. Perkins, 209. 
 
 Bishop, Pidcock %>., 76. 
 Bishop's Instate, 597, 
 Bittenbender, Bowman ?'., 65. 
 Bitzer v. Habn, 3B7. 
 Bi.^ler v. Kunkle, 36, 38. 
 Black, Coveu c, 391. 
 Black, Galway r., 84, 377. 
 Black, Holbrook «., 500, 520. 
 Black, Leisenring p., 102. 
 Black's Case, 369, 563. 
 Black, Smith v., 032. 
 Blagrave, Barrett v., 250. 
 Blaine v. Chambers, 397. 
 Blake, Buubury v., 312. 
 Blakeslee v. Blakeslee, 65, 200. 
 Blakey's Appeal, 113, 295. 
 Blanden, Coxe v., 273, 
 Blight V. Wright, 303, 
 Blisset V. Daniel, 182, 
 Blocker v. Blocker, 285. 
 Bloodgood V. Clark, 616. 
 Bloom, Slee v., 172. 
 Bloss V. Clanmi rris, 209. 
 Blydenburgh, Brown r., 115, 499, 520. 
 Blyholder v. Gibson, 340, 
 Boas, Unger c, 95, 
 Bocaline, Gernon c, 488, 
 Bodine v. Glading, 187, 190, 
 Boehm, Patterson v., 78, 
 Bogardus v. Rosendale Man. Co., 411, 
 413, 416, 407, 4-58. 
 
TABLE OF CASES. 
 
 Xlll 
 
 Boggs, Breading !'., 113, 295. 
 
 Boggs V. Varner, 115, 3o2. 
 
 Bogus, Deal v., 178. 
 
 Bokee v. AValker, 70, 73. 
 
 Bolton V. .Johns, lT-1, 389. 
 
 Bonaparte i>. The Ciinden and Amboy 
 
 Railroad Co., -52. 
 Bonsall's Appeal, 274, 352. 
 Bonsall, Smith v., 55, 3'J9. 
 Booth V. Bo"th, 72, 
 Borland v. Nicliols, 118. 
 Borman, Stiekuey v., 371, 372. 
 Borough of Frankfort v. Lennig, 247. 
 Borrekins v. Bevan, 74. 
 Bjswell, Beebe !'., (516. 
 Boswortli, Stratford v., 218. 
 Bouslaugh, Hileraan i>., 280. 
 Bouyier, Barton t'., 210. 
 Bowen v. Oyster, 2S8. 
 Bower v. Kauffelt, 348. 
 Bowman v. Bittenbender, 65. 
 Boyd V. Boyd, 300. 
 Boyer, Hickling v., 141. 
 Bracken v. Miller, 114, 116, 273, 390. 
 Bradford o. Gei^s, 405. 
 Bradford, Lewis v., 38'J, 390, 485. 
 Bradford, Stiles !'., 48. 
 Bradley, Cholmer i>., 136. 
 Brady, Cowden v., 137. 
 Brady, Thomas v., 92. 
 Brady v. M'Crosker, 429, 590. 
 Brandt's Appeal, 350, 351. 
 Brawdy v. Brawdy, 191, 199, 200, 519. 
 Bray, Moore v., 165. 
 Braybroke v. Insip, 209. 
 Breading v. B iggs, 113, 295. 
 Bredin v. Diven, 119. 
 Bredin i;. Kingland, 119. 
 Breuizer, Morrow v , 213. 
 Brett, Chillas v., 508. 
 Brewster, Lloyd v., 437. 
 Briekeustein, Luckenbach v., 392. 
 Briedenthal, Turnpike Road Co. v., 256. 
 Brien, Christy «., 190. 
 Brightbill, Sterling ?'., 166. 
 Brinker J). Brinker, 50, 219, 435, 631,632. 
 Brinton v. Perry, 17. 
 Brinton's Estate, 358. 
 Brisbane v. Adams, 90. 
 Briscoe, Huddlestoue v., 218. 
 Bristol Transportation Co., Large «., 392, 
 
 393, 445. 
 Brock, Stiles v., 41. 
 Brooks, Defraunce v., 221. 
 Brooks V. Marbury, 290. 
 Brooks V. StoUey, 380. 
 Brouse, Gaokenhach v., 283, 371. 
 Brown v. Blydeiiburgh, 115, 499, 520. 
 Brown v. County Commissioners, 170. 
 
 Brown t). Dysinger, 344, 
 
 Brown, Foulk «., 292. 
 
 Brown, Prantz v., 40. 
 
 Brown, Gos.-in u., 133. 
 
 Brown v. Magill, 328-30, 333, 336, 403. 
 
 Brown, Malins v., 198. 
 
 Brown v. Nickle, 287. 
 
 Brown v. O'Brien, 238. 
 
 Brown ». Perkins, 483. 
 
 Brown's Appeal, 300. 
 
 Brown's Heirs, Hartzell v., 550 
 
 Brown, Simon v., 114. 
 
 Brown, Stafford v., 432, 605. 
 
 Brown, Stewart v., 40, 340 
 
 Brown c. Swann, 503. 
 
 Brown, Thompson v.^ 125. 
 
 Brownell «. Curtis, 459. 
 
 Brownfleld, Bailey v., 133. 
 
 Bruch V. Lantz, 104, 327. 
 
 Bryant v. Hunters, 320. 
 
 Bryson, Lazarus i'., 104. 
 
 Buckingham iK M'Lean, 573 
 
 Buckle, Cannel »., 371. 
 
 Buokmaster v. llarrop, 212. 
 
 Buckwater, Hamilton v., 312. 
 
 Budd, Pooley v., 185. 
 
 Cuffum, Seitz c, 422. 
 
 Bujac V. ^Morgan, 443. 
 
 Bull, Irvine v., 38, 46, 195. 
 
 Bull's Appeal. 029, 649. 
 
 Bull .'. Towson, 539. 
 
 Bullock V. Flodgate, 308. 
 
 Bumberger v. Clippinger, 208. 
 
 Banbury, Blake v., 312. 
 
 Burden, Carpenter v., 261. 
 
 Bm-hans v. Van Zandt, 482. 
 
 Burke u. Allen, 114. 
 
 Burlingame, Talmage v., 106. 
 
 Burnham, Smith v., 522. 
 
 Burns v. Sutherland, 200, 201. 
 
 Burr, Haines u., 047. 
 
 Burr (.. M'Ewen, 270, 350. 
 
 Burr V. Sim, 213, 346. 
 
 Burson's Appeal, 376. 
 
 Burt, Larison v., 206, 215. 
 
 Burton, Scott /■., 251, 389, 48.'). 
 
 Bush. Coaklin v., 119, 149, 159. 
 
 Butcher v. Metts, 38, 46. 
 
 Bute, Kenworthy v., 307. 
 
 Butterfield, Tapley v., 180. 
 
 Butz, Seibert u., 144. 
 
 Butz, Walker v., 115. 
 
 Buxton V. Listou, 218. 
 
 Bye, Pidcock «., 47. 
 
 Byrd !'. Byrd's Executors, 141. 
 
 Byrne v. Byrne, 319. 
 
 Cadbury o. Duval, 105, 32;, 327, 391. 
 Gaboon v. Bank of Utioa, 423. 
 
XIV 
 
 TABLE OF CASES. 
 
 Calcote V. Stanton, 301. 
 
 Caldwell v. Walters, 83, 84, 377. 
 
 ,Calloway v. Dobson, 512. 
 
 Cambioso v. Maffett, 92. 
 
 Cameron v. Montgomery, 295. 
 
 Campbell, Knox v., 120. 
 
 Campbell, Mellon u., 136. 
 
 Campbell v. Penn. Life Ins. Co., 104. 
 
 Campbell's Estate, 211. 
 
 Campbell v. Spencer, 192, 203. 
 
 Campbell, Ulp v., 375. 
 
 Canal Commissioners, Heston v., 252. 
 
 Canal Commissioners,]?ennsylTania Kail- 
 road Co. v., 170, 252. 
 
 Candee v. Lord, 513. 
 
 Cannel v. Buckle, 371. 
 
 Capen v. Alden, 124. 
 
 Carlisle's Appeal, 272. 
 
 Carothera, M'Hunnt)., 227. 
 
 Carpenter v. Burden, 261. 
 
 Carpenter v. Koons, 130. 
 
 Carpenter v. Stillwell, 92. 
 
 Carpenter, Taylor v., 253. 
 
 Carpenter, Thompson v., 208. 
 
 Carswell's Estate, 354, 360. 
 
 Carter, Lloyd r,, 340. 
 
 Cartwright c. Green, 383. 
 
 Cary, Barber v., 54. 
 
 Case V. Cushman, 75, 78. 
 
 Caskie v. Webster, 295. 
 
 Cassel V. Cooke, 86. 
 
 Cassel, Ex parte, 356. 
 
 Cassel V. Jones, 49. 
 
 Caster v. Wood, 512. 
 
 Cathcart, Robinson v., 59, 494, 501, 519, 
 529. 
 
 Cathcart t). Kobinson, 116. 
 
 Cathcart's Appeal, 107, 300. 
 
 Catlin !>. Kobinson, 294. 
 
 Cauffman v. Cauffman, 148, 311, 313, 
 315, 317. 
 
 Chamberlain v. M'Clurg, 74. 
 
 Chambers, Blaine v., 397. 
 
 Champlin v. Williams, 133, 164, 267. 
 
 Chancellor, Bensell v., 79. 
 
 Chapman, House v., 330. 
 
 Chappedelaine v. Deoheneaux, 135. 
 
 Charlton v. Poulter, 176. 
 
 Charnley v. Hansbury, 200. 
 
 Chautauque Co. Bank v. White, 72. 
 
 Chesapeake and Ohio Canal Co. v. Bal- 
 timore and Ohio Kailroad Co., 2ij4. 
 
 Chess's Appeal, 189, 218, 219, 221, 224. 
 
 Chesterfield v. Janssen, 70. 
 
 Chew's Case, 568. 
 
 Child, Irnham v., 62. 
 
 Chillas V. Brett, 568. 
 
 Cbolmer v. Bradley, 136. 
 
 Chrisman v. Wagoner, 84, 375. 
 
 Christ V. Diffenbach, 67. 
 
 Christie v. Woods, 526. 
 
 Christy v. Bamhart, 199. 
 
 Christy v. Brien, 196. 
 
 Churchman,M'Crelish v., 189. 
 
 City of Georgetown v. The Alexandria 
 
 Canal Co., 247. 
 City of Philadelphia v. Davis, 315, 316. 
 City of Philadelphia, Girard n., 300. 
 City of Philadelphia, Western Saving 
 
 Fund Society!)., 171. 
 City of Reading, Moers v., 170. 
 Claason's Appeal, 285. 
 Clanmorris, Bloss v., 209. 
 Clapham v. White, 262. 
 Clarendon v. Hornby, 152. 
 Clark, Bloodgood »., 616. 
 Clark, Kings;., 556. 
 Clark V. Partridge, 38, 67. 
 Clark, Petrie!).,142, 143. 
 Clark V. Seirer, 193, 208, 210. 
 Clarke, Partridge v., 38, 67. 
 Clarke, Smith v., 520. 
 Clarke, White v., 78. 
 Clarke, Wilson v., 187. 
 Clauser's Estate, 644. 
 Clay worth. Cook v., 80, 204. 
 Cleaver, Attorney-General v., 247. 
 Clemson, Pusey v., 277. 
 Cleveland, Painesville and Ashtabula 
 
 Railroad Co. v. City of Erie, 477, 482. 
 Cleveland, Sedgwick v., 582. 
 Clifton V. Davis, 79, 80. 
 Clippinger, Bumberger r., 208. 
 Clippinger v. Hepbaugh, 91. 
 Clowes ». Dickinson, 130. 
 Clyde, Fishery., 130. 
 Coates' Appeal, 161, 555. 
 Coates, Respublica ?)., 41. 
 Coates V. Roberts, 227, 229. 
 Cochran v. Cnmmings, 74. 
 Cochran, GrifEthi)., 44. 
 Cochran v. O'Hern, 84, 375. 
 Cochran < . Perry, 177. 
 Co. Commissioners, Brown v., 170. 
 Coder, Stewart v., 348. 
 Codrington, Cumberland v., 142, 351. 
 Cohen V. Gratz, 539. 
 Cohen's Appeal, 0S2. 
 Coleman v. Rowland, 73, 88. 
 Coleman, Stauifer v., 348. 
 Collier, Petriken v., 520. 
 Collins V. Rush, 46. 
 CoUom V. Francis, 381, 386, 387, 425. 
 Colt V. Selden, 218. 
 Columbia Bank and Bridge Co. v. Halde- 
 
 man, 91. 
 Columbia Bridge Co. v. Kline, 93. 
 Columbia Insurance Co., Smith v., 77. 
 
TABLE OF CASES. 
 
 XV 
 
 Colwell V. Woods, 286, 287. 
 
 Com. V. Armstrong, 365. 
 
 Com., Bank of Pennsylvania v., 170. 
 
 Com. V. Bank of Pennsylvania, 49, 167, 
 
 256, 261, 262. 
 Com. V. Baynton, 125. 
 Com., Beale v., 410. 
 Com. V. CuUen, 519. 
 Com. V. Diffenbach, 264, 265, 536. 
 Com. V. Duffield, 309. 
 Com. V. Franklin Canal Co., 170. 
 Com. V. Gilkesou, 365. 
 Com. V. Green, 220. 
 Com., Ludwiok v., 370. 
 Com., M'Kee's Executors v., 125. 
 Com. V. Mateer, 413. 
 Com., Miller v., 125. 
 Com. V. Miller, 106. 
 Com. V. Pittsburgh and Connelsville 
 
 Railroad Co., 170, 252. 
 Com. V. Eeitzel, 125. 
 Com. V. Bush, 241. 
 Com. V. Sigman, 365. 
 Com., Speck v., 123. 
 Com. V. StauflFer, 89. 
 Com. V. The Judges, 50, 540, 568, 630. 
 Com. V. Wolbert, 107. 
 Commissioners of Kensington, Hill v., 
 
 415, 416. 
 Commissioners v. Long, 246, 247. 
 ConkUn v. Bush, 119, 149, 150. 
 Counell, Mason J)., 177. 
 Conoway, Jones v., 480. 
 Conrad, Ex parte, 272. 
 Conrad, Forgay v., 563. 
 Conrad, Harker v., 123. 
 Consequa, Read v., 263. 
 Conway, Show v., 556. 
 Conyngham, Rose t)., 212. 
 Cook V. Clayworth, 80, 304. 
 Cook V. Fountain, 337. 
 Cook, Gieger v., 64. 
 Cook«. Grant, 112, 206. 
 Cook, Newport v., 366. 
 Cook's Estate, 160. 
 Cooke, Cassel v., 86. 
 Cooke V. Darwin, 53. 
 Coolbaugh, M'Canless v., 243, 439. 
 Coolbaugh v. Pierce, 46. 
 Cooper, Jordan v., 38. 
 Cooper V. Matthews, 259, 260, 261. 
 Cope, GrifEtts v., 335. 
 Cope V. Smith, 107, 108. 
 Corbinjj. "Wilson, 367. 
 Cornelius v. Molloy, 74. 
 Cornell, Dyer v., 213. 
 Corning, Heartt v., 486. 
 Corning v. Smith, 204. 
 Corwin, Baird v., 115. 
 
 Costen, Twells v., 188, 886, 387, 388, 413. 
 
 Coston, Wallace v., 84, 375. 
 
 Cottrell's Appeal, 132, 162. 
 
 Couch V. Sutton, 318, 398. 
 
 County of Allegheny v. Rowley, 171. 
 
 Covanhovan v. Hart, 111. 
 
 Coven V. Black, 391. 
 
 Covode, Irvine ti., 117, 238. 
 
 Cowden v. Brady, 137. 
 
 Cowden's Estate, 130. 
 
 Cowen, Watertown v., 251. 
 
 Cowher, M'CuUoch v., 115, 345. 
 
 Cox V. Grant, 339. 
 
 Cox, Ingraham v., 292. 
 
 Cox, Lynch v., 267, 341. 
 
 Cox, M'Glensey v., 177. 
 
 Cox V. Willetts, 252. 
 
 Coxe V. Blanden, 273. 
 
 Coxe, Wikoffi)., 27. 
 
 Craft V. Lathrop, 27. 
 
 Craft V. Webster, 284. 
 
 Craig V. Leslie, 211. 
 
 Cram, Waring v., 258, 262. 
 
 Crammond, Philips^., 273, 341, £iio,344. 
 
 Cranmer's Case, 319. 
 
 Crawford, Dalzell v., 49, 187, 188, 189, 
 
 191, 208, 209, 325, 327. 
 Crawford, Kaufman v., 274, 352. 
 Crawshayj). Thornton, 231. 
 Creigh v. Shatto, 208, 209. 
 Cresson ». Miller, 300. 
 Crispin, M 'Garry v., 404. 
 Croasdell, Lisle v., 461. 
 Croft V. Moore, 133. 
 Cromwell v. Bank of Pittsburgh, 292. 
 Crotzer, Tritt v., 267. 
 CuUen, Com. v., 519. 
 Cumberland v. Codrington, 142, 351. 
 Cummings' Appeal, 63, 84, 375. 
 Cummings, Cochran «., 74. 
 Cummings, Smith v., 247, 262. 
 CunUff, M'Pherson v., 313, 343. 
 Curling V. Townshend, 519. 
 Currie, Small v., 106. 
 Currin, Hinckle v., 381. 
 Curtis, Brownell v., 459. 
 Cushman, Case v., 75, 78. 
 Cuthbert v. Kuhn, 128. 
 Cutis, Hogart v., 230. 
 
 Dalby v. Pullen, 210. 
 
 Dalton V. Midland Railway Co., 231. 
 
 Dalzell V. Crawford, 49, 187, 188, 189, 
 
 191, 208, 209, 325, 327. 
 Daniel, Blissett v., 182. 
 Darrach's Estate, 632. 
 Darrah's Appeal, 156. 
 Darwin, Cooke v., 53. 
 Davidson v. Little, 85, 108, 109, 191, 206. 
 
XVI 
 
 TABLE OF CASES. 
 
 Davidson, March v., 383. 
 Davies, Emerson v., 559. 
 Davies, Williams v., 505. 
 Davies, City of Philadelphia!)., 315, 316. 
 Davies, CUftonw., 79, 80. 
 Davies v. Gerhard, 392. 
 Davies v. Kendall, 253. 
 Davies, Wiener i;., 113. 
 Day, Kerr v,, 210, 213, 346. 
 Deaderick, Morrison v., 301. 
 Deal V. Bogue, 178. 
 Dean, Webb v., 270. 
 Dearth v. Williamson, 221. 
 Death, Smith v., 209. 
 Decamp v. Feay, 46. 
 De Chaumont v. Forsythe, 115, 210. 
 Decheneaux, Chappedelaine v., 135. 
 Decker, Schrader v., 36, 85. 
 Defraunoe v. Brooks, 221. 
 Dehaven, Wentz v., 284, 323. 
 Dehufif V. Turbett, 107. 
 Delamater's Estate, 103, 206. 
 Delaware and Hudson Canal Co. v. 
 Pennsylvania Coal Co., 170, 425, 426. 
 De Montmorency v. Devereux, 98. 
 Dennison v. Goehring, 119, 268, 298, 598. 
 Dennison's Appeal, 130. 
 Dent's Appeal, 144. 
 De Peyster v. Hasbrouck, 74. 
 Deschamps, Alny v., 190. 
 Devereux, De Montmorency v., 98. 
 Devine, Parkhurst v., 517. 
 Devonsher v. Newenham, 466. 
 Dewitt V. Eldred, 300, 351. 
 De Wolfe, M'Kelvy v. 134. 
 Dickey, Eeed j;., 889.. 
 Dickinson, Clowes v., 180. 
 DiefFenbach, Shitz v., 288. 
 Diehl, King))., 43. 
 Diemer v. Seohrist, 292. 
 Dietrich, Webb v., 104. 
 Dietrich v. Heft, 358. 
 Diffenbach, Christ?)., 67. 
 Diffenbach, Com. v., 264, 265, 586. 
 Diffenderfer, Thompsons., 613. 
 Dilworth v. Sinderling, 215. 
 Dinkle v. Marshall, 65. 
 Dinsmoor v. Hazelton, 495. 
 Directors of Carlisle Bank, Krebs v., 417. 
 Divelbis, Lyons v., 299. 
 Dixal, Roberts v., 308. 
 Dixon, Smiley v., 343. 
 Dobbins v. Stevens, 349. 
 Dobson, Calloway v., 512. 
 Dodge «. Israel, 525. 
 Dolan, Lancaster v., 84, 117, 307, 375. 
 Donaldson, Bank!'., 540. 
 Donaldson, Graham v., 344. 
 Donley v. Hays, 130. 
 
 Doran v. Wiltshire, 827. 
 
 Dorrance v. Scott, 83. 
 
 Dorrow v. Kelly, 290. 
 
 Doud V. Wolf, 144. 
 
 Dougherty v. Jack, 117, 294. 
 
 Dougherty, Thompson v., 110. 
 
 Downer v. Downer, 632. 
 
 Downes, Woodi)., 98. 
 
 Downing, Pim v., 356. 
 
 Downing's Estate, 644. 
 
 Drake, Marion Beneficial Society v. , 172. 
 
 Drexel, Huling v., 291. 
 
 Druoe, Saunders v., 419, 470, 471, 475. 
 
 Drum, Nesmith v., 298, 299. 
 
 Drury, Duncan v., 133. 
 
 Drysdale's Appeal, 160, 546. 
 
 Dubois, Leggett v., 341. 
 
 Ducomb, Lyle v., 289. 
 
 Duesbury, Glyu v., 230. 
 
 Dufaeld, Com. v., 309. 
 
 Duffield, Wallace v., 339, 344. 
 
 Duffy V. Insurance Co., 370, 372. 
 
 Duffy, Seal v., 296. 
 
 Dull V. Amies, 381, 882. 
 
 Duncan v. Drury, 133. 
 
 Duncan v. M'CuUough, 74. 
 
 Duncan's Estate, 269. 
 
 Dundas, Hoopes v., 89. 
 
 Dunnage v. White, 204. 
 
 Dunn, Jones v., 136. 
 
 Dunn V. Olney, 130, 161, 163, 166. 
 
 Duponti, Mussy v., 513. 
 
 During's Appeal, 112. 
 
 Dustin V. Newcomer, 216. 
 
 Duval, Cadbury v., 105, 326, 327, 391. 
 
 Dwen, Bredin w., 119. 
 
 Dwyer, Eushworth !'., 93. 
 
 Dye, Thwaytes v., 308. 
 
 Dyer v. Cornell, 213. 
 
 Dyott's Estate, 578. 
 
 Dy singer. Brown v., 344. 
 
 Eagle Fire Co. o. Lent, 294. 
 
 Eakin v. Raub, 343. 
 
 Earnest, Keisel v., 119. 
 
 Ebenhardt's Appeal, 162. 
 
 Eberly v. Groff, 434, 519. 
 
 Ebert v. Wood, 27. 
 
 Eby V. Eby, 292. 
 
 Eby, Yost v., 45. 
 
 Eckart v. Bauert, 444. 
 
 Eckert v. Rous's Administrator, 155. 
 
 Eokert, Ziegler v., 319, 320, 323, 
 
 Eckfeldt's Appeal, 563. 
 
 Eckstein's Estate, 2-13. 
 
 Edgell 1). M'Laughlin, 02. 
 
 Edleston v. Vick, 254, 2-35. 
 
 Edmonds, Prosser v., 301. 
 
 Edwards, Jackson r., 153. 
 
TABLE OF CASES. 
 
 XVU 
 
 Ege, Miller v., 142. 
 
 Eichbaum, Warden v., 410. 
 
 Elder, Harbach's Administrators v., 133. 
 
 Eldred, Dewitt»., 300, 351. 
 
 Eldridge, Jenkins !■., 522, 558, 561. 
 
 Eldridge, Robinson v., 43. 
 
 Elliot V. Elliot, 97. 
 
 Elliot's Estate, 89. 
 
 Elliot's Executors, Loan Co. v., 38. 
 
 Ellis, Haines v., 375. 
 
 EUmaker v. EUmaker, 279. 
 
 EUmaker, Riley v., 241. 
 
 EUmaker's Estate, 413. 
 
 EUmaker, Thomas «., 169, 181, 182, 330, 
 426. 
 
 Elmendorf, Governeur v., 72. 
 
 Emerson v. Davies, 559. 
 
 Endress, Sherk v., 112. 
 
 English V. Harvey, 358. 
 
 English, Porter©., 510, 522, 549, 550. 
 
 Entriken, Myers v., 358. 
 
 Erb, Johns v., 537, 540. 
 
 Erie and N. E. Railroad Co., Attorney- 
 General v., 170. 
 
 Erie Bank v. Gibson, 107. 
 
 Ersick, Fickes «., 291. 
 
 Eshelmau v. Witmer, 159. 
 
 E. Tennessee and Georgia Railroad Co., 
 Union Branch Railroad Co. v., 469. 
 
 Evans' Estate, 344, 360. 
 
 Evans v. Evans, 54. 
 
 Evans v. Saunders, 307. 
 
 Evans, Turner v., 256. 
 
 Everett «. Belding,619. 
 
 Everly v. Rice, 107. 
 
 Evig, Fogler v., 339. 
 
 Ewart v. Irwin, 54, 291. 
 
 Ewing, Furnis v., 554. 
 
 Exel V. Wallace, 298. 
 
 Eyrick v. Hetrick, 271. 
 
 Fahnestock, Hood t)., 116, 352. 
 
 Fairchild v. Holly, 125. 
 
 Fairfax, Agar v., 153. 
 
 Farley!'. Stokes, 187, 188, 191, 198, 199. 
 
 Farmere, Woods v., 115. 
 
 Farmers and Mechanics' Bank, Harper 
 
 v., 114. 
 Farnum v. Walton, 443. 
 Faure v. Martin, 64, 66. 
 Feay, Decamp v., 46. 
 Ferguson v. O'Harra, 473. 
 Ferris v. Henderson, 82, 479. 
 Fickes v. Ersick, 291. 
 Field, Taylor v., 176. 
 Field V. The Mayor of N. York, 297, 299. 
 Filbert, Fisher i\, 372. 
 Filson's Trustees v. Hines, 91. 
 Findlay v. Smith, 358. 
 
 B 
 
 Findlay, Stump v., 312. 
 
 Finley v. Aiken, 26, 27, 28, 49, 64, 1 8S. 
 
 192, 461, 573. 
 Fisher v. Clyde, 130. 
 Fisher v. Filbert, 372. 
 Fisher v. Harris, 212, 346. 
 Fisher v. Redsecker, 237. 
 Fisher v. Rutherford, 590. 
 Fisher, Streaper v., 270. 
 Fisher, Thompson v., 136. 
 Fisher v. Worrall, 189, 191, 193. 
 Fish, Sloper v., 209. 
 Fisk V. Sarber, 104, 105. 
 Fitzimmons' Appeal, 299. 
 Fitzimmons, Long v., 119. 
 Fitzpatrick v. Beatty. 72. 
 Flack, Knox v., 36, 83, 84, 377. 
 Flaherty's Estate, 333. 
 Flavell V. Harrison, 255. 
 Fleming v. Beaver, 133 . 
 Floodgate, Bullock i'., 308. 
 Forbes v. Moffit, 294. 
 Ford, Law v., 615. 
 Fogler V. Evig, 339. 
 
 Folmer, Wilhelm v., 2G9, 270, 273, 275. 
 Folwell, Thomas v. , 84, 375. 
 Fonda, Van Home v., 343. 
 Fontain v. Ravenel, 328, 329, 331, 33::. 
 Fordyce, Bank v., 299, 300. 
 
 Forgay v. Conrad, 563. 
 
 Forry, Patterson v., .348. 
 
 Forster, Harrisburg Bank v., 480. 
 
 Forsythe, De Chaumont v., 115, 210. 
 
 Fort i: B.ard, 563. 
 
 Forth, Harrison v., 391. 
 
 Fortner, Heister v., 114, 391. 
 
 Foster v. Fox, 299. 
 
 Foster v. Walton, 117. 
 
 Foster v. Whitehill, 114. 
 
 Foulk !'. Brown, 292. 
 
 Fountain, Cook v., 337. 
 
 Fourniquet, Perkins »., 563. 
 
 Fowler ». Freeman, 218. 
 
 Fowle V. Spear, 254. 
 
 Fox, Foster v., 299. 
 
 Fox V. Heffner, 345. 
 
 Fox, Millington v., 552. 
 
 Fox V. Wilcocks, 358. 
 
 France, King of, v. Morris, 119. 
 
 Francis, CoUom ik, 381, 386, 387, 425. 
 
 Franklin Canal Co., Com. u., 170. 
 
 Franklin, Osgood v., 204. 
 
 Franklin, Tilden v., 446. 
 
 Franklin v. Tuton, 251. 
 
 Frantz v. Brown, 46. 
 
 Frazer, Balsbaugh w. , 43. 
 
 Freeman, Fowler v., 218. 
 
 Freeman, Pennock v., 187, 191, 480. 
 
 Freeman, Stewart «., 211, 274, 346. 
 
XVlll 
 
 TABLE OF CASES. 
 
 Frewin v. Lewis, 257. 
 Fricke 1). Ozias, 200. 
 Friedenburg, Jeanes v., 385. 
 Friedley v. Hamilton, 287. 
 Friach v. Miller, 106. 
 Fritz, Jenks v., 63, 64. 
 Froelich, Gochenauer v., 356. 
 Frost, Young v., 216. 
 Frye ». Shepler, 199, 200, 201, 202. 
 Fry, Gangwer v., 198, 199, 202. 
 Furnis v. Ewing, 554. 
 Fury, Kennedy v., 36. 
 
 Gabbald, German v., 339, 344. 
 
 Gackenbach v. Brouse, 283, 371. 
 
 Galbreath v. Galbreath, 199. 
 
 Galbreath, Eife v., 637. 
 
 Gallagher, Scott v., 274. 
 
 Galloney's Appeal, 144, 630. 
 
 Galway v. Black, 84, 377. 
 
 Gamber v. Gamber, 374. 
 
 Gangwer r. Fry, 198, 199, 202. 
 
 Gangwere's Estate, 196. 
 
 Gans, Renshaw v., 38, 208. 
 
 Garber v. Henry, 289. 
 
 Garnett v. Macon, 190, 327. 
 
 Garrett's Appeal, 321. 
 
 Garrison v. Moore, 128. 
 
 Garro v, Thompson, 284. 
 
 Gearhart v. Jordan, 161, 164. 
 
 • ieary. Union Bank v., 519. 
 
 Geiger, Hise v., 160. 
 
 Geiss, Bradford v., 495. 
 
 Gelbach's Appeal, 157. 
 
 Gelston v. Hoyt, 383. 
 
 George's Appeal, 597, 631, 644. 
 
 Gerhard, Davis v., 392. 
 
 (^lerman v. Gabbald, 389, 344. 
 
 (iermantown Railroad Co., Moyer c, 47. 
 
 Gernon ». Bocaline, 488. 
 
 Gethen, M'Uvaine v., 89. 
 
 Gibblehouse v. Stong, 389. 
 
 Gibbons, Lee i'., 37. 
 
 Gibson, Erie Bank v., 107. 
 
 Gibson v. Jones, 99. 
 
 Gibson v. Martin, 618. 
 
 Gibson, Rodgers v., 391. 
 
 Gieger v. Cook, 64. 
 
 Gilchrist, .M'Kee v., 111. 
 
 Gilder 1'. Merwiu, 49, 241. 
 
 Gilkeson, Com. v., 36.'). 
 
 Gilkyson, La Rue c, 80. 
 
 (tillespie v. Moon, 66. 
 
 Gillespie, Parmentier v., 28!i. 
 
 Gillett V. Hall, 683. 
 
 Gill's Estate, 321, 322. 
 
 Gilmore, Kerr c, 287. 
 
 Gilmore v. N. American Land To., 110. 
 
 Gilson, Bly holder ti., 340. 
 
 Girard v. City of Philadelphia, 300. 
 
 Girard, In re, 256. 
 
 Girard's Executors, Vidal v., 329, 330, 
 
 332 
 Gladin'g, Bodine v., 190, 187. 
 Glassington v. Thwaites, 176. 
 Glover, Harding v., 615. 
 Glyn V. Duesbury, 230. 
 Gochenauei;' v. Froelich, 356. 
 Gochenaur's Appeal, 629. 
 Goehring, Dennisonn. 119, 268, 298, 598. 
 Goepp's Appeal, 74. 
 Gompertz v. Bartlett, 299. 
 Good V. Herr, 60. 
 Good, Keeney v., 374. 
 Good, Pugh.«;., 198. 
 Good, Woodman v., 241, 245. 
 Goodman v. Whitcomb, 176. 
 Goodyear v. Rumbaugh, 84, 375. 
 Gordon v. Ingraham, 449. 
 Gormly, Mahon v., 84, 377. 
 Gorsline, King v., 299. 
 Gossin V. Brown, 133. 
 Gossner's Estate, 139, 55B. 
 Gouldy V. GiUespie, 392, 445. 
 Governeur v. Elmendorf, 72. 
 GoTvan v. Jeffries, 176, 612, 616, 617, 
 
 618, 619. 
 Gower «. Sterner, 65, 67. 
 Graff, M'Caskey v., 74. 
 Graham, Batet'., 419. 
 Graham v. Donaldson, 344. 
 Graham, Palmer t)., 90, 185, 186, 256. 
 Graham's Appeal, 362. 
 Grant, Barlow v., 367. 
 Grant, Cook h., 112, 206. 
 Grant, Cox v., 339. 
 Grant v. Hook, 325, 326. 
 Grant, Washington Insurance Co. v., 381. 
 Grant, Wharton v., 179. 
 Gratz, Cohen v., 539. 
 Gratz V. Prevost, 103, 105, 339, 345, 
 
 560. 
 Gray v. Hook, 91, 94. 
 Gray, Horbach v., 64. 
 Gray v. Simop, 69. 
 Gray v. Sutton, 426, 496. 
 Green, Cartwright t',, 383. 
 Green, Com. v., 220. 
 Green v. Smith, 211, 213. 
 Greenawalt !'. Kreider, 107, 
 Greenfield's Estate, 96, 98, 99, 101, 110. 
 
 298. 
 Greenlee v. Greenlee, 187, 189, 191, 190, 
 
 198, 199, 200, 203, 206, 211, 519. 
 Greensweig, Hawk c, 180, 191, 215, 
 Greenwood, Wilson o., 615. 
 Gregg, Philips «'., 323, 342. 
 Greville v. Tylee, 101. 
 
TABLE OF CASES. 
 
 XIX 
 
 Griffith V. Cochran, 44. 
 Griffith V. Morris, 129. 
 Griffith V. Welling, 119. 
 Griffitts V. Cope, 335. 
 Groff, Eberly !)., 434, 519. 
 Grubh, Biggleston v., 321. 
 Gnibb V. Mahoning Nav. Co., 403. 
 Grundy, Young v., 563. 
 Guenat, Mange v., 186. 
 Guier v. Kelly, 128, 137, 630. 
 Gulden, Hatzfield v., 91. 
 Gurney, Sims v., 131. 
 Gurney v. "VVomersley, 289. 
 Guy, M'llree v., 299. 
 
 Hagerty's Case, 219. 
 
 Hagnert). Heyberger, 49, 182, 241, 242. 
 
 Hagner, Towers v., 373. 
 
 Hahn, Bitzer v., 367. 
 
 Haines v. Burr, 647. 
 
 Haines v. Ellis, 375. 
 
 Haines v. O'Connor, 344, 345. 
 
 Haldeman, Columbia Bank and Bridge 
 
 Co. v., 91. 
 Hale V. Henrie, 181. 
 Hall, Gillett!)., 583. 
 Hallowell's Appeal, 540, 541. 
 Halsted, Roberts v., 299. 
 Hamburg Company, Salmon w. , 172. 
 Hamilton v. Assliu, 66. 
 Hamilton v. Buckwalter, 312. 
 Hamilton, Friedley v., 287. 
 Hamilton v. Hamilton, 292, 479. 
 Hamilton, Huston v., 338. 
 Hamilton, Mitchell v., 294. 
 Hamilton, Wetherell j'., 267. 
 Hammond, Watts v., 231. 
 Hamot, Spires v., 123. 
 Handy v. Railroad Co., 112. 
 Hanlin, Irvine v., 119. 
 Hanuen, Wills v., 541. 
 Hansard, Kenneys i'., 204. 
 Hansbury, Charnley v., 200. 
 Hanson, Moncure v., 301. 
 Hanson, Moss v., 207. 
 Harding v. Glover, 615. 
 Hargreaves, Powles v., 163. 
 Harker v. Conrad, 123. 
 Harland's Account, 359. 
 Harlan's Estate, 556, 649. 
 Harman, Wood v., 327. 
 Harper v. Farmers and Mechanics' Bank, 
 
 114. 
 Harrisburg Bank v., Forster, 480. 
 Harrisburg Bank v. Tyler, 273. 
 Harris, Fisher v., 212, 346. 
 Harrison, Flavell v., 255. 
 Harrison v. Forth, 391. 
 Harrison t). Rowan, 52, 121, 410,460,539. 
 
 Harrop, Buckmaster v., 212. 
 
 Hart, Covanhovan v., 111. 
 
 Hartley v. Smith, 209. 
 
 Hartman v. Keystone Insurance Co., 77. 
 
 Hartzell v. Brown's Heirs, 556. 
 
 Harvey, English v., 358. 
 
 Hasbrouck, De Peyster v., 74. 
 
 Haslet V. Haslet, 199. 
 
 Hassenelever v. Tucker, 349. 
 
 Hatch V. Hatch, 98. 
 
 Hatzfield v. Gulden, 91. 
 
 Hawk «. Greensweig, 185, 191, 215. 
 
 Hayden v. Mentzer, 323. 
 
 Hayes, Wilson v., 442. 
 
 Hay V. Mayer, 306. 
 
 Hayne, Mitchell «., 232. 
 
 Hays, Bellas v., 64. 
 
 Hays, Donley v., 130. 
 
 Hays, Henderson v., 107, 204, 205. 
 
 Hazleton, Dinsmoor v., 495. 
 
 Heartt v. Corning, 486. 
 
 Heebner, Betz v., 300. 
 
 Hefferman, Thompson;)., 100. 
 
 Heffner, Fox v., 345. 
 
 Heft, Dietrich v., 358. 
 
 Heft V. M'Gill, 407. 
 
 Heister v. Fortner, 114, 391. 
 
 Heitler's Estate, 047. 
 
 Helmbold v. Man, 293. 
 
 Hemphill's Appeal, 357. 
 
 Henderson, Ferris i>., 82, 479, 480. 
 
 Henderson v. Hays, 117, 204, 205. 
 
 Henderson, Miller v., 67. 
 
 Henderson, Painter p., 104. 
 
 Hengst's Estate, 322. 
 
 Hennessy v. Western Bank, 112. 
 
 Henniker v. Wigg, 124. 
 
 Henrie, Hale v., 181. 
 
 Henry, Garber v., 289. 
 
 Henry v. Morgan, 114. 
 
 Heppbaugh, Clippinger v., 91. 
 
 Hepburn v. Snyder, 848. 
 
 Heritage, Ex parte, 430. 
 
 Herkimer County Mutual Insurance 
 
 Co., Wilson v., 77. 
 Herr, Good v., 60. 
 Herrs Appeal, 372. 
 Herr, Swazey »., 72. 
 Hertzog, Lentz t'., 233. 
 Hertzog, Sailor v., 114, 115, 
 Hess's Appeal, 563. 
 Heston r. Canal Commissioners, 252. 
 Hetrick, Eyrick v., 271. ■ 
 Hewit V. Huliug, 39, 40. 
 Heyberger, Hagner «., 49, 182, 241, 212. 
 Hibbs V. Rue, 107. 
 Hickling v. Boyer, 141. 
 Hickman, Soles f., 203. 
 Hiester v. >Iaderia, 286. 
 
XX 
 
 TABLE OF CASES. 
 
 Higerty r. Higerty, 107. 
 
 Higliley, Ludwig v., 392. 
 
 Hildebeitel'a Appeal, 644. 
 
 Hileman v. Bouslaugh, 280. 
 
 Hill, Baker v., 212. 
 
 Hill V. Commissioners of Kensington, 
 
 415, 416. 
 Hill V. Hill, 583. 
 Hill, Kinsley v., 290, 293. 
 Hill L'. Miller, 251. 
 Hill V. Scott, 218. 
 
 Hill V. The Commissioners, 257, 258. 
 Hillyard v. Miller, 334. 
 Hines, Filson's Trustees v., 91. 
 Hines v. Keller, 182. 
 Hincliinbrook, Shipbrook i;. , 608. 
 Hinckle v. Currin, 381. 
 Hindsou v. Weatherill, 99. 
 Hiriart v. Ballon, 563. 
 Hise V. Geiger, 160. 
 Hise's Estate, 615. 
 Hissim, Mateer v., 110. 
 Hoag, Wills v., 563. 
 Hoar V. Axe, 374. 
 Hoch's Appeal, 546. 
 Hooker's Appeal, 141. 
 Hodson V. Ball, 596. 
 Hoffman, Bedell v., 226. 
 Hoff, Marshall v., 143. 
 Hogan V. Walker, 419. 
 Hogart V. Cutts, 230. 
 Holbrook v. Black, 500, 520. 
 Holden's Administrators v. M'Makin, 
 
 182, 183, 256, 563, 616, 617. 
 Holl V. HoU, 242, 261, 263. 
 HoUiday v. Ward, 323. 
 Holly, Fairchild?;., 125. 
 Holt, Wallworth v., 415. 
 Homan, Owen v., 106. 
 Hood V. Ashton, 176. 
 Hood V. Fahnestock, 116, 352. 
 Hook, Grant v., 325, 826. 
 Hook, Gray v., 91, 94. 
 Hoopes V. Dundas, 89. 
 Hoover, Asay v., 285, 307. 
 HooTer v. Hoover, 140. 
 Hoover, Kuhlert)., 267. 
 Hoover v. Samaritan Society, 375. 
 Horbach v. Gray, 64. 
 Horbach's Administrators v. Elder, 133. 
 Hornby, Clarendon v., 152. 
 Horton's Appeal, 177, 519. 
 Howell, Wharf t)., 286. 
 How, Pidding v., 254. 
 Howse V. Chapman, 330. 
 Howser, Wilson v., 110. 
 Hoyt, Gelston v., 383. 
 Hoyt V. Thompson, 301. 
 Huber, Ley v., 205, 207. 
 
 Hubert, Murphy v., 267. 
 
 Huddlestone v. Briscoe, 218. 
 
 Hudson V. Barrett, 174. 
 
 Hugg and Bell's Estate, 534. 
 
 Hughes, Voyle v., 298. 
 
 Huguenin v. Baseley, 100. 
 
 Hugua V. Walker, 199. 
 
 Huling, Drexel v., 291. 
 
 Huling, Hewitt v., 39, 40. 
 
 Hultz V. Wright, 67. 
 
 Hume V. Winyaw and Wando Canal Co., 
 
 172. 
 Humes v. M'Farlane, 300. 
 Humphreys v. Humphreys, 270. 
 Hunt, M'Fadden v., 133, 183. 
 Hunt V. Moore, 63, 73. 
 Hunt V. Penrice, 475. 
 Hunt a. Eousmaniere, 62, 282. 
 Hunter v. Marlboro, 560. 
 Hunters, Bryant v., 320. 
 Hurst's Lessee v. Kirkbride, 65. 
 Huston V. Hamilton, 338. 
 Huston V. Wickerham, 294. 
 Hutchinson, M'Clure v., 113, 29-5. 
 
 Ingersoll, Naglee v., 128. 
 
 IngersoU, Sergeant v., 113, 116, 128, 389. 
 
 Ingham, Simpson v., 124. 
 
 Ingraham u. Cox, 292. 
 
 Ingraham, Gordon v., 449. 
 
 Innes v. Lansing, 616. 
 
 Insip, Bray broke v., 209. 
 
 Insurance Co., Duffy v., 370, 372. 
 
 Insurance Co. of North America v. Jones, 
 
 131. 
 Insurance Co. of North America v. Union 
 
 Canal Co., 65, 66, 187, 189, 288. 
 Insurance Co. v. Updegraff, 77. 
 Irnham v. Child, 62. 
 Irvine v. Bull, 38, 46, 195. 
 Irvine v. Covode, 118, 238. 
 Irvine v. Hanlin, 119. 
 Irving, Natusch v., 169. 
 Irwin, Ewart v., 54, 291. 
 Irwin, Remington v., 203. 
 Irwin V. Tabb, 289. 
 Isaacs, Sutcliff i'., 250, 252. 
 Israel, Dodge v., 526. 
 
 Jack, Dougherty v., 117, 294. 
 Jackman v. Mitchell, 78. 
 .lackman v. Ringland, 340, 341. 
 Jacks t). Nichols, 620. 
 Jackson v. Edwards, 153. 
 Jackson, Juvenal v., 389. 
 Jackson, Sadler v., 78. 
 Jackson p. Summerville, 389. 
 Jacques v. Weeks, 114, 287. 
 James v. Johnston, 289. 
 
TABLE OF CASES. 
 
 XXI 
 
 Jamesson, Thompson v., 196. 
 
 Jamison, Seatou v., 150. 
 
 .Tanssen, Chesterfield v., 70. 
 
 .Jarden v. The Philadelphia, Wilmington 
 
 and Baltimore Railroad Co., 251, 252. 
 Jeanes v. Friedenberg, 385. 
 .Jeffries, Gowan v., 176, 612, 616, 617, 
 
 618, 619. 
 .Jenkins v. Eldridge, 522, 558, 561. 
 Jenkins v. Jenkins, 145, 632. 
 Jeoks (>. Fritz, 68, 64. 
 Jenks, Thomas v., 112. 
 Jervoise v. Northumberland, 209. 
 Jew V. Wood, 231. 
 John, Lockhart v., 638. 
 Johns, Bolton v., 114, 389. 
 Johns V. Erb, 537, 540. 
 Johnson v. Lines, 83. 
 Johnson, M'Kensie v., 126. 
 Johnson's Appeal, 356, 360, 631, 632. 
 Johnson v. Swan, 330. 
 Johnston, James v., 289. 
 Jones' Appeal, 856, 359, 360. 
 Jones, Cassel v., 49. 
 Jones V. Conoway, 480. 
 Jones V. Dunn, 136. 
 Jones, Gibson v., 99. 
 Jones, Insurance Co. v., 131. 
 Jones, Lewis v., 245. 
 Jones V. Fennel, 200. 
 .Jones ('. Peterman, 198, 199. 
 Jones, Preston v., 311, 312. 
 Jones, SmuU v., 91. 
 Jones V. Thomas, 99. 
 Jones V. Whitehead, 238, 239, 245. 
 .Jones V. Williams, 330. 
 Jones V. Wood, 306. 
 Jordan v. Cooper, 38. 
 Jordan, Gearhart v., 161, 164. 
 .Jordan, Wilkins v., 263. 
 Joy V. Wirtz, 411, 412, 415. 
 Justice, Barrington v. , 245. 
 Juvenal v. Jackson, 389. 
 Juyenal v. Patterson, 389. 
 
 Kaohlein's Appeal, 644. 
 Kaine v. Weigley, 71. 
 K;auffelt V. Bower, 348. 
 Kaufman, v. Crawford, 274, 352. 
 Kearney, Stewart v., 112. 
 Keck, Laua v., 858. 
 I^eeler ;;. Vantuyle, 352. 
 Keeney v. Good, 374. 
 Keisel !'. Earnest, 119. 
 Keisselbrook, Livingston w. , 66. 
 Ifekewich v. Manning, 297, 298. 
 Keller, Himes v., 132. 
 Kellogg V. Slauson, 112. 
 Kelly, Borrow v., 290. 
 
 Kelly, Guier v., 128, 137, 630. 
 
 Kelly, Lea v., 563. 
 
 KeUy V. Rogers, 457. 
 
 Kelly's Appeal, 179. 
 
 Kelsey v. Western, 427, 494. 
 
 Kendall, Davis v., 253. 
 
 ICendall, Ex parte, 1G2. 
 
 Kennedy v. Fury, 36. 
 
 Kennedy v. Ware, 211, 298. 
 
 Kenneys v. Hansard, 204. 
 
 Kenworthy v. Bute, 307. 
 
 Keppele, Lang v. 41. 
 
 Kerns, Ter Hoven v., 289. 
 
 Kerr v. Day, 210, 213, 346. 
 
 Kerr v. Gilmore, 287. 
 
 Keystone Insurance Co., Hartman v., 77. 
 
 Keyzey's Appeal, 141. 
 
 Killmer, Baney v., 317. 
 
 Kimmel, Konigmacher v., 356. 
 
 King V. Clark, 556. 
 
 King V. Diehl, 43. 
 
 King V. Gorsline, 299. 
 
 King's Estate, 323. 
 
 King, Truscott v., 289, 293. 
 
 King, Vint J)., 8.5, 151, 187, 190, 267, 
 
 269, 297, 519. 
 England, Bredin?;., 119. 
 Kinkelin, Shaffer v., 385, 387. 
 Kinley v. Hill, 290, 293. 
 Kinley, Perry v., 458, 492, 626. 
 Kintzing v. M'Elrath, 76. 
 Kirkbride, Hurst's Lessee v., 65. 
 Kirkpatrick v. M'Donald, 49, 267, 273, 
 
 338, 460, 504. 
 Kirkpatrick v. White, 471. 
 Kisler v. Kisler, 338, 839, 344. 
 Kittera's Estate, 161, 629, 630. 
 Klapp, Shirk v., 296. 
 Kline, Columbia Bridge Co. v., 93 
 Knauff, Miller t)., 183. 
 Knight's Appeal, 637. 
 Knox V. Campbell, 126. 
 Knox (.. Flack, 86, 83, 84, 377. 
 Knox, Moatz v., 538. 
 Konigmacher v. Kimmel, 356. 
 Koons, Carpenter v., 130. 
 Koons, Parrish v., 189, 196, 518. 
 Kramer v. Arthurs, 180, 181, 389. 
 Krebs v. The Directors of the Carlisle 
 
 Bank, 173, 417. 
 Kreider, Greenawalt «. 107. 
 Kuhler v. Hoover, 267. 
 Kuhn, Cuthbert v., 128. 
 Kunkle, Biiler v., 86, 88. 
 Kyle, Allen v., 885, 387. 
 Kymer, Taylor «., 124. 
 
 Lacon v. Waters, 212. 
 Laidlaw v. Organ, 76. 
 
XXll 
 
 TABLE OF CASES. 
 
 Lancaster Bank v. Myley, 18L 
 
 Lancaster Co. Bank v. Albright, 76, 77. 
 
 Lancaster, Dolan v., 84, 117, 307, 375. 
 
 Lane v. Stebbins, 382. 
 
 Lang V. Keppele, 41. 
 
 Langolf i'. Seiberlitch, 169, 258, 414, 
 
 415, 417, 613. 
 Langton, Lessig v., 261, 262. 
 Lanning v. Smith, 290, 501. 
 Lansing, Jones v., 616. 
 Lantz, Bruch v., 104, 327. 
 Lapsley, Sickman v., 112. 
 Large v. Bristol Transportation Co., 392, 
 
 445. 
 Larison v. Burt, 206, 215. 
 La Rue v. Gilkyson, 80. 
 Lathrop, Craft v., 27. 
 Lathrop's Appeal, 133. 
 Latimer's Estate, 139. 
 Latshaw, Stauffer v., 82. 
 Laua V. Keck, 358. 
 Laughlin, M'Aninch v., 60. 
 Law V. Ford, 615. 
 La-w V. Mills, 113. 
 Lawrence v. Lawrence, 315. 
 Lawrence, M'Dermot v., 179, 181. 
 Lawrence, Trevanuion v., 313. 
 Lazarus v. Bryson, 104. 
 Lea V. Kelly, 563. 
 Leach v. Agnew, 83. 
 Leavit, Nicholson v., 112. 
 Leavit v. Palmer, 62. 
 Lecky, M'Clurg «., 112. 
 Lee V. Gibbons, 37. 
 Lee V. Lee, 199. 
 Lee V. Tieruan, 273, 346. 
 Leggett, Bell »., 94. 
 Leggett V. Dubois, 341. 
 Lehigh Bridge Co. v. Lehigh Coal and 
 
 Navigation Co., 403. 
 Lehigh Coal and Navigation Co., Lehigh 
 
 Bridge Co., v., 403. 
 Lehr v. Beaver, 27, 42. 
 Leinaweaver v. Stoever, 148. 
 Leisenring v. Black, 102. 
 Lennig, Borough of Frankfort v., 247. 
 Lenox, M'Call v., 44. 
 Lent, Eagle Fire Co. v., 294. 
 Lentz V. Hertzog, 323. 
 Lerch, Miller v., 334, 338. 
 Leslie, Craig «., 211. 
 Lessig t). Langton, 261, 262. 
 Le Texier v. Anspach, 384. 
 Levy, North American Ins. Co. v., 117. 
 Lewis, Bevan v., 176. 
 Lewis V. Bradford, 389, 396, 485. 
 Lewis, Frewin v., 257. 
 Lewis V. Jones, 245. 
 Lewis, Rush v., 275. 
 
 Lex, Witman v., 329, 331, 332, 333. 
 
 Ley V. Huber, 205, 207. 
 
 Libenguth, Moser v., 65. 
 
 Light V. Light, 61, 148, 317. 
 
 Light's Appeal, 543, 573, 636. 
 
 Lincoln v. Arcedeokne, 209. 
 
 Lindley, Tomlinson v., 520. 
 
 Lines, Johnson v., 83. 
 
 Lining v. Peyton, 327. 
 
 Linker v. Smith, 89. 
 
 Linn, Wright »., 330. 
 
 Linton, TroUope v., 308. 
 
 Lisle V. Croasdell, 461. 
 
 Lister, Sikes j;.,-_212. 
 
 Listen, Buxton v., 218. 
 
 Litchfield v. White, 113. 
 
 Little, Davidson «., 85, 108, 109, 191, 
 
 206. 
 Little, Wood v., 152. 
 Livingston v. Bell, 295. 
 Livingston, Keisselbrock v., 66. 
 Livingston v. Livingston, 503. 
 Lloyd V. Brewster, 437. 
 Lloyd V. Carter, 340. 
 Lloyd, Ross v., 386. 
 Loan Co. v. Elliott's Executors, 38. 
 Lobach's Case, 351. 
 Lockhart v. John, 638. 
 Lockhart, Stroud v., 114. 
 Lookwood V. Thorne, 135, 136. 
 Lofebury, Winged v., 212. 
 Logan V. Mason, 124. 
 Lomax v. Ripley, 310. 
 Long, Anderson's Executors v., 43. 
 Long, Commissioners v., 246, 247. 
 Long V. Fitzimmons, 119. 
 Long V. Long, 308. 
 Lougstrath, Taylor c, 190. 
 Longwell v. Bently, 212. 
 Loomis's Appeal, 141, 649. 
 Lord, Candee v., 513. 
 Lothrop, Magaw v., 207, 553. 
 Lousey, Whitehill v., 88. 
 Lowes V. Lush, 209. 
 Lowry v. Mehaffy, 218. 
 Lowther v. Lowther, 205. 
 Lucas, Wolbert r., 389. 
 Luckenbach v, Erickenstein, 392. 
 Ludlam's Estate, 049. 
 Ludwick V. Com. 370. 
 Ludwig ('. Highley, 392. 
 Lukens' Appeal, 97, 357, 358, 359. 
 Lumley v. Wagner, 250. 
 Lush, Lowes v., 209. 
 Lutheran Congregation, Weokerly d., 92. 
 Lyle V. Duoomb, 289. 
 Lyle, Sims t'., 60, 473. 
 Lynch, Benedict v., 189. 
 Lynch v. Cox, 207, 341. 
 
TABLE OF CASES. 
 
 XXIU 
 
 Lyons v. Divelbis, 299. 
 
 M'Anincli v. LaugUin, 60. 
 
 M'Call V. Lenox, 44. 
 
 M'Canless v. Coolbaugh, 243, 439. 
 
 M'Carty, Bellas v., 114, 389. 
 
 M'Caskey v. Graff, 74. 
 
 M'Clure, Hutchinson v., 113, 295. 
 
 M'Clure v. M'Clure, 297. 
 
 M'Clurg, Chamberlain v., 74. 
 
 M'Clurg V. Lecky, 112. 
 
 M'Couaughy's Executors, Morris' Exe- 
 cutors v., 36. 
 
 M'Cosker, Brady v., 429, 590. 
 
 M'Coy, Speise v., 117. 
 
 M'Crelish v. Churchman, 189. 
 
 M'CuUoch V. Cowher, 115, 345. 
 
 M'CuUough, Duncan «., 74. 
 
 M'CuUough, Wilson v., 283. 
 
 M'CuUough's Appeal, 89. 
 
 M'Cutchen v. Nigh, 45. 
 
 M'Dermot «. Lawrence, 179, 181. 
 
 M'Donald, Eirkpatrick w. , 49, 267, 273, 
 338, 460, 504. 
 
 M'Elrath, Kintzing v., 76. 
 
 M'Elroy, Montgomery v., 850. 
 
 M'Ewen, Burr v., 276, 356. 
 
 MTadden v. Hunt, 133, 183. 
 
 M'Fadden v. Sallada, 133, 134. 
 
 M'Farlane, Humes v., 800. 
 
 M'Farson's Appeal, 210, 218, 221. 
 
 M 'Garry v. Crispin, 404. 
 
 M'Gill, Heft »., 407. 
 
 M'Ginnis's Appeal, 161. 
 
 M'Glensey v. Cox, 177. 
 
 M'Gowin V. Remington, 121, 185, 186, 
 380. 
 
 M'Gunigal v. Mong, 98. 
 
 M'llree v. Guy, 299. 
 
 M 'Ilvaine v. Gethen, 89. 
 
 M'Kee v. Gilchrist, 111. 
 
 M'Kee v. M'Kee, 218, 220, 223. 
 
 M'Kee v. Phillips, 198. 
 
 M'Kee's Executors v. Com., 125. 
 
 M'Keehan, Pierce v., 273, 392. 
 
 M'Keenan v. Phillips, 372. 
 
 M'Kelvy v. De Wolfe, 184. 
 
 M'Kenzie v. Johnson, 126. 
 
 M 'Kinney v. Rhoads, 296. 
 
 M'Kinney, Ross v., 46. 
 
 M'Kissick v. Pickle, 270, 300. 
 
 M'Konkey's Appeal, 306. 
 
 M'Kowan, Meaner v., 219. 
 
 M'Lanahan v. M'Lanahan, 350. 
 
 M'Laughlin, Edgell v., 92. 
 
 M'Lean, Buckingham v., 573. 
 
 M'Makin, Holden's .i^ministrators v., 
 182, 183, 256, 563, 616, 617. 
 
 M'JIunn V. Carothers, 227. 
 
 JI'Nair's Appeal, 360. 
 
 M'Pherson v. Cunliff, 313, 543. 
 
 Macferlan, Moses v., 37. 
 
 Macon, Garnett v., 190, 327. 
 
 Madeira, Bickert v., 270, 284, 285, 288. 
 
 Maderia, Hiester v., 286. 
 
 MafFett, Cambioso v., 92. 
 
 Magaw V. Lothrop, 207, 553. 
 
 Magaw's Appeal, 649. 
 
 Magill V. Brown, 328, 329, 330, 333, 336. 
 
 Magniac v. Thompson, 282. 
 
 Hagniac v. Thomson, 60, 425. 
 
 Magnus, Steinman v., 78. 
 
 Magoffin v. Patton, 367. 
 
 Mahon v. Gormly, 84, 377. 
 
 Mahoning NaTigation Co., Grubb v., 403. 
 
 Main, Minturn v., 91. 
 
 Malin v. Malin, 411. 
 
 Malins v. Brown, 198. 
 
 Mange v. Guenat,' 186. 
 
 Man, Helmbold v., 293. 
 
 Manning, Kekewich v., 297, 298. 
 
 Jlansells' Estate, 142. 
 
 Manufacturers' and Mechanics' Bank v. 
 
 Bank of Pennsylvania, 106, 287. 
 Many v. Beekman Iron Co., 468. 
 Marberger v. Pott, 107. 
 Marbury, Brooks v., 296. 
 March v. Davidson, 383. 
 Maries v. Maries, 423. 
 JIarion Beneficial So. v. Drake, 172. 
 Marks, Stansbury v., 27. 
 Marlboro, Hunter v., 560. 
 Marshall, Dinkle v., 65. 
 Marshall v. HofF, 143. 
 Marshall, Slocum v., 96. 
 Marshall v. Union Insurance Co., 77. 
 Marten v. Van Schaick, 615. 
 Martin, Faure v., 64, 66. 
 Martin, Gibson v., 618. 
 Martin v. Mitchell, 204. 
 Martin, Youst v., 389. 
 Martz, Patterson v., 192. 
 Marvin v. Seymour, 563. 
 Mason v. Connell, 177. 
 Mason, Logan v., 124. 
 Mason's Estate, 141, 351. 
 JIassey v. Banner, 126. 
 Jlassie v. Watts, 194. 
 Mateer, Com. v., 413. 
 Mateer v. Hissim, 110. 
 JIathers, Lessee of, v. Akewright, 36, 44. 
 Mathers v. Pearson, 87. 
 Mathews v. Stephenson, 27, 35, 411, 
 
 412, 421. 
 Mathiot, Auwerter v., 48. 
 Matlack, Baker v., 92. 
 Mattheys, Cooper v., 259. 
 Maurer v. Mitchell, 93. 
 
XXIV 
 
 TABLE OF CASES. 
 
 Mayer, Hay v., 306. 
 
 Mayor of N. Y. v. Schermerhorn, 563. 
 
 Mayor of Philadelphia, Sharpless©., 170. 
 
 Mead v. York, 293. 
 
 Meaner v. M'Kowau, 219. 
 
 Mecke, Wetherill v., 84, 209, 395. 
 
 Meconkey v. Rogers, 188. 
 
 Meetoh, Miller ti., 214. 
 
 Megarge v. Bate, 442. 
 
 Mehaify, Lowry«., 218. 
 
 Melizet's Appeal, 149, 317. 
 
 Mellon V. Campbell, 186. 
 
 Menck, Partridge v., 253. 
 
 Mengas's Appeal, 547, 647, 648, 649. 
 
 Mentzer, Hayden v., 328. 
 
 Mentzer, Riddlesberger v., 193, 223. 
 
 Merrick's Estate, 358. 
 
 Merwin, Gilder v., 49, 241. 
 
 Messere, Ortley v., 410. 
 
 Methodist Church v. Remington, 331, 
 
 333, 384, 335, 886. 
 Metts' Appeal, 139. 
 Metts, Butcher v., 38, 46. 
 Meney's Appeal, 130. 
 Middleton o. Middleton, 280. 
 Middleton, Welles v., 98. 
 Mills V. Stevens, 63, 64. 
 Miller, Bracken v., 114, 116, 278, 890. 
 Miller ti. Com., 125. 
 Miller, Com. v., 106. 
 Miller, Cresson v., 800. 
 Miller v. Ege, 142. 
 Miller, Frisch v., 106. 
 Miller v. Henderson, 67. 
 Miller, Hills v., 251. 
 Miller, Hilly ardw., 834. 
 Miller v. Knauflf, 183. 
 Miller v. Lerch, 334, 338. 
 Miller v. Meetch, 214. 
 MiUer, Neff t>., 161, 164, 166. 
 Miller v. Pearce, 338, 345. 
 Miller, Roland v., 47. 
 Miller, Zerbe v., 111. 
 Milligan v. Milledge, 412. 
 Millington v. Fox, 552. 
 Mills, Law v., 113. 
 Miltenberger v. Schlegel, 351, 630. 
 Jlinturn v. Main, 91. 
 Minturn v. Seymour, 264. 
 Mitchell V. Hamilton, 294. 
 Mitchell V. Hayne, 282. 
 Mitchell, Jackman v., 78. 
 Mitchell, Martin v., 204. 
 Mitchell, Maurer v., 93. 
 Mitchell J). Stiles, 112. 
 Mittower, Zentmyer i\, 65, 348. 
 Moat, Morison v., 255. 
 Moatz ii. Knox, 538. 
 Moderwell v. Mullison, 180. 
 
 Mode's Appeal, 348, 349. 
 
 Moers v. City of Reading, 170. 
 
 Moffit, Forbes v., 294. 
 
 Mohawk Bank, Schermerhorn v., 563. 
 
 Mohler's Appeal, 130. 
 
 Moliere v. Penn. Fire Insurance Co., fio. 
 
 MoUoy, Cornelius v., 74. 
 
 Moncure v. Hanson, 301. 
 
 Mong, il'Gunigal v., 98. 
 
 Montesquieu v. Sandys, 99. 
 
 Montgomery, Benedict v., 372. 
 
 Montgomery, Cameron v., 295. 
 
 Montgomery v. M'Elroy, 350. 
 
 Moody V. Vandyke, 104. 
 
 Moody V. Walters, 209. 
 
 Moon, Gillespie v., 66. 
 
 Moore, Biddleu., 438. 
 
 Moore v. Bray, 165. 
 
 Moore, Croft v., 133. 
 
 Moore, Garrison v., 128. 
 
 Moore, Hunt v., 63, 73. 
 
 Moore v. Moore, 103, 346. 
 
 Moore, Palmer v., 72. 
 
 Moore i: Small, 195, 196, 197, 193. 201, 
 211, 219. 
 
 Moore r. Usher, 232. 
 
 Moore, Wesley Church v., 49. 
 
 Mordant, Noyes v., 311. 
 
 Morgan, Bujac v., 443. 
 
 Morgan, Henry v., 114. 
 
 Morgan, Pearson v., 73. 
 
 Morgan's Appeal, 113. 
 
 Morison v. Moat, 255 . 
 
 Moroney's Appeal, 289. 
 
 Morrell, Woods v., 5C3. 
 
 Morris' Executors v. M'Conaughy's Exe- 
 cutors, 36. 
 
 Morris v. Grifath, 129. 
 
 Morris, King of France r., 119. 
 
 Morris v. Nixon, 518. 
 
 Morris v. Oakford, 183, 164. 
 
 Morris v. Olwine, 161. 
 
 Morris !>. Remington, 173, 194, 249. 
 
 Morris, Thatcher v., 94. 
 
 Jlorris v. Wallace, 357. 
 
 Morris, Wharton v., 35. 
 
 Morrison v. Deaderick, 301. 
 
 Morrow v. Brenizer, 213. 
 
 Morte, Alice c, 53. 
 
 Mortimere, Rankin v., 60, 28G. 
 
 Morton, Oakley «., 206. 
 
 Jloser !'. Libenguth, 65. 
 
 Moses )'. JIacferlan, 87. 
 
 JIoss V. Hanson, 207. 
 
 Mothlan.l v. Wireman, 143. 
 
 Mountain r. Bennett, 204. 
 
 Mount Vernon Bsjink v. Stone, oo9. 
 
 Moyer o. Germautown Railroad Co., 47. 
 
 Jloyer v. Scliich, 362 
 
TABLE OF CASES. 
 
 XXV 
 
 Mulgrave, Sheffield v., 209. 
 
 MuUisoii, Moderwell v., 180. 
 
 Muncy, Reed v., 47. 
 
 Munford, Alston v., 141. 
 
 Jlunn, Worrell v., 218. 
 
 Munt V. Shrewsbury and Chester Eail- 
 
 way Co., 169. 
 Murphy v. Hubert, 267. 
 Murphy, Riddle v., 481. 
 Murphy, Wilson v., 293. 
 Murray v. Philips, 554. 
 Mussy, Duponti r., 513. 
 Myers' Appeal, 102, 343, 346. 
 Myers v. Entriken, 358. 
 IMyley, Lancaster Bank v., 181. 
 Mylins' Estate, 636, 645. 
 
 Naohtrieb i-. The Harmony Settlement, 
 101. 
 
 Naglee v. IngersoU, 128. 
 
 Nagle's Appeal, 305. 
 
 Nailer v. Stanley, 130. 
 
 Nargan, Shrider v., 114. 
 
 Nathans, Pott;;., 133. 
 
 National Bank, Pollock v., 426, 603. 
 
 Natusch V. Irving, 169. 
 
 Neal, Sheriif J)., 345. 
 
 Neel V. Neel, 49, 238, 461, 549. 
 
 Neff, Bird v., 227, 232. 
 
 Neff t). Miller, 161, 164, 166. 
 
 Neff's Appeal, 107. 
 
 Neile, Plummer c, 312. 
 
 Neisly's Appeal, 97. 
 
 Nesmith v. Drum, 298, 299. 
 
 Newbaker v. Alrioks, 160. 
 
 Newcomer, Dustin »., 216. 
 
 Newenham, Devonsher v., 466. 
 
 Newman, Bell i>., 178. 
 
 Newport v. Cook, 366. 
 
 Nichols, Borland v., 148. 
 
 Nichols, Jacks v., 520. 
 
 Nichols V. Postlethwaite, 349. 
 
 Nichols, Scales?)., 561. 
 
 Nicholson v. Leavitt, 112. 
 
 Nicholson's Appeal, 363. 
 
 Nickle, Brown v., 287. 
 
 Nigh, M'Cutcheon v., 45. 
 
 Nixon, Morris v., 518. 
 
 Nock, Sage v., 159. 
 
 Noel, Ord v., 204. 
 
 North American Insurance Co. v. Levy, 
 117. 
 
 North American Land Co., GOmore v.. 
 110. 
 
 North V. Turner, 301. 
 
 Northern Liberties v. The Gas Com- 
 pany, 170. 
 
 Northumberland, Jervoise v., 209. 
 
 Norton, People v., 618. 
 
 Norton, Witman v., 349. 
 
 Norvell, Postmaster General v., 122, 125. 
 
 Noyes v. Mordant, 311. 
 
 Nyces' Estate, 356, 357. 
 
 Oakford, Morris v., 161. 
 Oakford's Estate, 555. 
 Oakley v. Morton, 206. 
 O'Brien, Brown v., 238. 
 O'Conner, Haines v., 344, 345. 
 O'Connor, Wain v., 245. 
 O'Harra, Ferguson v., 473. 
 O'Hern, Cochran v., 84, 375. 
 Oliver v. Piatt, 344. 
 Oluey, Dunn v., 130, 161, 163, 166. 
 Olwine, Morris v., 161. 
 Ord V. Noel, 204. 
 Orford, Walpole v., 218. 
 Organ, Laidlaw v., 7G. 
 Ortley v. Messere, 410. 
 Osgood V. Franklin, 204. 
 Owen V. Homan, 106. 
 Oxenford, Sheppard v., 176. 
 Oyster, Bowen v., 288. 
 Ozias, Fricke v., 200. 
 
 Packer v. Sunbury and Erie Railroad 
 
 Co., 170. 
 Page, Ex parte, 321. 
 Painter v. Henderson, 104. 
 Palmer v. Graham, 90, 185, 186, 256. 
 Palmer, Leavitt v., 62. 
 Palmer v. Moore, 72. 
 Palmer v. Wheeler, 308. 
 Parke, Vaux v., 270. 
 Parker v. Wells, 198. 
 Parkhurst i'. Devine, 517. 
 Parmentier v. Gillespie, 289. 
 Parrish v. Koons, 189, 196, 518. 
 Partridge, Clark r., 38, 67. 
 Partridge v. Clarke, 38, 67. 
 Partridge v. Menck, 253. 
 Partridge, Turner t;., 407. 
 Passmore, Tyson v., 73. 
 Patterson v. Boehm, 78. 
 Patterson v. Forry, 348. 
 Patterson, Juvenal v., 389. 
 Patterson v. Martz, 192. 
 Patterson v. Robinson, 84, 377. 
 Patterson's Appeal, 649. 
 Patterson v. Wilson, 47. 
 Patton, Magoffin v., 367. 
 Patton, Yard v., 132, 206, 210, 211. 
 Paul V. Vannie, 128. 
 Paul V. Wilkins, 212. 
 Pearce, Miller v., 338, 345. 
 Pearson, Mathers v., 37. 
 Pearson v. Morgan, 73. 
 Peck V. Ward, 375. 
 
XXVI 
 
 TABLE OF CASES. 
 
 Peebles v. Baggs, 881, 386, 446, 456. 
 
 Peebles v. Reading, 189, 190. 
 
 Peirce v. West's Executors, 501, 511. 
 
 Pembroke, Baden v., 212. 
 
 Pennell, Jones v., 200. 
 
 Penn. Fire Ins. Co., Moliere v., 1)5. 
 
 Penn. Life Ins. Co., Campbell v., 104. 
 
 Pennock v. Freeman, 187, 191, 480. 
 
 Pennook's Appeal, 91, 104. 
 
 Pennock's Estate, 310. 
 
 Pennsylvania Coal Co., Delaware and 
 Hudson Canal Co. v., 170, 425, 426. 
 
 Pennsylvania Railroad Co. v. Canal Com- 
 missioners, 170, 252. 
 
 Pennypacker ». Umberger, 122. 
 ' Penrice, Hunt v. 475. 
 
 People 11. Norton, 618. 
 
 Pepper v. Bavington, 358. 
 
 Pepper's Will, 329, 333. 
 
 Perdriaux, Bank v., 443. 
 
 Peries, Aycinena v., 47, 48, 438. 
 
 Perkins, Bisooe v., 209. 
 
 Perkins, Brown v., 483. 
 
 Perkins v. Fourniquet, 563. 
 
 Perrine, Susquehanna Ins. Co. v., 77. 
 
 Perry, IJrinton v., 637. 
 
 Perry, Cochran v., 177. 
 
 Perry v. Kinley, 458, 492, 626. 
 
 Perry's Appeal, 130, 284. 
 
 Peterman, Jones v., 198, 199. 
 
 Petrie v. Clark, 142, 143. 
 
 Petriken v. Collier, 526. 
 
 Peyton, Lining v., 327. 
 
 Philips V. Belden, 135. 
 
 Philips V. Crammond, 273, 341, 343, 344.' 
 
 Philips, Murray v., 554. 
 
 Philips V. Thompson, 202. 
 
 Phillips V. Gregg, 323, 342. 
 
 PhilUps, M'Kee v., 198. 
 
 Phillips, M'Kennan v., 372. 
 
 Phillips V. Tapper, 136. 
 
 Phmips, Thomas v., 301. 
 
 Pheenix Insurance Co., Vale v., 77. 
 
 Piatt, Oliver v., 348. 
 
 Pickering v. Shotwell, 330, 332. 
 
 Pickle, M'Kissick v., 290, 3C0. 
 
 Pidcock V. Bishop, 76. 
 
 Pidcock t'. Bye, 47. 
 
 Pidding v. How, 254. 
 
 Pierce, Coolbaugh v., 46. 
 
 Pierce v. M'Keehan, 273, 392. 
 
 Pirn V. Downing, 356. 
 
 Piper's Appeal, 235. 
 
 Pittsburgh and Connelsville Railroad 
 Co., Com. v., 170, 352. 
 
 Plitt, Ex parte, 100. 
 
 Plumer 4). Robertson, 114, 352. 
 
 Plummer v. Neile, 312. 
 
 Pollard V. Shaafer, 27. 
 
 Pollock V. National Bank, 426, 603. 
 
 Pooley V. Budd, 185. 
 
 Porter v. English, 510, 522, 549, 550. 
 
 Porter, Rankin v., 104, 346. 
 
 Portsmouth, Earl of, Baxter v., 80. 
 
 Postlethwaite, Nichols «., 349. 
 
 Postmaster General v. Norvell, 122, 125. 
 
 Potius, Bank of Pennsylvania v., 133. 
 
 Pott, Marberger v., 107. 
 
 Pott V. Nathans, 153. 
 
 Potts's Case, 367. 
 
 Poulter, Charlton v., 176. 
 
 Powles t). Hargreaves, 163. 
 
 Presbyterian Corporation v, Wallace, 285. 
 
 Preston v. Jones, 311, 312. 
 
 Prevosttj.Gratz, 103,105,339,345, 560. 
 
 Price V. Berrington, 72. 
 
 Prosser v. Edmunds, 301. 
 
 Proud, Wright v., 98. 
 
 Pugh V. Good, 198. 
 
 PuUen, Dalby v., 210. 
 
 Pusey V. Clemson, 277. 
 
 Pyrke v. Waddingham, 208, 209. 
 
 Quain's Appeal, 649. 
 Quigley, Sandback v., 150. 
 
 Ragan's Estate, 155, 157. 
 
 Railroad Co., Handy v., 112. 
 
 Ramsey v. Riddle, 247. 
 
 Ramsey's Appeal, 555. 
 
 Randall v. Silverthorn, 311. 
 
 Randolph v. Barbour, 5G9. 
 
 Rangler's Appeal, 211, 212, 346. 
 
 Rankin v. Mortimere, 60, 286. 
 
 Rankin v. Porter, 104, 346. 
 
 Rankin v. Simpson, 200. 
 
 Raub, Eakin v., 348. 
 
 Ravenel, Fontaiu v., 328, 329, 331, 333. 
 
 Read v. Consequa, 263. , 
 
 Bead v. Robinson, 210. 
 
 Reading, Peebles v., 189, 190. 
 
 Rearich v. Swinehart, 65. 
 
 Redsecker, Fisher v., 237. 
 
 Reed v. Dickey, 389. 
 
 Reed v. Muncy, 47. 
 
 Reed v. Reed, 198. 
 
 Reed's Appeal, 391. 
 
 Reed v. Ward, 123, 128. 
 
 Beitzel, Com. v., 125. 
 
 Remington v. Irwin, 203. 
 
 Remington, M'Gowin v., 121, 185, IMi, 
 
 380. 
 Remington, Methodist Church v., 331, 
 
 3:!3, 334, 835, 338. 
 Remington, Morris v., 173, 194, 249. 
 Rt'nshaw v. Cans, 38, 2(..S. 
 Respublica v. Coates, 41. 
 Rhoads' Estate, 129. 
 
TABLE OF CASES. 
 
 XXVU 
 
 Ehoads, M 'Kinney v., 296. 
 
 Rice, Everly v. , 107. 
 
 Kickert v. Madeira, 270, 284, 285, 288. 
 
 Riddle v. Murphy, 481. 
 
 Riddle, Ramsey v., 247. 
 
 Riddle's Estate, 823, 596, 644. 
 
 Riddlesberger v. Mentzer, 193, 223. 
 
 Eidgway's Appeal, 181. 
 
 Ridgway, Seitzinger v., 27, 35, 40. 
 
 Ridgeway v. Underwood, 110. 
 
 Rife V. Galbreath, 637. 
 
 Riley v. Ellmaker, 241. 
 
 Eingland, Jackman v., 340, 342, 
 
 Ripley, Lomax v., 310. 
 
 Ripley v. Waterworth, 179. 
 
 Ripple V. Ripple, 849. 
 
 Roberts, Coates v., 227, 229. 
 
 Roberts v. DixaU, 308. 
 
 Roberts v. Halstead, 299. 
 
 Roberts, Strimpfler o., 389, 340, 342, 343. 
 
 Robertson, Plumer d., 114, 352. 
 
 Robertson v. Robertson, 339, 344. 
 
 Robinson, Bennett v., 89. 
 
 Robinson, Cathcart v., 116. 
 
 Robinson v. Cathcart, 59, 494, 501, 519, 
 
 529. 
 Robinson, Catlin v., 294. 
 Robinson v. Eldridge, 43. 
 Robinson, Patterson ?•., 84, 377 . 
 Robinson, Read v., 210. 
 Robinson v. Whitely, 321. 
 Rodgers v. Gibson, 391. 
 Rogers, Kelly v., 457. 
 Rogers, Meoonkey v., 188. 
 Rogers v. Smith, 65, 409, 530, 686. 
 Rogers v. Walker, 79. 
 Rogers, Whitfield v., 247, 250. 
 Roland v. Miller, 47. 
 Roland, Tiernan v., 115, 190, 206, 207, 
 
 208, 210, 221, 318. 
 Eonnell v. Barnett, 321. 
 Rose V. Conyngham, 212. 
 Rosendale Manufacturing Co., Bogardus 
 
 v., 411, 413, 416, 457, 458. 
 Ross V. Barclay, 804. 
 Ross V. Lloyd, 386. 
 Ross V. M'Kinny, 46. 
 Rousmaniere, Hunt v., 62, 282. 
 Rowan, Harrison v., 52, 121, 410, 460, 
 
 539. 
 Rowland, Coleman v., 73, 88. 
 Rowley, County of Allegheny!;., 171. 
 Royers' Appeal, 868, 555. 
 Rue, Hibbs v., 107. 
 Ruffuer, Weltz »., 115. 
 Eumbaugh, Goodyear v., 84, 375. 
 Rush, Attorney-General v., 171. 
 Rush, Collins v., 46. 
 Rush, Com. v., 241, 247, 
 
 Rush V. Lewis, 275. 
 Rushworth v. Dwyer, 93. 
 Russel's Appeal, 287. 
 Rutherford, Fisher v., 590. 
 Rutland and Burlington Railroad Co., 
 Stevens v., 168, 169, 170. 
 
 Sackett v. Twining, 159. 
 
 Sadler v. Jackson, 78. 
 
 Saeger v. Wilson, 103, 345. 
 
 Sage V. Nock, 159. 
 
 Sailor v. Hertzog, 114, 115. 
 
 Sallada, M'Fadden v., 133, 134. 
 
 Salmon v. Hamburg Company, 172. 
 
 Saltzman, Smith v., 78. 
 
 Samaritan Society, Hoover v., 875. 
 
 Sandback v. Quigley, 150. 
 
 Sands v. Smith, 348. 
 
 Sandys, Montesquieu v., 99. 
 
 Sansom v. Ball, 131. 
 
 Sarber, Fisk v., 104, 105. 
 
 Saunders v. Druce, 419, 470, 471, 475. 
 
 Saunders, Evans v., 307. 
 
 Say V. Barwich, 204. 
 
 Say's Executors v. Barnes, 97. 
 
 Scales V. Nichols, 561. 
 
 Scannell, Baptist Church v., 167. 
 
 Scapleton v. Scott, 209. 
 
 Schenck's Account, 545. 
 
 Schermerhorn, Mayor of New York v., 
 
 563. 
 Schermerhorn v. Mohawk Bank, 563. 
 Schich, Moyer v., 852. 
 Schlegel, Miltenberger v., 351, 630. 
 Schrader v. Decker, 36, 85. 
 Schuylkill Bank, Bank of Kentucky v., 
 
 126, 169, 214, 403, 460, 464, 465, 509, 
 
 578. 
 Schuylkill Navigation Company v. Tho- 
 
 burn, 284. 
 Scott V. Burton, 251, 889, 485. 
 Scott, Dorrance v., 88. 
 Scott V. Gallagher, 274. 
 Scott, HiU v., 218. 
 Scott, Scapleton v., 209. 
 Scott's Estate, 555. 
 Seal V. Duffy, 296. 
 Sears v. Shafer, 63, 95. 
 Seaton v. Jamison, 150. 
 Sebring, Ward i'., 444, 445. 
 Sechrist, Diemer v., 292. 
 Sedgwick v. Cleveland, 582. 
 See, Beals v., 80. 
 Seiberlitch, Langolf v., 169, 258, 414, 
 
 415, 417, 618. 
 Seibert v. Butz, 144. 
 Seibert's Appeal, 367. 
 Seirer, Clark v., 193, 208, 210. 
 Seitz V. Buffum, 422. 
 
XXVlll 
 
 TABLE OF CASES. 
 
 Seitzinger v. Eidgway, 27, 35, 40. 
 
 Seitzinger, Wetherill v., 218. 
 
 Selden, Colt v., 218. 
 
 Selden v. Vermilya, 563. 
 
 Selfridge's Appeal, 154. 
 
 Senseman's Appeal, 368, 563. 
 
 Sergeant, IngersoU v., 128. 
 
 Sergeant v. IngersoU, 113, 116, 389. 
 
 Seton V. Slade, 212. 
 
 Sexton, Seymour v., 123. 
 
 Seymour, Marvin v., 563. 
 
 Seymour, Minturn v., 264. 
 
 Seymour v. Sexton, 123. 
 
 Shaafifer, Pollard v., 27. 
 
 Shaeffer's Appeal, 631. 
 
 Shaffer, Sears v.. 63, 95. 
 
 Shaffer v. Kinkelin, 385, 387. 
 
 Shaffer v. Watkins, 446. 
 
 Sharp V. Sharp, 45. 
 
 Sharpless v. Mayor of Philadelphia, 170, 
 
 Shatto, Creigh v., 208, 209. 
 
 Shaupe v. Shaupe, 270. 
 
 Shaw 1'. Thackaray, 191. 
 
 Sheffield ». Mulgrave, 209. 
 
 Shepler, Frye v., 199, 200, 201, 202. 
 
 Sheppardj). Oxenford, 176. 
 
 Sheriff v. Neal, 345. 
 
 Sherk p. Endress, 112. 
 
 Sherk, Stine v., 65. 
 
 Shilling's Appeal, 364, 635. 
 
 Shipbrook v. Hinchinbrook, 608. 
 
 Shirk, Klapp v., 296. 
 
 Shitz V. Diffeubach, 288. 
 
 Shollenberger's Appeal, 50, 119, 121, 
 
 134, 380, 630, 638. 
 Shore, Staines v., 91. 
 Short V. Unangst, 273. 
 ShotweU, Pickering v., 232, 330. 
 Show V. Conway, 556. 
 Shrewsbury and Chester Railway Co., 
 
 Munt t)., 169. 
 Shrider v. Narg,an, 114. 
 Shulze's Appeal, 538. 
 Shurtz e. Thomas, 193, 223. 
 Siokmau w. Lapsley, 112. 
 Sidney, Slaney v., 230. 
 Sigman, Com. v., 305. 
 Sikes t: Lister, 212. 
 Silverthorn, Randall v., 311. 
 Sim, Burn'., 213, 346. 
 Simmons' Estate, 155. 
 Simon !>. Brown, 114. 
 Simon, Gray v., 69. 
 Simpson v. Ingham, 1 24. 
 Simpson, Kankin v., 200. 
 Simpson, Thomas v., 148, 155, 270. 
 Simpson, United States v., 107, 
 Sims V, Grurney, 134. 
 ims f. Lyle, 66, 473. 
 
 Sinderling, Dilworth t'., 215. 
 
 Skilton V. Webster, 460. 
 
 Slade, Seton v., 212. 
 
 Slaney v. Sydney, 230. 
 
 Slaymaker v. St. John, -340. 
 
 Slauson, Kellogg?'., 112. 
 
 Slee V. Bloom, 172. 
 
 Slocum V. Marshall, 96. 
 
 Sloper V. Fish, 209. 
 
 Sloyer, Wells v., 213, 214, 346. 
 
 Small V. Currie, 106. 
 
 Small, Moore v., 195, 196, 197, 198, 
 
 201, 211, 219. 
 Smilie v. Biffle, 479, 480. 
 Smilie's Estate, 297. 
 Smiley v. Dixon, 343. 
 Smith, Adams v., 47. 
 Smith, Barnitz v., 348. 
 Smith, Bennett v., 84, 377. 
 Smith V. Black, 632. 
 Smith V. Bonsall, 5-3, 399. 
 Smith V. Bumham, 522. 
 Smith V. Clarke, 520. 
 Smith V. Columbia Insurance Co., 77. 
 Smith, Cope v., 107, 108. 
 Smith, Coming v., 294. 
 Smith V. Cummings, 247, 262. 
 Smith V. Death, 209. 
 Smith, Findlay r., 358. 
 Smith, Green v., 211, 213. 
 Smith, Hartley v., 209. 
 Smith, Lanning v., 290, 501. 
 Smith, Linker v., 89. 
 Smith, Rogers v., 65, 409, 530, 636. 
 Smiths. Saltzman, 78. 
 Smith, Sands v., 348. 
 Smith V. Smith, 430. 
 Smith, Thompson v., 481. 
 Smith, Walsh v., 560. 
 Smith V. Webster, 40. 
 Smith V. Whildin, 92. 
 Smith, Winder i'., 82. 
 Smull p. Jones, 91. 
 Snodgrass's Appeal, 178. 
 Snyder, Hepburn v., 348. 
 Snyder v. Wolfley, 52, 53, 551, 553. 
 Soles V. Hickman, 203. 
 Southee, Billing c, 101. 
 Spangler's Estate, 276. 
 Spear, Howe i'., 254. 
 Speck i: Com., 123. 
 Speise v. M'Coy, 117. 
 Spencer, Bagshaw v., 298. 
 Spencer, Campbell v., 19'J, 203. 
 Sperry's Estate, 140. 
 Spires v. Hamot, 123. 
 Springer, Weaver v., 442. 
 Stafford v. Brown, 432, 505. 
 Staines v. Shore, 94. 
 
TABLE OF CASES. 
 
 XXIX 
 
 Stanley, Nailer v., 130. 
 
 Stanley's Appeal, 97, 357. 
 
 Stanton, Calcote v., 301. 
 
 Stansbury v. Marks, 27. 
 
 Stauffer, Com. ;■., 89. 
 
 Stanffer v. Latshaw, 82. 
 
 Stebbins, Lane v., 382. ■ 
 
 Stedwell i'. Anderson, 65. 
 
 Stelnman v. Magnus, 78. 
 
 Stells' Appeal, 360. 
 
 Steover v. Whitman, 300. 
 
 Stephenson, Mathews v., 27, 35, 411. 
 412, 421. 
 
 Sterling v. Brightbill, 166. 
 
 Sterner, Gowen v., 65, 67. 
 
 Sterrett's Appeal, 360. 
 
 Stevens, Dobbins v., 349. 
 
 Steyens, Miles v., 63, 64. 
 
 Stevens v. Rutland and Burlington Rail- 
 road Co., 168, 169, 170. 
 
 Stewart, Benton v., 257. 
 
 Stewart v. Brown, 40, 340. 
 
 Stewart v. Coder, 348. 
 
 Stewart v. Freeman, 211, 274, 346. 
 
 Stewart v. Kearney, 112. 
 
 Stewart's Case, 363. 
 
 Stewart v. United States Ins. Co., 403. 
 
 Stewart v. Welch, 231. 
 
 Stiokney v. Borman, 371, 372. 
 
 Stiles V. Bradford, 48. 
 
 Stiles V. Brock, 41. 
 
 Stiles, MitcheU v., 112. 
 
 Stiles V. "West, 80. 
 
 Stille, Walsh v., 274. 
 
 Stillwell, Carpenter v., 92. 
 
 Stine V. Sherk, 65. 
 
 Stoever, Leinaweaver v., 148. 
 
 Stoever o. Stoever, 286, 287. 
 
 Stokely's Estate, 143. 
 
 Stokes, Farley v., 187, 188, 191, 198, 
 199. 
 
 Stolley, Brooks v., 380. 
 
 Stone, Bellowes v., 510. 
 
 Stone, Mount Vernon Bank v., 72. 
 
 Stoner v. Zimmerman, 38. 
 
 Stong, Gibblehouse v., 389. 
 
 Storer v. Wheatley, 309. 
 
 Storrs V. Barker, 60. 
 
 StoufFer v. Coleman, 348. 
 
 St. John, Slaymaker v., 340.' 
 
 St. Peter's Church, Zion Church v., 403. 
 
 Stratford v. Bosworth, 218. 
 
 Stratton, Baldy v., 93. 
 
 Streaper v. Fisher, 270. 
 
 Streatfield v. Streatfield, 312. 
 
 Strimpflerw. Roberts, 339, 340, 342, 343. 
 
 Stroud V. Lockhart, 114. 
 
 Stump V. Findlay, 312. 
 
 Summerville, Jackson v., 389. 
 
 Sunbury and Erie Railroad Co., Parker 
 
 v., 170. 
 Susquehanna Ins. Co. v. Perrine, 77. 
 Sutcliff v. Isaacs, 250, 552. 
 Sutherland, Burns v., 200, 201. 
 Sutton, Couch v., 318, 398. 
 Sutton, Gray v., 426, 496. 
 Swan, Johnson v., 330. 
 Swan, Brown v., 563. 
 Swazer's Appeal, 357. 
 Swazey v. Herr, 72. 
 Swinehart, Rearich v., 65. 
 
 Tabb, Irwin «., 289. 
 
 Talmage v. Burlingame, 106. 
 
 Tapley v. Bntterfield, 180. 
 
 Tapper, Phillips v., 136. 
 
 Tate, BarndoUar v., 38. 
 
 Taylor v. Carpenter, 253. 
 
 Taylor v. Field, 176. 
 
 Taylor v. Kymer, 124. 
 
 Taylor J). Longstrath, 190. 
 
 Taylor v. Taylor, 254. 
 
 Telford v. Adams, 112. 
 
 Teller, Valentine v., 530. 
 
 Ter Hoven v. Kerns, 289. 
 
 Thackray, Shaw v., 191. 
 
 Thatcher v. Morris, 94. 
 
 The Alexandria Canal Co., City of George- 
 town v., 78, 79. 
 
 The Camden and Amboy Railroad Co., 
 Bonaparte v., 252. 
 
 The Commissioners, Kelly v., 257, 258. 
 
 The Directors of the Carlisle Bank, Krebs 
 v., 173. 
 
 The Gas Company, Northern Liberties 
 v., 170. 
 
 The Harmony Settlement, Naohtrieb «., 
 101. 
 
 The Judges, Com. v., 50, 540, 630. 
 
 The Judges of the Orphan's Court, Com. 
 v., 568. 
 
 The Lehigh Coal and Navigation Co., ;•. 
 TheLehighValley Railroad Com., 258. 
 
 Thelluson v. Woodford, 321. 
 
 The Mayor of New York «;. Field, 297, 299. 
 
 The Midland Railroad Co., Dalton v., 231. 
 
 The Philadelphia Wilmington and ISalti- 
 more Railroad Co., Jarden v., 502. 
 
 The Sheffield Gas Consumers' Co., Attor- 
 ney-General v., 247. 
 
 The Turnpike, Bevans v., 167, 387, 392. 
 
 The Western Bank, Ware v., 230. 
 
 Thoburn, Schuylkill Navigation Co. i., 
 284. 
 
 Thomas v. Brady, 92. 
 
 Thomas v. EUmaker, 169, 181, 182, 330, 
 426. 
 
 Thomas v. Folwell, 84, 375. 
 
XXX 
 
 TABLE OF CASES. 
 
 Thomas !'. Jenks, 112. 
 Thomas, Jones v., 99. 
 Thomas v. Phillips, 301. 
 Thomas, Shurtz v., 193, 223. 
 Thompson v. Brown, 125. 
 Thompson v. Carpenter, 208. 
 Thompson v. Diffenderfer, 613. 
 Thompson v. Fisher, 136. 
 Thompson, Garro v., 284. 
 Thompson v, Hefferman, 100. 
 Thompson, Hoyt v., 301. 
 Thompson v. Jamesson, 176. 
 Thompson, Magniao v., 60, 282, 425, 
 
 457. 
 Thompson, Philips v., 202. 
 Thompson's Appeal, 273, 274, 352. 
 Thompson v. Smith, 481. 
 Thompson v. Thompson, 314. 
 Thompson v. Tod, 191, 196. 
 Thomson v. Dougherty, 110. 
 Thorne, Lockwood v., 135, 136. 
 Thornton, Crawshay v., 231. 
 Thwaites, Glassington v., 176. 
 Thwaytes v. Dye, 308. 
 Tiernan, Lee v., 349. 
 Tiernan v. Roland, 115, 190, 206, 207, 
 
 208, 210, 221, 318. 
 Tiernan, Williams v., 211. 
 Tilden v. Franklin, 446. 
 Tilghman's Estate, 66, 280. 
 Tilghman v. Tilghman, 66, 280, 281. 
 Tod, Thompson v., 191, 196. 
 Tomlinson v. Lindley, 620. 
 Tompkins, Anderson v., 180. 
 Torr's Appeal, 569. 
 Torr's Case, 27. 
 Tower's Appropriation, 350. 
 Towers v. Hagner, 373. 
 Townshend, Curling v., 519. 
 Towson, Bull v., 539. 
 Travis, Waters v., 216. 
 Trevanion v. Lawrence, 313. 
 Trimmer v. Bayne, 321. 
 Tritt V. Crotzer, 267. 
 TroUope v. Linton, 308. 
 Truscott V. King, 289, 293. 
 Tucker, HassancleTcr v., 349. 
 Turbett, Dehuffti., 107. 
 Turner v. Evans, 256. 
 Turner, North v., 301. 
 Turner v. Partridge, 407. 
 Turnpike Road Co. v. Briedenthal, 250, 
 Tuton, Franklin v., 251. 
 Twells V. Costen, 188, 386, 887, 388, 413, 
 Twining, Sackett v., 159. 
 Tylee, Greville v., 101. 
 Tyler, Uarrisburg Bank v., 273. 
 Tyson v. Passmore, 73. 
 
 Uhrich, Beck v., 389, 390. 
 
 Ulp V. Campbell, 375. 
 
 Umberger, Pennypacker v., 122. 
 
 Unangst, Shortz v., 273. 
 
 Underwood, Ridgeway v., 110. 
 
 Unger v. Boas, 95. 
 
 Union Bank v. Geary, 519. 
 
 Union Branch Railroad Co. o. E. Ten- 
 nessee and Georgia Railroad Co., 469. 
 
 Union Canal Co., Insurance Co. of North 
 America i., 48, 53, 57, 65, 66, 187, 
 189, 288. 
 
 Union Insurance Co., Biaya v., 77. 
 
 Union Insurance Co., Marshall v., 77. 
 
 United States v. Alexander, 429. 
 
 United States Insurance Co., Stewart v., 
 403. 
 
 United States v. Simpson, 107. 
 
 Updegraif, Insurance Co. v., 77. 
 
 Usher, Moore v. 232. 
 
 Vale V. Phoenix Insurance Co., 77. 
 
 Valentine v. Teller, 536. 
 
 Vandever v. Baker, 159. 
 
 Vandever's Appeal, 359. 
 
 Vandyke, Moody v., 104. 
 
 Van Home v. Fonda, 343. 
 
 Vannie, Paul v., 128. 
 
 Van Rensalaer v. Duncan's Estate, 269. 
 
 Van Sohaick, Marten v., 615. 
 
 Vantuyle, Keeler v., 352. 
 
 Van Zandt, Burhams v., 482. 
 
 Varner, Boggs v., 115, 352. 
 
 Vaux V. Parke, 270. 
 
 Vermilya, Selden v., 563. 
 
 Vick, Edlestone, 254, 255. 
 
 Vidal u. Girard's Executors, 329, 330, 
 
 332. 
 Vint V. King, 85, 151, 187, 190, 267, 
 
 269, 297, 519. 
 Voyle V. Hughes, 298. 
 
 Waddingham, Pyrke v., 208, 209. 
 Wagner, Lumley v., 256. 
 Wagoner, Chrisman v., 84, 375. 
 Waldron v. Bayard, 381, 386, 493. 
 Walker, Bokee v., 70, 73. 
 Walker v. Butz, 115. 
 Walker, Hogan v., 419. 
 Walker, Hugus v., 199. 
 Walker, Rogers v., 79. 
 Walker's Appeal, 569. 
 Wall V. Arrington, 66. 
 Wallace v. Coston, 84, 375. 
 Wallace v. Duffield. 339, 344. 
 Wallace, Esel v., 298. 
 Wallace, Morris v., 357. 
 Wallace, Presbyterian Corporation ,,., 
 285. 
 
TABLE OF CASES. 
 
 XXXL 
 
 WaUace's Appeal, 573, 645. 
 
 Wallace, Woods v., 284, 237. 
 
 Wallington's Estate, 104. 
 
 Wallworth v. Holt, 415. 
 
 Wain V. O'Connor, 245. 
 
 Wain's Appeal, 154. 
 
 Walpole V. Orford, 218. 
 
 Walsh V. Smith, 560. 
 
 Walsh V. Stille, 274. 
 
 Walters, Caldwell v., 83, 84, 377. 
 
 Walters, Moody v., 209. 
 
 Walton, Farnum v., 443. 
 
 Walton, Foster v., 117. 
 
 Ward, Holllday v., 323. 
 
 Ward, Peck v., 375. 
 
 Ward, Reed v., 123, 128. 
 
 Ward V. Sebring, 444, 445. 
 
 Warden v. Eichbaum, 410. 
 
 Ware, Kennedy v., 211, 298. 
 
 Ware v. The Western Bank, 230. 
 
 Waring v. Cram, 258, 262. 
 
 Waring, Ex parte, 163. 
 
 Warner's Estate, 139. 
 
 Washington Beneficial So. v. Bacher, 172. 
 
 Washington Insurance Co. v. Grant, 381. 
 
 Waters, Laoon v., 212. 
 
 Waters v. Travis, 216. 
 
 Watertown v. Cowen, 251. 
 
 Waterworth, Ripley v., 179. 
 
 Watkins, Shaffer v., 446. 
 
 Watmough, Whelen v., 119. 
 
 Watson V. Bagaley, 296. 
 
 Watts v. Hammond, 231. 
 
 Watts, Massie v., 194. 
 
 AVeatherill, Hindson v., 99. 
 
 Weaver v. Springer, 442. 
 
 Webb V. Dean, 270. 
 
 Webb V. Dietrich, 104. 
 
 Webster, Caskie v., 295. 
 
 Webster, Craft v., 284. 
 
 Webster, Skilton v., 460. 
 
 Webster, Smith v., 40. 
 
 Webster, Whistler v., 311. 
 
 Weckerly v. Lutheran Congregation, 92. 
 
 Weckerly's Appeal, 115. 
 
 Weeks, Jacques v., 114, 287. 
 
 Weighley, Kainev., 71. 
 
 Welby V. Welby, 314. 
 
 Welch, Stuart v., 213. 
 
 Weld, Barr v., 335. 
 
 Wellaud, Balfour v., 825. 
 
 Welles V. Middleton, 98. 
 
 Wells V. Sloyer, 213, 214, 346. 
 
 Welsh, Billington v., 352. 
 
 Weltz V. Ruffner, 115. 
 
 Wentz V. Dehaven, 284, 323. 
 
 Wentz's Appeal, 154. 
 
 Werkheiser v. Werkheiser, 215. 
 
 Werne v. Berners, 382, 493. 
 
 Wesley Church v. Moore, 49. 
 
 West, Stiles v., 80. 
 
 West's Executors, Peiroe o., 501, 511. 
 
 Western Bank, Hennessy v., 112. 
 
 Western, Kelsey v., 427, 494. 
 
 Western Saving Fund Society v. City of 
 
 Philadelphia, 171. 
 Wetherell v. Hamilton, 267. 
 Wetherill v. Mecke, 84, 209, 375. 
 Wetherill v. Seitzinger, 218. 
 Wetherill v. Wetherill, 306. 
 Wharf V. Howell, 286. 
 Wharton v. Grant, 179. 
 Wharton v. Morris, 35. 
 Wheatley, Storer v., 309. 
 Wheeler, Palmer v., 308. 
 Whelen v. Watmough, 119. 
 Whildin, Smith v., 92. 
 Whisler, Bear v., 347, 348, 349. 
 Whistler v. Webster, 311. 
 Whitcomb, Goodman v., 176. 
 White, Chautauque Bauk«., 72. 
 White, Clapham v., 202, 
 White, Dunnage v., 204. 
 White, Kirkpatrick i<., ill. 
 White, Litchfield v., 113. 
 White, Young v., 475. 
 Whitehead, Jones v., 238, 239, 245. 
 Whitehill, Foster v., Hi. 
 Whitehill v. Lousey, 88. 
 Whitehill v. Wilson, 298. 
 Whitelv, Robinson v., 321. 
 Whiteside v. Whiteside, 629. 
 Whitfield V. Rogers, 247, 250. 
 Whitman, Steovero., 300. 
 Wickerham, Huston v., 294. 
 Wiener v. Davis, 113. 
 Wigg, Henniker v., 124. 
 Wikoff V. Cope, 27. 
 Wilcocks, Bainbridge v., 135, 136. 
 Wiloooks, Fox v., 358. 
 Wilford V. Beazly, 218. 
 Wilhelm r. Folmer, 269, 270, 273, 275. 
 Wilkins v. Jordan, 263. 
 Wilkinson's Estate, 292. 
 Wilkins, Paul v., 212. 
 Willcox V. Bellaers, 209. 
 Willets, Cox v., 252. 
 Williams v. Bingley, 176. 
 Williams, Champlin w., 133, 164, 267. 
 Williams v. Davies, 505. 
 Williams, Jones v., 380. 
 Williamson, Baker v., 520, 537, 538, 540, 
 
 545. 
 Williamson, Dearth v., 221. 
 Williams c. Tiernan, 211. 
 Williams v. Williams, 310. 
 Willing, Griffith v., 119. 
 Wills V. Hannen, 541. 
 
XXXll 
 
 TABLE OF CASES. 
 
 WiUs J'. Hoag, 563. 
 
 "fl'ills's Appeal, 97. 
 
 fl'ilson, Allison v., 213, 346. 
 
 "Wilson V. Bigger, 812. 
 
 "Wilson V. Clarke, 187. 
 
 "Wilson, Corbin »., 367. 
 
 "Wilson V. Greenwood, 615. 
 
 "Wilson V. Hayes, 442. 
 
 "Wilson V. Herkimer Co. Mutual Ins. Co. 
 
 77. 
 "Wilson V. Howser, 110. 
 "Wilson, In re, 112, 292. 
 "Wilson V. M'CuUough, 283. 
 "Wilson V. Murphy, 293. 
 "V\'ilson, Patterson v., 47. 
 "Wilson, Saegerw., 103, 345. 
 "Wilson's .Estate, 283, 297. 
 Wilson, "Whitehill v., 298. 
 "Wiltshire, Doran v., 327. 
 "Winder v. Smith, 82. 
 Winged v. Lofehury, 212. 
 Winyaw and Wando Canal Co., Hume 
 
 v., 172. 
 Wireman, Jlothland v., 143. 
 Wirtz, Joy v., 411, 412, 415. 
 Wise, Bank of Pennsylvania v., 127, 128, 
 Wisuer v. Barnet, 411, 415, 461. 
 Wither's Appeal, 556. 
 Witman v. Lex, 329, 331, 332, 333. 
 Witnian v. Norton, 349. 
 Witmer, Eshelman v., 159. 
 Wolbert, Com. v., 107. 
 Wolbert v. Lucas, 389. 
 Wolf, Doudj;., 144. 
 Wolfersberger, Worman v., 113, 295. 
 Wolfley, Snyder v., 52, 53, 551, 563. 
 A?omersley, Gurney?;., 299. 
 Wood, Caster ?)., 512. 
 Wood V. Downes, 98. 
 Wood, Ebert v., 27. 
 
 Wood V. Harman, 327. 
 
 Woodford, Thelluson «;., 321. 
 
 "Wood, JewJJ., 231. " 
 
 "Wood, Jones v., 306. 
 
 "Wood V. Little, 152. 
 
 Wood's Estate, 307. 
 
 "Woodman v. Good, 241, 245. 
 
 "Woocis, Christie v., 526. 
 
 Woods, Colwell v., 286, 287. 
 
 "Woods V. Farmere, 115. 
 
 "Woods V. Morrell, 503. 
 
 "Woods V. "Wallace, 284, 287. 
 
 Work V. Work, 88. 
 
 Worman v. Wolfersberger, 113, 295. 
 
 Wormley v. Wormiey, 327. 
 
 Worrall, Fisher v., 189, 191, 193. 
 
 Worrall v. Munn, 218. 
 
 Worrell's Appeal, 357, 358. 
 
 "WMght, Blight ti., 303. 
 
 Wright, Hultz «., 67. 
 
 Wright V. Linn, 830. 
 
 Wright V. Proud, 98. 
 
 Wright's Appeal, 243, 350. 
 
 Yard v. Patton, 132, 206, 210, 211. 
 
 York, Mead v., 293. 
 
 Yost V. Eby, 45. 
 
 Young V. Frost, 216. 
 
 Young V. Grundy, 568. 
 
 Young V. White, 475. 
 
 Yous's Administrator, Eckartu., 155. 
 
 Youst V. Martin, 889. 
 
 Zeigler v. Eokert, 319, 320, 323. 
 
 Zeiter v. Zeiter, 321. 
 
 Zentmyer v. Mittower, 66, 348. 
 
 Zerbe v. Miller, 111. 
 
 Zimmerman v. Anders, 329. 
 
 Zimmerman, Stoner v., 38. 
 
 Zion Church v. St. Peter's Church, 403. 
 
 EKRATA. 
 
 Page 109, I 151, overruled in Gochenaur's Appeal, 3 Am. L. K. 486. S' 
 page 629, note 1. 
 '■ 2il9, note 2, for "Nesmith v. Dunn," read "Nesmith v. Drum." 
 " 327, note 3, for "Bruck v. Lantz," read "Bruch v. Lantz." 
 " 356, note 4, for "Barr v. M'Ewen," read "Burr v. M'Ewen." 
 " 375, note 1, for " Chrisman v. Wagner," read "Chrisman v. Wagoner." 
 " 630, note 1, for " Mittenberger v. Schlegel," read " Jlilteuberger 
 
 Schlegel." 
 " 670, line 1, for "Bills," read "Bill." 
 '■ C78, line 18, for "cancelled," read "concealed." 
 
A TREATISE 
 
 EQUITABLE JURISDICTION 
 
 COURTS OF PENNSYLYANIA. 
 
 BOOK I. 
 
 EQUITABLE PRINCIPLES AND JURISDICTION. 
 
 CHAPTER I. 
 
 HISTORICAL VIEW OF EQUITY EST PENNSYLVANIA. 
 
 § 1. By the original system of English jurisprudence, 
 as explained by Lord Chief Justice Hale, the whole 
 judicial authority of the crown was exercised by the 
 king in person, sitting in his royal court, called the 
 Aula or Curia Regis. Portions of this authority were 
 afterwards delegated to the courts of law ; and where an 
 injury had been committed, which the authority of these 
 courts was adequate to redress, a writ under the great 
 seal was issued out of chancery, called an original writ, 
 directed to the sheriff of the county where the injury 
 was alleged to have been committed, containing a sum- 
 mary statement of the cause of complaint, and requiring 
 him to bring the wrong-doer before the proper court of 
 3 
 
26 HISTORICAL VIEW OF 
 
 law, there to answer the plaintiff's charge. The portion 
 of the royal authority which was not thus delegated to 
 the courts of law appears to have remained in the sove- 
 reign, as a branch of the prerogative, and to have been 
 naturally intrusted to the Lord Chancellor, as the minis- 
 ter in whose custody the great seal was placed. The 
 manner of its exercise was by another writ, also issuing 
 under the great seal, called the writ of subpoena, which 
 was directed to the defendant personally, and commanded 
 him, under a penalty, to appear to answer such things 
 as were alleged against him, and to abide by the decree 
 which should be made. The principle by which its 
 exercise was regulated appeairs to have been the one 
 above stated; viz., that of affording an effectual remedy, 
 where the remedy at common law was imperfect, but 
 not, as has been sometimes erroneously supposed, that of 
 creating a right which the common law had denied.^ 
 
 § 2. The first settlers of Pennsylvania brought with 
 them the whole body of the English jurisprudence, (ap- 
 plicable to, and requisite for their wants and situations,) 
 both that which was administered in the courts of chan- 
 cery, and that which was the guide of the courts of law. 
 The principles of equity, as well as those of law, flowed 
 in upon them from the parent source; but in their simple 
 state of society, they found but little occasion for distin- 
 guishing the channels. So far as regarded those princi- 
 
 ^ Adams' Eq. xxix. "Equity is the correction of that wherein the law is 
 deficient. To assume jurisdiction in equity of a cause which can as well be 
 determined in an action at law, is not to do equity, but to administer law in a 
 forum not legal. It would not be giving reUef, but simply usurping power. It 
 would contravene the fundamental principle, by which the English chancellors 
 themselves have always limited their authority, and turn the justice of the 
 country, without reasou, out of the proper and accustomed channels in which 
 it was meant, by the constitution, to be confined." Black, J., in Finlcy v. 
 Aiken, 3 Pittsburgh Leg. J. 2. 
 
EQUITY IN PENNSYLVANIA. 27 
 
 pies or rules of justice, our jurisprudence was not greatly 
 defective. They were always recognised, and pervaded 
 our system as thoroughly, perhaps, though not in the 
 same manner, as in the English system.^ Equity be- 
 came a part of our law; and our courts were as 
 much bound by the principles of equity, which were in 
 force at the Declaration of Independence, as they were 
 by those of the common law.^ "I would just as will- 
 ingly," said one of the most learned of Pennsylvania 
 judges, the late Chief Justice Gibson, "disturb the foun- 
 dations of the common law, laid in the time of Lord 
 Coke, as shake a principle of equity settled by Lords 
 Talbot, Hardwicke, or Northington." ' 
 
 § 3. But it was in the administration of justice that 
 the want of equitable modes of procedure was sensibly 
 felt. In order to make the common law forms of proce- 
 dure subservient to the purposes of equitable relief, it 
 became necessary to resort to fictions, and accordingly, 
 fictions became the substratum of our equity system. 
 Before the revolution, the means of doing j ustice, for the 
 time being, were withheld from the existing tribunals ; a 
 state of things occasioned by the conflict of opinion, first, 
 between the legislature of the province and the privy 
 council in England, and afterwards, between the proprie- 
 tary or royal governors and the legislature, upon the ex- 
 pediency of establishing a separate chancery tribunal.* 
 
 1 Report on the Civil Code, 1834^5, p. 5; Craft v. Lathrop, 2 Wall. Jr. 112; 
 Mathews v. Stephenson, 6 Barr, 498. 
 
 ' Pollard r. ShaaflFer, 1 Dall. 211, 213, 214; Wikoflf v. Coxe, 1 Yeates, 358; 
 Lehr v. Beaver, 8 W. & S. 106; Seitzinger v. Ridgway, 9 Watts, 498; Stans- 
 bury V. Marks, 4 Dall. 130; Ebert u. Wood, 1 Binn. 217. 
 
 ^ Torr's Case, 2 Rawle, 252-3. 
 
 * Upon this subject, Mr. Justice Black remarks, "I think it was not an ig- 
 norant prejudice, but high political wisdom, which caused our ancestors to 
 refuse a court of chancery any place among their judicial institutions. The 
 
28 HISTORICAL VIEW OF 
 
 And though, since the revolution, and the framing of 
 the present Constitution, these wants have, from time to 
 time, been in some measure suppHed ; yet, notwithstand- 
 ing these defects of form were often lamented by our 
 judges, the jurisprudence of the commonwealth continued 
 to labour under the reproach of inability to do complete 
 and effectual justice, until the promulgation of a series 
 of statutes, commencing in 1836, by which an enlight- 
 ened system of equity jurisprudence has been estab- 
 lished.^ 
 
 § 4. An examination of the early legislative history of 
 Pennsylvania proves that equity was, for a long time, 
 
 men who founded this commonwealth, built up her reputation, achieved her 
 liberties, and settled her laws, knew very well the amount of good and evil 
 which such a court had done elsewhere; and, upon sound and deliberate judg- 
 ment, they repudiated it as far as they could. The administration of law blended 
 and mixed with equity principles was a happy conception. It is no 'bungling 
 substitute,' but a most admirable improvement of both legal and chancery 
 praictice. There never was any natural reason for separating justice from law, 
 or law from justice; and it was emphatically right to break down the artificial 
 wall of partition which certain professional interests had built up between them 
 in the mother country. Some of the states of the Union, after a full trial of 
 chancery, have imitated our example ; others are rapidly preparing to do so ; 
 and even English reform has gone far in the same direction. It is to be fer- 
 ^■ently hoped that we will not now extinguish the light by which the world has 
 been walking. The right of trial by jury needs no vindication. It is neces- 
 sary (if for nothing else) to check the tendency of the judicial mind to run 
 into metaphysical refinements. The two elements of a legal tribunal; the 
 learning of the one, and the practical common sense of the other, have a most 
 salutary influence upon the judgments which both must concur in pronouncing. 
 No mode of ascertaining truth can be infallible. But with a jury that scorns 
 all subtle evasions of plain justice, and a judge who frowns upon vulgar pre- 
 judice, we come as near the right as any system can come in this world. To 
 that mode of trial we owe one mighty fact, namely, that, wherever it prevails, 
 lawyers, with an influence always powerful, and often preponderant, are the 
 steady defenders of rational, regulated, constitutional Kbcitv, instead of being, 
 what they are elsewhere, the mere tools of oppression.'' Finley i: Aiken, 3 
 Pittsburgh Leg. J. 2. 
 
 ' 1 Troubat & Haly's Practice, 37-8. 
 
EQUITY IN PENNSYLVANIA. 29 
 
 considered a necessary ingredient in the administration 
 of justice; and repeated efforts appear to have been made 
 to unite the chancery powers with those of the common 
 law courts ; which were as often frustrated by the para- 
 mount authority of the British government. It appears 
 from the minutes of the provincial council, that, in 1684,^ 
 a court, consisting of five judges, was constituted, "to 
 try all criminals, and titles of land, and to be a court of 
 equity, to decide all differences upon appeals from the 
 county courts." It is beheved this court transacted httle 
 business. By an act passed in 1693, the several county 
 courts were empowered to hear and determine "all mat- 
 ters and causes in equity," where the subject in contro- 
 versy was under ten pounds sterling in amount or value. 
 In 1701, in an act "for establishing courts of judicature 
 in this province and counties annexed," we find a provi- 
 sion that the judges of the several courts of common 
 pleas should have full power "to hear and decree all 
 such matters and causes of equity as shall come befoxe 
 them in the said courts; wherein the proceedings shall 
 be by bill and answer, with such other pleadings as are 
 necessary in chancery courts, and proper in these parts ; 
 with power also in the said justices to force obedience to 
 their decrees in equity, as the case may require." The 
 supreme court had power, by the same act, to hear and 
 
 - 
 
 ' "At a council, held at Philadelphia, the 26th day, the 1st month 1684. A 
 biU for a provU. court, consisting of five judges, to goe two cirquits yearly: 
 queat. put; past in the affirmative." 1 Colonial Records, 98. 
 
 "At a council, held at Philadelphia, the 1st of the 2d mo. '84. A bill that 
 every court of justice shall be a court of equity as well as law; also a provll. 
 court for quarter sessions ; past a last reading, unanimously. 
 
 "Pat to the question: all that are of opinion that there shall be a provlL 
 court, consisting of five judges, to try all criminalls, and titles to land, and to 
 be a court of equity, to deside all differences upon appeals from the county 
 courts, say yee. Past in the affirm., nemine contradicente." Ibid. 102, 
 
30 HISTORICAL VIEW OF 
 
 determine appeals in equity causes, and to make such 
 decrees thereon, as should be agreeable to equity and 
 justice. This act was repealed by the Queen in council 
 in 1703. In 1710, another act was passed "for estab- 
 lishing courts of judicature," by which it was provided, 
 that " there shall be a court of equity held by the judges 
 of the respective county courts of common pleas, four 
 times a year, at the respective places, and near the said 
 time as the said courts of common pleas are held, in 
 every county of this province." This act shared the fate 
 of its predecessor, having been annulled in England in 
 1713. Two years afterwards, another attempt was made 
 by the passage of an act "for erecting a supreme or pro- 
 vincial court of law and equity in this province." This 
 act was annulled in England in 1719. In the succeed- 
 ing year, in consequence of a resolution of the assembly. 
 Governor Keith established a separate court of equity, 
 exercising the functions of chancellor in his own person, 
 assisted by certain members of the council ; ^ and this tri- 
 
 ^ "At a council, held at Philadelphia, June the 8th 1720, a resolution of the 
 House of Representatives, dated the 4th day of May last, was laid before the 
 board, and read in these words : 
 
 "May 4, 1720. Eesolved, that considering the present circumstances of this 
 province, this house is of opinion, that, for the present, the governour be de- 
 sired to open and hold a, court of equity for this proraice, with the assistance 
 of such of his counsel as he shall think fit, except such as have heard the same 
 cause in any inferior court. 
 
 "And some debates arising upon the subject-matter of the said resolution, 
 being of great moment and importance to the inhabitants of this colony, it was 
 referred to further consideration." 3 Colonial Records, 90-1. 
 
 "At a council, held at Philadelphia, August the 6th 1720. Whereas, upon 
 the repeal of a late act of assembly of this province, for establishing the seve- 
 ral courts of judicature within the same, the governour, to prevent the failure 
 of the administration of justice, which might otherwise ensue thereon, found it 
 necessary, by the advice of this board, and approbation of the assembly, pur- 
 suant to the powers granted by the royal charter to the Honourable Wm. Penn, 
 Jisqr., late proprietor and governour in chief of this province, his heirs and as- 
 
EQUITY IN PEN'NSYLVAlSriA. 31 
 
 bunal appears to have existed, nominally at least, until 
 about the year 1736, when, in consequence of the deter- 
 
 signs, and to Ms lieutenants or deputies, to erect, by virtue of his commissions, 
 the several courts of law within this province, which have been regularly 
 held, and justice duly administered thereby; but there being a necessity also, 
 that a court of equity or chancery should be held, for the relief of those who 
 suffer under the rigour of, or cannot obtain their right by the common course 
 of the law, the establishment of which court of equity does not appear practi- 
 cable, by the same methods with those of the law, as being inconsistent with 
 those of a chancery, as it is practised in all his Majesty's dominions as well in 
 Europe as America. 
 
 "The goveruour, therefore, proposed this matter to the consideration of the 
 assembly, at their meeting in May last, who thought fit to recommend it to the 
 governour to hold such a court of equity himself, with the assistance of the 
 council; whereupon, he was further pleased to desire the advice of this board, 
 who having, at a former meeting, taken the whole into their serious considera- 
 tion, and deliberately debated the nature of the thing, and the security of the 
 method ; it is, at length, resolved : 
 
 " That it is the opinion of this board, that by virtue of the powers granted 
 by the royal charter, to the late proprietor, his heirs and assigns, and to his 
 and their lieutents. or deputies, being regularly appointed, the present gover- 
 nour, WilUam Keith, Esqr., safely may comply with the desire of the represen- 
 tatives of the ffreemen of tl;iis province, signified to him by a unanimous reso- 
 lution of their house, dated at Philadelphia, the 4th day of May last; and that 
 the holding of such a court of chancery, in the manner aforesaid, may be of 
 great service to the inhabitants of this colony, and appears agreeable to the 
 practice which has been approved of in the neighbouring governments. 
 
 "But the governour, speaking to his own want of experience in judicial af- 
 fairs, and representing to the board the great addition of attendance and fa- 
 tigue in the public business, which would be thereby laid upon him; he was 
 pleased to add, nevertheless, that, considering the many marks the house of re- 
 presentatives and this board had shown of their confidence in him, in this as 
 well as divers other respects, he should not decline to serve the public in that 
 station; but insisted on this, that as no court of chancery could, by the method 
 proposed, be held without him, so that he, on the other hand, should not fail of 
 having a due assistance from the council on their parts; and it was thereupon, 
 at the governour's desire, established and declared: 
 
 "That as often as the governour is to sit in chancery, and hold a court, all 
 the members of the council, in or near Philadelphia, shall be summoned to at- 
 tend the governour, as his assistants upon that bench; and that there shall not 
 any decree be pronounced or made in chancery, but by the governour as chan- 
 cellor, with the assent and concurrence of any two or more of the six eldest of 
 the council, for the time being; and that those six eldest counsellors or assis- 
 
32 HISTOEICAL VIEW OF 
 
 mined opposition of the legislature, it was discontinued 
 or suppressed.^ After that year, no attempt appears to 
 
 tants, or any of them, may be employed by the governour, as masters in chan- 
 cery, as often as occasion shall require. 
 
 "And that the inhabitants may have due notice of the said court, it is or- 
 dered, that a proclamation be issued, certifying all his Majesty's liege people 
 of this province, that for the more equal distribution of justice, and the con- 
 veniency of the subject, a court of equity or chancery will be opened by the 
 governour, at the court-house in Philadelphia, upon the 25th day of this in- 
 stant, August, in order to hear and judge of all such matters within this pro- 
 vince, as are regularly cognizable before any court of chancery, according to 
 the laws and constitution of that part of Great Britain, called England, and 
 that the said court will be always open for the relief of the subject; whereof 
 his Majesty's judges of the supreme court, and the justices of the inferior 
 courts, and all others whom it may concern, are to take notice, and to govern 
 themselves accordingly." 3 Colonial Records, 105-6. 
 
 ' In consequence of the hostility of the people of Pennsylvania to this 
 court, the opinion of Mr. Attorney-general Willes, afterwards Lord Chief Jus- 
 tice of the Court of Common Pleas, and of Mr. Solicitor-general Ryder, after- 
 wards Lord Chancellor, was asked as to the legality of the court thus estab- 
 lished. The case and opinions will be found in a work entitled, "Letters and 
 Papers chiefly relating to the Provincial History of Pennsylvania:" edited by 
 Thomas Balch, Esq., to whose kindness the author is indebted for the proof 
 sheets from which the following extract is made. The first part of the MS. 
 from which this case is printed, is missing ; but this in no manner interferes with 
 the proper understanding of the ease. 
 
 "The case of the Court of Chancery in Pennsylvania, with the opinions of 
 Mr. WiUes and Mr. Ryder. 
 
 " Upon this foot the court of chancery, in Pennsylvania, having been estab- 
 lished, continued to exercise jurisdiction in matters of equity, proceeding 
 therein, as hear as they conveniently could, according to the known usage or 
 practice of his Majesty's high court of chancery at Westminster. Nor were the 
 proceedings of the said court complained of in any sort, or its authority called 
 in question, until January 1735, though two acts of assembly for establishing 
 the courts of law in Pennsylvania, were passed in that interval of time, and 
 fourteen assembUes (this being the fifteenth) have been held. 
 
 "Upon divers petitions presented, January 2'7th 1735, to the house of as- 
 sembly, complaining that the court of chancery in this province is erected in 
 violation of the charter of privileges, the house came to the following resolu- 
 tion, viz: 
 
 "Resolved, That the court of chancery, as it is at present estabHshed, is con- 
 trary to the charter of privileges granted to the freemen of this province. 
 
 "And upon conferences since had between the governor and the assembly, 
 
EQUITT IN PENNSYLVANIA. 33 
 
 have been made, either to create a distinct court of 
 chancery, or to invest the common law courts with gene- 
 ral chancery powers.^ 
 
 (whicli two alone, without the governor's council, compose [legislative power] 
 Pennsylvania,) the assembly have argued from the [authority] of several 
 English law books, that the king, at this day, cannot, by his commission, erect 
 a court of equity. 
 
 "Your opinion is desired: 
 
 " Question. — Whether a court of equity is not a vital and fundamental part of 
 the English constitution, incident to and inseparable from it? And whether 
 the power of determining cases on bill in equity is not, by the fimdamental laws 
 and constitution of the kingdom of England, vested in the king, as supreme 
 magistrate, and in the chancellor, acting under his appointment? 
 
 "Answer. — It is pretty difBoult to trace out the original foundation of courts, 
 most of them having their beginning either from necessity or expedience. But 
 it has been always held, that the power of determining eases in equity was 
 originally vested in the king of England, and that the chancellor only acted by 
 virtue of a delegated power from him, being app'olnted at first as his assistant, 
 when causes in equity began to be so very numerous that the king could not 
 despatch them himself 
 
 " Question 2. — Whatever courts the king may now erect by his commission [in] 
 England, where all necessary courts are already in being; yet, whether king 
 Charles the second could, by law, grant sufficient authority, by a commission 
 under the great seal, unto William Peuu and his deputies, to erect courts of 
 equity in the province of Pennsylvania ; or is it aljsolutely necessary that the 
 consent of the legislature there should first be had, in order to the erecting 
 such courts? 
 
 "Answer. — Though it is held that his Majesty cannot now, by his commission, 
 erect a new court of equity in England, where all proper courts have been long 
 since established; yet, I am of opinion, that king Charles the second, when he 
 was erecting a new form of government in Pennsylvania, might, by his charter, 
 n-rant to William Penn and his deputies, a power to erect new com-ts of equity 
 in that province, and that the consent of the legislature there was not necessary 
 to be first had, until Mr. Penn made it so by his instrument or charter, of the 
 28th October 1701. 
 
 " Question 3. — Whether the unanimous resolution of the assembly, requesting 
 Mr. Keith to open and hold a court of equity for the said province, with the 
 assistance of his council, laid before him on the [4th May 1720,] his assent to 
 that request, and establishment of [a court] pursuant thereto, by the advice of 
 his council^he subsequent approbation of the assembly gi\en to that establish- 
 ment, and the notification thereof to the public in Pennsylvania, by written 
 
 Report on the Civil Code, 1834-5, p. 8-10. 
 
34 HISTORICAL VIEW OF 
 
 § 5. In consequence of this want of appropriate equi- 
 table remedies, our supreme court and courts of common 
 
 proclamation under the great seal there, may not be called an act of the whole 
 legislature there, although not rendered in the ordinary form of law, or at least, 
 may not be deemed a sufficient signification of the consent of the legislature 
 thereto? 
 
 "Answer. — I am of opinion that the unanimous resolution of the assembly, 4tli 
 May 1720, what was afterwards done by governor Keith and his committee 
 thereupon, the subsequent approbation of the assembly, and the proclamation 
 which issued thereupon, sufficiently established the present court of chancer}-, 
 notwithstanding the clause relating thereto in the said charter of the 28th 
 October 1701; for I think that there has been a sufficient declaration of the 
 assent of the legislature, to the erecting of such court. 
 
 ^'Question 4. — Whether the original establishment and holding of the court 
 of chancery by such devise as aforesaid, after the time of William Penn's char- 
 ter of privileges to the inhabitants, but before the resolve of the Assembly, in 
 January 1735, can justly be construed as a violation of the sixth clause of the 
 said charter (whatever that clause may import,) seeing it was provided that the 
 governor, and six parts in seven of * * * the Legislature might alter the 
 charter — or whether a proceeding, heretofore before the governor and his coun- 
 cil, (not as a council of state, but as a court of chancery, according to equitv 
 and stated rules of practice of that court,) was not a proceeding in the ordinary 
 course of justice, and consequently within the reservation in the said sixth clause ? 
 
 "Answer. — I am of opinion that neither the establishment nor the holding 
 of the said court of chancery, after the consent of the assembly, so declared 
 as aforesaid, can be construed to be a violation of the sixth clause of the said 
 charter. But if the governor and council, after that charter, had proceeded to 
 hear cases in equity, without such consent of the assembly, I should have been 
 of opinion that it had been contrary to the said charter. 
 
 " Question 5. — Whether since the assembly have come to their resolution of 
 January 1735, it will now be contrary to the charter of privileges, or unlawful 
 to continue to hold the said court of chancery, notwithstanding such last men- 
 tioned vote, or ought the court of chancery to be established by act of assem- 
 bly, and not otherwise? 
 
 "Answer. — As I am of opinion that this court of chancery was at fiyst legally 
 and rightfully [established,] I do not think that it will be contrary to the chart- [er 
 or un-] lawful to continue to hold the same. But I am of opinion that the same 
 may^e lawfully held till the whole legislature have passed an act to the contrary. 
 
 "August 21st 1736. J. Willes." 
 
 "Answer to question 1. — I am of opinion that a court of equitv is a neces- 
 sary part of the English constitution, that relates to the administration of justice: 
 and that the chancellor appointed by the king, [or] the keeper of the great seal, 
 are, by virtue of their office, entitled to exercise that jurisdiction. 
 
EQUITY IN PENNSYLVANIA. 35 
 
 pleas exercised, from the beginning, the power of giving 
 relief and administering equity through the ordinary 
 common law remedies and forms ;^ that is, through the 
 medium of the usual actions; the pleadings appropriate 
 to each; conditional verdicts ; special judgments; and the 
 final process adequate to obtain and enforce the fruit of 
 them. The common law remedies, that have long been 
 made the vehicles of equitable rights in this state, are the 
 actions of assumpsit, debt, covenant, replevin, ejectment 
 and partition. Perhaps, indeed, all the personal actions 
 may be here called equitable remedies; as, from the 
 right of a defendant to plead an equitable defence to 
 
 "Jnswer to question 2. — I conceive that king Charles second might, hy 
 law, grant power to William Peun and his deputies, to erect a court of equity 
 in Pennsylvania, without the consent of the legislature there. 
 
 "Answer to question 3. — I conceive this is not an act of the legislature there, 
 nor a sufficient signification of their approbation, supposing their approbation 
 was necessary. 
 
 "Answer to question 4. — I conceive the establishing the court of chancery in 
 the manner above mentioned, was no violation of the sixth clause of the charter 
 of 1701, both because there was the assent of the governor, and six parts in 
 seven of the assembly met, and because the proceeding in a court of equity 
 may be justly called the ordinary course of justice. 
 
 " Answer to question 5. — I apprehend the resolution of the assembly does 
 not make that illegal which was not so before, therefore that it is not unlawful 
 to hold the [said] court of chancery, notwithstanding that resolution. 
 
 "October 13th 1Y36. D. Ryder." 
 
 1 Mathews v. Stephenson, 6 Barr, 498. In Wharton v. Morris, M'Kean, C. J., 
 remarked, that "the want of a court with equitable powers, like those of the 
 chancery in England, had long been felt in Pennsylvania. The institution of 
 such a court, he observed, had once been agitated here ; but the houses of as- 
 sembly, antecedent to the revolution, successfully opposed it; because they 
 were apprehensive of increasing by that means, the power and influence of the 
 governor, who claimed it, as a right, to be chancellor. For this reason, many 
 inconveniences have been suffered. No adequate remedy is provided for a 
 breach of trust; no relief can be obtained in cases of covenants, with a 
 penalty, &c. This defect of jurisdiction, has necessarily obliged the court, 
 upon such occasions, to refer the question to the jury, under an equitable and 
 conscientious interpretation of the agreement of the parties." 1 Dall. 125-6. 
 And see Seitzinger v. Ridgway, 9 Watts, 498. 
 
36 HISTORICAL VIEW OF 
 
 any one of them, the reply to such a defence may take 
 the same complexion, and thus, at last, the action may 
 result in procuring for the plaintiff the fruits of a merely 
 equitable right.^ 
 
 § 6. The mode of administering equitable relief, 
 through the medium of common law proceedings, is 
 well illustrated by Justice Tod in Bixler v. Kunkle.^ 
 The learned judge there said, "To the argument that 
 this demand is founded on mere equity, and cannot be 
 enforced by any form of action of the common law, I 
 would say, that ever since the time of Kennedy v. Fury,^ 
 in which a cestui que trust maintained an ejectment in his 
 own name, and, I believe, long before, mere equitable 
 rights have been every day recovered in our courts. It 
 seems to me, that the rules of equity have, by immemo- 
 rial usage, become rules of property in our state, and 
 cannot, I apprehend, be now departed from without legis- 
 lative authority. Cases need not be cited to show how 
 rights purely equitable have been sued for with success, 
 in the forms of action known only to the common law, 
 and how relief has invariably been granted, whenever 
 it could be granted in any way consistent with these 
 forms ; generally, by the courts with the aid of a jury — 
 often without. Not only have conditional judgments 
 repeatedly been given, but, in the Lessee of Mathers v. 
 Akewright,* the court, on a general verdict for the plain- 
 tiff, and judgment thereon, ordered a stay of execution 
 until the defendant should be secured in his title to an- 
 other piece of land, according to an article of agreement. 
 In the case of Morris's Executors v. M'Conaughy's Execu- 
 tors,^ the court, on motion, directed a contribution 
 
 ' 1 Troubat & Haly's Practice, lOG-7; Sehrader ?\ Doctor, 9 Ban-, IC; 'Kuu^ 
 V. Flack, 10 Harris, 339. - 17 S. & R. 308. 
 
 3 1 Dall. 72. * 2 Binn. 93. *■ 2 Dall. 189; 1 Yeates, I8',i. 
 
EQUITY IN PENKSTLVANIA. 37 
 
 among the several holders of lands bound by the same 
 mortgage." 
 
 § 7. The action of assumpsit for money had and re- 
 ceived has, in Pennsylvania, been- made an ordinary 
 vehicle of equitable jurisdiction. "Though there may 
 be some positions, in Moses v. Macferlan,^ advanced by 
 Lord Mansfield, which his successors have cancelled from 
 it, the leading doctrine of the nature of this action has 
 never been questioned. The great objection to some of 
 his positions is, that they have been laid down too largely, 
 when he says, that a court of common law may sustain 
 this action, wherever one man has money which another 
 ought to have, or wherever one man has an equitable 
 right to the money, he has also a legal action. Since 
 courts of common law cannot administer equity in the 
 same way courts of equity can, we have adopted the most 
 liberal principles in this action, and, because we have no 
 court of chancery, sustained the action where one man 
 unjustly holds the money of another. In every case, the 
 tort may be waived ; where the party has received your 
 money, trespass or trover may be converted into this 
 action. Where the defendant has turned another's article 
 into money, or there is reasonable evidence that he has, 
 as in the case of the masquerade ticket, the tort may be 
 waived. But where you do this, you ratify the conver- 
 sion ; you adopt his act, and can recover nothing more 
 than he has received. In England, not even interest; 
 but here, the money received, with interest, may be re- 
 covered. A man may disaffirm the act cib initio, by reason 
 of the fraud, and bring his special action, and recover his 
 actual damages; or affirm it, and demand his money; he 
 may make his election." ^ 
 
 1 2 Burr. 1005. 
 
 ^ Duncan, J., in Lee v. Gibbons, 14 S. k E. 111. And see Matters v. Pearson, 
 
38 HISTORICAL VIEW OP 
 
 § 8. The action of covenant may, in some cases, be used 
 as a means of enforcing a purely equitable right. Thus, 
 where by articles of agreement for the sale of land, a deed 
 was to have been delivered at a certain time, and by a 
 subsequent penal agreement, the vendee agreed to receive 
 the deed at a later period, and accepted it accordingly; 
 it was held, that the vendor, in covenant for non-payment 
 of the purchase money, might declare according to the 
 circumstances of the case, by setting forth, in the first 
 place, the covenants according to the articles of agree- 
 ment, and then showing the alteration which had been 
 made by consent of parties.-^ The plaintiff must, in all 
 such cases, set forth the special circumstances on which 
 his equity is supposed to arise.^ 
 
 § 9. The action of replevin, from the liberal extension 
 of it by our courts, has become a very effectual vehicle 
 of an equitable right; it may be employed both to pre- 
 vent and counteract fraud, and to compel the specific 
 execution of a contract relating to personal property. It 
 is applicable to every case in which goods and chattels, 
 in the possession of one person, are claimed by another; 
 and no distinction is made between those instances in 
 which there has been a tortious deprivation of the pos- 
 session, and others, in which the dispute is only as to the 
 title or ownership. By means of this action, not only 
 may family pictures, for which an agreement has been 
 made, be obtained, but also merchandise, when the par- 
 
 is S. & R. 258; Bixler v. Kunkle, lY S. & R. 298; Irvine v. Bull, 4 W. 287; 
 Loan Co. v. Elliott's Executors, 3 Harris, 22T; Work v. Work, 2 Harris, 318; 
 Stoner v. Zimmerman, 9 Harris, 394. 
 
 1 Jordan v. Cooper, 3 S. & R. 578. 
 
 ^ Barndollar v. Tate, I S. & R. 160; Clark v. Partridge, 2 Barr, 13; Partridge 
 V. Clarke, 4 Barr, IGG; Renshaw v. Gans, 1 Barr, 118; Butcher v. Metts, 1 if. 
 153. 
 
EQUITY IN PENNSYLVANIA. 39 
 
 ticular bale can be distinguisbed. Nor is tbe plaintiff re- 
 stricted to the continuance of the possession in the defen- 
 dant; he may follow the property through successive 
 transfers, and, as the doctrine of market overt has been 
 adjudged not to hold in Pennsylvania, he may replevy it, 
 wherever found.^ 
 
 § 10. The equitable action of ejectment forms, in this 
 state, an important branch of the law. Through the 
 liberality and ingenuity of the courts, it has become the 
 most important and universal mode of enforcing the 
 equity of a plaintiff relating to land. It is a remedy 
 which has been substituted for the bill in equity; though 
 it is subject to all those considerations, by which a claim 
 to have the land itself, may be defeated. The rule is, 
 that wherever equity will presume a trust to have arisen, 
 and will compel its execution, or will enforce articles of 
 agreement, our courts will, through the application of 
 this remedy, administer the same relief. Thus, the 
 vendee of lands, by articles of agreement, who has com- 
 plied with his part of the contract, as by payment or 
 tender of the purchase money, may, by ejectment, obtain 
 possession, if withheld by the vendor.^ In exercising the 
 
 1 1 Troubat & Haly's Practice, 108-9. 
 
 ^ If a vendor brings ejectment to compel payment of the purchase money 
 and obtains a conditional verdict, to be released upon payment of the balance 
 due within a prescribed time, and the time is suffered to pass, without payment, 
 the vendor may take possession, as absolute owner. In some cases, a rigid ad- 
 herence to this rule has produced injustice; for valuable property has been sa- 
 crificed, from the inability or neglect of the vendee, or other cause less culpa- 
 ble, to comply with the exact terms of this conditional verdict. For remedy 
 of this, a modification of the practice has been recommended. Instead of 
 framing the verdict in such way, that an absolute title vests in the vendor, 
 on failure to pay, at the time fixed in the verdict, it would be better that, if not 
 paid at the time, it should contain a decree of sale, either by the sheriff, or by 
 a master under the direction of the court, for the benefit of the vendor and 
 vendee, and all other persons having an interest in the proceeds. A verdict 
 
40 HISTOKICAL VIEW" OF 
 
 right, the general form of this action in common use is 
 adopted, and the articles are not required to be spread 
 upon the record. The plaintiff is required to allege and 
 prove no more than would induce a chancellor to decree 
 a specific performance of the agreement; though less 
 would not avail him/ 
 
 § 11. An equitable estate is sufficient in Pennsylvania 
 to support the action of partition. In the case of Stewart 
 V. Brown,^ the defendant had bought lands, under an 
 agreement wdth the plaintiff, that the purchase when 
 made should be for their equal, mutual interest; the 
 latter had never been in possession; but the court held, 
 that the agreement of the defendant made him a trustee 
 for the use of the plaintiff, as to one moiety, and that the 
 action of partition was maintainable against him to ob- 
 tain it.^ 
 
 and judgment in this shape, would be attended with this decided advantage, 
 that the vendor would, in due time, receive the unpaid purchase money, and 
 the vendee would receive the surplus, if any; and, what is of no inconsidera- 
 ble importance, the purchaser at the sale would obtain a title free from all 
 doubt or difficulty. The sale being made under the order and direction of the 
 court, and the money being substituted for the land, and under their control, in 
 its distribution, substantial justice may be done to all. And this course would 
 be equitable, for, in truth, the action of ejectment to compel payment of the 
 purchase money, is an equitable proceeding. Hewitt v. Huling, 1 Jones, 34—5. 
 
 ^ 1 Tronbat & Haly's Practice, 109; Seitzinger v. Eidgway, 9 AYatts, 498-9. 
 A vendee, under an executory contract for the purchase of land, who has ob- 
 tained the possession of it, under his agreement, can only defend himself, in that 
 possession, in Pennsylvania, where we have no court of chancery, upon such 
 ground as would entitle him to a decree of injunction, by a court of equity, against 
 his vendor, who was proceeding by action of ejectment at law, to turn him out 
 of the possession. The action of ejectment to enforce payment of the purchase 
 money, is not founded upon the contract, but rather upon the legal title to the 
 land being still in the plaintiff, who is not bound, by his contract, to part with it, 
 until he shall have received from the defendant, the purchase money; and the 
 defendant, having failed to pay it, according to the terms of his contract, has 
 no claim, even in equity, to hold the possession. Smith r. "Webster, 2 '\^'atts, 
 486. 
 
 = 2 S. & R. 462. ' 1 Troubat & Haly's Practice, 109-10. 
 
EQUITY IN PENNSYLVANIA. 41 
 
 § 12. There are other modes by which our courts are 
 in the constant practice of enforcing an equity in favour 
 of the plaintiff in a common law action, which in England 
 could only be obtained by a recourse to chancery. The 
 first instance is, the case of a lost bond, on which the 
 owner could not maintain an action, in a strictly com- 
 mon law tribunal, because he could not make profert of 
 it; and therefore, would be obliged to recur to chancery, 
 for an injunction to prevent the defendant from taking 
 advantage of its non-production. But in our courts, the 
 plaintiff may state his claim on the bond, and explain 
 the reason why he cannot produce it, *'. e. he may declare 
 without a profert} The benefit of the same rule is open 
 to a defendant who may have occasion to plead a lost 
 deed. Another instance is, the case of a plaintiff having 
 a joint demand against several parties, one of whom is 
 dead, and the survivor insolvent. At common law, the 
 plaintiff could only sue this survivor, and to get at the 
 estate of the deceased party, he would have to recur to 
 chancery. But our system allows suit to be brought 
 against the executor or administrator of the latter, through 
 whom a judgment may be obtained against the property 
 of the decedent;^ and, by act of assembly of 11th April 
 1848, in such action, the insolvency of the survivor need 
 not be averred on the record, or proved at the trial, to 
 enable the plaintiff to recover.^ 
 
 § 13. A defendant, in Pennsylvania, is permitted to 
 give evidence of equitable matters under the general 
 issue ; or if this mode be inconvenient or improper in his 
 particular case, he may plead specially his equitable right, 
 and thus obtain the advantages of a chancery answer so 
 
 ■' Respublioa v. Coates, 1 Yeates, 2. 
 
 ^ Stiles V. Brook, 1 Barr, 216; Lang v. Keppele, 1 Binn. 123. 
 
 « Purd. Dig. 633, pi. T. 
 
42 HISTORICAL VIEW OF 
 
 far as they relate to a complete statement of his case. In 
 making, however, an equitable defence in a court of law, 
 he is in effect a plaintiff in equity, and is bound to show 
 such a state of things, aflBrmatively, as would authorize a 
 chancellor to interfere by injunction.^ 
 
 § 14. The usual general plea, under which a defendant 
 is permitted to establish an equitable defence is that of 
 payment. The practice of giving in evidence, under the 
 plea of payment, matters relating to a defence, whose 
 only foundation is equity, may be traced to the earliest 
 stages of our jurisprudence, and is a branch of the com- 
 mon law that arose out of the peculiar wants of the pro- 
 vince of Pennsylvania. The general rule adopted by the 
 courts is, that whatever would be sufficient in equity to 
 protect the party, will be admitted in evidence under 
 the general plea of payment; and that shall be presumed 
 to be paid, which, in equity and good conscience, ought 
 not to be paid. The cases in our reports serve very fully 
 to illustrate and prove this general principle, as they 
 include almost every species of defence usually made in a 
 court of chancery. These may be classed under the 
 heads of want of consideration, fraud, mistake, and acci- 
 dent; any of which may be given in evidence under this 
 general plea.^ To avoid surprise on the trial our courts 
 have adopted rules requiring a previous notice to be 
 given of the equitable defence intended to be established. 
 
 § 15. This notice, in substance, often amounts to a 
 bill in equity, and if the defendant present and prove a 
 case on which he would be entitled to relief in equity, he 
 will be entitled to a verdict here. But if, in his notice 
 of special matter, he present a case in which equity 
 
 ' 1 Troubat & Haly's Practice, 110; Lehr t\ Beaver, 8 W. & S. 106. 
 '' 1 Troubat & Haly's Practice, 111-14. 
 
EQUITY IN PENNSYLVANIA. 43 
 
 would afford no relief, the plaintiff", instead of putting the 
 cause to the jury, may object to the evidence, and pray 
 the opinion of the court on it, and if the court be of 
 opinion that it is a case in which equity would not relieve, 
 the evidence will be rejected, in toto, as irrelevant; or if 
 any part of it be such as would not be received in equity, 
 that part will be rejected/ The general pleas of non 
 assumpsit, and of performance or covenants performed, 
 with notice of the special matter intended to be given in 
 evidence under them, are likewise the common vehicles 
 of a purely equitable defence. 
 
 § 16. Under the plea of payment, a defendant may 
 also, under our statute of defalcation, give evidence of 
 any counter-claim against the plaintiff", whether it be 
 legal, or merely equitable in its character, and if the set- 
 off" proved exceed the claim of the plaintiff, the jury may 
 certify a sum to be due from the plaintiff to the defend- 
 ant, upon which he may have judgment and execution.^ 
 The rules of court require that previous notice of the set- 
 off, intended to be proved under the general plea, should 
 be given to the plaintiff; but no other plea than that of 
 payment is necessary to let in a set-off under our statute.^ 
 And it is to be noted, that there is this difference between 
 the plea of payment with notice of defalcation, and that 
 of payment with notice of an equitable defence, that 
 under the former, the defendant may recover a balance 
 against the plaintiff, whilst under the latter, he can only 
 have a general verdict.* 
 
 § 17. As an equitable title may be made the founda- 
 tion of an action of ejectment, and is sufficient to ground 
 
 1 Robinson v. Eldridge, 10 S. & R. 142. ' Purd. Dig. 237. 
 
 ^ Balsbaugh i\ Frazer, 7 Harris, 93. 
 
 * King V. Diehl, 9 S. & R. 409; Anderson's Executors v. Long, 10 S. & R. 
 02. 
 
44 HISTORICAL VIEW OF 
 
 a recovery, it follows, as a natural consequence, that it 
 may protect the actual possession of a defendant; and, as 
 it is provided by statute, that the general plea of not 
 guilty shall be the only plea put in by the defendant, the 
 equitable defence is receivable under this plea. If the 
 equity of the defendant be merely founded on the non- 
 performance of a particular act by the plaintiff, such as 
 the payment of purchase money, or making title to a part 
 of the land, it is always made a prerequisite to the re- 
 covery of the possession of the land by the latter ; and 
 may be either relied on in the defence, or judgment will 
 be arrested by the court until it is performed.^ When 
 the equity of a defendant goes to a total denial of the 
 title of the plaintiflf, it is supported by a recurrence to the 
 principle which forms the ground-work of the equitable 
 action of ejectment, that everything shall be presumed 
 to be done, which in good conscience ought to have been 
 done. If therefore, the party ought to have received 
 proper title deeds, he will be considered in the same 
 situation as if they had been actually delivered to him; 
 and the same course will be pursued with every other 
 equity to which he may be entitled.^ 
 
 § 18. Whenever the pleas before enumerated would be 
 inconvenient or improper, from the nature of the action, 
 the defendant may (with the single exception of the 
 action of ejectment) state his equity specially, and the 
 courts will support it as a sufficient defence. The prac- 
 tice of pleading specially the equity of a defendant, pos- 
 sesses one of the most important advantages of the answer 
 in chancery, in stating at length all the circumstances of 
 the case, without regard to their intricacy or complication. 
 But for this method, the operation of equity would be 
 
 ^ Mather's Lessee v. Akewright, 2 Binn. 93. 
 
 2 Griffith V. Cochran, 5 Binn. 105; M'Call i'. Lenox, 9 S. & R. 315. 
 
EQUITY IN PENNSYLVANIA. 45 
 
 narrow and restricted; as the rule now is, it supplies all 
 the chasms left by the general pleas, so that no case can 
 possibly occur in which a defendant may not rely upon 
 his equitable right, as fully and completely in a Penn- 
 sylvania court of law, as in an English court of chan- 
 cery.-^ And so highly is the right of pleading an equitable 
 defence favoured by our courts, that they have deter- 
 mined, after some conflict of decision, that a defendant who 
 has neglected to give notice of the special matter intended 
 to be proved under the plea of payment, may amend 
 on the trial, by filing a plea founded upon such special 
 equity." If, by such amendment, the plaintifi" be taken 
 by surprise, he is entitled to a continuance of the cause. ^ 
 § 19. If a plea be put in, founded in equity only, the 
 plaintiff will be permitted to make a replication to it, 
 stating any special matter to rebut or destroy that equity. 
 But if, instead of an equitable special plea, the defendant 
 plead payment, and give notice of an equitable defence, 
 the plaintiff may, under the replication of non solvit, give 
 evidence of other special matter to rebut the defendant's 
 equity, without notice, for the defendant might have 
 obviated the danger of surprise by pleading specially.* It 
 does not seem necessary that any equitable pleadings 
 should have been previously put in, to justify the use of 
 non solvit as an equitable replication, for it may happen 
 that the plea of the defendant which is strictly at com- 
 mon law, may, for the first time, compel the plaintiff to 
 rely upon equitable grounds for the establishment of his 
 action.^ 
 
 ' 1 Ti-oubat & Haly's Practice, 119. 
 
 2 Sharp V. Sharp, 13 S. & R. 444; Yost v. Eby, S. C, June, 1854; contra 
 8 S. & R. 498; 14 S. & R. 176; 6 Barr, 147; 9 Leg. Int. 46. See 9 Harris, 
 475. 
 
 3 Purd. Dig. 38. * M'Cutchen v. Nigh, 10 S. & R. 344. 
 ^ 1 Troubat & Haly's Practice, 120. 
 
46 HISTORICAL VIEW OF 
 
 § 20. Another mode of obviating the want of a court 
 of equity, where such a court would enjoin a party from 
 proceeding at law, or where the specific execution of a 
 contract, or the performance of a trust, is of right due to 
 the plaintiff, is through the instrumentality of the jury, 
 who may wield the damages so as to effect the desired 
 end. It seems, that in all actions, whether relating to 
 personal or real property, the jury may, when the plain- 
 tiff sets out in his declaration the whole ground of his 
 equitable right, (for this has been held to be a prerequi- 
 site to secure a conditional verdict^) find large damages 
 conditionally; that is, to be released, on condition that 
 the terms which the jury, and the jury alone, prescribe, 
 are complied with.^ Thus, in a case where chancery 
 would enjoin the obligee in a bond from proceeding at 
 law, whilst the obligor is a loser or in jeopardy as a surety 
 of the former, the jury may produce the same result by 
 a conditional verdict.^ Thus, too, a specific performance 
 of an agreement for the sale of lands, if it be not within 
 the statute of frauds, may be enforced by a conditional ' 
 verdict.* And there are many cases of ejectment, where 
 such verdicts have been recommended by the court, in 
 matters of trust, and executory contracts.^ The action 
 itself, as we have seen, approaches very near to a bill in 
 equity; and the verdict of a jury, imposing conditions on 
 the party in whose favour it is rendered, performs the 
 office, though imperfectly, of the decree." In all these 
 cases, the jury are to be governed by the rules and prin- 
 
 " Irvine v. Bull, 4 W. 289; Butcher v. Metts, 1 M. 153. 
 
 " Decamp v. Feay, 5 S. & R. 323; Coolbaugh v. Pierce, 8 S. & E. 418. 
 
 ' Frantz v. Brown, 1 P. R. 257; Ross v. M'Kinny, 2 E. 227. 
 
 * Irvine v. Bull, 4 W. 287. 
 
 s Collins V. Rush, 7 S. & R. 155. 
 
 " Coolbaugh V. Pierce, 8 S. & R. 419. 
 
EQUITY IN PENNSYLVANIA. 47 
 
 ciples of equity, which they are to learn from the charge 
 of the judge.^ 
 
 § 21. Although a verdict in the alternative would be 
 erroneous, there are many instances in practice in which 
 a cautionary verdict is allowed; as where a verdict is 
 rendered for the plaintiff in ejectment, or for a penal sum 
 in an action for damages, to be enforced unless the de- 
 fendant pay a sum of money, or do certain specified 
 acts. The court can judge whether the defendants com- 
 ply with the terms of the verdict, and mould the judgment 
 accordingly. They are, for the most part, obliged to de- 
 cide on affidavits and depositions; and, as these consti- 
 tute no part of the record, they are, like the granting of 
 a new trial, subjects not inquirable into on error.^ In 
 debt on bond for purchase money of land, a verdict may 
 be given for the plaintiff, conditioned that no execution 
 shall issue for the amount until he remove an encum- 
 brance on the land.^ 
 
 § 22. Besides this use of conditional verdicts, in actions 
 at common law, adopted here to enforce equitable rights, 
 the courts must, in such cases, if necessary, mould their 
 judgments and executions to suit the case; and they will 
 render them specially, to affect certain property only, and 
 allow special executions to be levied on that property 
 alone.* Thus, the court will enter judgment specially, so 
 as to make it appear that it does not bind the defendant's 
 property, but only such as is held in trust; to reach 
 which was the object of the suit, in the nature of a bill 
 in equity.' 
 
 1 1 Troubat & Haly's Practice, 120-1. 
 ' Moyer v. Germantown Raiboad Co., 3 W. & S. 92. 
 
 ' Roland v. Miller, 3 W. & S. 390; and see Reed v. Munoy, 1 J. 334; Adams 
 V. Smith, 7 H. 182; Patterson v. Wilson, Ibid. 383. 
 * Pidcock V. Bye, 3 R. 194. * Aycinena v. Peries, 2 Barr, 286. 
 
48 HISTORICAL VIEW OF 
 
 § 23. Equitable rights having thus, by the liberality of 
 the judiciary of Pennsylvania, become vested and tangible 
 interests at law, it was necessary to the complete attain- 
 ment of justice, that the new advantage thus vested in 
 the party should be attended with its corresponding 
 burdens. Proceeding upon this just and natural principle, 
 it has been decided in our courts, that every species of 
 equitable right is subject to the lien of a judgment, and 
 may be sold so fully and completely under an execution, 
 that the sheriff's vendee will stand in precisely the same 
 situation as the original defendant.-' This rule, resulting 
 from a connected series of decisions, is thus stated by the 
 late Chief Justice Tilghman: "By the law of Pennsyl- 
 vania, all the real estate of the debtor, whether legal or 
 equitable, is bound by a judgment against him, and may 
 be taken in execution, and sold for the satisfaction of 
 the debt. At common law, an equitable estate is not 
 bound by judgment, or subject to an execution; but the 
 creditor may have relief in chancery. We have no court 
 of chancery, and have, therefore, from necessity, estab- 
 lished it as a principle, that both judgments and execu- 
 tions have an immediate operation on equitable estates."^ 
 
 § 24. Until the passage of the act of 1836, these, with 
 the exception of a few cases in which statutory remedies 
 were provided, were the only means, in the power of our 
 courts, for enforcing equitable rights. And parties may 
 still, in their discretion, adopt the means here pointed 
 out, and maintain a common law action upon an equitable 
 title, for the remedies are concurrent; in conferring on 
 the courts chancery powers, the legislature has not 
 ousted them of their common law jurisdiction.^ Nor is 
 
 " 1 Troubat & Haly's Practice, 122. 
 
 '' Auwerter v. Mathiot, 9 S. & E. 402; and see Stiles v. Bradford, 4 R. 402. 
 
 ' Ajcinena v. Peries, 6 W. & S. 257. 
 
EQUITY IN PENNSYLVANIA. 49 
 
 the extension of the remedy, by action at law, to cases 
 originally within the jurisdiction of equity, a bar to the 
 equitable jurisdiction of the courts for the same cause.-^ 
 They are concurrent remedies, either of which a party 
 may pursue at his election. Whether a case may be 
 brought in the chancery forum, is only a question of 
 form and not of jurisdiction ; and the objection is waived, 
 if not made in due season.^ It must be taken advantage 
 of by demurrer, and not by an objection to the jurisdic- 
 tion of the court.^ 
 
 § 25. And it must be borne in mind, that the legisla- 
 ture has by no means conferred on the courts a uni- 
 versal, or even a general equity jurisdiction; on the con- 
 trary, equity jurisdiction has been dealt out to them at 
 distant intervals, and in hmited portions, and they can- 
 not usurp a jurisdiction not granted, nor exceed the 
 limits within which the legislature has thought proper 
 to prescribe it.* Hence, unless the jurisdiction invoked 
 be plainly and clearly given, they must refuse its ex- 
 ercise, and refer the plaintiff to the remedies afforded by 
 the past practice of the commonwealth.^ The only cases 
 in which they have been invested with a general and 
 unlimited jurisdiction, are those involving the super- 
 vision and control of corporations, unincorporated asso- 
 ciations and partnerships.'' 
 
 ' Wesley Church v. Moore, 10 Barr, 274; and see Kirkpatrick v. M'Donald, 
 1 J. 392. 
 
 2 Neel V. Neel, I Troubat & Haly's Practice, 63. 
 
 ' Adams v. Beach, 7 Leg. Int. 178. The doctrine in the text, however, only 
 applies to those courts which have jurisdiction of the subject matter, both at 
 law and in equity. Finley v. Aiken, 3 Pittsburgh Leg. J. 1. 
 
 * Gilder v. Merwin, 6 Wh. 540 ; Cassel v. Jones, 6 W. & S. 553 ; Hagner 
 r. Heyberger, 7 W. & S. lOG. 
 
 ' Dalzell V. Crawford, 1 Pars. 41. 
 
 « Purd. Dig. 305. Com. v. Bant of Pennsylvania, 3 W. & S. 184. 
 
50 HISTORICAL VIEW. 
 
 § 26. The orphans' court has, indeed, always been es- 
 sentially a court of equity.^ Its jurisdiction is limited, 
 but within its peculiar range, it has, from the earliest 
 times, exercised many of the functions of a court of 
 chancery : within its appointed orbit its jurisdiction is 
 exclusive ; and therefore, necessarily, as extensive as the 
 demands of justice.^ But although the orphans' court 
 has been called a court of equity, in respect to the few 
 subjects within its jurisdiction, the auxiliary powers of 
 such a court have not been given to it. It is a special 
 tribunal for specific cases ; and its resemblance to a court 
 of equity consists in its practice of proceeding by peti- 
 tion and answer, containing the substance, but not the 
 technical subtleties and nice distinctions of a bill in 
 equity; by which, however, justice is obtained more 
 conveniently, and as certainly, as in the courts of equity, 
 purely so called. As the orphans' court, therefore, has 
 not the general powers of a court of equity, it cannot 
 entertain a bill of discovery.^ 
 
 ' Com. V. The Judges, 4 Barr, 301. 
 
 ^ ShoUenberger's Appeal, 9 Harris, 341. 
 
 ' Brinker v. Briuker, 1 Barr, 53. 
 
ACCIDEKT. 61 
 
 CHAPTER II. 
 
 ACCIDENT. 
 
 § 27. Judge Story, in his commentaries on equity ju- 
 risprudence, divides the subject into three great heads, 
 the concurrent, the exclusive, and the auxiliary or sup- 
 plemental jurisdiction. The concurrent jurisdiction, he 
 says, has its true origin in one of two sources ; either the 
 courts of law, although they have general jurisdiction 
 in the matter, cannot give adequate, specific, and perfect 
 relief; or, under the actual circumstances of the case, 
 they capnot give relief at alL Its original foundation 
 may be fitly referred to what Lord Coke deemed the 
 true one — fraud, accident, and confidence.^ 
 
 § 28. In the first place, let us consider the jurisdic- 
 tion arising from accident. By the term accident is 
 here intended, not merely inevitable casualty, or the act 
 of God, or what is technically called vis major, or irre- 
 sistible force; but such unforeseen events, misfortunes, 
 losses, acts, or omissions, as are not the result of any neg- 
 ligence or misconduct in the party.^ It is not every 
 case of accident which will justify the interposition of 
 a court of equity. The jurisdiction being concurrent, 
 will be maintained only, first, when a court of law can- 
 not grant suitable relief; and secondly, when the party 
 has a conscientious title to relief'' 
 
 1 Story's Eq. § 75-6. ' Ibid. ? 78. 
 
 ' Ibid, i 79; Jeremy's Bq. 358-9; Fonbl. Eq. B. I. eh. i. § 3, p. 15. 
 
52 ACCIDENT. 
 
 § 29. Formerly courts of law did not interfere to grant 
 relief in many cases where now such relief may be ob- 
 tained at law. At that time courts of equity 'interfered 
 "to prevent injustice, and although the courts of law, 
 with more liberality, now afford relief in such cases, 
 yet courts of equity having once obtained jurisdiction, 
 now retain it as a concurrent remedy with courts of law ; 
 it being considered that the latter courts are not compe- 
 tent, by their own act, to oust or repeal a jurisdiction 
 already rightfully attached in equity.^ One of the most 
 common interpositions of equity under this head is, in 
 the case of lost bonds, or other instruments under seal. 
 Until a recent period, the doctrine prevailed, that there 
 could be no remedy at law upon a lost bond, because 
 there could be no profert of it, without which the decla- 
 ration would be defective. At present, however, the 
 courts of law do entertain the jurisdiction, and dispense 
 with the profert, if an allegation of loss, by time or ac- 
 cident, be stated in the declaration. But this circum- 
 stance is not permitted to change the course in equity.^ 
 
 § 30. The reasons for interfering in case of a lost bond 
 never applied to that of a lost negotiable note, or other 
 unsealed security, because no profert was necessary, nor 
 was oyer allowed of such an instrument; and a recovery 
 could be had at law, upon mere proof of the loss. But 
 then, a court of law cannot insist upon the party's giving 
 a suitable bond of indemnity; and in such case, a court 
 of equity will entertain a bill for relief, upon an offer, in 
 the bill, to give a proper indemnity under the direction 
 of the court, but not without. And such an offer entitles 
 
 1 4 Bouv. Inst. 156. 
 
 ^ 1 Story's Eq. ? 81 ; Snyder v. Wolfley, 8 S. & R. 331 ; Harrison v. Rowan, 
 4 W. 0. 0. 205. 
 
ACCIDENT. 53 
 
 the court to require an indemnity, not strictly attainable 
 at law, and founds a just jurisdiction.^ 
 
 § 31. In the case of supposed lost instruments, where 
 i-elief is sought (and not merely discovery) an affidavit 
 by the plaintiff" of the loss of the instrument, and that it 
 is not in his possession or power, is indispensable to sus- 
 tain the bill, and, in order to maintain the suit, it is 
 further indispensable, that the loss, if not admitted by 
 the answer, should, at the hearing, be established by 
 competent proof. Eor the very foundation of the suit in 
 equity rests upon this most material fact. If, therefore, 
 the plaintiff should fail to establish the loss of the instru- 
 ment, or the defendant should overcome the plaintiff's 
 proofs by countervailing evidence, the bill will be dis- 
 missed, and the plaintiff remitted to his action at law.^ 
 
 § 32. There are many other cases of accident in which 
 courts of equity will grant both discovery and relief. 
 One of the earliest exercises of the jurisdiction of the 
 court, was to relieve from the forfeiture of a bond, or of 
 a mortgage, when it was not paid at the day appointed, 
 on the ground that it was unjust for the creditor to avail 
 himself of the penalty, when an offer of full indemnity 
 was tendered. So, where a mortgage is payable by in- 
 stalments, with a stipulation that if the instalments be 
 not promptly paid, a scire facias may issue for the whole 
 amount of the mortgage ; it seems, equity will grant re- 
 
 ' 1 Story's Eq. § 85 ; 4 Bouv. Inst. 157 ; Snyder v. Wolfley, 8 S. & R. 331. 
 " There is no question as to the jurisdiction of equity in oases of lost instru- 
 ments — where there is a necessity for the profert of the instrument at law, or 
 for giving to the defendant an indemnity, or where there has been a spoliation 
 or fraudulent suppression of the instrument, under which the plaintiff claims." 
 Cooke V. Darwin, 23 Eng. L. & Eq. 627. A slave who has been ftianumitted, 
 and lost her deed of manumission, may have relief in equity. Ahce v. Morte, 
 2 Cr. C. C. 485. 
 
 ' 1 Story's Eq. ? 88. 
 
54 ACCIDENT. 
 
 lief on payment of the instalments due with interest and 
 costs; in such case, execution will be stayed, and the 
 judgment be directed to stand subject to the order of the 
 court on the next default.^ 
 
 ^ § 33. So, equity will relieve, when an inequitable loss 
 or injury will otherwise fall upon the plaintiff, from cir- 
 cumstances beyond his control, or from his own acts done 
 in good faith, and in the performance of supposed duty, 
 without negligence. In the execution of mere powers, a 
 court of equity will grant relief, on account of accident 
 as well as mistake, when in consequence of the accident, 
 there is a defective execution of the power. The exer- 
 cise of this jurisdiction will take place, unless there be 
 some countervailing equity to prevent it, fraithe relief of 
 purchasers, a wife, a child, or a charity. But equity 
 will not aid defects which are of the very essence or 
 substance of the power; if, for example, the power be 
 executed without the consent of the parties who are re- 
 quired to it, to give it validity ; or if it be required to be 
 executed by will and it is executed by deed ; the defect 
 cannot, in either case, be relieved from, in equity.^ 
 
 § 34. But courts of equity will not relieve a party 
 where he has entered into a positive contract or obliga- 
 tion, and he has been prevented from fulfilHng it by ac- 
 cident ; or has been in no default, or has been prevented 
 by accident from deriving the full benefit of the contract 
 on his own side. Nor will a party be relieved in equity 
 upon the ground of accident, where the accident has 
 arisen from his own gross negligence or default; or where 
 both parties stand equally innocent, or where they have 
 equal equities. Nor where the party has not a clear vested 
 
 ' Ewart V. Irwin, 7 Leg. Int. 134. 
 
 ^ 4 Bouv. Inst. 157-8 ; see Evans v. Evans, 21 Eng. L. & Eq. 475; Barber 
 V. Gary, 1 Kern. 397, 402. 
 
ACCIDENT. 55 
 
 right, but his claim rests in mere expectancy, and is not 
 a matter of trust; for example, when a person intending 
 to make a will is prevented from doing so by accident, 
 the intended legatees can have no relief/. 
 
 § 35. By various acts of assembly, the supreme court, 
 within the city and county of Philadelphia, the district 
 courts of Philadelphia and Allegheny, and the courts of 
 common pleas of the counties of Beaver, Bedford, Berks, 
 Blair, Butler, Cambria, Centre, Clarion, Clearfield, Clin- 
 ton, Crawford, Elk, Erie, Fayette, Forest, Huntingdon, 
 Jefferson, Juniata, Lancaster, Lawrence, M'Kean, Mer- 
 cer, Mifflin, Montgomery, Philadelphia, Potter, Schuyl- 
 kill, Somerset, Tioga, Union, Venango, Warren, Wayne, 
 and York, are invested with equity powers in all cases 
 over which courts of chancery entertain jurisdiction on 
 the ground of accident.^ 
 
 § 36. Certain special statutory remedies have also been 
 provided for the granting of equitable reUef, in cases of 
 accident, arising from the loss of uistruments. The act 
 28th March 1786,^ provides relief against the loss of 
 deeds, conveyance and writings relating to lands within 
 this state ; but, it seems, that its provisions only extend 
 to cases of loss which happened prior to its passage.* In 
 cases within the act, the party may apply, by bill or 
 petition, to the justices of the supreme court, or to the 
 judges of the proper court of common pleas, setting forth 
 the circumstances of the case, with an affidavit of the 
 material facts. A subpoena is thereupon to issue to any 
 persons who may appear to be interested, if residing 
 within the state. But if the parties interested are non- 
 residents, the court may direct an advertisement to be 
 
 ' 4 Bouv. Inst. 159. 
 
 « Purd. Dig. 306-7, 1070-1; P. L. 1855, p. 93. = Purd. Dig. 230. 
 
 * Smith V. Bonsai!, 5 Rawie, 88. 
 
56 ACCIDENT. 
 
 published for three weeks, or more, in such public news- 
 paper as may be published nearest to the court house of 
 the proper county; giving notice of the application, and 
 requiring all persons whom it may concern, to appear in 
 court, in term time, or before the justices thereof, or any 
 two of them, in vacation, at a certain place and time, to 
 make answer upon oath or affirmation to the said bill or 
 petition. 
 
 § 37. When the answer is filed, or in case the parties 
 subpoenaed, or any others, do not attend or answer, in 
 either case, the court, in term time, or the justices 
 thereof, or any two of them, in vacation, may examine 
 such witnesses as may be produced, or cause their depo- 
 sitions to be taken by a commissioner, and have such 
 other proceedings in a summary way, to ascertain and 
 establish the facts of the case, and make such order and 
 decree in the premises, as to justice and equity shall ap- 
 pertain. The record and proceedings, or an exemplifi- 
 cation thereof, may be read in evidence upon any trial or 
 controversy respecting the lands in question, and will 
 be deemed sufficient evidence of the facts so decreed and 
 established. These proceedings are to be at the expense 
 of the party exhibiting the bill or petition. 
 
 § 38. The act of 10th April 1849,^ provides a re- 
 medy for the case of a mortgage which has been lost, 
 destroyed, or mislaid, before payment of the mortgage 
 debt. If, in such case, the owner of the mortgaged pre- 
 mises be desirous to pay off the mortgage, and to have sa- 
 tisfaction entered on the record; or the holder of the 
 mortgage be desirous to recover the mortgage debt; in 
 either case, the party may appl}', by bill or petition, to 
 
 ' Purd. Dig. 234. This act only applies to the counties of Philadelphia, 
 Montgomery and Lycoming. 
 
ACCIDENT. 57 
 
 the court of common pleas of the county where the 
 mortgaged premises are situate, setting forth the facts 
 of the case, with the complaint or grievance; and, after 
 due notice to the parties interested, to be given in such 
 manner as the court may direct, requiring them to ap- 
 pear on a day certain to answer such bill or petition, 
 the court is authorized to examine into the facts of the 
 case, and to grant such equitable relief, and to make 
 such order and decree therein, as the circumstances of 
 the case may require. 
 
 § 39. In case of the loss of a policy of insurance, 
 the act of 4th March 1850,-^ provides that the party may 
 apply, by petition, to the court of common pleas of the 
 county in which the property has been insured, setting 
 forth the loss or destruction of the policy, with a des- 
 cription of the property, the amount insured, the per- 
 sons to whom the policy was granted, if practicable, and 
 the mesne transfers thereof. This apphcation must be 
 accompanied with an affidavit of the loss or destruction 
 of the poHcy, and that a demand for a copy thereof was 
 previously made of the president or authorized agent of 
 the insurance company, with a tender of not less than one 
 dollar for making such copy. The court is, thereupon, 
 required to grant a rule on the corporation that under- 
 wrote the policy, commanding them to appear, on a day 
 certain, not less than twenty days from the service of 
 the rule, to show cause why they should not supply a 
 copy of such policy. This rule is to be served by the 
 sheriff, upon the president, secretary, treasurer, or au- 
 thorized agent of such company. On the return of the 
 rule, upon default of the corporation to appear and show 
 cause why such copy should not be supplied, the court 
 
 ' Purd. Dig. 449. 
 
58 ACCIDENT. 
 
 is required to issue a mandate, commanding them to 
 furnish such copy in ten days after service of the same ; 
 and if such mandate shall not be obeyed, on proof of 
 service and of a refusal to furnish such copy, a judg- 
 ment is to be entered, in favour of the person making 
 the application, against the corporation, for the sum for 
 which the policy was granted; which judgment is to 
 stand for the security of the plaintiff, for such time as 
 the policy itself would have done, and for the like pur- 
 poses ; and the costs of the proceeding are to be paid by 
 the defendant. 
 
 § 40. In case of the loss or destruction of the records 
 of any court of record of this state, a party interested 
 may proceed, by bill in equity, in the court whose record 
 is so lost or destroyed, to perpetuate the evidence thereof; 
 and when proved, such record will have the same legal 
 operation as the original would have had.^ 
 
 1 Purd. Dig. 305. 
 
MISTAKE. 59 
 
 CHAPTER III. 
 
 MISTAKE. 
 
 § 41. The statutes giving equity jurisdiction to the 
 courts, before enumerated/ in cases of accident, have 
 also invested them with similar powers, in all cases over 
 which courts of chancery entertain jurisdiction on the 
 ground of mistake.^ This is sometimes the result of ac- 
 cident, in its large sense; but as contradistinguished 
 from it, it is some unintentional act, or omission, or 
 error, arising from ignorance, surprise, imposition, or 
 misplaced confidence. Mistakes are ordinarily divided 
 into two sorts, mistakes in matter of law, and mistakes 
 in matter of fact.* 
 
 § 42. It is an elementary principle, which applies to 
 civil as well as criminal cases, that ignorance of the law 
 furnishes no excuse to any person, either for a breach 
 or omission of duty. Ignorantia legis neminem excv^at, 
 is a maxim which is as much respected in equity as in 
 law.* This doctrine is among the settled elements of the 
 law ; for every man, at his peril, is bound to take notice 
 of what the law is; as well the law made by statute as 
 the common law.^ The presumption is, that every man 
 is acquainted -^vith his own rights, provided he has a 
 
 ' Ante, ? 35. ' Purd. Dig. 306-7, 1070-1; P. L. 1855, p. 93. 
 
 ' 1 Story's Eq. § 110. * Robinson v. Cathcart, 2 Cr. C. C. 610. 
 
 ' Doctor and Student, Dial. ii. oh. 46. 
 
60 MISTAKE. 
 
 reasonable opportunity to know them. And nothing 
 can be more liable to abuse than to permit a person to 
 reclaim his property upon the mere pretence that, at the 
 time of parting with it, he was ignorant of the law act- 
 ing on his title.^ In Fonblanque, it is laid down as a 
 general proposition, that ignorance of the law shall not 
 dffect agreements, nor excuse from the legal consequences 
 of particular acts, in courts of equity;^ and Chancellor 
 Kent, in Lyon v. Richmond,^ says, the courts (speaking 
 of the courts of chancery) do not undertake to relieve 
 parties from their acts and deeds fairly done, though 
 under a mistake of the law. Every man is to be 
 charged, at his peril, with a knowledge of the law. There 
 is no other principle which is safe and practicable in the 
 common intercourse of mankind.* 
 
 § 43. Without this presumption no law could be exe- 
 cuted; those who desire to violate it could easily mis- 
 understand it, and ignorance could be feigned where it 
 does not exist. If contracts were binding only on those 
 who know what construction the courts would put on 
 them, very few would stand. No system of jurispru- 
 dence could be administered for a year, on this princi- 
 ple, without falling to pieces. All codes, therefore, have 
 adopted the maxim, Ignoraniia legis neminem excusat. 
 We speak of a mere mistake and not of misapprehen- 
 sion induced by the fraudulent acts of others. Where 
 the party, who commits an error of this kind, is led into 
 it by his adversary, who afterwards seeks to have the ad- 
 
 ' Storrs V. Barker, 2 Johns. Ch. 169. 
 
 " 1 Fonbl. Eq., B. I. ch. ii. § 1, note v. 
 
 3 2 Johns. Ch. 60. 
 
 * Rankin v. Mortimere, 7 Watts, 374 ; Good v. Hcrr, 1 W. & S. 256 ; 
 M'Aninch v. Laughlin, 1 Harris, 371 ; and see JIagniac i'. Thomson, 2 
 WaU. Jr. 209. 
 
MISTAKE. 61 
 
 vantage of it, equity may give relief. So also the rule 
 must be understood as referring to a naked mistake of 
 pure law. In some of the books, "knowledge of one's 
 legal rights," is a phrase used to express that degree of 
 information upon both fact and law, which enables a 
 party to judge how far a demand can be enforced by 
 him, or against him. The relief which equity gives for 
 such ignorance of legal rights, is based on the mistake 
 of fact.-^ 
 
 § 44. A very common example of a mistake in law, 
 may be found in the case of an obligee who releases one 
 of two joint obligors, under a mistaken idea that the 
 other would remain bound to him. In such case, the 
 obligee will not be relieved in equity, on the mere 
 ground of mistake of the law; for there is nothing in- 
 equitable in the co-obligor, who is not formally released, 
 in availing himself of his legal rights, nor upon the 
 other obligor insisting upon his release, if they both 
 acted bond fide; indeed it would be against equity to 
 compel one of two joint obligors to pay the whole debt, 
 without having recourse for contribution against the 
 other; and a release to one of them would have that 
 effect, if the other alone remained bound.^ 
 
 § 45. The same rule, that mistakes of law will not be 
 relieved against, in equity, generally exists where, both 
 parties to a contract commit the mistake, both acting in 
 good faith, when not liable to other objections; thus, 
 where a clause containing a power of redemption, in a 
 deed granting an annuity, after it had been agreed to, 
 was deliberately excluded by the parties, because, being 
 mistaken on the law, they believed it would have ren- 
 
 1 Light V. Light, 9 Harris, 412. 
 " 4 Bouv. Inst. 160-L 
 
62 MISTAKE. 
 
 dered the contract usurious, the court refused relief.^ 
 The reason for this is obvious, the parties had delibe- 
 rately agreed upon one contract, and excluded that pro- 
 vision, and the court could not make another, by res- 
 toring it.^ 
 
 § 46. And where, upon a loan of money, for which 
 security was to be given, the parties deliberately took, 
 after consultation with counsel, a letter of attorney, with 
 a power to sell the property (ships) in case of non-pay- 
 ment of the money, instead of a mortgage upon the pro- 
 perty itself, upon the mistake of the law, that the se- 
 curity by the former instrument would, in case of death 
 or other accident, bind the property equally as strongly as 
 a mortgage. The debtor died, and his estate being insol- 
 vent, a bill in equity was brought by the creditor against 
 the administrators, to reform the instrument, or to give 
 him a priority, by way of lien on the property, in exclu- 
 sion of the general creditors. But the court denied re- 
 lief, upon the ground that the agreement was for a par- 
 ticular security selected by the parties, and not for se- 
 curity generally; and that they Avere asked to substitute 
 another security, not upon any mistake of fact, but upon 
 a mistake of law, when such security was not within the 
 scope of the agreement.^ 
 
 § 47. It not unfrequently happens that cases of sur- 
 prise are mixed up with mistakes of law. By surprise 
 is here meant, the act by which a party who is entering 
 into a contract is taken unawares, by which sudden con- 
 fusion or perplexity is created. From the effects of con- 
 tracts made under such circumstances, courts of equity 
 
 ' Irnham v. Child, 1 Bro. C. R. 92. " 4 Bouv. hist. IGl. 
 
 'Hunt V. Rouamaniere, 8 Wheat. 174; 1 Story's Eq. J 114; Leavitt v. 
 Palmer, 3 Corast. 38-9. 
 
MISTAKE. 63 
 
 will relieve, because the agreements or acts are unad- 
 vised, improvident, and without due deliberation ; it being 
 a rule with those courts, to protect those who are unable 
 to protect themselves, and of whom some undue advan- 
 tage has been taken. In these cases, it is not for the 
 mistake in law, but for the circumstances which have 
 caused the error, that the contract is set aside. ^ The 
 reason for setting aside a contract, where both parties 
 have been taken by surprise, is still stronger, because 
 neither party gave a valid consent.^ 
 y § 48. In regard to the other class of mistakes, those 
 of fact, the general rule is, that when an act is done, or 
 contract made, under a mistake or ignorance of a ma- 
 terial fact, it is voidable, and relievable in equity.^ No 
 person can be presumed to be acquainted with all mat- 
 ters of fact, nor is it possible, by any degree of vigilance, 
 in j,ll cases to acquire that knowledge ; and for this reason 
 a court of equity is liberal in granting relief to prevent 
 injustice, where the party asking it cannot be charged 
 with culpable negligence.* The rule applies not only to 
 cases where there has been studied suppression or con- 
 cealment of facts by the one side, which would amount 
 to fraud, but also to many cases of innocent ignorance 
 and mistake on both sides. It is true, that it is not every 
 mistake which will enable the party to avoid the contract ; 
 
 ' In Cummings' Appeal, Justice Lowrie says — " We do not forget the rule 
 that refuses to hear the allegation of ignorance of law as a ground of relief; 
 but we must be very cautious in applying this rule to judicial proceedings ; for 
 the whole doctrine of amendments proceeds upon a partial denial of it, and it is 
 not at all of absolute obligation in questions of new trial." And, accordingly, 
 a judicial sale may be set aside because of a mistake of the purchaser in re- 
 lation to his legal right in the proceeds. Pittsburgh Leg. J. 23 Sept. 1854. 
 
 ^ 4 Bouv. Inst. 162 ; and see Hunt v. Moore, 2 Barr, 105 ; Sears v. Shafer, 
 2 Seld. 268. 
 
 » Miles V. Stevens, 3 Barr, 37. * Jenks v. Fritz, 7 W. & S. 203. 
 
64 MISTAKE. 
 
 for, to have this effect, it must be of its essence, the sine 
 qua non of the contract; or, as it is expressed, the efficient 
 cause of concoction.^ 
 
 § 49. In cases of mutual mistake going to the essence 
 of the contract, it is by no means necessary that there 
 should be any presumption of fraud ; on the contrary, 
 equity will often relieve, however innocent the parties 
 may be. Thus, if one person should sell a messuage to 
 another, which was, at the time, swept away by a flood, 
 or destroyed by fire, or an earthquake, a court of equity 
 would relieve the purchaser, upon the ground that both 
 parties intended the purchase and sale of a subsisting 
 thing, and implied its existence as the basis of their con- 
 tract.^ The same principle will apply to cases of pur- 
 chases, where the parties have been innocently misled as 
 to the extent of the thing sold. Thus, where a vendor 
 and vendee of land appointed a skilful surveyor to ascer- 
 tain the number of acres in the tract, which was sold by 
 the acre, and upon his report the deed was executed and 
 delivered, and bonds given for the purchase money, it 
 was held, that equity would relieve against a mistake of 
 the surveyor in measuring the land.* Where one of two 
 parties, equally innocent, must suffer by a mistake, he 
 who made it must take the consequence.* 
 
 § 50. One of the most common class of cases, in 
 which relief is sought in equity on the ground of mis- 
 take, is that of written agreements. Sometimes the 
 written agreement contains less than the parties intended ; 
 
 ' Miles V. Stevens, 3 Barr, 37 ; Gieger v. Cook, 3 W. & S. 270 ; Bellas r. 
 Hays, 5 S. & E. 427 ; Horbach v. Gray, 8 Watts, 497 ; Faure o. Martin, 3 
 Seld. 218-19. 
 
 ' 1 Story's Eq. | 142. 
 
 ' Jenks V. Fritz, 7 W. & S. 201. 
 
 * Finley v. Aiken, Black, J., 3 Pittsburgh Leg. J. 4. 
 
MISTAKE. 
 
 65 
 
 sometimes more ; and sometimes tlie intent is not ex- 
 pressed in the terms intended by the parties. In all such 
 cases, if the mistake be clearly made out by proofs en- 
 tirely satisfactory, equity will reform the contract, so as 
 to make it conformable to the precise intent of the par- 
 ties.^ If, for instance, property has been conveyed 
 through mistake by deed, which the parties never in- 
 tended should be conveyed, which the grantor was under 
 no legal or moral obligation to convey, and which the 
 grantee could not in good conscience retain, a court of 
 chancery will interfere and correct that mistake, whether 
 it arose from a misapprehension of the facts or of the 
 legal operation of the deed. But where the conveyance 
 was such as the parties intended it should be, and the 
 grantee may in good conscience retain the property, 
 although the grantor may have been mistaken as to the 
 extent of his title, a court of chancery will generally re- 
 fuse its interference.^ And so, if the proofs are doubtful 
 and unsatisfactory, and the mistake is not made entirely 
 plain, equity will withhold relief* 
 
 § 51. A mistake in any instrument may be corrected, 
 in equity, when it clearly appears, from satisfactory evi- 
 dence, that it was reduced to writing in terms not con- 
 formable to the real intent of the parties; such as the 
 omission of the scrivener to insert a material part of the 
 agreement;* or, where a particular clause has been in- 
 
 ' 1 Story's Eq. § 152 ; Rearicli v. Swinehart, 1 Jones, 238 ; Blakeslee r. 
 Blakeslee, 10 Harris, 244. 
 
 ^ Stedwell v. Anderson, 21 Conn. 139 ; Hurst's Lessee v. Kirkbride, 1 Yeates, 
 139; s. c. 1 Binn. 616; Dinkle v. Marshall, 3 Binn. 587; Bowman v. Bitten- 
 bender, 4 Watts, 290 ; Insurance Co. of N. America v. Union Canal Co., Bright. 
 E. 48 ; Blakeslee v. Blakeslee, 10 Harris, 244. 
 
 * Bogers v. Smith, 4 Barr, 93 ; Zentmyer v. Mittower, 5 Barr, 409 ; Stine 
 V. Sherk, 1 W. & S. 195 ; Moser v. Libenguth, 2 Rawle, 130. 
 
 * Gowerc. Sterner, 2 Wh. "79 ; Moliere v. Penn. Fire Ins. Co., 5 Rawle, 347. 
 
66 MISTAKE. 
 
 serted by mistake ; ^ and parol evidence is admissible to 
 prove the mistake, though it be denied in the answer.^ 
 But it is not sufficient that there is a mistake as to the 
 legal consequences of the instrument; for to admit cor- 
 rection on this ground would be indirectly to construe it 
 by extrinsic evidence, and the proper question is, not 
 what the document was intended to mean, or how it 
 was intended to operate, but what it was intended to be. 
 It is indispensable to the relief, that the mistake should 
 have arisen from some cause distinct from the sense of 
 the instrument. A mistake, which is nothing more 
 than a misconception of the law, is no ground for rehef 
 in equity.^ 
 
 § 52. In cases of asserted mistake in written con- 
 tracts, where the mistake is to be estabhshed by parol 
 e-^ddence, the question has often been mooted, how far 
 a court of equity ought to be active in granting rehef, 
 by a specific performance, in favour of the party seek- 
 ing to reform the contract upon such parol evidence, 
 and to obtain performance of it when it shall stand re- 
 formed. A strong inclination of opinion, has been re- 
 peatedly expressed by the English courts, not to decree 
 a specific performance, in such cases.* But Chancellor 
 Kent, after a most elaborate consideration of the sub- 
 ject, has not hesitated to decree relief to a plaintiff 
 standing in this precise predicament.^ And it would 
 seem that, in Pennsylvania, such an agreement would 
 
 1 Hamilton v. AssKn, 14 S. & R. 448. 
 
 2 Wall v. Arrington, 2 Am. L. E. 3Hl. 
 
 ' Sims V. Lyle, 4 W. C. C. 320 ; Insurance Co. v. Union Canal Co., Bright. 
 R. 53 ; Tilghman v. Tilghman, 1 Bald. 490 ; Tilghman's Estate, 5 Wh. 63 ; 
 Faure v. Martin, 3 Seld. 219. 
 
 * 2 Leading Cases in Equity, 540. 
 
 * Gillespie v. Moon, 2 Johns. Ch. 5s5 ; Keisselbrock v. Livingston, 4 Ibid. 
 144. 
 
MISTAKE. 67 
 
 be enforced; for it is well settled in this state that ver- 
 bal stipulations by one party to a written agreement, 
 on the faith of which it is executed by the other, will 
 control the writing, even when there is no evidence that 
 they were made with a fraudulent design.^ Where suit 
 is brought on a bond or other instrument, it is the con- 
 stant practice to allow defendants to protect their in- 
 terests, by proof of a mistake in reducing the agreement 
 to writing; and it is difficult to perceive why plaintiffs 
 may not avail themselves of the same right. We con- 
 sider that as done which ought to have been done; and 
 hence, an action of covenant will lie on articles as 
 amended by parol evidence.^ 
 
 § 53. There is another class of cases in which courts 
 of equity will grant relief on the ground of mistake. 
 When a person having a power, by mistake neglects, in 
 the execution of it, any requisite act, or does not strictly 
 conform with the authority entrusted to him, his endea- 
 vour is either wholly or partially ineffectual at law. In 
 equity, however, the defect under certain circumstances 
 will be supplied, or such relief will be given, as appears 
 consistent with the intention of the party, and the jus- 
 tice of the case. But although it will be found that the 
 court will go very far in affording relief where an effec- 
 tual execution has been attempted, it will not interpose 
 to enforce the execution of such an authority, where no- 
 thing has been done in exercise of it; nor where there 
 are counter equities in other persons. Upon examina- 
 tion of the authorities on this subject, it will appear that 
 relief, in cases of defective execution of powers, is for 
 
 1 Christ V. Diffenbach, 1 S. & B. 464; Miller v. Henderson, 10 Ibid. 292; 
 Hultz V. Wright, 16 Ibid. 345 ; Clark v. Partridge, 2 Barr, 13 ; Partridge v. 
 Clarke, 4 Ibid. 166. 
 
 ^ Gower v. Sterner, 2 Wh. 79-80 ; Partridge v. Clarke, 4 Barr, 167-8. 
 
68 MISTAKE. 
 
 the most part given, where, in consequence of particular 
 relations subsisting between the parties, one of them is 
 thought to have, in natural justice, a peculiar claim to 
 satisfaction. Thus, if execution of the power were at- 
 tempted in favour of a purchaser for a valuable conside- 
 ration, a creditor, a wife, or a legitimate child, whether 
 the instrument of appointment was executed before or 
 after marriage, the court would supply defects therein.^ 
 
 1 Jeremy's Eq. 371-2. 
 
ACTUAL FRAUD. 69 
 
 CHAPTER IV. 
 
 ACTUAL FRAUD. 
 
 § 54. The third class of cases, in which courts of 
 equity will grant relief concurrently with courts of law, 
 are those of fraud. In a great variety of cases fraud is 
 remediable, and effectually remediable, at law. But 
 there are many cases in which courts of law can grant 
 no relief; and courts of equity, in relieving against _it, 
 often go, not only beyond, but even contrary to the rules 
 of law, and, with the exception of cases of fraud in ob-" 
 taining a will, in which the remedy is exclusively at law, 
 courts of equity may be said to possess a general, and, 
 perhaps, a universal concurrent jurisdiction with courts 
 of law, in cases of fraud cognizable in the latter; and 
 exclusive jurisdiction in cases of fraud beyond the reach 
 of the courts of law.^ By our statutes, equity jurisdic- 
 tion has been conferred on the courts, before enumerated,^ 
 in all cases of fraud, whether actual or constructive. 
 
 § 55. Fraud has been defined to be any trick or arti- 
 
 ' 1 Story's Bq. | 184. Thus, where two of the creditors of an insolvent firm, 
 combined to defraud them and their other creditors, by inducing them to make 
 a sale of the firm property for cash; their object being to get possession of the 
 property, and to pay for it, not in cash, but in the notes of the insolvents ; it 
 was held, that although such fraud might be cognizable at law, yet a court of 
 equity would not refuse its aid to grant relief, the more especially, since a dis- 
 covery might be necessary to prove the complicity of some of the guilty parties. 
 Gray v. Simon, 12 Leg. Int. 72. 
 
 ^ Ante, I .S5. 
 
70 ACTUAL FEAUD. 
 
 fice employed by one person to induce another to fall 
 into an error, or to detain him in it, so that he may 
 make an agreement contrary to his interest. The fraud 
 consists either first, in a misrepresentation, or secondly, 
 in the concealment of a material fact. It has been de- 
 fined, in other words, to be any cunning, deception, or ar- 
 tifice, used to circumvent, cheat, or deceive another. 
 But, fraud, in the sense in which it is understood in a 
 court of equity, includes not only all the class of posi- 
 tive frauds, such as the definition includes, but many 
 others. In equity, all acts, omissions, and concealments, 
 which involve a breach of legal or equitable obligation 
 or duty, trust or confidence, justly reposed, and which 
 are injurious to another, or by which an undue and un- 
 conscious advantage is taken of another, are considered 
 fraudulent.-'^ 
 
 § 56. Lord Hardwicke has enumerated four species of 
 fraud.^ Fraud which may arise from facts and circum- 
 stances of imposition; from the circumstances and con- 
 dition of the parties; from the intrinsic nature and sub- 
 ject of the bargain; or from imposition and deceit in 
 persons not parties to the transaction.^ Fraud, then, 
 being so various in its nature, and so extensive in its ap- 
 plication to human concerns, it would be difficult to enu- 
 merate all the instances in which courts of equity will 
 grant relief under this head. It will be sufficient, if we 
 here collect some of the more marked classes of cases, 
 in which the principles which regulate the action of 
 courts of equity are fully developed, and from which 
 analogies may be drawn to guide us in the investigation 
 of other and novel circumstances.* 
 
 ' 4 Bouv. Inst. 167. ^ Chesterfield v. Jaussen, 2 Ves. 155. 
 
 ' Jeremy's Eq. 385 ; Bokee v. Walker, 2 Harris, 142. 
 • 1 Story's Eq. i 189. 
 
J 
 
 ACTUAL FRAUD. 71 
 
 § 57. It may here be proper to observe, that courts of 
 equity do not restrict themselves by the same rigid rules 
 as courts of law do, in the investigation of fraud, and in 
 the evidence and proof required to establish it. It is 
 equally a rule in courts of law and courts of equity, that 
 fraud is not to be presumed; it must be established by 
 proofs. But courts of equity will act upon circumstances, 
 as presumptions of fraud, where courts of law would not 
 deem them satisfactory proofs.^ A party cannot, how- 
 ever, avail himself in equity, of evidence tending to prove 
 a transaction fraudulent, where no charge of fraud is con- 
 
 ^ Ibid. \ 190; Kaine v. Weigley, 10 Harris, 1Y9; in this case Chief Justice 
 Black observes, that " the proposition that fraud must be proved, and is never 
 to be presumed, is frequently urged at the bar, and sometimes assented to by 
 judges, as if it were a fundamental maxim of the law, invariably true, incapable 
 of modification, and open to no exception ; whereas, it has scarcely extent 
 enough to give it the dignity of a general rule ; and, as far as it does go, it is 
 based on a principle which has no more application to frauds than to any other 
 subject of judicial inquiry. It amounts but to this ; that a contract, honest 
 and lawful on its face, must be treated as such until it is shown to be otherwise 
 by evidence of some land, either positive or circumstantial. It is not true that 
 fraud can never be presumed. Presumptions are of two kinds, legal and 
 natural. Allegations of fraud are sometimes supported by one and sometimes 
 by the other ; and are seldom, almost never, sustained by that direct and 
 plenary proof which excludes all presumption. A sale of chattels without 
 delivery, or a conveyance of land without consideration, is conclusively 
 presumed to be fraudulent as against creditors, not only without proof of any 
 dishonest intent, but in opposition to most convincing evidence that the 
 motives and objects of the parties were fair. This is an example of fraud 
 established by mere presumption of law. A natural presumption, is the deduc- 
 tion of one fact from another. For instance, a person deeply indebted, and on 
 the eve of bankruptcy, makes over his property to a near relative, who is known 
 not to have the means of paying for it. From these facts, a jury may infer 
 the fact of a fraudulent intent to hinder and delay creditors. A presumption 
 of fraud is thus created, which the party who denies it must repel by clear 
 evidence, or else stand convicted. Where creditors are about to be cheated, it 
 is very uncommon for the perpetrators to proclaim their purpose and call in 
 witnesses to see it done. A resort to presumptive evidence, therefore, becomes 
 absolutely necessary to protect the rights of honest men from this, as from 
 other invasions.'' 10 Harris, 183. 
 
72 ACTUAL FRAUD. 
 
 tained in the pleadings.^ And where an account is sought 
 on the ground of fraud, it is not sufficient to make such 
 a charge in general terms; but it should be pointed, and 
 state particular acts of fraud.^ And it is now an estab- 
 lished doctrine of courts of equity, that when a bill sets 
 up a case of actual fraud, and makes that the ground of 
 the prayer for relief, the plaintiff is not entitled to a de- 
 cree, by establishing some one or more of the facts quite 
 independent of the fraud, but which might of themselves 
 create a case under a totally distinct head of equity from 
 that which would be applicable to the case of fraud ori- 
 ginally stated.^ 
 
 § 58. It is obviously a principle of moral conduct, that 
 a man should be just and candid in his dealings ; and, 
 therefore, where, on the contrary, one seeks by misre- 
 presentation, or even by improper concealment of facts, 
 in the course of a transaction, to mislead the judgment 
 of another to his prejudice, a court of equity will gene- 
 rally interfere. The two means of injury, here adverted 
 to, are, in more technical language, denominated the sug- 
 gestio falsi, and suppressio veri} To authorize a court of 
 equity to rescind a contract on the ground of misrepresen- 
 tation, it is not only necessary to establish the fact, that 
 a misrepresentation was made but that it is a matter of 
 substance or important to the interests of the other party, 
 and that it has actually misled him.^ For if the misre- 
 presentation was of a trifling or immaterial thing; or if 
 
 ^ Chautauque Co. Bank v. White, 2 Seld. 237 ; G-overneur v. Elmendorf, 5 
 Johns. Ch. 79 ; Fitzpatrick v. Beatty, 1 Gilm. 454. 
 
 ^ Palmer v. Moore, 2 Dick. 489. 
 
 ' Price V. Berrington, 7 Eng. L. & Eq. 260; Booth v. Booth, 3 Litt. 57 ; 
 Mount Vernon Bank v. Stone, 2 Rh. I. R. 129; s. c. 1 Am. L. R. 339. 
 
 * Jeremy's Eq. 385. 
 
 ^ 4 Bouv. Inst. 1G9 ; Swazey v. Herr, 1 Jones, 279. 
 
ACTUAL FRAUD. 73 
 
 the other party did not trust to it, or was not misled by 
 it; or if it was vague and inconclusive in its own nature; 
 or if it was upon a matter of opinion or fact, equally open 
 to the inquiries of both parties, and in regard to which 
 neither could be presumed to trust the other; in these 
 and the like cases, there is no reason for a court of equity 
 to interfere, to grant relief upon the ground of fraud.^ 
 ^ § 59. It is wholly immaterial whether one who misre- 
 presents a material fact, knew it to be false, or made the 
 assertion not knowing whether it was true or false. If 
 one assert a fact, of which he knows and believes nothing, 
 he is guilty of falsehood, and must bear all the conse- 
 quences produced by it. If a party make representations 
 which he knows to be false, and injury ensue, though the 
 motive may not be bad, he commits legal fraud. No 
 motive for a representation which is false, and may 
 be injurious, can be good; it is enough to stamp it with 
 the character of actual fraud that it may lead to a risk, 
 which the other party would otherwise shun.^ And even 
 if a party innocently misrepresent a material fact by 
 mistake, it is equally conclusive, for it operates as a sur- 
 prise and imposition upon the other party .^ 
 
 § 60. Thus, if the seller falsely represent the quality 
 or character of the commodity to be other than it is in 
 fact, he will be liable to an action for deceit, or may be 
 defeated in a suit brought for the purchase money, if it 
 appear that the purchaser, not enjoying equal means of 
 knowledge, trusted to such representations. This is es- 
 pecially so, where the thing sold is affirmed by the ven- 
 
 1 1 Story's Eq. § 191. 
 
 2 Bokee v. Walker, 2 Harris, 142. 
 
 ' Pearson v. Morgan, 2 Bro. C. R. 389; Coleman v. Rowland, 11 Leg. Int. 
 146; Tyson w. Passmore, 2 Barr, 124; Hunt i). Moore, 2 Barr, 108; 1 Pars, 
 on Coutr. 451. 
 
 6 
 
74 ACTUAL FRAUD. 
 
 dor to be, in specie, the thing bargained for, when in 
 trutli it is something in its nature essentially different ; 
 and it will matter nothing that the article has been in- 
 spected and received by the buyer, if its true character 
 be not easily ascertainable by such means, short of ana- 
 lytical experiment, as only indolence or folly would 
 omit.^ 
 
 ' § 61. A party practised upon by actual misrepresenta- 
 tion will, if possible, be secured from the injury which 
 may arise therefrom. And hence a court of equity would 
 interfere to protect a person induced to sell property at 
 an undervalue, upon a false statement that the benefit of 
 the purchase was for one whom he knew the vendor 
 wished to oblige;^ and to relieve a party who should 
 agree with another to purchase from him a term, which 
 the latter pretended would not expire for a long period of 
 time, but which it turned out had but a few years to run. 
 And if one should misstate a fact, of which, in law, he is 
 presumed to have notice, and might readily have ob- 
 tained information, he is held to be bound thereby." 
 Where there has been a gross misrepresentation of fact, 
 leading to contract, the fraud practised will so utterly 
 avoid it, that it is not even susceptible of confirmation, 
 without a new consideration.* 
 
 ' Cornelius r. MoUoy, 1 Barr, 297 ; Borrekins v. Bevan, 3 Eawle, 23. 
 
 ' M'Caskey v. Graff, Pittsburgh Leg. J. 22 July, 1854. 
 
 ' Jer. Eq. 386. Where a mortgage does not cover all of the premises 
 owned by the mortgagor which he, by false and fraudulent representations, in- 
 duced the mortgagee to believe were included therein, when the latter made a 
 loan, and accepted it as security therefor, a court of equity will, as against the 
 mortgagor, or his voluntary grantee, reform the mortgage, and enforce it 
 against the part of the premises not originally embraced therein. De Peyster 
 D. Ilasbrouek, 1 Kern. 582. 
 
 ■* Cochran v. Cummings, 4 Dall. 250 ; Duncan r. M'Cullough, 4 S. & R. 487 ; 
 Chamberlain v. M'Clurg, 8 W. & S. 36 ; Goepp's Appeal, 3 Harris, 428. 
 
ACTUAL FRAUD. 75 
 
 § 62. An unlawful concealment of the truth, or sup- 
 pressio veri, when, from it, an injury arises to the oppo- 
 site party, is a just cause for setting aside a contract in 
 equity. But the concealment must be such, to render it 
 unlawful, that the party concealing is bound to disclose 
 the fact to the other, and in respect to which he cannot 
 innocently be silent. There are many duties, that be- 
 long to the class of imperfect obligations, which are bind- 
 ing on conscience, but which human laws do not and can- 
 not undertake directly to enforce. But when the aid 
 of a court of equity is sought, to carry into execution 
 such a contract, then the principles of ethics have a 
 more extensive sway, and a purchase made with such a 
 reservation of superior knowledge, would be of too sharp 
 a character to be aided and forwarded in its execution 
 by the powers of a court of chancery. It is a rule in 
 equity, that all the material facts must be known to both 
 parties, to render the agreement fair and just in all its 
 parts; and it is against all the principles of equity, that 
 one party, knowing a material ingredient in an agree- 
 ment, should be permitted to suppress it, and still call 
 for a specific performance.^ 
 
 § 63. There are certain intrinsic circumstances which 
 form the very ingredient of the contract, such as belong 
 to its nature, character, condition, title, and the like. 
 These are of the essence of the contract; as that a horse 
 you are selling is alive; that a house in a distant town, 
 which you sell to another, is not burned down. If, 
 knowing the fact, that at the time of sale the horse was 
 dead, or the house destroyed by fire, the seller should 
 conceal such important fact, the sale could be avoided.^ 
 
 2 Kent. Com. 490-1 ; see Case v. Cushman, 3 W. & S. 546. 
 ■ 4 Bouv. Inst. 173 ; 1 Pars, on Conlr. 437, 461-2, n. 
 
76 ACTUAL FRAUD. 
 
 § 64. In regard to extrinsic circumstances, such as 
 facts respecting the occurrence of peace and war, the 
 rise or fall of markets, the character of the neighbour- 
 hood, the increase or diminution of duties, and the like, 
 the rule of the common law is, caveat emptor; and courts 
 of equity have adopted the same maxim to a large ex- 
 tent, and relax its application only when there are cir- 
 cumstances of peculiar trust, or confidence, or relation, 
 between the parties.^ If, for example, I treat for the 
 purchase of an estate, knowing that there is a mine 
 under it, and the other party make no inquiry, I am 
 not bound by law to inform him of the mine.^ Where 
 the means of knowledge is equally accessible to both 
 parties each must judge for himself 
 
 § 65. There are, however, cases of a different charac- 
 ter, where the contract is necessarily based on the as- 
 sumption of a full disclosure; and where, for that rea- 
 son, any degree of concealment on a material point is 
 fraud. Thus, if a contract is guarantied by a surety, 
 and a fact materially affecting the nature of that con- 
 tract is misrepresented to him, or concealed from him, 
 with the knowledge or consent of the party accepting 
 the guarantee, the surety ceases to be liable.^ And if 
 a creditor, knowing that his debtor is in failing circum- 
 stances, take from him, for part of his claim, a mort- 
 gage substantially covering all his property, and get 
 the debtor to obtain the endorsement of a third person 
 for another part, without revealing the fact of the mort- 
 gage, this is a fraud upon the endorser and discharges 
 him from liability.* He acts fraudulently who secretly 
 
 1 1 Story's Eq. II 210, 212, 213 ; Laidlaw )\ Organ, 2 Wheat. 1T8. 
 
 2 Adams' Eq. 178; Kintzing !•. M'Elrath, 5 Barr, 467, 470. 
 » Pidcock V. Bishop, 3 B. & C. 605. *■ 
 
 ' Lancaster Co. Bank v. Albright, 9 Harris, 228. 
 
ACTUAL FRAUD. 77 
 
 changes a state of affairs, and then procures another to 
 do an act, into which the true state of affairs enters as a 
 motive.^ 
 
 § 66. The principle which treats non-disclosure as 
 equivalent to fraud, when the circumstances impose a 
 duty that the disclosure should be made, is especially 
 material in respect to contracts of insurance. For the 
 risk which the insurer undertakes can only be learnt 
 from the representation of the party insured. If, there- 
 fore, the insured do not state to the insurer truly and 
 fully all the facts within his private knowledge, which 
 would vary materially the object of the policy and 
 change the risk understood to be run, the policy is void. 
 Nor is it an excuse that the concealment was attributa- 
 ble to the fraud or neglect of an agent, or that the ac- 
 count concealed was false, or in no way referred to the 
 subsequent cause of loss, or was not believed by the in- 
 surer to be material, or was not concealed with a fraudu- 
 lent design. Thus, where the interest to be secured by 
 the policy was described as a mortgage including land, 
 it was held to be a material fact that the land was sub- 
 ject to prior mortgages held by the insured, the conceal- 
 ment of which vitiated the policy.^ 
 
 § 67. The same principle applies to all cases in which 
 the party is under an obligation to make a disclosure, 
 and conceals material facts. Thus, a secret agreement 
 by a creditor, party to a composition deed, by which he 
 is to receive a sum over and above the dividend stipu- 
 
 1 Ibid. 9 Harris, 231. 
 
 ^ Smith V. Columbia Ins. Co., 5 Harris, 253 ; and see Vale v. Phoenix Ins. 
 Co., 1 W. C. C. 283 ; Biays r. Union Ins. Co., Ibid. 506 ; MarshaU v. Union 
 Ins. Co., 2 Ibid. 357 ; Susquehanna Ins. Co. v. Perrine, 7 W. & S. 348 ; Wil- 
 son V. Herkimer Co. Mutual Ins. Co., 2 Seld. 53 ; Hartman v. Keystone Ins. 
 Co., 9 Harris, 466 ; Ins. Co. i: Updegraff, Ibid. 513. 
 
i ACTUAL FRAUD. 
 
 lated for in the deed, is void ; and it is immaterial that 
 all the other creditors had executed the deed before such 
 creditor agreed to become a party, on receiving a security 
 for the additional sum.^ All such secret arrangements 
 are utterly void; they cannot be enforced even against 
 the debtor himself, and money paid under them may be 
 recovered back, as having been obtained against the 
 clear principles of public policy.^ But where each cre- 
 ditor is separately compounded with, this principle of mu- 
 tuality and equality does not apply. Each creditor has 
 a right to make his own bargain with his debtor; and one 
 bargain cannot be void because it is better than another/' 
 
 '§ 68. When the parties stand in a fiduciary relation, 
 the utmost degree of good faith is required in making 
 contracts with each other, and the misrepresentation or 
 concealment of any material fact, will induce courts of 
 equity to pronounce such transactions void, and to make 
 a decree restoring the parties to their original rights, so 
 far as it can be done. Thus if, upon the dissolution of 
 a partnership, one of the firm, whose exclusive business 
 it was to keep the books and superintend the accounts 
 of the concern, should assign all his interest in the effects 
 for a valuable consideration, and take a covenant of in- 
 demnity against all debts due by the firm ; such indem- 
 nity would not cover a debt which did not appear in the 
 partnership books, «,nd Avas not made known to the as- 
 signee at the time of the contract of indemnity.* 
 
 § 69. In this class of cases of actual fraud may pro- 
 
 ' Patterson r, Boelim, 4 Barr, 507. 
 
 ' Jackman i\ Mitchell, 13 Ves. 581 ; Sadler r. Jackson, 15 Yes. 52 ; Stein- 
 man V. Magnus, 11 East, 390. 
 
 8 White V. Clarke, 5 Cr. C. C. Ill ; see Smith v. Saltzman, 2j Eng. L. & 
 Eq. 476-8. 
 
 * Case v. Cushman, 3 W. & S. 544. 
 
ACTUAL FRAUD. 79 
 
 perly be included those of unconscionable bargains, ob- 
 tained by imposition, circumvention, surprise, and undue 
 influence, over persons in general ; and in an especial 
 manner, all unconscientious advantages or bargains, ob- 
 tained over persons disabled by weakness, infirmity, age, 
 lunacy, idiocy, drunkenness, coverture, or other incapa- 
 city, from taking due care of, or protecting their own 
 rights and interests.^ For, though every one is allowed 
 to dispose of his property as he pleases, when he has the 
 free use of his understanding, and in this respect courts 
 of equity have no right to interfere, yet, when from the 
 state of mind, or other particular circumstance, in which 
 the party is placed, he is induced to act contrary to his 
 own interest, or that of his representatives, he will be 
 protected from those who have thus circumvented him.^ 
 § 70. It is upon the ground, that there is a want of 
 rational and deliberate consent, that the contracts of 
 idiots, lunatics, and other persons, non compotes mentis, 
 are generally deemed to be invalid in courts of equity. 
 It was formerly held, according to a known maxim of 
 the common law, that no man of full age should be ad- 
 mitted to disable or stultify himself; and that a court 
 of equity could not relieve against a maxim of the com- 
 mon law.^ But this doctrine of the common lawyers has 
 ceased to be the reproach of a system, whose claim to 
 be the perfection of reason could not but be equivocal, 
 while such a moral anomaly retained its place as a fun- 
 damental principle. And it is now established, both at 
 law and in equity, that a man may allege his own in- 
 competency to avoid his deed.'^ 
 
 ' 1 Story's Eq. § 221. '' 4 Bouv. Inst. 175. ^ 2 Kent's Com. 451. 
 
 * Clifton ». Davis, 1 Pars. 36 ; Bensell v. Chancellor, 5 Wh. 3Y7 ; Rogers 
 Walker, 6 Barr, 374. 
 
80 ACTUAL FRAUD, 
 
 § 71. The ground upon which courts of equity inter- 
 fere to set aside the contracts of lunatics, and others non 
 compotes mentis, is fraud. Wherever, from the nature 
 of the transaction, there is not evidence of entire good 
 faith, or the contract or other act is not seen to be just 
 in itself, courts of equity will set it aside, or make it 
 subservient to. their just rights and interests.-^ Where, 
 indeed, a contract is entered into in good faith, and is 
 for the benefit of such persons, as for necessaries, courts 
 of equity will uphold it. Ever since the case of Stiles 
 V. West,^ it has been held that the executed contract of 
 a non compos mentis for necessaries, bond fide supplied, 
 stands on the footing of an infant's contract for necessa- 
 ries.^ And so, an executed contract, by a merchant, for 
 the purchase of goods, before the day from which the 
 inquest finds him to have been non comj)os, cannot be 
 avoided by proof of insanity, at the time of tlie pur- 
 chase, unless there has been a fraud committed on him 
 by the vendor, or he had knowledge of his condition.* 
 
 § 72. Drunkenness rests on the same footing with in- 
 sanity, where the extent of the former is such as to in- 
 duce the deprivation of reason and understanding.'' In 
 Cooke V. Clay worth,^ Sir William Grant observes, " as to 
 that extreme state of intoxication that deprives a man 
 of his reason, I apprehend, that even at laAV it would 
 invalidate a deed obtained from him^ while in that con- 
 dition." The absence of capacity for any deliberate 
 
 1 1 Story's Eq. § 227-8. 
 ^ Cited in Manby v. Scott, 1 Sid. 109. 
 
 ' La Rue v. Gilkyson, 4 Barr, 376 ; Baxter r. Earl of Portsmouth, 2 Car. 
 & P. 178, s. c. 5 B. & C. 170. 
 * Beals V. See, 10 Barr, 56. 
 
 ^ Clifton V. Davis, 1 Pars. 36; 2 Kent's Com. 451. 
 « 18 Ves. 12. 
 
ACTUAL FRAUD. 81 
 
 consent, alike applies to both conditions, and in both 
 furnishes the reason for the invalidity of the contracts 
 of lunatics, and the helpless, stolid and stupified drunk- 
 ard. This is also the doctrine of the civilians. "It is 
 evident," says Pothier, "that drunkenness, when it goes 
 so far as absolutely to destroy the reason, renders a per- 
 son in this state, so long as it continues, incapable of 
 contracting, since it renders him incapable of consent."^ 
 If the degree of intoxication fall short of this, a court 
 of equity will generally not assist the other party in en- 
 forcing his claim. But, it seems, that it will confine 
 itself to standing neuter-, and will not reheve against the 
 instrument, unless the contracting party was drawn in to 
 drink by the contrivance of the other. ^ 
 
 § 73. Imbecility of mind is not sufficient to set aside 
 a contract when there is not an essential privation of 
 the reasoning faculties, or an incapacity of understand- 
 ing and acting with discretion in the ordinary affairs of 
 life. This incapacity is now the test of that unsound- 
 ness of mind which will avoid a deed at law. The 
 law cannot undertake to measure the validity of con- 
 tracts by the greater or less strength of the understand- 
 ing; and if the party be compos mentis, the mere weak- 
 ness of his mental powers does not incapacitate him. 
 Weakness of understanding may, however, be a mate- 
 rial circumstance in establishing an inference of unfair 
 practice, or imposition, and it will naturally awaken the 
 attention of a court of justice to every unfavourable ap- 
 pearance in the case.^ 
 
 1 Pothier Traite des Oblig. n. 49; 1 Pars, on Contr. 310-12 in noiis. 
 
 ^ Adams' Eq. 183; 2 Sugd. on Powers, 178. 
 
 ' 2 Kent's Com. 452 ; Adams' Eq. 183. Althougli in equity a contract made 
 with a man of sound mind, will not be set aside, merely because it is a bad 
 bargain, rash and improvident, yet, if it be made with a person of weak under- 
 
82 ACTUAL FRAUD. 
 
 § 74. If an act be done under actual duress, it may 
 be afterwards avoided even at law; for instance, if a man 
 be induced to execute a deed through fear of death, or 
 mayhem, or by an illegal restraint of his liberty. And, 
 in such case, though its execution be accompanied by all 
 requisite solemnities, yet he may allege the duress and 
 avoid the extorted deed. But if a man be lawfully im- 
 prisoned, and either to procure his discharge, or on any 
 other fair account, seal a deed, this is not duress of im- 
 prisonment, and he is not at liberty to avoid it. To 
 constitute duress at law, the arrest must have been ori- 
 ginally illegal, or have become so by subsequent abuse 
 of it.^ Courts of equity will likewise set aside a con- 
 tract made under the influence of terror, or of threats, 
 or of apprehensions short of duress ; for in such cases a 
 party has no free will; and the rule in equity is, that 
 where a party is not a free agent, and is not equal to 
 protecting himself, the court will protect him. Circum- 
 stances also, of extreme necessity and distress of the 
 party, although not accompanied by any direct restraint 
 or duress, may, in like manner, so entirely overcome liis 
 free agency as to justify the court in setting aside a con- 
 tract made by him, on account of some oppression, or 
 fraudulent advantage, or imposition, attendant on it.^ 
 
 § 75. The acts and contracts of infants are treated as 
 falling within the like predicament; for tliey are consi- 
 dered as having no capacity to bind themselves, from the 
 want of sufficient reason, and discernment of under- 
 standing, there does arise a natural inference that it was obtained by fraud, 
 or circumvention, or undue influence. Ferris v. Henderson, 2 Jones, 55, 1 
 Fonbl. Eq. b. I. c. ii. § 3. As to the capacity necessary for the valid execu- 
 tion of a will, see 1 Yeates, 114; 7 S. & R. 95; 8 Ibid. 513; 10 Ibid. 1^4; 
 17 Ibid. 4-47 ; 3 W. C. C. 58G ; 4 Ibid. 267-8 ; 9 Harris, G9-72. 
 
 ^ Stauffer v. Latshaw, 2 Watts, 167 ; Winder v. Smith, 6 W. & S. 429. 
 
 ^ 1 Story's Eq. ^ 239 ; 1 Pars, on Coutr. 319. 
 
ACTUAL FRAUD. 83 
 
 standing. There are indeed certain excepted cases, but 
 they are all of a special nature. The rule of law is, 
 that no one may deal with an infant; the exception to 
 it is, that a stranger may supply him with necessaries 
 proper for him, in default of supply by any one else; 
 but his interference with what is properly the guardian's 
 business must rest on an actual necessity, of which he 
 must judge, in a measure, at his peril.-^ So, by statute, 
 an infant may enter into a contract of apprenticeship. 
 When an infant's contract is, in its nature, beneficial to 
 him, it binds him in infancy and at age; when preju- 
 dicial, it is absolutely void from the beginning.^ Thus, 
 a warrant of attorney executed by an infant is abso- 
 lutely void, no matter under what circumstances it may 
 have been given ; and a bill in equity will lie, to restrain 
 proceedings on a judgment entered by virtue of it.^ 
 
 § 76. In regard to femes covert, the rule of law is, that 
 they have no capacity to do any acts or to enter into any 
 contracts, and such acts and contracts are treated as mere 
 nullities. So absolutely void is the deed or bond of a 
 married woman in contemplation of law, that her cover- 
 ture, at the time of its execution, may be given in evi- 
 dence, for the purpose of showing that it is so, either 
 under the plea of non est factum, or it may be pleaded 
 specially, without being obnoxious to the objection that 
 it amounts to the general issue, and therefore is not 
 good."* But courts of equity have broken in upon this 
 
 ^ Johnson v. Lines, 6 W. & S. 82. 
 
 ^ Leech v. Agnew, Y Barr, 22. 
 
 3 Knox V. Flack, 10 Harris, 338-9. See 1 Pars, on Contr. 243. As a general 
 rale, the contract of an infant, is said to be not void, but voidable ; that is, not 
 so far void, that he cannot ratify it after he arrives at the age of legal majority. 
 Pars, on Contr. 244 ; 1 Am. Lead. Cas. 103-4. 
 
 ■" Dorrance i: Scott, 3 Wh. 313 ; Caldwell v. Walters, 6 Harris, 82 ; Knox v. 
 Flack, 10 Harris, 338. 
 
84 ACTUAL FEAUD. 
 
 doctrine; and have, in many respects, treated the wife 
 as capable of disposing of her own separate property, and 
 of doing other acts, as if she were a feme sole. The 
 English rule gives her the entire control of her separate 
 property, so far as her power has not been restricted by 
 the terms of the settlement, but in this state, we hold 
 that she has no power which is not given her, either 
 expressly or by necessary implication.-^ The act of 1848, 
 however, has worked a radical and thorough change in 
 the condition of a feme covert. Since the passage of that 
 act, a married woman must be considered a feme sole in 
 regard to any estate, of whatever name or sort, owned by 
 her before marriage, or which shall come to her during 
 coverture, by will, descent, deed of conveyance, or other- 
 wise. She may dispose of her separate estate, by will, or 
 otherwise, as a feme sole?" But this act does not enable 
 her to enter into a personal obligation for the paj-ment 
 of money, such as a promissory note,^ or a bond and 
 warrant of attorney;* unless such obligation be given 
 for the purchase money of real estate for her separate 
 use.^ She may, however, in a mortgage of her separate 
 estate for the debt of her husband, waive the limitation 
 given by the act of 1705.^ In cases of this sort the same 
 principles will apply to the acts and contracts of a feme 
 covert, as would apply to her as a, feme sole, unless the cir- 
 
 ' Chrismau v. Wagoner, 9 Barr, 473 ; Lancaster r. Dolan, 1 Kaivle, 24T ; 
 Thomas v. Folwell, 2 Wh. 11 ; Wallace i\ Coston, 9 Watts, 137 ; Cochran ;•. 
 O'Hern, 4 W. & S. 100 ; Wetherill r. Mecke, Bright. R. 140-1. 
 
 ^ Cummings' Appeal, 1 Jones, 275 ; Goodyear r. Rumbangh, 1 Harris, 480. 
 
 ' Mahon v. Gormly, Pittsburgh Leg. J. 10 February 1855. 
 
 * Caldwell v. Walters, G Harris, 82 ; Knox i . Flack, 10 Harris, 338 ; and 
 see Bennet v. Smith, 3 Am. L. J. 138. 
 
 '" Patterson v. Robinson, 3 Am. L. R. 240. 
 
 ^ Galway i-. Black, Pittsburgh Leg. J. 6 May 1854; Ibid. 11 Nor. 1854. 
 
ACTUAL FRAUD. 85 
 
 cumstances give rise to the presumption of fraud, impo- 
 sition, unconscionable advantage, or undue influence.^ 
 
 § 77. Of a kindred nature to tlie cases already con- 
 sidered, are cases of bargains of such an unconscionable 
 nature, and of such gross inequality, as naturally lead to 
 the presumption of fraud, imposition, or undue influence. 
 By unconscionable bargains are meant those contracts 
 which no man in his senses, not under delusion, would 
 make, on the one hand, and which no honest and fair 
 man would accept on the other. A bargain will not be 
 considered unconscionable for the mere inadequacy of 
 price, or any other inequality in the bargain, because, 
 whether the price be inadequate depends upon numerous 
 circumstances, which cannot be considered by the courts, 
 without setting afloat all contracts, and rendering every 
 thing uncertain. But the inadequacy may be so uncon- 
 scionable as to shock the conscience, and be evidence 
 sufficient to demonstrate some gross imposition, or un- 
 due and unfair influence, which may be considered a 
 fraud.^ Still there are cases in which equity will not re- 
 lieve even when there has been gross inadequacy, unless 
 the parties can be placed in statu quo. In cases of mar- 
 riage settlements, for example, the courts cannot un- 
 marry the parties, and therefore they will not interfere.® 
 A court of equity will not, however, decree specific per- 
 formance of a contract, where the price is unreasonable 
 or inadequate, or • the contract is in other respects in- 
 equitable; in such case equity will not assist either party.* 
 
 ' 1 Story's Eq. § 243. If fraud has been practised to obtain the acknowledg- 
 ment of a feme covert to a deed, barring her right of dower in lands conveyed by 
 her husband, a court of equity will grant relief; for no separate examination 
 can guard against that. Schrader r. Decker, 9 Barr, 16. 
 
 ' Vint V. King, 2 Am. L. R. Y32 ; see Davidson v. Little, 10 Harris, 252. 
 
 ' 4 Bouv. Inst. 175. * Davidson v. Little, 10 Harris, 251. 
 
86 ACTUAL FRAUD. 
 
 But this principle, in practice, has not been extended to 
 any sale, unless where there has been inadequacy or ex- 
 travagance in the sum agreed upon, comparing it with 
 the usual current price of estates of the same nature, in 
 the same neighbourhood or district, at the time of the 
 contract.^ 
 
 ' Cassell V. Cooke, 8 S. & R. 294-5. 
 
CONSTRUCTIVE FRAUD. 87 
 
 CHAPTER V. 
 
 CONSTRUCTIVE FRAUD. 
 
 § 78. Having examined the effects of actual frauds 
 upon contracts and the acts of parties, we are next to con- 
 sider constructive frauds; by which are meant such acts 
 or contracts as, though not originating in evil design, 
 or contrivance to perpetrate fraud, or injury upon other 
 persons, yet by their necessary tendency to deceive and 
 mislead them, or to violate public or private confidence, 
 or to impair or injure public interests, are deemed equally 
 reprehensible, in a legal and equitable point of view, with 
 actual fraud, and therefore prohibited by law, as within 
 the same reason and mischief as acts and contracts done 
 malo animo} Constructive frauds have been divided into 
 three kinds; those against public policy; those in viola- 
 tion of trusts and fiduciary relations; and those against 
 third persons.^ 
 
 § 79. In the first class, may properly be placed all 
 marriage brokage contracts, which are deemed utterly 
 void, as against public policy, so much so that they are 
 incapable of confirmation; and even money paid under 
 them may be recovered back in a court of equity.^ 
 Bonds given as a reward for using influence over another. 
 
 1 1 Story's Eq. § 258 ; 4 Bouv. Ingt. 176. 
 ' 1 Story's Eq. ? 259 ; 4 Bouv. Inst. 176. 
 
 2 1 Fonbl. Eq. B. I. ch. iv. i 10. 
 
88 CONSTRUCTIVE FRAUD. 
 
 to induce him to make a will in favour of the obligor, are 
 in the same category ; and upon a similar ground, secret 
 contracts made with parents or guardians, whereby, upon 
 a treaty of marriage, they are to receive a compensation 
 for promoting or giving their consent to it, are held void. 
 The same principle pervades the class of cases, where 
 persons, upon a treaty of marriage, by any concealment 
 or misrepresentation mislead other parties, or do acts 
 which are, by other secret agreements, reduced to mere 
 forms, or become inoperative. Thus, where, upon a 
 treaty of marriage, a party, to whom the intended hus- 
 band was indebted, concealed his own debt, and misre- 
 presented to the wife's father the amount of the hus- 
 band's debts, the transaction was treated as a fraud upon 
 the marriage, and the creditor was enjoined from en- 
 forcing his own claim.^ This rule, however, is not appli- 
 cable to an innocent misrepresentation to a woman, of the 
 amount of her intended husband's property; and the 
 party, making such representation without fraud, will 
 not be estopped from claiming a debt due to him from the 
 husband's estate, after his decease, although the value of 
 the estate may be thereby reduced below the amount it 
 was represented to be worth .^ In all these cases and 
 those of a like nature, the distinct ground of relief is, the 
 meditated fraud or imposition practised by one of the 
 parties upon third persons, by intentional concealment or 
 misrepresentation. 
 
 § 80. On the same principle, a secret settlement made 
 by a woman shortly before her marriage and in contem- 
 plation of that event, without the knowledge of her in- 
 tended husband, is a fraud upon his marital rights, and 
 
 1 1 Story's Eq. ^| 260-2V1 ; Whiteliill v. Lousey, 2 Yeates, 109. 
 ^ Coleman v. Rowland, 11 Leg. Int. 14G. 
 
CONSTRUCTIVE FRAUD. 89 
 
 will be set aside by a court of equity ; ^ and for the same 
 reason, a voluntary release executed by a ward to the 
 husband of her guardian, two days after she came of age, 
 and on the eve of her marriage, without the knowledge 
 of her intended husband, and with a view to affect his 
 rights, was held to be fraudulent and void as against the 
 husband.^ But if she should only reasonably provide 
 for her children by a former marriage under circum- 
 stances of good faith, it would be otherwise.* 
 
 § 81. Upon the same ground of public policy, contracts 
 in restraint of marriage are deemed void. A reciprocal 
 engagement between a man and a woman to marry each 
 other, is undoubtedly good; but a contract not to marry 
 at all, or to marry no one but a particular person, without 
 enforcing a corresponding reciprocal obligation on that 
 person, is treated as mischievous to the general interests 
 of society, which are promoted by the encouragement of 
 suitable marriages.* With regard to conditions annexed 
 to gifts, legacies, and devises in restraint of marriage, the 
 rule is, that such condition when annexed to a legacy 
 of personal property is void;^ but valid, when annexed 
 to a devise of lands;® and that, although there be no 
 limitation over.^ 
 
 § 82. Although an agreement may be founded on a 
 legal and valuable consideration, if its object be a general 
 or total restraint of trade as to one of the parties, it is 
 absolutely void, as against the general policy of the law. 
 There is, however, a known and established distinction 
 between such bargains and contracts, as are in general 
 
 ' Linker v. Smith, 4 W. C. C. 224. ^ Elliott's Estate, 3 Penn. L. J. 215. 
 
 3 1 Story's Eq. i 2Y3. * Ibid. | 274. 
 
 ^ Hoopes p. Dundas, 10 Barr, Y5 ; M'llvaine v. Gethen, 3 Wh. 573. 
 
 ^ Com. v. Stauffer, 10 Barr, 350 ; Bennett v. Robinson, 10 Watts, 348. 
 
 ' M'CuUougli's Appeal, 2 Jones, 197. 
 
 7 
 
90 CONSTRUCTIVE FRAUD. 
 
 restraint of trade, and such as restrain it only as to par- 
 ticular places or persons. The latter, if founded upon a 
 sufficient consideration, are valid ; the former are univer- 
 sally prohibited.^ Thus, if a vendor sell his place of busi- 
 ness and the good-will of his trade, and in his contract 
 of sale stipulate not to carry on his trade within certain 
 defined limits, a court of equity will enforce the specific 
 execution of such a contract, and at the suit of the ven- 
 dee, will, by injunction, restrain the vendor from carry- 
 ing on his trade within the place specified in the agree- 
 ment; and so, where a partner sells his interest in the 
 good- will of a trade or business, and, on receiving a com- 
 pensation therefor, agrees not to commence a similar trade 
 or business in the same vicinity, a court of equity will 
 restrain him by injunction from prosecuting the same.^ 
 
 § 83. Another class of constructive frauds is, that of 
 agreements by parties not to bid against each other at a 
 public auction, especially where they are directed by law, 
 as in case of a sale of property under execution or dis- 
 tress for rent; all such agreements are held void, as 
 against public policy, for they operate virtually as a fraud 
 upon the sale.^ But lien creditors, as well as others, 
 may purchase jointly at a judicial sale, if all be open and 
 fair. A combination of interests for that purpose is not 
 necessarily corrupt. It is the end to be accomplished 
 which makes such a combination lawful or otherwise ; if 
 it be to depress the price of property by artifice, the pur- 
 chase will be void ; if, on the contrary, it be to raise the 
 means of payment by contribution, or to divide the pro- 
 perty for the accommodation of the purchasers, it will be 
 
 • 1 Bouv. Inst. 297 ; 4 Ibid. 179 ; 1 Story's Eq. J 202. 
 
 ^ Palmer v. Graham, 1 Pars. 476. 
 
 ' Brisbane v. Adams, 3 Comst. 129 ; 1 Bouv. Inst. 23(5. 
 
CONSTRUCTIVE FRAUD. 91 
 
 valid.^ A fraud of similar character, is the employment 
 of underbidders or puffers at a public auction, to enhance 
 the price of the property sold ; such act is a fraud upon 
 the purchaser, and will avoid the sale;^ and it is not 
 material that the property brought no more than its 
 general value ; a purchaser at auction has a right to buy 
 at an under-value if he can.^ 
 
 § 84. So, a contract to procure or endeavour to procure 
 the passage of an act of the legislature, by any sinister 
 means, or by using personal influence with the members, 
 is void, as being inconsistent with public policy and the 
 integrity of our political institutions.* So, a contract 
 founded upon a promise and engagement to procure sig- 
 natures and obtain a pardon from the governor, for one 
 convicted of a criminal offence and sentenced to punish- 
 ment, is unlawful and cannot be enforced.^ So, the pro- 
 curement of an appointment to office by private influence 
 is illegal, on the ground of public policy.'' And so, a bond 
 given to a stake-holder, to indemnify him in giving up 
 to the winner money deposited as a bet upon an election, 
 is void, and there can be no recovery upon it.'^ 
 
 §'85. In like manner, all agreements founded on vio- 
 lations of public trust or confidence, or of the rules 
 adopted for the advancement of public j ustice, are deemed 
 void.^ Thus, a promise of a reward to a constable for 
 
 1 SmuU V. Jones, 1 W. & S. 128 ; s. c. 6 Ibid. 122. 
 ' Pennock's Appeal, 2 Harris, 44G. 
 
 2 Staines i\ Shore, 4 Harris, 200 ; Minturn v. Main, 3 Seld. 22G. 
 * Clippinger v. Hepbaugh, 5 W. & S. 315. 
 
 » Hatzfield v. Gulden, 1 Watts, 152. 
 
 ^ Filson's Trustees v. Himes, 5 Barr, 452 ; Gray v. Hook, 4 Comst. 449. 
 
 ' Columbia Bank and Bridge Co. u. Haldeman, 7 W. & S. 233. 
 
 " If a sherifi", by reason of his neglect to proceed with an execution, is com- 
 pelled to pay to the judgment creditor the amount of his claim, he cannot be 
 permitted to take an assignment of the judgment, either in his owa name or 
 
92 CONSTRUCTIVE FRAUD. 
 
 arresting a criminal, under a warrant which he is bound 
 by law to execute, is void.^ So, a promissory note given 
 in consideration of the payee withdrawing his opposition 
 to the discharge of the maker as an insolvent debtor, is 
 contrary to the policy of the law, and invalid.^ So is a 
 promise to indemnify one acting as judge of a corporate 
 election, if he will refuse to receive the votes of duly 
 qualified electors.^ So, no action can be maintained to 
 recover the amount of a wager;* or on a contract in 
 violation of the revenue laws of the United States f or 
 of either the statute or common law of this state.^ Agree- 
 ments, founded upon the suppression of criminal prosecu- 
 tions, fall under the same consideration; they have a 
 manifest tendency to subvert public justice; yet, a pro- 
 secution for assault and battery may be settled between 
 the parties, and a contract to pay a certain sum for set- 
 
 in that of another, for his benefit, and to enforce it against the defendant, in 
 order to indemnify himself for the loss which he has sustained by his own 
 breach of duty. Such a transaction is contrary to public policy and void. If 
 an officer entrusted with the execution of final process might, without peril of 
 ultimate loss, select his own time for its execution, he might seriously interfere 
 with the rights of the creditor, by delaying the process to his prejudice; and 
 he might, at his option, employ the same process to annoy and oppress the 
 debtor and make gain to himself. Both the debtor and creditor would be, in 
 a measure, subject to the caprice of the sheriff; and serious inconveniences 
 would arise, if rights, either legal or equitable, were held to result to a sheriff 
 from his own breach of duty. While it has ever been the policy of the law 
 to protect an ofBcer, within proper limits, from loss or damage, in the faithful 
 discharge of his duties, it has done nothing to encourage or protect him in the 
 neglect or violation of those duties. The consequences of all violations of duty 
 are visited upon him, and he is not entitled to any equities beyond those which 
 enure to any other wrong-doer. Carpenter v. Stillwell, 1 Kern. 61, 68. 
 
 1 Smith v. Whildin, 10 Barr, 39. 
 
 ^ Baker v. Matlack, 1 Ash. 68 ; see 1 Pars, on Contr. 365. 
 
 ' Weckerly v. Lutheran Congregation, 3 Rawle, 1Y2. 
 
 " Edgell V. M'Laughliu, 6 ^Vh. 176. 
 
 s Cambioso v. Maffett, 2 W. C. C. 98. 
 
 6 Thomas v. Brady, 10 Barr, 170. 
 
CONSTRUCTIVE FRAUD. 93 
 
 tlement, is not contra bonos mores, and may be sued on ;^ 
 so, the settlement of a prosecution for fornication and 
 bastardy is a valid consideration to support a contract.^ 
 
 § 86. "Wherever the divine law, or the statute, or com- 
 mon laAV, prohibits the doing of certain acts, or enjoins 
 the discharge of certain duties, any agreement to do such 
 acts, or not to discharge such duties, is illegal and void. 
 Hence, all agreements, bonds, and securities, given as a 
 price of future illicit intercourse, are invalid ; such con- 
 sideration will not even support a promise of marriage.^ 
 So, it is an undoubted rule, that a contract growing out 
 of a transaction whose known tendency was to encourage 
 a breach of the laws, is not to be enforced. For this 
 reason it has been held, that an action is not maintain- 
 able for the price of drugs purchased by a brewer, 
 avowedly with a design to use them in violation of the 
 provisions of a statute; or by an innkeeper for refresh- 
 ments furnished to the defendant's voters at an election. 
 So, an action has been held not to lie on a contract in 
 reference to an illegal voyage, because the accessary fol- 
 lows the nature of its principal; or, for the use and occu- 
 pation of lodgings, let with knowledge that they were to 
 be used for purposes of prostitution.* Nor can wages 
 be recovered on a contract to serve as marker at an illicit 
 billiard table.* And where an agreement is invalid from 
 the unlawfulness of its consideration, any subsequent 
 agreement, based upon it, is equally invalid." 
 
 § 87. In fine, all contracts or agreements, which have 
 for their object anything which is repugnant to justice, 
 or against the general policy of the common law, or con- 
 
 ' Rusliwortli V. Dwyer, 1 Leg. Int. 15. 
 
 ^ Maurer v. Mitchell, 9 W. & S. 11. ' Baldy v. Stratton, 1 Jones, 316. 
 
 * Badgley v. Beale, 3 Watts, 264. » i^i|j_ 
 
 « Columbia Bridge Co. v. Kline, Bright. R. 320. 
 
94 CONSTRUCTIVE FEAUD. 
 
 trary to the provisions of any statute, are void; and 
 whenever a contract or agreement is entered into, with a 
 view to contravene any of these general principles, there 
 is no form of words, however artfully introduced or 
 omitted, which can prevent courts of law and equity 
 from investigating the truth of the transaction; iov,*ex 
 turpi contractu actio non oritur, is a rule both in law and 
 equity.^ And if a person seek to enforce in the courts 
 of this state, a contract which by its laws is forbidden 
 and declared void, he must aver and prove where it was 
 made, and that by the laws of that place it was autho- 
 rized and valid.^ 
 
 § 88. It is a rule in equity, that when two persons are 
 equally guilty in making a contract in violation of law, 
 neither shall be bound or have relief in equity. There 
 are cases however, where, although both parties are in 
 the wrong, they do not stand in pari delicto. Courts of 
 equity may therefore grant relief to one of such parties 
 and refuse it to the other ; and sometimes this is done 
 for the purpose of supporting the public interests or pub- 
 lic policy. Where contracts are declared void, as against 
 the statutes of usury, if the lender seek to enforce the 
 contract, equity will grant him no relief; but if the bor- 
 rower seek relief against the usurious contract, it will be 
 granted upon condition that he pay the defendant what 
 is really due.^ 
 
 § 89. In regard to gaming contracts, they are declared 
 by statute to be utterly void and of none effect; and 
 where the money lost has actually been paid, it may 
 be recovered back by the loser, if suit be commenced 
 within ten days thereafter; and in such action it is 
 
 ' Bell V. Leggett, 3 Seld. 179; Gray r. Hook, 4 Comst. 455. 
 
 * Thatcher r. Morris, 1 Kern. 437. * 4 Bonv. Inst. 178-9. 
 
CONSTEUCTIVE FRAUD. 95 
 
 sufficient for the plaintiff to declare for money had and 
 received by the defendant for his use, without setting 
 forth the special matter.^ A negotiable note given for a 
 gaming consideration is void, even in the hands of an 
 innocent holder for value; but he may sue the indorser 
 on his indorsement.^ 
 
 § 90. The second class of constructive frauds, is that 
 of frauds which arise from an abuse of some peculiar con- 
 fidential or fiduciary relation between the parties. A 
 court of equity interposes its benign jurisdiction to set 
 aside instruments executed between persons standing in 
 the relations of parent and child, guardian and ward, 
 physician and patient, solicitor and client, and in various 
 other relations in which one party is so situated as to exer- 
 cise a controlling influence over the will, and conduct, 
 and interests, of another. In some cases, undue influ- 
 ence will be inferred from the nature of the transaction 
 alone; in others from the nature of the transaction and 
 the exercise of occasional or habitual influence.^ The 
 general principle which governs in all cases of this sort 
 is, that if a confidence be reposed, and that confidence be 
 abused, courts of equity will grant relief. There is-often, 
 in such cases, some intermixture of- deceit, imposition, 
 overreaching, unconscionable advantage, or other mark 
 of direct and positive fraud; but the principle on which 
 courts of equity act in regard thereto, stands, indepen- 
 dent of any such ingredients, upon a motive of general 
 public policy; and therefore, they will often interfere in 
 such cases, where, but for the peculiar relation between 
 the parties, they would either abstain wholly from grant- 
 
 f Purd. Dig. 390. 
 ^ Ungef V. Boas, 1 JIarris, 601-3, 
 3 Seaw V. gjiafer, 2 ggld. 272, 
 I 
 
96 CONSTRUCTIVE FRAUD. 
 
 ing relief, or would grant it in a very modified and re- 
 stricted form.^ 
 
 § 91. Where contracts have been made between a pa- 
 rent and child, whereby the latter has made conveyances 
 or contracts against his interest, courts of equity will 
 often set them aside, upon the ground that the just con- 
 fidence and influence which the parent ought to have 
 over his child has been abused. Thus, where a convey- 
 ance had been made of her real estate by a daughter to 
 her father, immediately before her marriage, under a be- 
 lief that she would be benefited thereby, and that the 
 property conveyed by the deed would become her's after 
 the decease of her parent; and where the operation of 
 the conveyance was to deprive the daughter of the estate ; 
 the court decreed a conveyance of the property, and an 
 account of the proceeds of part which had been sold, so 
 as to effect the justice of the case, and give to the 
 daughter the property to which she would have been en- 
 titled, had not the conveyance been made." But such 
 contract must have been obtained by undue influence, 
 otherwise it will not be set aside; a mere fear of dis- 
 pleasing a parent will not have that effect. Even when 
 there has been some improper conduct on the part of 
 the father, the application for relief must be made in a 
 reasonable time, for a long delay and acquiescence on 
 the part of the child, will deprive him of the remedy to 
 which he might otherwise be entitled.^ 
 
 § 92. The relation of guardian and ward is one re- 
 quiring the exercise of the utmost good faith on the part 
 of the former. During the existence of the guardian- 
 ship the acts of the guardian are under the constant su- 
 
 » 1 Story's Eq. I 307-8 ; Greenfield's Estate, 2 Harris, 505. 
 
 2 Slocum V. Marshall, 2 W. C. C. 397. » 4 Bouv. Inst. 182. 
 
CONSTRUCTIVE FRAUD. 97 
 
 pervision of the orphans' court; and during that period 
 the relative situations of the parties renders them gene- 
 rally unable to deal with each other. But courts of 
 equity go yet farther in such cases : they will not per- 
 mit transactions between guardians and wards to stand, 
 even when they have occurred after the minority has 
 ceased, and the relation become thereby actually dis- 
 solved, if the intermediate period be short, unless the cir- 
 cumstances demonstrate, in the highest sense of the 
 terms, the fullest deliberation on the part of the ward, 
 and the utmost good faith on the part of the guardian.^ 
 Settlements made soon after coming of age, and espe- 
 cially before the ward is in possession of his estate, are al- 
 ways viewed by the courts with a watchful, and even a 
 jealous eye. Not that there is any thing wrong in making 
 a settlement: it is what both parties should wish. But 
 when the ward apprehends, on further reflection, that he 
 has acted under a mistake, or ignorance of fact or law, 
 there should be no hesitation on the part of the guar- 
 dian in submitting to a re-examination of the liccount. 
 What objection can there be to it unless papers have 
 been lost? It should always be remembered, that when 
 a young man comes of age he must necessarily be igno- 
 rant of his affairs, and the information which he receives 
 must come principally from his guardian. In point of in- 
 formation the parties are not on an equal footing.^ For 
 this reason, releases given by Avards to their guardians, 
 soon after arriving at full age, have frequently been set 
 aside in equity.^ And the same rule has been applied 
 
 1 1 Story's Eq. ? 317; Wills's Appeal, 10 Harris, 332. 
 
 ' Say's Executors v. Barnes, 4 S. & R. 114-15; Elliot v. Elliot, 5 Binn. 8. 
 ' Stanley's Appeal, 8 Barr, 431; Neisly's Appeal, Ibid. 457; Lukens' Ap- 
 peal, 7 W. & S. 48. 
 
^° CONSTRUCTIVE FRAUD. 
 
 to settlements between a master and apprentice, soon 
 after the term of service had expired.^ 
 
 § 93. In consequence of the advantage and imposition 
 which it is in the power of an attorney to take of his 
 client, a court of equity will frequently interpose to set 
 aside a contract which, between other parties, would be 
 unimpeachable. This is emphatically true of the relation 
 of client and attorney, .and persons standing in a situa- 
 tion of quasi guardians or confidential advisers. Many of 
 the cases establish the doctrine, that while these connec- 
 tions exist in full vigour the adviser shall take no bene- 
 fit to himself, from contracts or other negotiations with 
 the advised:^ a doctrine intended to supersede the neces- 
 sity of any inquiry into the means used or the exertion 
 of influence in any particular case, which is often diflScult, 
 if not impossible, from the very nature of things.^ Other 
 authorities, where the transaction is one of contract and 
 sale, conceding that it may not be absolutely void ipso 
 facto, throw upon the agent the burden of establishing 
 its perfect fairness and adequacy; and that it was the de- 
 liberate act of the confiding party, after being fully in- 
 formed of his rights, interests, and duties, and put upon 
 his guard against even the suggestions of his own incli- 
 nation. It must appear affirmatively that no advan- 
 tage has been taken of the client; and if this be not ab- 
 solutely established, uberrima fide, equity will treat it as 
 one of constructive fraud.* 
 
 § 94. An attorney or other confidential adviser, is not 
 permitted to avail himself of either the necessities of his 
 
 ' M'Gucigal V, Mong, 5 Ban-, 269, 
 
 ' Hatch V, Hatch, 9 Ves. 29T j Wood ». Downea, 18 Yes. 126; De Mont- 
 morency V. Devereux, 1 01. & Fin. 188. 
 
 ' Welles V. Middleton, 1 Cox, 125; Wright r, Pr-Qlid, 13 Ves, 137, 
 * Greenfield's Estate, 2 Harris, 506, 
 
CONSTRUCTIVE FRAUD. 99 
 
 client or of his good nature, liberality, or credulity, to 
 obtain undue advantages, bargains, or gratuities; and it 
 has been said, there would be no bounds to the crushing 
 influence of the power of an attorney who has the affairs 
 of a man in his hands, if it were not so.^ A judicious 
 writer on this subject has observed,^ that equity "does 
 not so much consider the bearing and hardship of this 
 doctrine upon particular cases, as it does the importance 
 of preventing a general public mischief, which may be 
 brought about by means secret and inaccessible to judi- 
 cial scrutiny, from dangerous influences arising from the 
 confidential relations of the parties; " and accordingly, it 
 was held, that a provision in a voluntary deed in favour 
 of the attorney who drew or advised it, for his services 
 to be jaerformed as a trustee under such deed, with the 
 further provision that the said trustee might resign the 
 trust to the other trustees named therein, without for- 
 feiting the compensation, was void, unless it were proved 
 that the grantor knew of the particular provisions, and, 
 Avithout influence from those interested, assented to 
 them.^ 
 
 § 95. So too, of the practice, Avhich has obtained to a 
 considerable extent, of stipulating beforehand for profes- 
 sional fees, contingent on the result of the litigation. It 
 is not a practice to be generally commended, exposing 
 honourable men, not unfrequently, to misapprehension 
 and illiberal remark ; and giving the apparent sanction 
 ' of their example to conduct which they would be among 
 the foremost to reprehend. Such contracts may some- 
 times be necessary in a community such as that of Penn- 
 
 ^ Gibson V. Jones, 6 Ves. 278; Montesquieu v. Sandys, 18 Ves. .^13; Jones 
 V. Thomas, 3 Y. & Coll. 4^8; Hindson v. Weatherill, 23 Eng. L. & Eq. 132. 
 2 1 Story's Eq. I 311. = Greenfield's Estate, 2 Harris, 489, 
 
100 CONSTRUCTIVE FRAUD. 
 
 sylvania has been, and perhaps, as it is yet; and where 
 they have been made in abundant good faith, uberrima 
 fide, without suppression or reserve of fact, or exaggera- 
 tion of apprehended difl&culties, or undue influence of 
 any sort or degree; and where the compensation bar- 
 gained for is absolutely just and fair, so that the trans- 
 action is characterized throughout by " all good fidelity 
 to the client;" the court will hold such contracts to be 
 valid. But it is hardly necessary to say, that such con- 
 tracts, as they can scarcely be excepted from the general 
 rule, which denounces as suspicious the dealings of fidu- 
 ciaries with those under their protection, must undergo 
 the most exact and jealous scrutiny, before they can 
 expect the judicial ratification.^ 
 
 § 96. Similar considerations apply to the case of a 
 medical adviser and his patient; and a minister of re- 
 ligion, taking from those under his spiritual charge, may 
 be bound by this rule with even greater stringency;'^ 
 for if there be any given state of circumstances, in which 
 a person can be placed, in which he requires to be pro- 
 tected against himself; it assuredly is, when he is 
 brought in contact with, and placed under the imme- 
 diate influence of his spiritual counsellor and guide, to 
 whom he looks for direction as to his duties in life, and 
 from whom he gathers instruction as to his preparation 
 for death and a future state of existence. He must be 
 wanting in a correct knowledge of the religious nature 
 of man, who does not accord to it a power and intensity, 
 which is not equalled by the relations of parent and 
 child, guardian and ward, trustee and cestui que trust, or 
 
 ' Ex parte Plitt, 2 Wall. Jr. 480. .., \"l ' > 
 
 ' Huguenin v. Baseley, 14 Ves. 273; Thompson v. Hefferman, 4 Dru. & W. 
 
 285. 
 
CONSTRUCTIVE FRAUD. 101 
 
 attorney and client.^ There is no part of the jurisdic- 
 tion of courts of equity more useful or more well founded, 
 than that which assumes the control over all transac- 
 tions between persons occupying confidential relations 
 towards each other. This jurisdiction ought to be exer- 
 cised, whatever be the circumstances and position of the 
 parties between whom the confidential relation exists, 
 whether attorney and client, guardian and ward, or 
 surgeon and patient.^ Thus, a promissory note having 
 been given, under undue influence, by a patient to his 
 surgeon, fo* an amount far beyond what was justly due, 
 the surgeon was restrained from recovering the whole 
 amount, but the note was retained as a security for what 
 should prove to be justly due.^ 
 
 § 97. There are not many relations in social life, 
 where one man depends more upon the judgment and 
 integrity of another, than in the connection that subsists 
 between principal and agent. The courts of equity, 
 therefore, look upon contracts made between these par- 
 ties with the same jealous care with which they watch 
 the contracts made between other persons standing in a 
 fiduciary relation. Secret agreements by which agents 
 become sellers or buyers of property, which they are to 
 buy or sell for their principals, and by which they are 
 to derive any benefit, unknown to the principal, will be 
 declared void, as being opposed to justice and sound 
 policy. If an agent, employed to purchase a piece of 
 
 ' Greenfield's Estate, 12 Leg. Int. 7. This case has been since reversed by 
 the supreme court, with the remark, that no rule of law or morals will prevent 
 clergymen from receiving gifts, great or small, from their parishioners. 12 
 March 1S55, MS. See Nachtrieb v. The Harmony Settlement, 12 Leg. Int. 98. 
 
 ■' Billing V. Southee, 10 Eng. L. & Eq. SQ-'IO. 
 
 •' Ibid. ; and see Greville v. Tylee, 24 Ibid. 54. 
 
102 CONSTRUCTIVE FRAUD. 
 
 land for another, buy it for himself, a court of equity 
 will turn him into a trustee for his principal.'^ 
 
 § 98. And indeed no rule seems to be better settled, 
 than that whenever confidence is reposed in a person 
 who, from his being placed in such a situation has it in 
 his power to gain an advantage, without the certainty 
 of discovery, by sacrificing the interests of those he is 
 bound to protect, he shall not be suffered to enjoy it, 
 except by their consent; and not even then unless they 
 be competent to part with their right to protection in 
 this respect. Neither is this rule to be understood as 
 applicable only where it is shown some advantage has 
 been actually gained by the party acting in the character 
 of an agent or trustee, by making a purchase in his own 
 name, in order to give those alone, whose interest he was 
 bound to consult and promote, the benefit of the pur- 
 chase. It would, in many cases, be of little avail if it 
 were so; it arises from the nature of the relation be- 
 tween the parties, and is alike applicable, however honest 
 and fair the purchase may be ; and it is not necessary to 
 inquire whether the purchase be an advantageous one or 
 not; because, the fact maybe so, and yet not susceptible 
 of being distinctly and clearly proved at the time ; or 
 there may even be fraud in it, and the party against 
 whom it has been committed not able to prove it. The 
 rule, therefore, is founded on principles of pubhc policy ; 
 and with a view to protect the interests of those for 
 whom the party has undertaken to act, all temptation 
 to do anything in opposition thereto is removed, by 
 giving them the right of claiming the benefit of the pur- 
 chase.^ 
 
 1 4 Bouv. Inst. 185-6; Myers' Appeal, 2 Barr, 4G3. 
 
 ■ Leiaenring r. Black, 5 Watts, 30-^5; Myers' Appeal, 2 Ban-, 463; Moore 
 
CONSTRUCTIVE FRAUD. 103 
 
 § 99. The same rule applies to all transactions be- 
 tween trustee and cestui que trust. A court of equity 
 will not permit a person, acting as trustee, to create in 
 himself an interest opposite to that of his cestui que trust 
 or principal. If a trustee, executor, or agent, buy in 
 debts due by his cestui que trust, testator, or principal, for 
 less than their nominal amount, the benefit gained 
 thereby belongs not to him but to the person for whom 
 he acted.^ Compromises by which money is gained or 
 saved by executors, administrators, or trustees, enure to 
 the benefit of those for whom they act, and not to the 
 benefit of the trustee. It is not in any common case 
 that a court can allow trustees to make contracts with 
 their cesiuis que trust, by which contracts they make 
 great gain to themselves.^ Where the parties stand in 
 a very confidential relation, the party seeking to set 
 aside a deed will not be called on to shoAV direct fraud ; 
 yet the burden of proving that advantage was taken of 
 the confidence incident to the relation, will nevertheless 
 rest on him, subject however to rebuttal by proof from 
 the other side, that the dealing was, in fact, guarded as 
 between strangers, and without advantage taken of in- 
 fluence or superior knowledge.* 
 
 § 100. Another well settled principle in regard to trus- 
 tees and other persons acting in a fiduciary character for 
 the benefit of others, is, that they cannot become^^'pur- 
 chasers of the trust property at their own sales, or ac- 
 
 V. Moore, 1 Seld. 25C. " Even if the honesty of the agent is unquestioned, and 
 if his impartiality between his own interest and his principal's might be relied 
 on, yet the principal has, in fact, bargained for the exercise of all the skill, 
 ability, and industry of the agent, and he is entitled to demand the exercise of 
 all this in his own favour." 1 Pars, on Contr. 74-5. 
 
 ' Prevost i\ Gratz, 1 P. C. C. 373. 
 
 -= Saeger v. Wilson, 4 W. & S. 504-5. 
 
 ■' Delamater's Estate, 1 Wh. 375. 
 
104 CONSTRUCTIVE FRAUD. 
 
 quire any interest therein. The interest of a trustee in 
 such case, being generally opposed to that of his cestui 
 que trust, would, were he permitted to consult it and act 
 accordingly, almost necessarily, owing to the weakness 
 and infirmity of human nature, interfere with a faithful 
 discharge of his duty to those for whom he had under- 
 taken to act.^ And this rule is not founded on his being 
 necessarily guilty of fraud in so doing; it is a rule of 
 public policy which applies in all cases, whether there 
 be fraud or not, and indeed, its great object is to prevent 
 fraud by taking away the temptation to commit it.^ A 
 purchase however, by a trustee, is not absolutely void, 
 but voidable merely at the election of the cestui que trust, 
 or those beneficially interested in the estate ; so that the 
 trustee takes the property subject to the equity of the ces- 
 tui que trust to call upon him within a reasonable time, to 
 account for the profits, or have a re-sale.'' And the prin- 
 ciple that a trustee, properly so called, cannot purchase 
 at a sale made by himself in execution of the trust, ex- 
 tends to judicial officers and all others, who in any re- 
 spect, have a concern in the disposition and sale of the 
 property of others; and it is immaterial whether the 
 sale be public or private, judicial or otherwise, or for a 
 hond fide price.* The rule, however, will not invalidate 
 
 ^ Pisk V. Sarber, 6 W. & S. 21; Lazarus v. Bryson, 3 Binn. 54; Moody i'. 
 Vandyke, 4 Binn. 43; Rankin u. Porter, 1 Watts, 390; 1 Pars, on Contr. 75. 
 
 2 Webb V. Dietrich, 7 W. & S. 402. 
 
 ' Fisk r. Sarber, 6 W. & S. 21; Painter v. Henderson, 7 Barr, 48; Campbell 
 V. Penn. Life Ins. Co., 2 Wh. 63; Beeson r. Beeson, 9 Barr. 279; Walling- 
 ton's Estate, 1 Ash. 307; Pennock's Appeal, 2 Harris, 446; Bruch v. Lantz, 
 2 Rawle, 392. 
 
 ' Fisk V. Sarber, 6 W. & S. 22. The operation of the prohibition is not con- 
 fined to those who are personally active in effecting a sale; it extends to all 
 upon -whom the act of the party, or of the law, casts a fiduciary relation to the 
 subject of the trust, and which they are not permitted to shake off at pleasure, 
 
CONSTRUCTIVE FRAUD. 105 
 
 the title of a trustee to land which the law has taken 
 out of his hands, and which he purchased from one ap- 
 pointed by the same authority to sell itj as, where an 
 executor purchases at a sheriff's sale the personal pro- 
 perty of his testator, seized and sold under execution. 
 The reasons which forbid a trustee from purchasing the 
 trust property where he himself is the seller, do not 
 apply to such a case/ 
 
 § 101. Within this rule are included all contracts by 
 the members, officers, and agents of corporations, muni- 
 cipalities, and public institutions, for the sale or furnish- 
 ing of any s upplies or materials to the bodies which they 
 represent; as also contracts for the sale or furnishing of 
 such supplies or materials, in which any such member, 
 officer, or agent may be in any manner interested; all 
 such contracts are declared, by statute, to be utterly 
 void, and no recovery can be had thereon.^ This is not 
 so much on the ground of such contract being necessarily 
 fraudulent in fact, as in order to protect the parties, 
 whom such persons represent, from the risk to which 
 they might otherwise be subjected, by the hostile position 
 that would be thus assumed by those whose duty it was 
 to exercise their entire skill, ability, and industry in 
 favour of the body of which they were the agents. 
 
 § 102. There are many other cases of persons standing, 
 in regard to each other, in the like confidential relations, 
 to which similar principles apply. Among these, one of 
 the most important to be considered, is that of principal 
 and surety. The contract of suretyship imports entire 
 
 to assume, it may be, an attitude hostile to the persons beneficially interested. 
 Beeson v. Beeson, 9 Barr, 284. 
 
 ' Act 26 April 1855. P. L. 328. 
 
 " Prevost V. Gratz, 1 P. C. C. 378; Fisk v. Sarber, 6 W. & S. 22-3; Cad- 
 bury V. Duval, 10 Barr, 272. 
 
 8 
 
106 CONSTRUCTIVE FRAUD. 
 
 good faith and confidence between the parties in regard 
 to the' whole transaction. Any concealment of material 
 facts, or any express or implied misrepresentation of 
 such facts, or any undue advantage taken of the surety 
 by the creditor, either by surprise, or by withholding 
 proper information, will undoubtedly furnish a sufficient 
 ground to invalidate the contract.^ A surety is entitled 
 to the protection of the law; and equity holds him dis- 
 charged, when he who seeks to bind him does not observe 
 the utmost good faith. Thus, the false recital in a bond, 
 of a fact within the knowledge of the obligee, avoids it 
 as to a surety.^ 
 
 § 103. And on the same ground, the creditor is, in all 
 subsequent transactions with the debtor, bound to equal 
 good faith to the surety. It is a trite rule in equity, that 
 if a creditor have in his hands or power the means of 
 payment, and voluntarily relinquish it, or if he agree, 
 for consideration, to give to the principal debtor further 
 credit for a definite time, without the assent of the 
 surety, the latter is discharged, though judgments may 
 have been recovered against both.' The obligor and 
 
 1 1 Story's Eq. ? 324; 1 Pars, on Contr. 514-15; SmalL v. Currie, 23 Eng. 
 L. & Eq. 633. 
 
 ^ Frisch v. Miller, 5 Barr, 310. "Without saying that in every case, a 
 creditor is bound to inquire under what circumstances his claim has obtained 
 the concurrence of his surety, it may fairly be stated, that if the dealings are 
 such as fairly to lead a reasonable man to believe that fraud must have been 
 used to obtain such concurrence, he is bound to make inquiry, and cannot 
 shelter himself under the plea, that he was not called on to ask, and did not 
 ask, any questions on the subject. In some eases wilful ignorance is not to be 
 distinguished in its equitable consequences from knowledge. If a person ab- 
 stain from inquiry, because he sees that the result of inquiry will probably be 
 to show that the transaction in which he is engaged is tainted with fraud, his 
 want of knowledge of the fraud affords no excuse." Owen v. Homan, 25 Eng. 
 L. & Eq. 11, 
 
 ^ Talmage v. Burlingame, 9 Barr, 23 ; Com. r. Miller, 8 S. & R. 457 ; Manu- 
 facturers' and Mechanics' Bank v. Bank of Pennsylvania, 1 W. & S. 335. 
 
CONSTRUCTIVE FRAUD. 107 
 
 obligee are bound to know, that if they find it convenient 
 to change or vary the terms of the original contract, they 
 must seek the assent of the surety, because it is his con- 
 tract as well as theirs. And if they will not do so, they 
 take upon themselves the hazard, and thus loosen the 
 bonds of the surety.^ So, if the creditor release the 
 principal from the payment of the debt, he thereby re- 
 leases the surety entirely; but if he release the principal 
 from a part only, he only releases the surety 2)ro tanto. 
 So, if the creditor give up to the principal, or release a 
 security which he has obtained from him for the whole 
 debt, it will operate as a release or discharge of the 
 surety from all liability as such; but if the security re- 
 leased be only for part of the debt, the surety will only 
 be released pro tanto. When, however, it is impractica- 
 ble to ascertain the exact value of the security released, 
 the surety will be entirely discharged.^ 
 
 § 104. A surety is not discharged by mere forbearance 
 to sue the principal ; ' but if a creditor, after being re- 
 quested to bring suit against the principal debtor, refuse 
 or neglect to do so, the surety is discharged; provided 
 such request be accompanied with a declaration, that un- 
 less it be complied with the surety will be considered as 
 discharged; and such request be proved clearly and be- 
 yond all doubt.* This rule was adopted in Pennsylvania, 
 before the passage of the acts giving equity powers to the 
 
 ' Hibbs V. Rue, 4 Barr, 350-1. 
 
 2 Neft's Appeal, 9 W. & S. 43 ; Cathcart's Appeal, 1 Harris, 420 ; Everly v. 
 Rice, 8 Harris, 299. 
 
 3 Dehuff i\ Turbett, 3 Yeates, 157 ; Com. v. Wolbert, 6 Binn. 292 ; Cope 'i: 
 Smith, 8 S. & R. 112 ; Marberger v. Pott, 4 Harris, 13. 
 
 * Cope i: Smith, 8 S. & B. 116; Erie Bank v. Gibson, 1 Watts, 146; United 
 States V. Simpson, 3 Penn. R. 439; Greenawalt v. Kreider, 3 Barr, 2tl7; 
 Higerty v. Higerty, 4 Am. L. J. 102. 
 
108 CONSTEUCTIVE FRAUD. 
 
 courts ill cases of constructive fraud; and because our 
 courts held themselves bound to administer equity, in all 
 cases where they were not restrained by the forms of law. 
 But the surety may have recourse to equity to compel the 
 creditor to bring suit against the principal ; and therefore, 
 when a creditor makes an agreement by which he disables 
 himself from bringing suit, without the consent of the 
 surety, he acts against equity, and ought not to hold the 
 surety responsible.^ 
 
 § 105. The_ third class of constructive frauds, which 
 are now to be considered, are those affecting the rights, 
 of third persons. Whenever the contracts of individuals 
 operate substantially upon the rights and interests of 
 third persons, or unconscientiously compromit the rights, 
 and injuriously affect the interests of the parties them- 
 selves, they will be considered as fraudulent, and for 
 these reasons a court of equity will set them aside. This 
 class of constructive frauds includes what are called 
 catching bargains or agreements made with an heir ex- 
 pectant, for the purchase of his expectancy at an inade- 
 quate price.^ Such a sale is considered fraudulent as re- 
 gards third persons, since, if permitted, it would be de- 
 structive of parental authority. The same rule applies 
 to the case of a reversioner or remainder-man, who has 
 an estate, but no right of present enjoyment, and who, 
 through necessity or from mere improvidence, sells his 
 rights much below an adequate price. To constitute this 
 constructive fraud, there must be ignorance of the trans- 
 action by the parent or person standing in Joco parentis; 
 and the contract must have been made under some press- 
 ing necessity. Contracts made with sailors, for the 
 transfer of their wages or prize money, are looked upon 
 
 ' Cope V. Smith, 8 S. & R. 112. ' Davidson v. Little, 10 Harris, 251. 
 
CONSTRUCTIVE FEAUD. 109 
 
 in the same liglit, and will be set aside in equity, when- 
 ever any inequality appears in the bargain, or any undue 
 advantage has been taken of them.^ 
 
 § 106. Another class of constructive frauds upon the 
 rights of third persons, embraces all those agreements 
 and other acts of parties, which operate directly to delay, 
 defraud, or deceive creditors. The statute 13 Eliz. ch. 5, 
 which has always been held to be in force in Pennsjd- 
 vania, provides, that every gift, conveyance, &c. of lands 
 or chattels, or of any profit or charges out of them, by 
 writing or otherwise, and every bond, suit, judgment, 
 and execution, had or made to and for the intent or pur- 
 pose, to delay, hinder, or defraud creditors and others of 
 their just and lawful actions, suits, debts, damages, &c., 
 shall be deemed, only as against those persons, their heirs, 
 successors, executors, administrators, and assigns, whose 
 actions, &c. are delayed or defrauded, utterly void ; with 
 a proviso, that this shall not extend to any estate or in- 
 terest, upon good consideration and bond fide, lawfully 
 conveyed or assured to any person, not having at the 
 time any manner of notice or knowledge of such fraud.' 
 
 § 107. This statute does not declare all voluntary con- 
 veyances to be void, but only all fraudulent conveyances, 
 and whether a conveyance be fraudulent or not, is de- 
 clared to depend upon its being made " upon good con- 
 sideration and bond fide." It is not sufficient that it be 
 upon good consideration or bond fide: it must be both.^ 
 To bring a case within the statute the conveyance must 
 be voluntary ; it must be made by the owner of the land, 
 
 ^ 4 Bouv. Inst. 187-90. One in whom a tract of land is vested, but in cue 
 half of which another has a life estate, and who, shortly after he becomes of 
 age, sells the whole tract, is not within the rule in equity with regard to bar- 
 gains by expectant heirs. Davidson v. Little, 10 Harris, 24-5. 
 
 ' Rob. Dig. 295. ^ i story's Eq. I 353. 
 
110 CONSTRUCTIVE FEAtJD. 
 
 he being at the time indebted ; and with intent to delay, 
 hinder, and defraud creditors or others, of their just and 
 lawful actions, &c. ; and in general, the intent will be 
 presumed from the circumstance of the party being in- 
 debted. Where these circumstances concur, the convey- 
 ance is void, as well in respect to subsequent as prior 
 creditors.^ 
 
 § 1 08. A voluntary deed is not void as to subsequent 
 creditors, unless there exist other circumstances besides 
 the want of consideration from which fraud can be legally 
 iaferred, as, if the grantor incur debts immediately, or so 
 soon afterwards, as to warrant a presumption that it was 
 made in contemplation of such future indebtedness; so, 
 if he were indebted at the time to the extent of insolvency, 
 or it seems of great embai-rassment ; unless the presump- 
 tion of fraud be repelled by proving that the prior debts 
 were secured by mortgage, or by a provision in the deed 
 itself. The proof of prior indebtedness rests upon the 
 party attempting to avoid a deed on the ground of sub- 
 sequent indebtedness, and the court cannot presume it.^ 
 And to render a voluntary conveyance, by one indebted, 
 fraudulent as to subsequent creditors, the debts must 
 bear some proportion to the property of the grantor, 
 which may render their payment doubtful.^ 
 
 § 109. A conveyance within the provisions of the sta- 
 tute is absolutely void as against creditors, and vests no 
 estate whatever, either legal or equitable, in the grantee ; 
 hence, although the grantor may have been actually in- 
 debted to the grantee in a certain amovint, this debt will 
 
 ^ Gilmore v. North Americfvn Land. Co., 1 P. C. C. 4G0, 4-64. 
 * Ri(lj,'eway ?'. Underwood, 4 W. C. C. 129; Greenfield's Estate, 2 Harris, 502. 
 ° Wilson V. Howser, 2 Jones, 109; Mateer r. Hissim, 3 Ponu. K. IGO; Thom- 
 son V. Dongherty, 12 S. & K. 448. 
 
CONSTRUCTIVE FRAUD. Ill 
 
 not be entitled to any preference over the other debts of 
 the grantor.^ And it matters not whether the consider- 
 ation paid amount to the whole value of the land or 
 not. The consideration of a sale may amount to the 
 value of the land sold, and yet the sale be fraudulent as 
 against creditors, because such sale may not only delay, 
 hindei', and obstruct them in the collection of their 
 debts, but it may also be made for that very purpose 
 and intent. Thus, a man may sell and receive bonds 
 payable at long dates, and thus delay and hinder cre- 
 ditors. It is the intent that gives character to the 
 transaction; and when the act corresponds with the 
 intent, and both concur in delaying and hindering cre- 
 ditors, the deed is void.^ A conveyance, however, in 
 consideration of an existing debt, is not fraudulent, 
 although the parties contemplate that the claims of 
 other creditors will be thereby defeated.^ 
 
 § 110. But the statute does not operate in a contest 
 betwixt the actors themselves, on what it declares to be 
 fraud only in its relation to third persons ; for in any 
 other aspect there is no fraud whatever, and it is unim- 
 portant whether the contract be used to found a claim 
 betwixt the parties to it, or to rebut one ; it is free from 
 taint in regard to tliem, and the one may use it against 
 the other for any purpose whatever. The reason why 
 a contract, void against creditors, may be set up against 
 either of the parties to it, is not because he shall not be 
 allowed to defeat it by showing his own criminality, but 
 because there is no criminality to be shown. It is a 
 trite remark, that though a contract within the purview 
 of the statute is no contract at all against the interests 
 
 » M'Kee v. Gilchrist, 3 Watts, 230. 
 
 ^ Zerbe v. Miller, 4 Harris, 497; Covanhovan v. Hart, 9 Harris, jOO. 
 
 " Covanliovan !'. Hart, 9 Harris, 495. 
 
112 CONSTRUCTIVE FKAUD. 
 
 intended to be defrauded, yet it is a contract in respect 
 to every thing else; and consequently must have all 
 the effect of one betwixt the parties to it. The fraud, 
 which is declared to be so by statute, is legal and not 
 actual.^ 
 
 § 111. Questions frequently arise as to the validity of 
 assignments in trust for the benefit of the creditors of 
 the assignor as effected by this statute. On this subject, 
 the rule is well settled, that no debtor can in an assign- 
 ment make a reservation, at the expense of his creditors, 
 of any part of his income or property for his own bene- 
 fit ; nor can he stipulate for any advantage either to him- 
 self or family.^ Therefore, before the act prohibiting 
 preferences, an assignment by an insolvent debtor, stipu- 
 lating for a release, was invalid, unless it contained words 
 competent to transfer all the debtor's property.' So, a 
 conveyance, in trust to sell, reserving a power of appoint- 
 ment of the proceeds, is void as to the ci-editors of the 
 assignor.* So also, a provision authorizing the trustees 
 to sell the assigned property upon credit, has been held 
 to render the deed fraudulent and void as to the credi- 
 tors : * and so has a provision, that the trustee shall not 
 be accountable for any loss sustained by the trust pro- 
 perty, unless it shall hajDpen by gross negligence or wil- 
 ful misfeasance ; for a trustee for the benefit of creditors, 
 being entitled to a compensation for his services in the 
 execution of the duties of his trust, is chargeable with 
 
 1 Sherk v. Endress, 3 W. & S. 256; Cook v. Grant, 16 S. & R. 211; Sickman 
 V. Lapsley, 13 Ibid. 224; Telford i\ Adams, 6 Watts, 429; Stewart v. Kearney, 
 Ibid. 453; Handy v. E. R. Co., 1 Leg. Int. 26. 
 
 ^ M'Clurg V. Lecky, 3 Penn. R. 91-2. 
 
 ' In re Wilson, 4 Barr, 430; Thomas v. Jenks, 5 Rawle, 221; Hennessy i\ 
 Western Bank, 6 W. & S. 300; Curing's Appeal, 1 Harris, 224. 
 
 * Mitchell r. Stiles, 1 Harris, 306. 
 
 5 Nicholson v. Leavitt, 2 Seld. 510; Kellogg v. Slauson, 1 Kern. 302. 
 
CONSTRUCTIVE FRAUD. 113 
 
 the care and diligence of a provident owner, and liable 
 for a loss occasioned by ordinary negligence.^ 
 
 § 112. Another class of constructive frauds consists 
 of those in violation of the statutes prohibiting prefer- 
 ences in assignments in trust for the benefit of creditors. 
 All such preferences (except for the payment of wages, 
 not severally exceeding the sum of one hundred dollars) 
 are declared to be void, and such assignments will enure 
 for the benefit of all the creditors, in proportion to their 
 respective demands. A stipulation for a release is a pre- 
 ference within the meaning of this act.^ The act does 
 not invalidate the assignment;^ nor does it prohibit a 
 composition with a part of the creditors ; * nor an assign- 
 ment of partnership property for the payment of the 
 firm debts only.^ Judgments confessed to secure credi- 
 tors are not such preferences as are avoided by this act.*^ 
 It goes no further than to forbid preferences in and by the 
 instrument by which the debtor surrenders to his credi- 
 tors all dominion over his property.^ 
 
 § 113. There is another class of constructive frauds, 
 consisting of cases in which a party buys with full no- 
 tice that another has a legal or equitable title to the 
 same property.* If, for example, a purchaser of land 
 have notice of a prior unrecorded deed, he will not be 
 permitted to avail himself of his title against that prior 
 conveyance. For such purchaser with notice is not con- 
 sidered a hond fide purchaser, but as one acting in bad 
 
 ' Litchfield v. White, 3 Seld. 438, 442-3. 
 
 ^ Purd. Dig. 52. " Law v. Mills, 6 Harris, 185. 
 
 * Wiener v. Davis, 6 Harris, 331. ^ Baker's Appeal, 9 Harris, 77, 83. 
 ^ Blakey's Appeal, 7 Barr, 449; Morgan's Appeal, 8 Harris, 152. 
 
 ' Worman v. Wolfersberger, 7 Harris, 59; Breading v. Boggs, 8 Harris, 33; 
 Hutchinson v. M'Clure, Ibid. 63. 
 
 * Sergeant v. Ingersoll, 3 Harris, 349. 
 
114 CONSTRUCTIVE FRAUD. 
 
 faith, a particeps criminis, taking the place of his ven- 
 dor; and to permit him to hold against the first pur- 
 chaser would be to convert the statute into an instru- 
 ment of fraud.^ A subsequent bond fide purchaser, with- 
 out notice, is alone within the protection of the record- 
 ing acts';^ but a purchaser with notice is protected by 
 want of notice in his vendor.^ And the purchaser of the 
 same title is alone protected; the purchaser of an ad- 
 verse title is not within the statute.* 
 
 § 114. The recording of a deed of conveyance ope- 
 rates as constructive notice to all subsequent purchasers 
 of any estate, legal or equitable, in the same property.^ 
 But this doctrine is not to be understood of all convey- 
 ances which may be actually recorded, but of such only 
 as are authorized by law to be recorded. The registry 
 of a deed, defectively proved or acknowledged, is not evi- 
 dence of notice to a subsequent purchaser, although the 
 deed be recorded in the county in which the lands lie.^ 
 
 § 115. Under this head is included notice by lis pen- 
 dens or an interlocutory decree ; for it is presumed that 
 legal proceedings, during their continuance, are publiclj' 
 known throughout the state; and therefore, a purchase 
 made of property actually in litigation, pendente lite, for 
 a valuable consideration, without any express or implied 
 notice in point of fact, affects the purchaser in the same 
 
 1 Jacques v. Weeks, 1 Watts, 270. 
 
 ^ Shrider v. Nargan, 1 Ball. 68; Poster r. Whitebill, 2 Yeates, 259; Burke 
 V. Allen, 3 Ibid. 360; Stroud i\ Lockart, 4 Dall. 153; Heurj v. Morgan, 2 Binn. 
 49T; Plumer v. Robertson, 6 S. & R. 179. 
 
 ' Bracken v. Miller, 4 W. & S. 102; Sailor e. Hertzog, 4 Wh. 264. 
 
 * Harper v. Farmers' and Mechanics' Bank, 7 "\\'. & S. 209; Henry v. Mor- 
 gan, 2 Binn. 497. 
 
 <■ Bellas V. :\I'Carty, 10 Watts, 26. 
 
 ^ Simon v. Brown, 3 Yeates, 186; Heister i\ Fortnor, 2 Binn. 40; Bolton v. 
 Jobua, 5 Barr, 145. 
 
CONSTRUCTIVE FRAUD. 115 
 
 manner as if he had such notice; and he will accord- 
 ingly be bound by the judgment or decree.-^ Lis pen- 
 dens is as near to actual notice as the registry of a deed ; ^ 
 and therefore, the mere transmission of the legal title 
 to another, subject to the equity of the purchaser, creates 
 no impediment to a decree for specific performance.^ On 
 the other hand, a final decree is not notice to any others 
 than the parties or privies to it; unless the party sought 
 to be afiected, has actual notice of such decree.* 
 
 § 116. In the absence of any actual information of the 
 equity, a party may also be affected with notice by in- 
 formation of any fact, relating to the subject matter of 
 his contract, which if properly inquired into would have 
 led to its ascertainment. If, for instance, he purchase 
 land which he knows to be in the occupation of another 
 than the vendor, he is bound by all the equities of the 
 party in occupation. The possession of land is notice to 
 the world of every title under which the occupant claims 
 it, unless he have put a title on record inconsistent with 
 his possession.^ It is settled, that actual and unequivocal 
 possession is notice, not so much because possession is 
 evidence of actual notice, as because it is the duty of one, 
 who is about to purchase real estate, to ascertain by 
 whom and in what right it is held or occupied." 
 
 § 117. It is not essential that the notice be given to 
 the party himself; it is sufficient if it be brought home 
 to his agent, attorney, or counsel; for in such cases the 
 
 ' Walker v. Butz, 1 Yeates, 5Y4; Baird v. Corwin, 5 Harris, 466; Weckerly's 
 Appeal; S. C. 20 Marcli 1854, MS; Brown v. Blydenburgh, 3 Seld. 146. 
 
 2 Welty V. Ruffaer, 9 Barr, 225. 
 
 ' Tiernan v. Roland, 3 Harris, 43'? ; De Chaumont v. Forsythe, 2 Penn. R. 507. 
 
 * 1 Story's Eq. ^ 407. 
 
 "" M'Culloch V. Cowher, 5 W. & S. 429; Woods v. Farmere, 7 Watts, 382; 
 Boggs V. Varner, 6 W. & S. 474. 
 
 « Sailor v. Hertzog, 4 Wh. 259; 2 Lead. Gas. Eq. 150. 
 
116 CONSTRUCTIVE FRAUD. 
 
 law presumes notice to the principal, since it would be a 
 breach of trust in the former not to communicate the 
 knowledge to the latter.-^ But to visit a principal with 
 constructive notice, it is necessary that the knowledge 
 of the agent should be gained in the same transaction.^ 
 It is well settled, that if one in the course of his busi- 
 ness as agent, attorney, or counsel for another, obtain 
 knowledge from which a trust would arise, and after- 
 wards become the agent, attorney or counsel of a subse- 
 quent purchaser, in an independent and unconnected 
 transaction, his previous knowledge is not notice to such 
 other person for whom he acts. The reason is, that no 
 man can be supposed always to carry in his mind the 
 recollection of former occurrences ; and moreover, in the 
 case of the attorney or counsel, it might be contrary to 
 his duty to reveal the confidential communications of 
 his client.^ 
 
 § 118. It is proper here to consider the effect of the 
 statute of 27 Eliz. ch. 4, upon voluntary convej^ances of 
 real estate, in regard to subsequent purchasers. Such 
 conveyances are usually enumerated amongst the con- 
 structive frauds against which equity will grant relief.* 
 There is no doubt, that under this statute a subsequent 
 sale without notice, by a person who had made a prior 
 voluntary settlement, is presumptive evidence of fraud, 
 which throws on those claiming under such settlement, 
 the burden of proving that it was hovd fide? But in 
 Pennsylvania, the recording of the prior volvmtary con- 
 veyance is notice to the subsequent purchaser; and it is 
 
 ' Sergeant v. IngersoU, 3 Harris, 349. ^ Bracken v. Miller, 4 W. & S. 102. 
 
 " Hood V. Fahnestock, 8 Watts, 491-2. 
 
 * 1 Story's Eq. § 425 ; 1 Am. Lead. Gas. 70. 
 
 ' Cathcart v. Robinson, 5 Peters, 280. 
 
CONSTRirCTIVE FRAUD. 117 
 
 here well settled, that a voluntary deed, duly recorded, 
 is as valid against a subsequent purchaser as a deed for 
 a valuable consideration, provided it be untainted by 
 actual fraud.'- 
 
 § 119. Having thus gone over the three great heads 
 of equity jurisdiction, in cases of fraud, accident, and 
 mistake, it only remains to consider the mode in which 
 a court of chancery interferes to grant rehef. In cases 
 of accident and mistake, this is chiefly done by reform- 
 ing the instrument, so as to make it conform to the true 
 intent of the parties. But where there is fraud, actual 
 or constructive, the court will direct the deed, or other 
 security, to be delivered up and cancelled.^ Courts of 
 equity will generally set aside, cancel, and direct to be 
 delivered up, agreements and other instruments, however 
 solemn in their form and operation, where they are void- 
 able, and not merely void ; either where there is actual 
 fraud in the party defendant, in which the party plain- 
 tiff has not participated ; or where there is a constructive 
 fraud against public policy, and the party plaintiff has 
 not participated therein; or where there is a fraud 
 against public policy, and the plaintiff has participated 
 therein, but pubUc policy would be defeated by allowing 
 it to stand ; or lastly, where there is a constructive fraud 
 by both parties, but they are not in pari delicto.^ So 
 courts of equity will direct the cancellation of a void in- 
 strument, unless its illegality appear upon the face of 
 it, so that its nullity can admit of no doubt ; since it may 
 be used for a fraudulent and improper purpose.* 
 
 ' Lancaster v. Dolan, 1 Rawle, 231; Foster v. Walton, 5 Watts, 380; 
 Dougherty v. Jack, Ibid. 456; Speise v. M'Coy, 6 W. & S. 487. 
 ^ Henderson v. Hays, 2 Watts, 153. 
 
 ' 2 Story's Eq. § 695; North American Ins. Co. v. Levy, 1 Am. L. E. 243. 
 * 2 Story's Eq. i 700. 
 
118 ACCOUNT. 
 
 CHAPTER V I. 
 
 ACCOUNT. 
 
 § 120. The statutes giving equity jurisdiction to the 
 courts, before enumerated/ in cases of accident, mistake, 
 and fraud, have also invested them with the like powers, 
 in all cases over which courts of chancery entertain juris- 
 diction under the head of account. And by the act of 
 1840, the supreme court, the several district courts, and 
 courts of common pleas, have conferred upon them all 
 the powers and jurisdiction of courts of chancery, in 
 settling partnership accounts, and such other accounts 
 and claims, as by the common law and usages of this 
 commonwealth have heretofore been settled by the action 
 of account render. But no bill in chancery can be enter- 
 tained, under this latter act, unless the counsel filing the 
 same shall certify, that in bis opinion the case is of such 
 a nature that no adequate remedy can be obtained at 
 law, or that the remedy at law will be attended with 
 great additional trouble, inconvenience, or delay.^ 
 
 § 121. In Pennsylvania, the action of account render 
 
 1 Ante, ? 35. 
 
 2 Purd. Dig. 306. By act of 25th April 1850, the courts of common picas 
 are invested with full equity jurisdiction in cases of account between tenants 
 in common of mines of coal, or iron-ore, or other minerals ; and if any of them 
 reside out of the county in which the lands lie, the court may make such rule 
 for service on them, by publication or otherwise, as they shall deem proper. 
 Purd. Dig. 21, 310; see Irvine i\ Covode, 3 Pittsburgh Leg. J. 2G. 
 
ACCOUNT. 119 
 
 lies between partners;^ between client and attorney; ^ 
 tenants in common ; ^ guardian and ward;* trustee and 
 cestui que trust ;^ against an executor for a legacy;^ and 
 in general, in all cases where one man has received 
 money as the agent of another, and where relief may be 
 had in chanceryJ Thus, an action of account render 
 will lie upon a contract of lease by the landlord against 
 the tenant, to recover that portion of the profits of the 
 demised property, which, by his contract, he was bound 
 to render as rent.^ But to support this action, generally, 
 a contract express or implied must be shown : the liabi- 
 lity to account for the profits of an infant's lands is an 
 excepted case.* So also it lies for and against executors 
 and administrators. 
 
 § 122. The action of account render is a very unfit 
 instrument to ascertain and adjust the real merits of 
 long, complicated, and cross accounts. It is inapplicable 
 to a vast variety of cases of equitable claims, of construc- 
 tive trusts, of fraudulent contrivances, and of tortious 
 misconduct. There is a want of due power to draw out 
 the proper proofs from the party's own conscience, and 
 there is also an inconvenience in taking the account at 
 law, by reason of the incapacity of the legal procedure to 
 operate beyond the immediate plaintiff and defendant, or 
 
 1 Griffitli V. Willing, 3 Binn. 317; Wheleu v. Watmough, 15 S. &, R. 15G. 
 
 2 Bredin v. Kingland, 4 Watts, 420. 
 
 » Griffith i\ Willing, 3 Binn. 319 ; Irvine v. Hanlin, 10 S. & R. 220; Keisel 
 V. Earnest, 9 Harris, 90. 
 
 * ShoUenberger's Appeal, 9 Harris, 340. 
 
 » Dennison v. Goehring, 1 Barr, 175; Bredin v. Dwen, 2 Watts, 95; Conklin 
 V. Bush, 8 Barr, 517. 
 
 « Purd. Dig. 21, pi. 4. 
 
 ' Bredin v. Kingland, 4 Watts, 422. 
 
 ° Long V. Fitzimmons, 1 W. & S. 530. 
 
 ' King of France r. Morris, 3 Yeates, 251; Conklin v. Bush, 8 Barr, 516-17. 
 
120 ACCOUNT. 
 
 to include rights or claims, which may be collaterally in- 
 volved.^ 
 
 § 123. The difficulties thus existing at law are effec- 
 tually obviated by the procedure in equity. A founda- 
 tion is first laid for all necessary inquiries, by the dis- 
 covery elicited by the defendant's answer. The account 
 is then referred to a master, who is armed with power 
 not only to examine witnesses, but also to examine the 
 parties themselves, and to compel production of books 
 and documents. It is not liable to interruption by con- 
 troversies on particular items, but is carried on continu- 
 ously to its close. The master reports the final result to 
 the court. The report may be excepted to on any points 
 which are thought objectionable, and all such points are 
 simultaneously re-examined by the court, and either at 
 once determined, or, if necessary, referred back to him 
 for review. As soon as the report is finally settled and 
 confirmed, a decree is made for payment of the ultimate 
 balance. If the interests of other persons are entangled 
 in the account, the court may require that they be made 
 parties to the suit, or may direct, if necessary, the insti- 
 tution of cross-suits ; and thus, having all their interests 
 before it, may so modify a single decree, as effectually 
 to embrace and arrange them all.^ 
 
 § 124. The ground upon which courts of equity enter- 
 tain jurisdiction in matters of account, is either that a 
 court of law cannot give any remedy at all, or not so com- 
 plete a remedy as courts of equity. The doctrine now 
 generally held in America is, that in all cases where a 
 court of equity has jurisdiction for discovery, and the 
 discovery is effectual, that becomes a sufficient founda- 
 tion upon which the court may proceed to grant full re- 
 
 ' 1 Story's Eq. 2 449; Adama' Eq. 225. ^ Adams' Eq. 225-6. 
 
ACCOUNT. 121 
 
 lief. In other cases, where the court has legitimately 
 acquired jurisdiction over the cause for the purpose of 
 discovery, it will, to prevent multiplicity of suits, enter- 
 tain the suit also for relief.^ When once a court of equity 
 takes cognizance of a litigation, it will dispose of every 
 subject embraced within the circle of contest, whether 
 the question be of remedy, or of distinct yet connected 
 topics of dispute.^ Another and more general ground 
 has been asserted for the jurisdiction; and that is, not 
 that there is not a remedy at law; but that the remedy 
 is more complete and adequate in equity.^ 
 
 § 125. It is likewise well settled, that courts of equity 
 will entertain jurisdiction in matters of account, not only 
 when there are mutual accounts, but also when the ac- 
 counts to be examined are on one side only, and a dis- 
 covery is wanted in aid of the account, and is obtained. 
 But in such a case, if no discovery be asked, or required 
 by the frame of the bill, the jurisdiction will not be en- 
 tertained. On the whole, it may be laid down as a gene- 
 ral doctrine, that in matters of account, growing out of 
 privity of contract, courts of equity have a general juris- 
 
 1 Bank of United States v. Biddle, 2 Pars. 53; 1 Story's Eq. § 456. 
 
 ^ M'Gowin V. Remington, 2 Jones, 6.3; SlioUenberger's Appeal, 9 Harris, 340. 
 
 3 1 Story's Eq. § 45Y; Bank of United States v. Biddle, 2 Pars. 53; M'aowin 
 V. Remington, 2 Jones, 63. There are a number of cases in whicli a con- 
 current jurisdiction is exercised by the two courts; and, in many of them, the 
 ground of the equity jurisdiction is, not that the common law courts are in- 
 competent to afford a remedy, but that such a remedy is less complete than the 
 court of equity, from the nature of its organization, is capable of affording. 
 Cases, for example, of fraud, account, dower and partition, are clearly cogni- 
 zable in the common law courts ; and yet the court of chancery has always 
 exercised a concurrent jurisdiction over them, upon the ground above-men- 
 tioned. Courts of law have, in modern times, and with great propriety, dis- 
 pensed with profert of a lost bond; and yet, the original jurisdiction of the 
 court of equity to grant relief, by establishing the instrument, remains unim- 
 paired. Harrison v. Rowan, 4 W. C. C. 205. 
 
 - 9 
 
122 ACCOUNT. 
 
 diction, where there are mutual accounts, (and a fortiori 
 where these accounts are complicated,) and also where 
 the accounts are on one side, but a discovery is sought, 
 and is material to the relief. And on the other hand, 
 where the accounts are all on one side and no discovery 
 is sought or required ; and also where there is a single 
 matter on the side of the plaintiff seeking relief, and 
 mere set-off on the other side, and no discovery is sought 
 or required ; in all such cases courts of equity will de- 
 cline taking jurisdiction of the cause.^ 
 
 § 126. In matters of account, where several debts are 
 due by the debtor to the creditor, it often becomes ma- 
 terial to ascertain to what debt a particular payment 
 made by the debtor is to be applied. This is called the 
 appropriation of payments. Upon this subject the gene- 
 ral rule is, that where a debtor, indebted on several ac- 
 counts, makes a payment, he may apply it to either ac- 
 count;^ if he do not, the creditor may do so; and if 
 neither do, the law will appropriate it according to the 
 justice of the case, provided there be no other parties 
 interested.^ Where neither party has exercised the right 
 of appropriation, the law presumes, in ordinary cases, that 
 the debtor intended to pay in the way which at the time 
 was most to his advantage. Thus, if it were peculiarly 
 the interest of the party to have the money received in 
 extinguishment of a particular demand, the law intends 
 that he paid it in extinguishment of such demand, and 
 that the omission to declare his intention was accidental. 
 Such intendment is reasonable and natural, and one 
 which will, in most cases, accord with what was actually 
 
 J Bank of U. S. v. Biddle, 2 Pars. 54-5; 1 Story's Eq. I 458-9. 
 
 ^ Pennypacker v. Umberger, 10 Harris, 49o. 
 
 ' Postmaster General v. Norvell, 1 Gilp. 10(1; 1 Am. Lead. Cas. 291. 
 
ACCOUNT. 12S 
 
 the fact : it is therefore equivalent to an exercise of the 
 party's rights by acts, or an express declaration of inten- 
 tion; where however, the interest of the debtor could 
 not be promoted by any particular appropriation, there 
 is no ground for a presumption of any intention on 
 his part, and the law then raises a presumption, for 
 the same reason, that the payment was actually re- 
 ceived in the way that was most to the advantage of the 
 creditor.'^ 
 
 § 127. Thus, payments made generally on a bond, 
 payable in instalments, without appropriation at the 
 time to any particular instalments, will not be apphed 
 by law to such as are not then payable, but to such as 
 are payable, according to the dates at which they respec- 
 tively became so.^ So, if an unconditional payment be 
 made upon a bond bearing interest, which is not yet 
 due, it must be applied first to the extinguishment of the 
 interest up to the time when the payment was made, 
 then to the principal, _pro tantof' and in cases of running 
 accounts, without any specific appropriation by either 
 party, when debts and credits are made at different 
 times, the payments are to be deemed as made on ac- 
 count of liabilities antecedently due, as they stand in the 
 account.* 
 
 § 128. The provision of the Roman law, which, in 
 the application of a payment, requires the creditor, 
 when the right has devolved on him by the laches of 
 the debtor, to consult the debtor's interest in preference 
 to his own, has not been adopted as a part of the com- 
 
 1 Harker v. Conrad, 12 S. & R. 305. 
 
 * Seymour v. Sexton, 10 Watts, 255; 1 Am. Lead. Gas. 292. 
 3 Spires V. Hamot, 8 W. & S. 17. 
 
 * Speck V. Commonwealth, 3 W. & S. 328; Berghaua v. Alter, 9 Watts, 
 386; Reed v. Ward, 10 Harris, 151. 
 
124 ACCOUNT. 
 
 mon law; and the propriety of an instant and actual 
 application, by a creditor firm, of the proceeds of a sepa^ 
 rate note transferred -to it generally as collateral security, 
 without specifying for what debt, by a partner indebted 
 to it on joint and separate account, cannot be ques- 
 tioned.^ The entry or memorandum of the application 
 ought, however, to be of a date so early as to raise a pre- 
 sumption that the act of application was simultaneous 
 with the act of reception, and not the consequence of an 
 after-thought.^ 
 
 § 129. The rule, that payments shall be applied to the 
 chai'ges in the order of time in which they accrue, will 
 apply to accounts with a partnership, of which there is 
 some change in the members, provided the account goes 
 on as one continuous, open, and current account; but if 
 the continuity of the account be broken, that is, if a 
 new account be opened by or with the firm, upon the 
 coming in or going out of a member, distinct from the 
 old account, the creditor may apply a general payment 
 to the new account if he please.^ But this rule, allow- 
 ing or requiring a payment to be applied to the earliest 
 item in an account, will not prevail, where a different 
 intention in both parties, or on the debtor's part, is ex- 
 pressly shown, or is to be inferred from the course of deal- 
 ing, or from the particular circumstances of the case.* 
 Nor will it prevail against the principle that the fund 
 from which the payment is made, will control the appli- 
 cation ; for if one indebted individually, enter afterwards 
 
 ' Logan V. Mason, 6 W. & S. 9; 1 Am. Lead. Cas. 293. 
 
 ^ Ibid. 15; but see 1 Am. Lead. Cas. 297. 
 
 ' Simpson v. Ingham, 2 B. & C. C; Logan v. Mason, 6 W. & S. 9; 1 Am. 
 Lead. Caa. 306. 
 
 * Taylor v. Kymer, 3 B. & Ad. 320, 333; Henniker v. Wigg, 4 Q. B. Y92; 
 Capen v. Alden, 5 Met. 268, 278. 
 
ACCOUNT. 125 
 
 into partnership, a payment from the partnership funds 
 could not be applied to his individual account. ^ 
 
 § 130. Nor will the rule apply to cases in which the 
 relations between the creditor and other parties to be af- 
 fected are such, as to make it part of the contract that 
 there shall be a different application. Thus, where a 
 collecting or receiving officer has given bonds, with diffe- 
 rent sureties, for successive periods, and becomes a de- 
 faulter, payments becoming due, and paid during the pe- 
 riod to which the second bond applies, are not, as against 
 the sureties, to be considered as applied in the order of 
 time, so as to relieve the sureties in the first bond at the 
 expense of those in the second bond, but must be cre- 
 dited to the obligation for which the second set of sure- 
 ties are bound; for the contract of the sureties is, that 
 each set is to be liable only for actual defaults during 
 the period for which they are bound ; and however the 
 accounts may be made up and payments applied between 
 the officer or principal debtor and the government, or 
 creditor, the amount of default, for which any set of 
 sureties are to be made liable, is to be ascertained by the 
 difference between the moneys received and the moneys 
 paid over, during the period for which they are sureties.^ 
 
 § 131. One of the most general heads of equity ju- 
 risdiction, arising from matters of account, is that of 
 agency ; embracing claims against attorneys, factors, con- 
 signees, receivers, and stewards. In agencies of this cha- 
 racter, there are either mutual accounts between the 
 parties; or if the account be on one side, as the relation 
 
 ^Thompson v. Brown, 1 Mood. & Malk. 40; 1 Am. Lead. Cas. 306; see 
 Fairchild v. Holly, 10 Conn. 176. 
 
 2 Com. p. Baynton, 4 Ball. 282; Com. r. Reitzel, 9 W. & S. 109; Postmaster 
 General v. Norvell, 1 Gilp. 106; Miller v. Com. 8 Bai-r, 444; M'Kee's B.Ye- 
 cutors V. Com. 2 Am. L. R. 186. 
 
126 ACCOUNT. 
 
 naturally gives rise to great personal confidence between 
 the parties, it rarely happens that the principal is able, 
 in case of legal controversy, to ascertain his rights, or 
 the true state of the accounts, without resorting to a dis- 
 covery by the agent. In truth, there are many cases of 
 factorage, and consignments, and of general receipts and 
 disbursements of money, by receivers and stewards, 
 where, if the relation has long subsisted, and intricate 
 and perplexing accounts have arisen, it is possible, nay, 
 very probable, that, independent of a discovery, the re- 
 medy of the principal might be utterly nugatory, or 
 grossly defective. Hence, in cases of this description, 
 coui'ts of equity will entertain the suit.^ "Whenever 
 such a relation exists a bill will lie for an account.^ 
 
 § 132. There are many cases of implied agencies, 
 where the parties may be called to an account by a bill 
 in chancery. This is the case between trustee and cestui 
 que trust; between tenants in common; between part 
 owners of goods and of ships; between the owners of 
 ships and the masters ; and between joint tenants.^ In 
 all these cases, a bill may be filed for a discovery of the 
 amount of property the defendant has received, and for 
 an account to the other parties in interest for their re- 
 spective shares, deducting the proper charges and ex- 
 penses.* 
 
 § 133. Cases of apportionment and contribution form 
 another class, in which courts of equity exercise juris- 
 diction on the ground of the necessity for an account be- 
 tween the parties. In most of these cases, a discovery 
 
 ^ Bank of United States i\ Biddle, 2 Pars. 55. 
 
 '^ Bank of Kentucky v. Schuylkill Bank, 1 Pars. 221; M'Kensle v. Johnson, 
 4 Madd. 198; Masscy v. Banner, Ibid. 416. 
 ' Knox V. Cain])bell, 1 Barr, I^i66. 
 * 4 Bouv. Inst. 226-7. 
 
ACCOUNT. 127 
 
 is indispensable for the purposes of justice; and where 
 this does not occur, there are other distinct grounds for 
 the exercise of equity jurisdiction, in order to avoid cir- 
 cuity and multiplicity of actions. It is a known and fa- 
 miliar principle of the common law, that an entire con- 
 tract is not apportionable ; and courts of equity have 
 generally, but not universally, applied the same doctrine. 
 Thus, in no case whatever has rent ever been permitted 
 to be apportioned in respect to time, not even in equity ; 
 and therefore, at common law, if the tenant for life give 
 a lease for years, rendering a yearly rent, which was 
 payable at the expiration of the year, and he died but a 
 day before the year expired, the rent could not be appor- 
 tioned, and the tenant was under no obligation to pay 
 any part of it.^ 
 
 § 134. But the exigencies and interests of society have 
 broken in upon this rule, and caused it to yield to the 
 accommodation of mankind, in apportioning rent, wher- 
 ever there has been, either by act of law, or by act of 
 the party, a division made of the land out of which the 
 rent issues, or of the reversion to which it is incident; 
 because, without this privilege, a man who can only dis- 
 pose of his real estate to advantage by dividing it, might 
 be forced to make a sacrifice of it; and it is also obvious, 
 that the numerous members of the same family could 
 not be accommodated, or their interests at all promoted, 
 without it. Hence, a reversioner may sell and dispose 
 
 ^ Bank of Pennsylvania v. Wise, 3 Watts, 404. This severe doctrine of the 
 common law was remedied in om- state by the act of 24 February 1834, § 7, 
 which provides, that " the rents of any real estate accruing to any tenant for 
 life of such estate, who had demised the same for a term or time not fuUy ex- 
 pired at his decease, shall go to and be vested in the executors or administra- 
 tors of such tenant; and the due proportion of such accruing rent to be com- 
 puted according to the time elapsed at the decease of such tenant, shall be in- 
 cluded in the inventory of personal assets," Purd, Dig, 193. 
 
128 ACCOUNT. 
 
 of his estate, in different parts, to as many different per- 
 sons, and the lessee or tenant will be bound to pay to 
 each his due proportion of the rent. Or if he should 
 die, leaving a number of children, his estate will descend 
 and pass by operation of law to them, to be held, in this 
 state, as tenants in common, and each may claim, and 
 the tenant will be bound to pay to him, his proportion of 
 the rent.^ 
 
 § 135. So, w^here land was granted in fee, reserving an 
 annual ground rent, and afterwards a public street was 
 opened through a part of the lot, and damages were 
 awarded, a portion of which was ordered to be paid to 
 the owner of the ground rent ; it was held that the ground 
 rent was thereby apportioned, and that a court of equity 
 had jurisdiction to decree an apportionment thereof.^ So, 
 a release of part of the land out of which a-ground rent 
 issues, does not extinguish the whole rent, but it is to be 
 apportioned.^ And so also it seems, that if by any thing 
 existing at the time of the execution of a ground rent 
 deed, the grantee is prevented from the possession and en- 
 joyment of a part of the property which the deed purports 
 to convey, in such case the rent is to be apportioned.^ 
 
 § 136. There are other cases in which the common 
 law allows of an apportionment of a common charge 
 towards the discharge of a common burden, and in 
 which the same relief may be had in a court of equity. 
 Thus, if a devisee, or one of the heirs of a decedent, 
 lose his lands by an execution, he is entitled to a 
 contribution from the owners of the remaining part of 
 the decedent's lands.^ So, if the devisees of lands as 
 
 ' Bank of Pennsylvania v. Wise, 3 Watts, 404; Reed v. Ward, 10 Harris, 149. 
 
 ^ Cuthbert v. Kuhn, 3 Wh. 357. 
 
 ' IngersoU v. Sergeant, 1 Wh. 337; and see Paul v. Vannie, 2 Penn. L. J. 309. 
 
 * Naglee v. IngersoU, 7 Barr, 194; Garrison r. Moore, 9 Leg. Int. 2. 
 
 ' Guier V. Kelly, 2 Binn. 299. 
 
ACCOUNT. 129 
 
 tenants in common, make partition by agreement, and 
 the portion of one of them be sold for the payment of the 
 debts of the testator, he is entitled to contribution by the 
 other devisees.-^ And so also, where A. mortgaged his 
 land, and died, after having devised all his estate to B; 
 B. devised the mortgaged premises to C. for life, with 
 power to dispose thereof by will, and gave the rest of her 
 estate to her executors, who sold part of it for the pay- 
 ment of debts; and judgment having been obtained on 
 the bond accompanying the mortgage, the sheriff levied 
 on all the lands undisposed of; it was adjudged that all 
 the lands levied on should contribute according to the 
 value of the several tracts.^ 
 
 § 137. If however, there be several purchasers in suc- 
 cession, at different times, of land incumbered by a mort- 
 gage or judgment, in that case, there is no equality, and 
 no contribution as between the purchasers. Thus, for 
 instance, if there be a j udgment against a person owning 
 at the time three acres of land, and he sell one acre to 
 A., the remaining two acres are first chargeable in equity 
 with the payment of the judgment debt, and that too 
 whether the land be in the hands of the debtor himself 
 or of his heirs. If he sell another acre to B., the re- 
 maining acre is then chargeable, in the first instance, 
 with the debt, as against B., as well as against A., and 
 if it should prove insufiicient, then the acre sold to B. 
 ought to supply the deficiency, in preference to the acre 
 sold to A.; because when B. purchased he took his land 
 charged with the debt in the hands of the debtor, in pre- 
 ference to the land already sold to A. In this respect, 
 we may say of him, as is said of the heirs, he sits in the 
 
 1 Rhoads' Estate, 3 Rawle, 420. 
 
 2 Morris v. Griffitli, 1 Yeates, 189; s. c. 2 DaU. 189. 
 
130 ACCOUNT. 
 
 seat of his grantor, and must take the land with all its 
 equitable burdens ; it cannot be in the power of the debtor, 
 by the act of assigning or selling his remaining land, to 
 throw the burden of the judgment, or a rateable part of it, 
 back upon A.^ But this rule does not apply to the case of 
 a sale of the mortgaged premises by the sheriff under a 
 judgment, subject to the mortgage; the purchasers at 
 sheriff's sale, of portions of the mortgaged premises, are in 
 equalijure; and the portions so purchased are, as between 
 themselves, liable to the payment of the mortgage debt in 
 proportion to their respective values.^ And where there 
 was a mortgage, accompanied with eight bonds payable 
 at different times, five of which the holder assigned to 
 different persons, at several times, retaining three of them 
 himself; and the mortgaged premises were subsequently 
 sold under an execution against the mortgagor, and the 
 proceeds were insufficient for the whole mortgage debt, 
 it was decided that the respective assignees and the mort- 
 gagee were entitled to a pro-rata dividend of the proceeds 
 according to the amount of the bonds held by each.^ 
 
 § 138. Another important branch of equity jurisdic- 
 tion, in cases of apportionment and contribution, is where 
 incumbrances on real estate are required to be paid off, 
 or are actually paid off, by some of the parties in interest. 
 In such cases the rule has been adopted in equity, that 
 one-third should be contributed by the owner of the life 
 estate and the remaining two-thirds by the reversioner 
 or remainder-man. Thus, where A., having purchased a 
 
 ^ Xailer v. Stanley, 10 S. & R. 435; Cowden's Estate, 1 Barr, 274; Car- 
 penter r. Koons, 8 Harris, 226; Clowes r. Dickinson, 5 Johns. Ch. 440; Mevey'a 
 Appeal, 4 Barr, 80; Dunn r. Oluey, 2 Harris, 222-3. 
 
 ^ Carpenter v. Koons, 8 Harris, 222; Fislier v. Clyde, 1 W. & S. 544. 
 
 " Donley r. Hays, 17 S. & E. 400; MoUer's Appeal, 5 Barr, 420; Perry's 
 Appeal, 10 Harris, 45. 
 
ACCOUNT. 131 
 
 life estate in certain lands, confessed a judgment in favour 
 of B. and subsequently became the purchaser in fee, from 
 a different vendor, of one half of the same land, and then 
 confessed a judgment to C; his interest in the land 
 having been afterwards sold on execution, it was held 
 that B's. judgment was to be regarded as a lien on the life- 
 estate only; which Avas to be estimated at one-third the 
 value of the fee simple estate, including the life-estate.^ 
 
 § 139. Cases of general average form another class, 
 which forcibly illustrate the value of this branch of equity 
 jurisdiction. General average, or general contribution, 
 is founded on principles of justice and sound policy. It 
 arises, when a sacrifice of part has been made for the 
 preservation of the residue, or when money is expended, 
 to preserve the whole. Thus, the loss occasioned by 
 cutting away of masts, by throwing goods overboard to 
 lighten the ship in a storm, or money paid to redeem the 
 ship and cargo, which has been captured, are subjects of 
 general average; ship, cargo, and freight have been 
 benefited, and therefore all must contribute.^ In order 
 to make a case of general average, it is necessary that 
 the ship should be in distress, and a part sacrificed in 
 order to preserve the rest. It is necessary also, that this 
 sacrifice should be conducive to the saving of the rest, and 
 that it should be voluntary ; for if the loss be occasioned 
 by the violence of the tempest, there is no reason for con- 
 tribution.^ 
 
 § 140. Cases of contribution between sureties, one of 
 whom, upon the default of their principal, has been com- 
 pelled to pay the money for which they were all bound, 
 are within the same rule of equitable jurisdiction. It is 
 
 '' Dennison's Appeal, 1 Barr, 201. ^ Sansom v. Ball, 4 Dall. 462. 
 
 ' ?ims i\ Gurney, 4 Binn. 524; Ins. Co. of N. America v. Jones, 2 Ibid. 559. 
 
132 ACCOUNT. 
 
 a rule well established, that where any one or more of 
 those who are co-sureties, have had to pay, as such, the 
 debt of their principal, and he is unable to reimburse it, 
 the loss arising therefrom must be borne equally by all 
 of them. Hence has arisen the right to contribution. 
 This right has been considered as depending rather upon 
 a principle of equity than upon contract; but it may 
 well be considered as resting alike on both for its foun- 
 dation ;^ for although, generally, there is no express agree- 
 ment entered into between joint sureties, yet from the 
 uniform and almost universal understanding which seems 
 to pervade the whole community, that from the circum- 
 stance alone of their agreeing to be, and becoming ac- 
 cordingly co-sureties of the principal, they mutually be- 
 come bound to each other to divide and equalize any loss 
 that njiay arise therefrom to either or any of them, it 
 may with great propriety be said, that there is, at least, 
 an implied contract.^ 
 
 § 141. Sureties are not only entitled to contribution 
 from each other for money paid in discharge of their joint 
 liabilities for their principal, but they are also entitled 
 to the benefit of all securities which have been taken by 
 one of them, to indemnify himself against such liabili- 
 ties;^ and also to an assignment of the security against 
 his principal and co-surety.* That a surety who pays 
 
 1 1 Pars, on Cont. 31-2. 
 
 ^ Agnew V. Bell, 4 Watts, 32. At law, a surety can recover from his co- 
 surety only that co-surety's aliquot part, calculated upon the whole number, 
 without reference to the insolvency of others of the co-sureties; but, in equity, 
 it is otherwise. 1 Pars, on Cont. 34. 
 
 ' 1 Story's Eq. H99; Hlmes i\ Keller, 3 W. k S. 404. 
 
 * Yard v. Patton, 1 Harris, 287. Wherever one, not a mere volunteer, dis- 
 charges the debt of another, he is entitled to all the remedies which the creditor 
 possessed against the debtor: actual payment discharges a judgment or other 
 incumbrance at law, but where justice requires it, we keep it afoot in equity for 
 the safety of the paying surety. Cottrell's Appeal, Pittsburgh Leg. J. 1 July 1854. 
 
ACCOUNT. 133 
 
 the debt of his principal is entitled to the benefit of all 
 the securities within the power of the creditor, is a doc- 
 trine acknowledged in this state, unembarrassed by the 
 difficulties that elsewhere have obtained in respect to 
 such securities as might be esteemed as discharged at 
 law. Following the older decisions of the English chan- 
 cery, our courts have ever held, that though there be but 
 one security of the debt paid by a surety, equity will 
 preserve its validity for the benefit of such surety, for 
 "what is very payment at law may not be payment at all 
 in equity."-^ They have even gone further than this, by 
 asserting a similar equity in favour of a co-surety, in a 
 joint judgment of one of several purchasers of land, in- 
 cumbered by a joint judgment, afterwards paid by that 
 one ; and for the protection of a mortgagor who aliened 
 the mortgaged premises with covenant that the alienee 
 should assume the incumbrance.^ 
 
 § 142. There are many other cases of contribution 
 within the cognizance of a court of equity. Thus, on 
 the dissolution of a partnership, a bill for contribution 
 will lie by one of the several partners against the others, 
 for a proportionate part of the loss sustained by the trans- 
 actions of the firm.^ And in general, it has been found, 
 that the remedy in equity is so complete, in cases of ap- 
 portionment and contribution, as to have superseded, in 
 a great measure, the action of account render, which 
 is said to be "cumbrous, ill-defined, and not so well 
 
 1 Croft V. Moore, 9 Watts, 451. 
 
 ^ Gossin V. Brown, 1 Jones, 531-2; Fleming v. Beaver, 2 Eawle, 128; Pott 
 t\ Nathans, 1 W. & S. 155; Bank of Pennsylvania v. Potius, 10 Watts, 148; 
 Lathrop's Appeal, 1 Barr, 512; Duncan v. Drury, 9 Barr, 332; Champlin v. 
 Williams, Ibid. 341 ; Morris v. Oakford, Ibid. 498. 
 
 ' M'Padden v. Sallada, 6 Barr, 283; M'Fadden v. Hunt, 5 W. & S. 468; 
 Horbach's Administrators v. Elder, 6 Harris, 36-7. 
 
134 ACCOUNT. 
 
 adapted to all the exigencies of partnership concerns as 
 the proceeding in chancery."^ 
 
 § 143. Another class of cases in which a court of 
 equity will decree an account, is that arising from ad- 
 verse claims and titles to real estate. Thus, where lands 
 have been extended and delivered to the judgment cre- 
 ditor under the extent, a bill for an account will lie by 
 the owner of the lands as well as by the creditor ; and, in 
 such case, the valuation of the inquest being but prima 
 facie evidence of the annual value of the property, the 
 creditor is accountable only for what he actually received, 
 if he used skill and diligence in the collection of the 
 rents and profits.^ So in cases of waste, if discovery 
 be requisite, the court will, as incidental to that assis- 
 tance, compel an account; and where the waste arises 
 from the working of mines, an account may be decreed, 
 although not founded on the discovery sought by the 
 bill.^ 
 
 § 144. There are some matters incident to the exer- 
 cise of the remedial jurisdiction of courts of equity, in 
 all matters of account, which it will be proper to notice 
 before concluding the examination of the subject matter 
 of this chapter. Thus, in all bills for an account, both 
 parties are deemed actors; and therefore, although in 
 general no person but a plaintiff can entitle himself to a 
 decree ; yet, in a bill for an account, if a balance be ulti- 
 mately found in favour of the defendant, he is entitled 
 to a decree for such balance against the plaintiff;* and, 
 for a like reason, although a defendant cannot ordinarily 
 revive a suit which has not proceeded to a decree; yet. 
 
 ' M'Fadden v. Sallada, 6 Barr, 290. 
 
 ^ M'Kelvy v. De Wolfe, 8 Harris, ?.T I, 381. 
 
 ^ Jcr. Eq. 509-10. 
 
 * ShoUenbcrger's Appeal, 9 Harris, 340. 
 
ACCOUNT. 135 
 
 in a bill for an account, if the plaintiff die after an in- 
 terlocutory decree to account, the defendant is entitled 
 to revive the suit against the personal representatives of 
 the plaintiff.'^ 
 
 § 145. So also there are some matters of defence pe- 
 culiar to cases of account. Thus, if there have been an 
 account stated between the parties, it may be pleaded as 
 a bar to both discoveiy and relief, or may be set up by 
 answer as a bar to relief; and in this latter case, if the 
 allegation in the answer be not proved, it is usual, on 
 referring the account to the master, to direct that, if he 
 find any account stated he shall not disturb it. The 
 account, however, may be opened on the ground of fraud, 
 or if important errors be specified and proved ; but a 
 general allegation that it is erroneous will not suffice. In 
 some cases, where a stated account is impeached, the court 
 .will re-open the whole account and direct it to be taken 
 de novo. In others, where it is faulty in a less degree, it 
 will allow it to stand, with liberty to surcharge and fal- 
 sify. This leaves it in full force as a stated account, ex- 
 cept so far as it can be impugned by the opposite party. 
 If he show the omission of a credit, that is a surcharge ; 
 if he show the insertion of an improper charge, that is 
 a falsification.^ 
 
 ' 1 Story's Bq. | 522. 
 
 ^ Adams' Eq. 226-7 ; Bainbridge i'. Wilcocts, 1 Bald. 540. An account 
 stated is conclusive upon the parties, unless fraud or mistake be affirmatively 
 shown. If either party attempt to impeach the settlement and to open the 
 account for re-examination, either wholly or in part, and which can only be 
 done upon the ground of fraud, mistake, or error, the burden of proof rests 
 upon the party impeaching, and he must prove the fraud, or point out the error 
 or mistake on which he relies. Lockwood v. Thorne, 1 Kern. 1?5; Philijia c. 
 Belden, 2 Edw. Ch. 1. No practice can be more dangerous than that of open- 
 ing accounts which the parties themselves have adjusted, on suggestions sup- 
 ported by doubtful, or only probable testimony. Chappedelaine v. Dechenaux, 
 4 Cranch, 306. 
 
136 
 
 ACCOUNT. 
 
 § 146. The question of what will constitute a stated 
 account is, in some measure, dependent on the circum- 
 stances of the case. The mere delivery of an account, 
 without evidence of contemporaneous or subsequent con- 
 duct, will not prove it to be a stated account; but an ac- 
 ceptance, implied from circumstances, will suffice. Be- 
 tween merchants, at home, an account which has been 
 presented, and which has not been objected to after the 
 lapse of several posts, is treated, under ordinary circum- 
 stances, as a stated account. Between merchants, in 
 different countries, a similar rule prevails; and if an ac- 
 count be transmitted from one to another, showing a ba- 
 lance due to himself, and he do not object to it in a 
 reasonable time, the rule is to consider it as allowed.^ 
 
 § 147. It is also material to the equity for an account 
 that it be claimed within the proper time. Where the 
 account is sought under a legal title, or under an equita- 
 ble title of like nature with a legal one, that limit of 
 time will be adopted in equity which is prescribed by the 
 statute of limitations at law. Where the bar of the sta- 
 tute is inapplicable, there may, nevertheless, be a bar in 
 equity, originating in long acquiescence by the party, and 
 in the consequent presumption that he has either been 
 satisfied his demand, or that he intended to relinquish it." 
 And in a case where the account was carried back into 
 remote transactions, of which accounts had been regu- 
 larly kept by a deceased party at the time, it was or- 
 dered that they should be received as prima facie evi- 
 dence, so as to throw on the other side the burden of im- 
 peaching them.'' 
 
 1 Phillips V. Tapper, 2 Barr, 323; Jones v. Dunn, 3 W. & S. 109; Thompson 
 V. Piaher, 1 Harris, 313 ; Mellon v. Campbell, 1 Jones, 418 ; Bainbridge v. 
 Wllcocks, Bald. 536; Lookwood v. Thorne, 1 Kern. 173. 
 
 ■■' Adams' Eq. 227. » Cholmer v. Bradley, 1 J. & W. 51-65. 
 
ADMINISTRATION. 137 
 
 CHAPTER VII. 
 
 ADMINISTRATION. 
 
 § 148. The orphans' courts are, in Pennsylvania, in- 
 vested with full equity jurisdiction in the administration 
 of the assets of deceased persons.^ The word assets in- 
 cludes all property of the deceased which is chargeable 
 with his debts and legacies, and is applicable for that 
 purpose. Lands also have, from a very early period, 
 been deemed assets for the payment of debts •? and hence, 
 whenever it satisfactorily appears to an executor or ad- 
 ministrator, that the personal estate of his decedent is 
 insufficient for the payment of the debts and the ex- 
 penses of the administration, it is his duty to proceed, 
 without delay, to sell, under the direction of the pro- 
 per orphans' court, so much of the real estate as shall be 
 necessary to supply the deficiency.^ 
 
 § 149. The proceedings for the due settlement of the 
 administration may, and usually are, instituted by the 
 executor or administrator himself, for his own protec- 
 tion. In such case, he must exhibit a just and true ac- 
 count of his administration into the office of the register 
 of the proper county, whose duty it is, before allowing 
 the same, carefully to examine it, and to require the pro- 
 
 ' Purd. Dig. 621. 
 
 ' Guier v. Kelly, 2 Binn. 298; Cowden f. Brady, 8 S. & R. 508. 
 
 2 Purd. Dig. 200. 
 
 10 
 
138 ADMINISTRATION. 
 
 duction of the necessary vouchers, and other satisfactory- 
 evidence of the several items of such account. Having 
 been allowed and filed by the register, a certified copy of 
 the account is to be prepared and presented .to the or- 
 phans' court, at its next stated meeting, occurring not 
 less than thirty days thereafter, of which the register is 
 to give public notice. Any party interested may exhibit 
 exceptions to the account, which in such case, if deemed 
 necessary by the court, is to be referred to auditors for 
 adjustmentj and in case of deficiency of assets, to re- 
 port distribution.^ 
 
 § 150. If the executor or administrator neglect to file 
 his account, within one year after the granting of letters 
 testamentary or of administration, any creditor or person 
 interested in the estate, may present a petition to the 
 orphans' court, briefly setting forth the facts, and prajing 
 a citation to such executor or administrator to settle his 
 account: this petition mu.st be verified by oath or af- 
 firmation. On the return of the citation, if the defend- 
 ant appear and answer, the court, if the facts are not 
 disputed, or the time elapsed be not sufficient to raise a 
 legal presumption that the estate has been fully settled, 
 will make a decree for an account, which may be en- 
 forced by attachment or sequestration. On the coming 
 in of the account the proceedings are the same as in 
 case of a voluntary settlement. In case the defendant 
 do not appear to the citation, the court is empowered 
 to decree that the petition of the complainant be taken 
 as confessed, and to direct a reference to an auditor 
 or auditors to take proof of the facts and circum- 
 stances set forth in the petition, and to report thereon. 
 
 ' Ibid. 210-11. In Philadelphia county all accounts are to be so referred. 
 Ibid. 211. 
 
ADMINISTRATION. 139 
 
 and also to report an account against such defendant, 
 if necessary.^ 
 
 § 151. A creditor, though entitled to object to the 
 credits or charges in an administration account exhi- 
 bited for settlement, cannot go into the orphans' court to 
 recover his debt against a solvent estate. It is the exe- 
 cutor, and not the court, that administers the assets. 
 The remedy is not in equity, but at law; and the per- 
 sonal representative of the decedent is, for purposes of 
 personal recourse, entitled to trial by jury, and every 
 other constitutional advantage, which might have been 
 insisted on by him whom he represents. The orphans' 
 court has doubtless power to make distribution, but not 
 among creditors. It can be made only when the debts 
 are paid, and the accounts settled; consequently, only 
 when there is no creditor to claim.^ Where however 
 the estate is insolvent, the court is authorized to appoint 
 auditors to settle and adjust the rates and proportions of 
 the assets to and among the respective creditors, ac- 
 cording to the order established by law.* The rights of 
 distributees and legatees, as between each other, are not 
 affected by the administration account.* 
 
 § 152. Where the distinction between legal and equi- 
 table assets is recognised, the due administration of them 
 becomes a fruitful source of equity jurisdiction. But in 
 Pennsylvania there is no distinction between legal and 
 equitable creditors, or legal and equitable assets derived 
 from the estate of a decedent, and in the hands of his 
 personal representatives for distribution among creditors. 
 
 ' Ibid. 622. 
 
 ' Warner's Estate, 2 Wh. 301; Metts' Appeal, 1 "Wh. 1; Latimer's Estate, 
 2 Ash. 520; Gossner's Estate, 6 Wh. 401. 
 ' Purd. Dig. 211. 
 * Ake's Appeal, 9 Harris, 320. 
 
140 ADMINISTRATION. 
 
 Therefore, when a party dies intestate, leaving separate 
 and joint creditors, and there is no joint fund, or. sol- 
 vent partner surviving, the separate and joint creditors 
 have a right to come in, under the intestate laws, pari 
 passu, for a distributive share of the separate estate.^ 
 
 § 153. The established order of the application of the 
 several funds, liable to the pa3Tnent of debts, is as fol- 
 lows: 1. The general personal estate, not expressly, or 
 by implication, exempted. 2. Lands expressly devised 
 to pay debts. 3. Estates descended to the heir. 4. De- 
 vised lands, charged with the payment of debts generally, 
 whether devised in terms general or specific, (every de- 
 vise of land being in its nature specific.) 5. General 
 pecuniary legacies, pro rata. 6. Specific legacies, pro 
 rata. 7. Real estate devised, whether in terms general 
 or specific.^ 
 
 § 154. The equity of marshalling the assets arises, 
 where debts or legacies are charged, some on several 
 kinds of assets, and some on one kind only, and the 
 doubly charged assets have been applied in discharge of 
 the doubly secured claims. Thus, where a testator 
 directed his executors to sell a particular portion of his 
 lands, and after deducting three hundred dollars from 
 the proceeds, to divide the residue in equal portions 
 among his daughters ; he then directed the three hundred 
 dollars so reserved to be divided among his three grand- 
 children ; and gave the residue of his lands to his widow 
 and son; the widow, as surviving executrix, having sold 
 the lands charged with the legacies, for the payment of 
 .debts, and applied more than three hundred dollars of 
 rthe proceeds, in ease of her own estate ; it was held, that 
 
 ' Sperry's Estate, 1 Ash. 347. 
 
 ' Hoover v. Hoover, 5 Barr, 356-7. 
 
ADMINISTRATION. 141 
 
 the legacies to the grand-children were demonstrative, 
 and payable out of the three hundred dollars reserved 
 out of the proceeds of the land ordered to be sold; that 
 these legacies were not liable to abate from a deficiency 
 of personal assets to pay the debts, but that the lands 
 devised and the legacies to the daughters must contri- 
 bute to such deficiency; and that the orphans' court had 
 power to settle the contributory shares payable by the 
 devisee and legatees, and to compel payment thereof- 
 
 § 155. In marshalling the assets for the payment of 
 debts, a mortgage created by the decedent, like all other 
 contracts for the payment of money, must be paid out of 
 the personal effects of the deceased. But where the 
 estate originally came into the hands of the testator, 
 charged with a pre-existing mortgage, the devisee of such 
 land takes it charged with the mortgage debt; although 
 the decedent covenanted with his vendor to pay the 
 mortgage, and to indemnify him from its payment.^ The 
 general principle is, that the personal estate is the pro- 
 per fund for the payment of the testator's debts, and shall 
 be first applied even to the payment of debts with which 
 the real estate is charged. Thus, if a testator borrow 
 money and mortgage his land for it, and then die, the 
 heir or devisee may call upon the executor to exonerate 
 the land, by an application of the personal assets to the 
 discharge of the mortgage. But there is a distinction be- 
 tween debts originally contracted by the testator and 
 those contracted by another, for in the latter case the 
 land is considered as the debtor, and shall bear its own 
 burden.^ Unless, indeed, the testator has so dealt with 
 
 1 Loomis's Appeal, 10 Barr, 387 ; Alston v. Munford, 1 Brock. 267; Byrd v. 
 Byrd's Executor, 2 Ibid. 169. 
 
 ^ Mason's Estate, 1 Pars. 129; Hooker's Appeal, 4 Barr, 497; Hickling v. 
 Boyer, 9 Eng. L. & Eq. 212. ' Keyzey's Appeal, 9 S. & E. 72-3. 
 
142 ADMINISTRATION. 
 
 the incumbrance as to make it his proper debt. To 
 produce this result, so as to charge his personal estate as 
 the primary fund for the payment of such an incum- 
 brance, the testator must have made himself, by con- 
 tract, personally and directly liable at law to the owner 
 of the incumbrance.-^ 
 
 § 156. At common law, the executor or administrator 
 is treated, for many purposes, as the owner of the assets, 
 and has power to dispose of and alien them. In chan- 
 cery, however, his interest is purely fiduciary; and the 
 law exacts from those dealing with him, with full know- 
 ledge of his representative character, the most perfect 
 good faith. The assets are a fund in his hands, not for 
 the payment of his own debts, but the debts of the tes- 
 tator and the legacies bequeathed in the will; and where 
 the assignee knows, at the time, that he is receiving his 
 debt out of a fund which is not the property of the per- 
 son paying, but which is appropriated to the payment of 
 other debts, that alone is a circumstance of suspicion 
 that ought to put him on inquiry as to the propriety of 
 the transaction.^ The law is now clearly settled, that an 
 executor can make no valid sale or pledge of the assets 
 of his testator, for the payment of his own debts or those 
 of a third person. And if any one deal with another, 
 standing in this fiduciary character, he is affected with 
 notice, and is consequently participant in the breach of 
 trust.^ It is no answer to say, that the executor may sell 
 the goods, and pay his debt with the price; if the credi- 
 tor knew that the payment made under these circum- 
 stances would prejudice the creditors or legatees, he would 
 be a party to the devastavit, and liable to refund; for 
 
 ^ ManseU's Estate, 1 Pars. 370; Cumberland v. Codrington, 3 Johns. Ch. 272. 
 ' Petrie V. Clark, U S. & R. 386. ' Miller v. Ege, 8 Barr, 356. 
 
ADMINISTRATION. 143 
 
 money, where it has been received mala fide, may be 
 followed as readily as a chattel.^ 
 
 § 157. An administrator, appointed in another state, is 
 merely ancillary to the administrator of the place of the 
 domicil; and it is the duty of the former to transmit the 
 assets, after payment of debts and expenses, to the latter 
 for distribution ; and if the latter neglect to demand the 
 sum which should be transmitted to him, and it is lost, 
 he is chargeable. "Where the administration, both at 
 home and abroad, has been taken out by the same per- 
 son, the presumption is, that he has done his duty ; and 
 when he comes to settle his account in the state where 
 distribution is to be made, he cannot deny that he has 
 received, what the foreign administrator, if he had been 
 a different person, would have been compelled to pay, 
 and what he would have been bound in duty to demand 
 and get. Equity considers that done which ought to be 
 done.^ 
 
 § 158. But, an administrator here, though admitted 
 to be but ancillary to the administrator at the place 
 where the decedent was domiciled, is bound to remit the 
 assets to be administered there, only in case there are no 
 domestic claimants in the character of creditors, legatees, 
 or next of kin; where these appear, the assets are to be 
 retained for administration according to our own laws, 
 permitting the foreign creditors to participate in propor- 
 tion to their debts, respect being had to the aggregate of 
 the estate, and of the debts, whether foreign or domestic* 
 And where the parties interested, whether foreign credi- 
 tors, legatees, or next of kin, seek their remedy here, it 
 
 ' Petrie v. Clark, 11 S. & R. 38Y; MarshaU v. Hoff, 1 Watts, 441. 
 
 2 Stokely's Estate, 1 Harris, 482. 
 
 ' Mothland v. Wireman, 3 Penn. R. 188. 
 
144 ADMINISTEATION. 
 
 is in the legal discretion of the court either to decree a 
 distribution here, or to remit the fund to the administra- 
 tor of the domicil, according to the circumstances and 
 condition of the estate.^ 
 
 § 159. In concluding this subject, it may be proper to 
 remark, that although it is provided by statute that no 
 foreign letters testamentary, or of administration, shall 
 confer upon the party any of the powers and authorities 
 possessed by an executor or administrator, under letters 
 granted within this state; yet it has been held, not to 
 be necessary to take out letters of administration in 
 Pennsylvania, on the estate of one who, at the time of 
 his decease, was domiciled in another state, in order to 
 collect a claim against a resident; in such case, the ad- 
 ministrator of the domicil may maintain an action. Any 
 rule which would exclude the administrator from our 
 courts, would also exclude his intestate, if alive, which 
 would certainly be a gross violation of comity between 
 the states of this union.^ 
 
 § 160. lui regard to legacies, which, in England, are 
 cognizable in equity, our statutes have provided a re- 
 medy by a common law action against the executor; 
 which jurisdiction is exclusive.^ Where, however, a le- 
 gacy is charged upon, or payable out of land, the juris- 
 diction has been given to the orphans' court. In such 
 
 ' Dent's Appeal, 10 Harris, 514. 
 
 ' Doud V. Wolf, Dist. Court, Allegheny, Pittsburgli Leg. J. 15 April 1854. 
 
 ' Purd. Dig. 213 ; GaUoney's Appeal, 6 Barr, 40. An action for a legacy 
 being a substitute for a bill in equity, is to be so managed as to take effect 
 without hindrance from common-law technicalities: hence, an action brought 
 in the name of executors for the use of a legatee, against another legatee, to 
 recover the one-third of a legacy which had been limited over, upon a, con- 
 tingency, to three legatees, will not be defeated by the plea of a former recovery 
 by the same executors, for the use of another of the three legatees. Seibert 
 V. Butz, 9 Watts, 490. 
 
administeation. 145 
 
 case, the legatee may apply, by bill or petition, to the 
 court having jurisdiction of the accounts of the execu- 
 tor of the will by which such legacy was bequeathed; 
 whereupon, the court, having caused due notice to be 
 given to the executor, and to the devisee or heir, as the 
 case may be, of the estate charged with the legacy, and 
 to such other persons interested in the estate as justice 
 may require, may proceed, according to equity, to make 
 such decree or order, touching the payment of the legacy 
 out of the real estate, as may be requisite and just.^ 
 To such a proceeding, the alienees of a devisee are neces- 
 sary parties.^ 
 
 § 161. Cases frequently occur in practice, in which 
 annuities and legacies payable in futuro, or upon contin- 
 gencies, are charged upon all the residuary real estate of 
 the testator, which is thereby in some measure rendered 
 inalienable, although such annuities and legacies might be 
 amply secured by setting apart a portion of the estate. 
 In any such case, the executors, or the annuitant, or lega- 
 tee, or any person interested in the residuary estate, are 
 authorized, by the act of 23d February 1853,^ at any 
 time after the expiration of one year from the granting 
 of letters testamentary, to apply by petition to the or- 
 phans' court having jurisdiction of the accounts of the 
 executors, setting forth the facts and praying relief; 
 whereupon the court may order a citation to be issued 
 to the parties interested, to appear at a day certain to 
 show cause why the relief prayed for should not be 
 granted. And upon the return of such citation, if all 
 the parties interested shall have had due notice, the court 
 may refer the case to an auditor with directions to inquire 
 
 ' Purd. Dig. 214. ' Jenkins v. Jenkins, 1 Barr, 246. 
 
 ' Purd. Dig. 214. 
 
146 ADMINISTRATION. 
 
 into the circumstances, and report upon the amount and 
 condition of the estate, and upon the expediency and 
 propriety of exempting any part of the residuary real 
 estate from the lien and charge of such annuities and lega- 
 cies, having due regard to their ultimate security; and, 
 upon such report being made, and due notice thereof given 
 to all persons interested, if it shall further appear that 
 all the debts of the testator have been paid or secured, 
 the court may make a decree that such parts of the re- 
 siduary estate shall be set apart for the payment of the 
 annuities and legacies, as shall appear to be, and with 
 reasonable probability will continue to be, sufficient for 
 that purpose beyond all charges and deductions; provi- 
 ding always a sufficient surplus, to meet any contingent 
 diminution or depreciation in the value or income of the 
 estate and securities so set apart. 
 
 § 162. When such decree shall have been made, the 
 court may further order that all the remaining resi- 
 duary real estate, not so set apart, shall be discharged 
 from the lien of every such annuity or legacy, in the 
 hands of any bond fide purchaser thereof for a valuable 
 consideration. This, however, will not authorize the 
 exoneration of any real estate which the testator may 
 have specifically charged with the payment of the an- 
 nuity or legacy. If any such annuity or legacy become 
 extinguished, the court may decree the exoneration of 
 such further part of the residuary estate, as may appear 
 to be beyond the amount requisite for securing the pay- 
 ment of the remaining annuities and legacies.^ 
 
 1 Purd. Dia-. 214. 
 
DOWER AND PARTITION. 147 
 
 CHAPTER VIII. 
 
 DOWER AND PARTITION. 
 
 § 163. The courts before enumerated/ with the excep- 
 tion of the distrigt court of Allegheny, have been in- 
 vested, by statute, with all the powers and jurisdiction 
 of courts of equity in cases of dower and partition.^ 
 And the orphans' courts throughout the state are like- 
 wise clothed with power to make partition of the real 
 estate of a decedent between the widow and heirs.^ We 
 will first consider the nature of the proceedings by bill 
 in equity, and afterwards the statutory jurisdiction of 
 the orphans' court, which is essentially equitable in its 
 character. 
 
 § 164. By the common law, the widow's right of 
 dower, was a right to have assigned to her, on the death 
 of her husband, a third part of the lands and tenements 
 of which he was seised during the marriage, in fee sim- 
 ple, or fee tail, and which her issue (if any) might by . 
 possibility have inherited. Her remedy, at law, was by 
 writ of dower, or of dower unde nihil habet, and the she- 
 riff was appointed to assign it. The common law action 
 of dower may be maintained in this state, for an assign- 
 ment of the widow's dower in lands, which her husband 
 had aliened in his lifetime, and in the conveyance of 
 
 1 Ante, I 35. ^ Purd. Dig. 306-7. » Ibid. 203. 
 
148 DOWER AND PARTITION. 
 
 which she did not join.^ But where the husband died 
 seised and possessed, an action of dower, at common 
 law, cannot be sustained. In such case, the remedy 
 must be by proceeding in the orphans' court, or by bill 
 in equity.^ 
 
 § 165. By our intestate laws, the widow, where the 
 intestate leaves issue, is entitled to one-third part of the 
 real estate for the term of her natural life ; where there 
 is no issue, but collateral heirs, to one-half of the real 
 estate, including the mansion house and buildings appur- 
 tenant, for the term of her life ; and in default of known 
 heirs or kindred, competent to inherit, the whole of the 
 real estate shall be vested in the widow, for such estate 
 as the intestate had therein.^ The shares thus allotted 
 to the widow are to be in lieu and satisfaction of her 
 dower at common law. And a devise or bequest by a 
 husband to his wife of any portion of his estate, is to be 
 deemed and taken to be in lieu and bar of her dower in 
 the estate of the testator, unless he shall in his will de- 
 clare otherwise; the widow may, however, elect to take 
 her dower or the property so devised or bequeathed. 
 She may be cited to appear in the orphans' court, and 
 make such election at any time after twelve months from 
 the death of the testator; and if she neglect to appear 
 on such citation, it will be deemed an acceptance of the 
 devise or bequest, and a bar of her dower. Such elec- 
 tion, however, need not be made in the orphans' court, 
 to estop a widow from claiming dower; if she, in fact, 
 elect to take under the will, she will be barred.* To 
 
 ' Leinaweaver v. Stoever, 1 W. & S. 160; Borland v. Nichols, 2 Jones, 38. 
 
 ' Thomas v. Simpson, 3 Barr, 60. 
 
 » Purd. Dig. 452-4. 
 
 * Cauffman v. Cauffman, 11 S. & R. 16 ; Light v. Light, 9 Harris, 407. 
 
DOWER AND PARTITION. 149 
 
 enable her to make her election understandingly, she 
 can compel the exhibition, by the executor, of a true 
 inventory and fair account of the estate.-^ 
 
 § 166. Courts of equity now entertain a general con- 
 current jurisdiction with courts of law, in the assignment 
 of dower iu all cases.^ The court will not, however, as- 
 sist a widow in the assignment of her dower, out of her 
 husband's estate, if there be any doubt as to her legal 
 right; therefore, if the title to dower be disputed, it re- 
 fers it to the decision of a court of law, either by directing 
 an issue,^ or by ordering the bill to be retained for a cer- 
 tain time, with liberty to the plaintiff to bring a writ of 
 dower, as she may be advised. When the right to dower 
 is not disputed, the court of chancery assumes a concur- 
 rent jurisdiction, and will direct it to be assigned ; first, 
 however, if it be necessary, directing an inquiry by the 
 master into what lands the husband died seised of where- 
 in his widow is entitled to dower, &c. The rio-ht beinsc 
 established, and the property out of which the wife is 
 dowable being ascertained, the next step is to assign the 
 dower. This may be done either by reference to the 
 master, or by directing a commission to issue. It gene- 
 rally forms part of the decree, that when the dower has 
 been assigned, possession shall be delivered to the plaintiff."' 
 
 § 167. A widow is also entitled to an account of the 
 arrears of her dower, and this, notwithstanding the death 
 of the heir pending the suit; although at law her right to 
 damages would have been lost by that event. A court 
 of equity will decree an account of rents and profits 
 against the respective representatives of the several par- 
 ties who may have been in possession since the death of 
 
 ' Melizet'a Appeal, 5 Harris, 449-50. " 1 Story's Eq. J 624. 
 
 ' ConUin v. Bush, 8 Barr, 517-18. * 2 Dan. Ch. Pr. 1343. 
 
150 DOWER AND PARTITION. 
 
 the husband, provided, that at the time of the bill filed, 
 the legal right to damages was not gone. And although 
 the widow die before she has established her right to 
 dower, equity will, in favour of her personal representa- 
 tive, decree an account of the rents and profits of the 
 lands of which she may afterwards appear dowable. 
 And these rules are founded in equity, for it would be 
 unreasonable that the widow, or her personal representa- 
 tives, should be debarred from damages when the heir 
 happens to die before she has established her right, or 
 where she dies before judgment in her favour, when the 
 enjoyment of her dower is prevented by the wrongful 
 act or deforcement of the heir or feoffee. At law, the 
 demandant recovers from the feoffee all the mesne profits 
 of the land, without regard to the time he occupied it, 
 for the law leaves him to provide a recompense or indem- 
 nity from the heir, which, if he neglect to do, it is his own 
 folly. But, in equity, an account will only be decreed 
 for the time the premises were in the actual occupation 
 of the heir or feoffee.-^ The rule, however, that the per- 
 sonal representative of the widow may have an account 
 in equity of the arrears of her dower, is confined to cases 
 where the right to damages has been established by judg- 
 ment, but the widow dies before they had been assessed.^ 
 § 168. Where the assignment of dower has been re- 
 ferred to the master, the same decree may direct an ac- 
 count of rents and profits; but where the assignment is 
 by commission, it must be deferred till the cause comes 
 on for further directions, with regard to the question of 
 costs. Lord Redesdale observes, that "in the two cases 
 of partition and assignment of dower, as no costs can be 
 
 ' Sandback v. Quigley, 8 Watts, 464. 
 
 ' Conklin v. Bush, 8 Barr, 518; Seaton v. Jamison, 1 Watts, 537. 
 
DOWER AND PARTITION. 151 
 
 given in a court of common law, upon a writ of partition, 
 or a writ of dower, no costs have commonly been given 
 in a court of equity, upon bills for the same purposes;" 
 and, as respects dower, this appears to be the present 
 rule of the courts, in cases where the widow comes into 
 court for the single purpose of having dower assigned 
 her. The rule, however, is subject to exception where 
 previous questions are raised, in litigating of which the 
 party is vexatious. ■^ 
 
 § 169. In the case of partition of an estate, if the titles 
 of the parties are in any degree complicated, the difficul- 
 ties which have occurred in the proceedings at common 
 law have led to applications to courts of equity for par- 
 tition; which is effected by first ascertaining the rights 
 of the several persons interested, and then issuing a com- 
 mission to make the partition required ; and upon return 
 of the commission, and confirmation of that return by 
 the court, the partition is finally completed by mutual 
 conveyances of the allotments made to the several par- 
 ties.^ But a court of equity does not interfere unless 
 the title be clear; and never where the title is denied 
 or suspicious, until the party seeking a partition has had 
 an opportunity to try his title at law.^ 
 
 § 170. In making a partition in chancery, every part 
 of the estate need not be divided, but it will be sufficient ~ 
 if each party have his proper share of the whole. Thus, 
 where two-thirds of an estate belonged to the plaintiff 
 and one-third to the defendant, and the estate consisted, 
 amongst other things, of a mansion house and of farms 
 and lands about it, and the defendant insisted that he 
 
 1 2 Dan. Ch. Pr. 1344; Beames on Costs, 35. 
 ^ Ibid. 1326. 
 
 2 4 Kent's Com. 364-5 ; Vint v. King, 2 Am. L. R. 729. 
 
152 DOWER AND PARTITION. 
 
 was entitled to have one-third of each allotted to him, 
 Lord Hardwicke said, that " although in making the par- 
 tition care must he taken that the defendant should have 
 a third part in value of the estate, there was no colour 
 of reason that any part of the estate should be lessened 
 in value, in order that the defendant should have his 
 third part of it, which, if he should have one-third of 
 the house and of the park, would very much lessen the 
 value of both." ^ So, if there be three houses of different 
 value to be divided amongst three, it will not be right to 
 divide each house, for that would be to spoil every house ; 
 but some recompense should be made, either by a sum of 
 money, or rent, for owelty of partition, to those who have 
 houses of less value. ^ If the partition cannot be made 
 without prejudice to the interests of the owners, the 
 court may order a sale of the premises.^ And in order 
 to ascertain whether the estate be capable of division, it 
 is provided that, " the court may appoint, on the agree- 
 ment or nomination of the parties, three or more com- 
 missioners to divide or value the same, with the same 
 effect as a sheriff's inquisition for the same purpose; and 
 decree a compensation for such service, not exceeding 
 three dollars a day each, unless the parties interested 
 shall have agreed in writing to a larger recompense."* 
 
 § 171. The confirmation of the report of the commis- 
 sioners does not, like the judgment on a writ of partition, 
 operate on the actual ownership of the land, so as to 
 divest the parties of their undivided shares, and re-invest 
 them with corresponding estates in their respective allot- 
 ments, but it requires to be perfected by mutual conve}-- 
 
 ' Earl Clarendon v. Hornby, 1 P. Wms. 446. ' Ibid. 
 
 " Purd. Dig. 699; Wood v. Little, 2 Am. L. R. 35V. 
 * Act 27 AprU 1855, ? 4. P. L. 369. 
 
DOWER AND PARTITION. 153 
 
 ances; and the next step, therefore, after confirmation 
 of the return, is a decree that the plaintiff and defendants 
 do respectively convey to each other their respective 
 shares, and deliver up the deeds relating thereto, and 
 that in the mean time the allotted portions shall respec- 
 tively be held in severalty. If any of the co-owners 
 have settled or mortgaged their shares, directions will be 
 given for framing the conveyance so that all parties shall 
 have the same interests in the divided shares, which 
 they before had in the undivided share. If the infancy 
 of the parties or other circumstances prevent the imme- 
 diate execution of conveyances, the decree can only ex- 
 tend to make partition, give possession, and order enjoy- 
 ment accordingly, until effectual conveyances can be 
 made. If the defect arise from infancy, the infant 
 must have a day, after attaining twenty-one years, to 
 show cause against the decree.-^ 
 
 § 172. With respect to the costs of a partition, the 
 general rule is now understood to be that which was pro- 
 nounced by the court in giving judgment in the case of 
 Agar V. Fairfax;^ that as the party came into equity in- 
 stead of going to law, for his own convenience, the rule 
 of law should be adopted, and therefore no costs should 
 be given until the commission; that the costs of issuing, 
 executing, and confirming the partition, should be borne 
 by the parties in proportion to the value of their respec- 
 tive interests, and that there should be no costs of the 
 subsequent proceedings. Where one of the parties had 
 made a lease of his undivided share, the costs of the lessee, 
 who was a necessary party to the suit for the partition, 
 were thrown exclusively upon the lessor, on the ground 
 
 ^ Adams' Eq. 232; Jackson v. Edwards, 7 Paige, 386. 
 ' 17 Ves. 533, 558; see Brightly on Costa, 175. 
 11 
 
154 DOWER AND PARTITION. 
 
 that, as such lessee was entitled to his costs, his landlord, 
 who had been the means of bringing him into court, was 
 the proper person to indemnify him. The commissioners 
 have no lien on the commission for their charges.^ 
 
 § 173. The several orphans' courts are invested, by- 
 statute,^ with power to make partition of the estate of a 
 decedent, in all cases of intestacy; and also in cases of 
 testacy, where any of the parties interested are minors, 
 or the course of descent is not altered by the provisions 
 of the will.^ Their jurisdiction likewise extends to all 
 cases of testacy wherein the whole or a part of the real 
 estate may be devised to two or more children; and to 
 the partition of any undivided interest, in fee simple, in 
 any lands or tenements of which any person shall die 
 seised or possessed, as tenant in common, or joint owner 
 with any other person or persons.* 
 
 § 174. The petition for a division of the real estate of 
 a decedent may be presented either by the widow, or by 
 any lineal or collateral heir of the deceased having an 
 interest in such real estate, if of full age, or if under age, 
 by his guardian ; and such application must be made to 
 the orphans' court of the county where the real estate 
 of the decedent is situated, or if the lands lie in different 
 counties, to the orphans' court of the county in which 
 the principal mansion is situate, or if there be no man- 
 sion or building on the lands, then to the court of the 
 county in which the greater part of the land lies ; pray- 
 ing for the appointment of seven or more disinterested 
 persons, chosen by the parties, or when they cannot 
 agree, for an inquest, to make partition of such real es- 
 
 1 2 Dan. Ch. Pr. 1340. ' Purd. Dig. 203-4. 
 
 ' Wain's Appeal, 4 Barr, 506; Selfridge's Appeal, 9 W. & S. 56. 
 * Purd. Dig. 204. 
 
DOWER AND PARTITION. 155 
 
 tate.^ A husband may petition in right of his wife;^ 
 and so may the ahenee of an heir, either in his own 
 name, or in the name of his vendor.^ All parties in in- 
 terest must be named in the petition, decree, and notices, 
 when known ; but if it appear on oath, that the names 
 or residences of any of the parties are unknown to the 
 petitioner, the court may direct notice to be given to 
 them by publication, describing such parties as near as 
 practicable.* And the judgment creditors of a third per- 
 son, who claim that a portion of the land belonged to 
 their debtor, may come in and require the petitioners to 
 prove that the estate belonged to the deceased.^ 
 
 § 175. The duties of the seven men appointed to make 
 partition, or of the inquest selected by the sheriff, are 
 prescribed by the terms of precept issued on the petition ; 
 which directs them to make partition of the premises to 
 and among the heirs and legal representatives of the de- 
 cedent, in such manner and in such proportions as by 
 the laws of this commonwealth is directed, if the same 
 can be so parted and divided without prejudice to, or 
 spoiling the whole ; and if such partition cannot be made, 
 then to inquire and ascertain whether the same will con- 
 veniently accommodate more than one of the parties, 
 without prejudice to, or spoiling the whole; and if so, 
 how many it will so accommodate, describing each part 
 by metes and bounds, and returning a just valuation of 
 the same; but if they shall be of opinion, that the pre- 
 mises cannot be so parted and divided as to accommodate 
 more than one of the parties, then to value the whole of 
 
 > Purd. Dig. 203-6. 
 
 ^ Eckert v. Yous's Administrator, 2 Rawle, 136. 
 
 ^ Thomas v. Simpson, 3 Barr, 71. 
 
 * Purd. Dig. 204; Ragan's Estate, 1 Watts, 438. 
 
 * Simmons's Estate, 1 Peun. L. J. 360. 
 
156 DOWER AND PARTITION. 
 
 the said real estate, having respect to the true valuation 
 thereof, agreeably to law/ 
 
 § 176. It seldom happens that the land can, with- 
 out prejudice, be parted amongst all the parties in inter- 
 est; very seldom that it can be so parted with exact 
 equality. Sometimes convenience and interest dictate 
 its valuation as a whole; sometimes into a fewer num- 
 ber of shares than there are owners; and frequently it is 
 carved into many small lots, with a view to advantageous 
 sale, the process of partition being regarded rather as the 
 means than the end. Each of these modes of proceeding 
 is sanctioned by law.^ If the decedent were possessed of 
 an undivided interest in any lands as tenant in common, 
 or joint owner, such interest must in all cases be valued 
 and returned undivided; and if the decedent had other 
 real estate, such undivided interest is to be valued and re- 
 turned, either by itself, or in connexion with some other 
 portion of the estate, valued as one of the purparts into 
 which the whole real estate shall be divided.^ 
 
 § 177. If equal partition cannot be made, and the 
 whole estate, or the several purparts into which it is di- 
 vided, are valued and appraised, a rule is granted on the 
 parties interested to appear, and accept or refuse the es- 
 tate, or a share or portion thereof, at the valuation, or 
 show cause why a decree should not be made for the sale 
 thereof, or of such parts of the estate as shall not be so 
 accepted ; and thereupon, the court may order the same : 
 1. To the eldest son, if he be living; but if he be dead, 
 to his children, if any, in the order of their birth, and 
 preferring males to females; and in the like manner to 
 his other lineal descendants in the same order. 2. If the 
 
 ' Purd. Dig. 204-5; Duulap's Forms, 530. 
 
 2 Darrah's Appeal, 10 Barr, 210; Purd. Dig. 204-5. ' Purd. Dig. 204. 
 
DOWER AND PARTITION. 157 
 
 eldest son, or his lineal descendants, do not accept the 
 same, then to the second and other sons, or their lineal 
 descendants successively, in the order of birth, in like 
 manner. 3. If the second or other sons, or their descen- 
 dants, do not accept the same, then to the eldest daugh- 
 ter or her lineal descendants. 4. If the eldest daua:hter 
 or her lineal descendants, do not accept the same, then 
 to the second and other daughters, or their lineal descen- 
 dants successively, in like manner. Where the dece- 
 dent leaves no lineal descendants, the like proceedings 
 are to be had as to the collateral heirs.^ 
 
 § 178. The alienee of the eldest son is entitled to the 
 first choice ; he succeeds as well to the right of choice 
 as to the share of the estate.^ So, a guardian may ac- 
 cept on behalf of his ward; and the ward is bound by 
 the act of his guardian, and cannot, on arriving at full 
 age, disaffirm it.^ If there be a life estate with remainder 
 over, the remainder-man must be made a party to the par- 
 tition, and has the right to accept the estate at the valua- 
 tion, upon giving security for the pajnnent of the annual 
 interest to the tenant for life.* If the estate lie in seve- 
 ral counties, an heir who has elected to take in one 
 county, has no right to a share in another, until it has 
 been offered to all the other heirs in succession.^ The 
 right to accept at the appraisement is gone by the neglect 
 of the heirs to appear and accept on the return of the 
 rule ; and if the property have advanced in value, a se- 
 cond chance of election should not be allowed.^ If 
 deemed advisable, the court may allot their shares to 
 
 ' Ibid. 204-8. ^ Ragan's Estate, T Watts, 438-12. 
 
 ' Gelbacli's Appeal, 8 S. & R. 205. * Purd. Dig. 207. 
 
 5 Ibid. 206. * Wentz's Appeal, Y Barr, 151. 
 
158 DOWER AND PARTITION. 
 
 the parties appearing, and permit the residue to remain 
 undivided, subject to a future partition.-^ 
 
 § 179. The party taking the estate, or one of the pur- 
 parts, at the appraisement, is required to pay or secure to 
 the other parties their proportionate parts of the value 
 of the estate, or such sum as shall be charged on the se- 
 veral purparts for owelty of partition. If the widow be 
 living, her share is to remain charged upon the several 
 purparts, and the legal interest thereof must be annually 
 paid to her, during her natural life, in lieu of her dower, 
 by the parties to whom the said real estate shall be ad- 
 judged; and the same may be recovered by the widow 
 by distress, or otherwise, as rents are recoverable. Uj)on 
 her death, the principal sum charged upon such purparts 
 is to be paid to the persons legally entitled thereto.^ 
 The widow of a deceased co-tenant who died intestate, 
 where there is no partition of the premises within one 
 year after his decease, may apply by petition to the pro- 
 per orphans' court, for an inquest, to appraise her share 
 in the estate, having reference to the intestate's purpart; 
 and upon the return of the inquisition and confirmation 
 of the same, the valuation thereof will be charged upon 
 the premises, until partition shall be made, and the an- 
 nual interest thereof must be paid to her during life, by 
 the persons holding such estate, and may be recovered 
 by distress or otherwise, in like manner as in the case of 
 a widow's share, charged upon real estate upon a parti- 
 tion. In case of a future partition the court ma}', by 
 their decree, charge such valuation, in such manner as 
 they shall deem just and equitable, upon the purparts 
 of the premises, allotted in severalt3^^ 
 
 § 180. Should all the heirs neglect, after due notice, 
 
 ' Purd. Dig. 205-6. ' Ibid. ' Ibid. 
 
BOWER AND PARTITION-. 159 
 
 or refuse to take the estate, or any of the purparts 
 thereof, at the valuation of the same, the court may 
 make a decree authorizing and requiring the executor or 
 administrator to expose the same to public sale, at such 
 time and place, and on such terms, as the court may di- 
 rect.^ The administrator has no power to alter the 
 terms of the sale from cash to credit;^ he is the mere 
 agent of the law for a special purpose;^ and any such 
 arrangement is at the risk of himself and his sureties.* 
 Such sale is a judicial sale, and when confirmed by the 
 court, is not liable to be impugned in a collateral pro- 
 ceeding, except for fraud.^ In case of the neglect or re- 
 fusal of the executor or administrator to execute the 
 order of sale, the court may appoint a suitable person 
 trustee, for the purpose of making such sale.® 
 
 § 181. A deci^ee for the sale of real estate under pro- 
 ceedings in partition, must contain a direction that the 
 share of the widow, if there be one, of the purchase 
 money, shall remain in the hands of the purchaser du- 
 ring the natural life of the widow, and that the interest 
 thereof be annually paid to her by the purchaser, to be 
 recovered by distress, or otherwise, as rents are recove- 
 rable; which the widow shall accept in full satisfaction 
 of her dower in the premises; and at her decease, that 
 such share of the purchase money be paid to the persons 
 legally entitled thereto.'^ The decree creates a lien upon 
 the land for the unpaid purchase money, independent of 
 any mortgage or other security, which may have been 
 taken for it; and such lien can only be discharged by 
 
 ' Ibid. 208. 
 
 ' Eshelman v. Witmer, 2 Watts, 263; Vandever v. Baker, 1 Hams, 126. 
 
 ' Sage V. Nook, 3 Am. L. J. 336. * Eshelman v. Witmer, 2 Watts, 264. 
 
 5 Sackett v. Twining, 6 Harris, 202. « Purd. Dig. 209. 
 
 ' Ibid. 208. 
 
160 DOWER AND PARTITION. 
 
 payment to the heir.^ If any portion of the proceeds of 
 such sale be payable to a married woman, such money 
 will not be paid to her husband, unless the wife, upon a 
 separate examination before one of the judges, shall so 
 desire it.^ If there be a life estate in the premises, the 
 share of the tenant for life may be charged on the same 
 or other real estate, under the direction of the court.^ 
 § 182. The decree as to the costs is, that they be paid 
 by the parties concerned, in proportion to their respec- 
 tive interests.* The decree for costs will not include the 
 compensation of the attorney who conducted the pro- 
 ceedings ; ^ unless he were retained by the administrator, 
 to act on behalf of the estate ; ^ in such case, his claim 
 is payable out of the proceeds of the sale, or if it has 
 been paid by the administrator, is to be allowed as a 
 credit in his account.'^ 
 
 ' Hise V. Geiger, 1 W. & S. 273. ' Purd. Dig. 209. 
 
 ' Ibid. 210. * Ibid. 204. 
 
 ° Newbaker v. Alricks, 5 Watts, 183. « Cook's Estate, 9 Leg. Int. 160. 
 
 ' Drygdale's Appeal, 2 Harris, 537. 
 
MARSHALLING OF SECURITIES. 161 
 
 CHAPTER IX. 
 
 MARSHALLING OF SECURITIES. 
 
 § 183. The marshalling of securities is another head 
 of the concurrent jurisdiction of courts of equity. The 
 general principle is, that if one party has a lien on, or 
 interest in two funds, for a debt, and another party has 
 a lien on, or interest in one only of the funds, for another 
 debt, the latter has a right in equity to compel the 
 former to resort to the other fund, in the first instance, 
 for satisfaction, if that course be necessary for the satis- 
 faction of the claims of both parties, whenever it will 
 not trench upon the rights, or operate to the prejudice 
 of the party entitled to the double fund;^ or if the 
 former have already satisfied his debt from the fund to 
 which the latter could alone apply, equity will substi- 
 tute him to the place of the former, so as to permit him 
 to avail himself of the unappropriated fund.^ In Penn- 
 
 1 1 Story's Eq. I 633; M'Ginnis's Appeal, 4 Harris, 447; Baily v. Brownfield, 
 8 Harris, 45; Coates's Appeal, T W. & S. 103. 
 
 '' Gearhart v. Jordan, 1 Jones, 331; Dunn v. Olney, 2 Harris, 220; Neff v. 
 Miller, 8 Barr, 349. A creditor, by bonds and notes, secured by a mortgage, 
 may have recourse, in tlie first instance, to the personal estate of the debtor 
 which has been assigned for the benefit of creditors, without preference ; and 
 though after an award by an auditor, in his favour, to a pro rata share of the 
 personal estate, such a creditor, by direction of the court, proceeded upon the 
 mortgage, and recovered the greater portion of his claim, it was held, that he 
 was still entitled to such pro rata dividend on his whole claim, and was not 
 limited to a dividend on the balance remaining due. Morris r. Olmne, 10 
 Harris, 441; see Kittera's Estate, 5 Harris, 416. 
 
162 MARSHALLING OF SECUEITIES. 
 
 sylvania, this equity is enforced by means of subroga- 
 tion.^ 
 
 § 184. But where the parties seeking the aid of the 
 court are not creditors of the same common debtor, they 
 cannot claim to have the funds marshalled, in order to 
 have a larger dividend out of one fund for those who 
 can claim only against that. For example, if a joint 
 debt be due to one creditor by two persons, and a several 
 debt be due by one of them to another creditor, and 
 the joint creditor obtain a judgment against the joint 
 debtors, and the several creditor obtain a subsequent 
 judgment against his own several debtor, a court of 
 equity will not compel the joint creditor to resort to the 
 funds of one of the joint debtors, so as to leave the 
 second judgment in full force against the funds of the 
 other several debtor; unless indeed it should appear, 
 that the debt, though joint in form, ought to be paid by 
 one of the debtors only, or there should be some other 
 supervening equity.^ 
 
 § 185. "If," said Lord Eldon, in ex parte Kendall,* 
 "A. has a right to go upon two funds, and B. upon one, 
 having hotli the same debtor, A. shall takq payment from 
 that fund to which he can resort exclusively; that by 
 these means of distribution, both shall be paid. This 
 course takes place where both are creditors of the same 
 person, and have demands against funds, the propert}- 
 
 ' " Subrogation is founded on principles of equity and benevolence, and may 
 be decreed where no contract or privity of any kind exists between the parties. 
 Whenever one, not a mere volunteer, discharges the debt of another, he is en- 
 titled to all the remedies which the creditor possessed against the debtor. 
 Actual payment discharges a judgment or other incumbrance, at law, but 
 where justice requires it, we keep it afoot in equity for the benefit of the pay- 
 ing surety." Woodward, J., in Cottrell's Appeal, Pittsburgh Leg. J. 1 July 
 1854. 
 
 ' Ebenhardt'a Appeal, 8 W. & S. 331. ' 17 Yes. 514. 
 
MARSHALLING OF SECURITIES. 163 
 
 of the same person. But it was never said, that if I 
 have a demand against A. and B., a creditor of B. shall 
 compel me to go against A., without more ; as if B. him- 
 self could insist that A. ought to pay in the first in- 
 stance, as in the ordinary aase of drawer and acceptor, 
 or principal and surety, to the intent that all the obli- 
 gations arising out of these complicated transactions may 
 be satisfied; but if I have a demand against both, the 
 creditors of B. have no right to compel me to seek pay- 
 ment from A., if not founded on some equity, giving B. 
 the right, for his own sake, to compel me to seek pay- 
 ment of A." ^ 
 
 § 186. Yet, when the funds, or subjects of lien, belong- 
 to different persons, and the debt, which is a lien on 
 both of them, or any part of it, ought in justice to be 
 paid by one of them in relief of the other, chancery will 
 aid the interest of a creditor of the latter fund, against 
 an appropriation of it in lieu of the fund primarily liable. 
 Thus, if a judgment be recovered against A. and B., the 
 latter being merely the surety of the former, for satisfac- 
 tion of which B's. land is sold, and his separate lien 
 creditors thus deprived of the means of payment, they 
 are entitled to be subrogated to the place of the joint 
 judgment creditors, so as to be let in on the land of the 
 principal debtor, even against subsequent incumbrances. 
 So also, if the judgment debtors be partners, and on a 
 settlement of accounts between them, it turn out that 
 one ought to pay the full amount of the judgment in 
 
 ^ Dunn V. Olney, 2 Harris, 221. Where A. and B. are acceptor and drawer 
 of bills of exchange, and property of the one comes to the hands of the other, 
 to be held as security against the bills, the bill-holders have a right to have the 
 property applied exclusively, in the first instance, in payment of the bills ; 
 although the property so held be insufficient to pay the bills in full. Ex parte 
 Waring, 19 Ves. 345; Powles v. Hargreaves, 23 Eng. L. & Eq. 57. 
 
164 MARSHALLING OF SECURITIES. 
 
 discliarge of the other's estate. For the same reason, the 
 rule embraces purchasers in common of an estate bound 
 by a joint lien; as between themselves, the purpart of 
 each is liable to contribute only its proportion toward 
 the discharge of the common burden, and beyond this, 
 is to be regarded simply as the surety of the remaining 
 purparts; in this respect, they are to be treated as the 
 several estates of joint debtors, one being surety of the 
 other; and if the purpart of the one be called on to pay 
 more than its due proportion, the tenant, or his lien 
 creditors, is entitled to stand in the place of the satisfied 
 creditoi', to the extent of the excess, which ought to 
 have been paid out of the other shares.^ 
 
 § 187. This doctrine was so applied where a pur- 
 chaser of part of a tract of land, incumbered by a mort- 
 gage, was subrogated to the rights of a mortgagee, whom 
 he had been compelled to pay, as against his co-tenants ; '" 
 and the rule would be the same, even against the subse- 
 quent hen creditors of the defaulting tenant.' So, where 
 the proceeds of a sheriff's sale of the land of a surety 
 have been applied to the payment of the judgment 
 against the principal, the judgment creditors of the 
 surety have an equity to be subrogated as against the 
 principal to the debt thus created, and to the lien of the 
 first judgment; and have priority of claim in the order 
 of their respective judgments, to the extent that they 
 were deprived of the proceeds of the surety's lands, by 
 reason of the prior judgment due by the principal.'* 
 And so also where a surety obtained from the principal 
 an assignment of a mortgage, as an indemnity, from 
 which he received a certain sum; and the lands of his 
 
 ' GeaAart v. Jordan, 1 Jones, 331-2. ^ Chanipliu r. Williams, 9 Barr, 341. 
 3 Morris v. Oakford, 9 Barr, 498. * Nefi' c. Miller, 8 Barr, 347. 
 
MARSHALLING OF SECURITIES. 165 
 
 co-surety were sold to pay the debt of the principal; it 
 was held, that the creditors of such co-surety, whose 
 liens were disappointed by the sale, had the right, with 
 the consent of the co-surety, to be subrogated on the 
 judgment held by the original creditors against the 
 surety, to the extent of one-half of the amount thus re- 
 ceived by him from the mortgage, and applied to the 
 payment of the joint liabilities of the sureties which had 
 been satisfied; and that they were also entitled to be 
 subrogated for the whole amount of a fund remaining in 
 his hands, received from the estate of the principal, to 
 be aj)plied to such liabilities which were satisfied.-^ 
 
 § 188. The same principle was applied in a case 
 where A. was the holder of certain judgments which 
 were the first incumbrances, and B. the holder of a 
 judgment which was a junior incumbrance to A's., on 
 two properties of the debtor; and A. agreed with two of 
 the purchasers of one of the properties of the debtor, in 
 order to release the property purchased from the lien of 
 his judgments, to accept, in the place of the existing 
 judgments, another judgment, to be entered as a lien 
 against the remaining property of the grantor, in con- 
 sideration of which the two grantees covenanted to in- 
 demnify A., as to his subsequent judgment, against all 
 prior incumbrances, and to make it the same as if it 
 were a first lien ; afterwards, the remaining property of 
 the debtor was sold under A's. judgment, but the pro- 
 ceeds were applied to the satisfaction of B's., which by 
 reason of such arrangement became the prior lien : it 
 Avas held, that the court would not compel A. to look to 
 his covenant, but that, by the breach of their covenant, 
 A. became entitled, as against the grantees, to be subro- 
 
 1 Moore v. Bray, 10 Barr, 519. 
 
166 MARSHALLING OF SECURITIES. 
 
 gated to the judgment of B. so as to bind their interest 
 in the property released; and that it did not affect A's. 
 right to be indemnified, that he was the purchaser, at 
 sherifi"s sale, of the remaining property of the debtor, 
 and had sold at an advance.^ 
 
 § 189. Where however, the original debt springs from 
 a partnership transaction, there can be no substitution 
 before a settlement of the partnership accounts.^ Under 
 such circumstances, a court of equity will not compel a 
 joint creditor to resort to one of his debtors for pajnuent, 
 so as to leave the estate of the other debtor for the pay- 
 ment of his separate and several debt, for, as between 
 the two debtors, this might be inequitable; and the 
 equity subsisting between them ought not to be sacri- 
 ficed merely to promote the interest of the separate 
 creditor; nor will chancery, for the same reason, substi- 
 tute the several to the place of the joint creditor, who 
 has compelled pajnnent from the estate of the debtor of 
 the former.^ 
 
 ' Dunn V. Olney, 2 Harris, 221. ' SterKng i: Brightbill, 5 Watts, 229. 
 
 ^A'eff !J. Miller, 8 Barr, 349. 
 
CORPORATIONS AND PARTNERSHIPS. 167 
 
 CHAPTER X. 
 
 CORPORATIONS AND PARTNERSHIPS. 
 
 § 190. The supreme court, and the several district 
 courts, and courts of common pleas are invested, by 
 statute, with all the jurisdiction and powers of a court 
 of chancery, so far as relates to "the supervision and 
 control of all corporations, other than those of a muni- 
 cipal character, and unincorporated societies or associa- 
 tions, and partnerships."^ The equity powers of our 
 courts, in respect to individuals, are circumscribed within 
 a limited sphere, but over corporations, unincorporated 
 associations, and partnerships, their equity jurisdiction 
 is general and unlimited. The statute gives the courts 
 all the powers and jurisdiction of a court of chancery, 
 in such cases, to be exercised in the ordinary mode in 
 which a court of chancery acts, whether by bill, injunc- 
 tion, or otherwise, as the equity of the case may require." 
 They have no jurisdiction, however, over a foreign 
 corporation, which has no legal existence out of the 
 boundaries of the sovereignty by which it was created ; 
 the official functions of its agents and officers. do not fol- 
 low them, so as to authorize the service of process upon 
 the corporation.^ 
 
 1 Purd. Dig. 305-6, 1071. 
 
 ^ Com. V. Bank of Pennsylvania, 3 W. & S. 193; Be vans v. The Turnpike, 10 
 Barr, 176 ; Baptist Church v. Scannell, S. C. Pittsburgh Leg. J., 19 Aug. 1854. 
 ' Bank of Virginia v. Adams, 1 Pars. 534. 
 
168 CORPORATIONS AND PARTNERSHIPS. 
 
 § 191. One of the most common instances of the in- 
 terference of courts of equity, in the control of corpora- 
 tions and partnerships, is that of a bill to restrain them 
 from disposing of the corporation or partnership pro- 
 perty for other objects than those contemplated in their 
 charter or articles of partnership. It is an admitted 
 principle, that in partnerships, and joint stock associa- 
 tions, they cannot, by a vote of the majority, change or 
 alter their fundamental articles of co-partnership or asso- 
 ciation, against the will of the minority, however small, 
 unless there be an express or implied provision in the ar- 
 ticles themselves that they may do it. It is equally well 
 settled, that a court of chancery will, upon the applica- 
 tion of an individual member of a partnership or joint 
 stock association, restrain, by injunction, the majority 
 from using the funds or pledging the credit of the part- 
 nership or association in a business not warranted, and 
 not within the scope of their fundamental articles of 
 agreement.^ 
 
 § 192. Courts of equity treat such proceedings by a 
 majority, as a fraud upon the other members, which they 
 will neither sanction nor permit. It was upon this prin- 
 ciple that Lord Eldon, upon the application of an indi- 
 vidual member of a company which had been organized 
 for the. purpose of carrying on a fire and life insurance 
 business, restrained the company by injunction from em- 
 barking also in the marine insurance business; though 
 the applicant had paid into the funds of the company 
 only a£150, as a deposit upon fifteen shares, and the com- 
 pany was gotten up by the Rothschilds, and composed of 
 six or seven hundred individuals, with a capital of five 
 
 Stevens v. Rutland and Burlington Railroad Co., 1 Am. L. R. 156. 
 
CORPORATIONS AND PARTNERSHIPS. 169 
 
 millions sterling.^ It is settled, beyond controversy, that 
 companies possessed of funds for objects which are dis- 
 tinctly defined by statute, cannot be allowed to apply 
 them to any other purpose whatever, however beneficial 
 or advantageous it may appear, either to the company, 
 or the individual members of it.^ 
 
 § 193. Even where a corporation has procured from 
 the legislature, by a supplemental act, authority to make 
 a fundamental change in its charter, the rights .of an 
 individual corporator, as such, who does, not assent there- 
 to, are not thereby affected, although the act be accepted 
 by the vote of a majority of the corporation. The cir- 
 cumstance of the defendants' acting under colour of law 
 simply, can form no justification. If a law be unconsti- 
 tutional, it can give no authority. Where it is clearly 
 shown that a corporation is about to exceed its powers, 
 and to apply its funds or credit to some object beyond 
 its legitimate authority, it would, if the purpose of the 
 corporation were carried out, constitute a breach of trust; 
 and a court of equity cannot refuse to give relief by in- 
 junction.' The court will always interfere to prevent a 
 disposition of corporation property for other than corpo- 
 rate purposes.'' 
 
 § 194. A corporation, being a mere creature of the law, 
 possesses only those faculties which are imparted to it by 
 the charter of its creation, either expressly, or impliedly 
 as necessary to its existence.^ And the rule of construc- 
 tion is, that any ambiguity in the charter of the com- 
 pany must operate against them and in favour of the 
 
 ' Natusch V. Irving, Gow on Partu. Appendix, p. 576. 
 
 ^ Munt V. Shrewsbury and Chester Railway Co., 3 Eng. L. & Eq. 150. 
 
 •'' Stevens i\ Rutland and Burlington Railroad Co., 1 Am. L. R. 168-9. 
 
 * Langolf w. Selberlltch, 2 Pars. 64; and see Thomas v. EUmaker, 1 Pars. 113. 
 
 5 Bank of Kentucky v. Schuylkill Bank, 1 Pars. 235. 
 
 12 
 
170 CORPOKATIONS AND PARTNEESHIPS. 
 
 public : ^ a doubtful charter does not exist; because what- 
 ever is doubtful is decisively certain against the corpo- 
 ration.^ This is a doctrine which courts of equity are 
 continually called on to enforce. Thus, a railroad com- 
 pany has been enjoined from constructing a road which 
 it was only authorized to do, on the failure of another 
 company to avail itself of its corporate privileges within 
 a certain period;^ from locating its road with a different 
 terminus than that prescribed in its charter of incorpora- 
 tion;* from obstructing a public street contrary to the 
 provisions of its charter;* from extending its railroad to 
 a different point, so as really to construct a new road ; ^ or 
 from making an unauthorized subscription to the capital 
 stock of another corporation/ If they step one inch 
 beyond their chartered privileges, to the prejudice of 
 others, or of their stockholders, or offer to do any act 
 without the prescribed preliminary steps, they are liable 
 to be enjoined, irrespective of the amount of damage.^ 
 
 § 195. Although municipal corporations are excepted 
 in the general grant of equity powers to the several courts 
 of this state, they are, nevertheless, included in the spe- 
 cial jurisdiction conferred in the courts before enume- 
 rated," for the prevention and restraint of the commis- 
 
 ' Northern Liberties v. The Gas Company, 2 Jones, 321. 
 
 '' Attorney-General v. Erie and N. E. Railroad Co., S. C. Pittsburgh Leg. J., 
 9 September 1854; Bank of Pennsylvania v. Com., 7 Harris, 155; Packer v. 
 Sunbury and Erie Railroad Co., Ibid. 211 ; Pennsylvania Railroad Co. v. 
 Canal Commissioners, 9 Harris, 22. 
 
 ' Packer v. Sunbury and Erie Raiboad Co., 1 Harris, 211. 
 
 * Attorney-General )'. Erie and N. E. Railroad Co., ut supra; Com. v. Frank- 
 lin Canal Co., 9 Harris, 117, 124. 6 Ibid. 
 
 * Stevens i\ Rutland and Burlington Railroad Co., ut siipra. 
 
 ' Brown i\ Co. Commissioners, 9 Harris, 37 ; and see Dela-vvare and Hudson 
 Canal Co. v. Pennsylvania Coal Co., Ibid. 131 ; Sharpless v. Mayor of Phila- 
 delphia, Ibid. 147 ; Moers i\ City of Reading, Ibid. 188. 
 
 » Com. V. Pittsburgh and Conuelsville Railroad Co., S. C, 12 March 1855, MS. 
 
 « Ante, § 35. 
 
CORPORATIONS AND PARTNERSHIPS. 171 
 
 sion or continuance of acts contrary to law, and preju- 
 dicial to the interests of the community, or the rights of 
 individuals.^ And accordingly, if a corporation be gross- 
 ly abusing its privileges, whether municipal or private, 
 and encroaching upon the rights of individuals, the courts 
 will interfere by way of injunction. Upon this principle 
 the district court of Allegheny granted a perpetual in- 
 junction against the mayor and council of the city of 
 Allegheny, to restrain the erection of buildings on a 
 square, which had been dedicated to public use by the 
 original proprietors; the acts of the corporation being 
 shown to be injurious to the public and the rights 
 of individuals, as well as in violation of law. This 
 decision was, on appeal, affirmed by the supreme court.^ 
 So an injunction was granted to restrain the commis- 
 sioners of Allegheny county from carrying on the exca- 
 vation of a street, in pursuance of a new grade, whereby 
 the walls of the court-house would be greatly endan- 
 gered.^ And so also the city of Philadelphia was re- 
 strained by injunction from attempting to take possession 
 of the city gas-works, and from interfering with the trus- 
 tees thereof, in their control and management of the 
 works and the income and other funds belonging to the 
 same; the works and their income having been placed, 
 by ordinance, in the hands of the trustees as a security 
 for loans contracted in their erection.* 
 
 § 196. "Where the funds of a corporation are not whole 
 and tangible, but consist in the liability of the members 
 to be assessed, a court of equity will lend its aid in favour 
 of a creditor of a company, to assist it in enforcing the 
 
 1 Purd. Dig. 306. ^ Attorney-General v. Rush, cited 1 Pars. 507. 
 
 ' County of Allegheny r. Rowley, 2 Am. L. J. 307. 
 
 * Western Saving Fund So. v. City of Philadelphia, Sup. Court, 26 December 
 1854, MS. 
 
172 CORPORATIONS AND PARTNERSHIPS. 
 
 payment of instalments required, by the members, and 
 will apply the fund so raised in discharge of the debt. 
 The ground of the equitable liability of the members is 
 the credit which the company has gained as a corporation, 
 on the promise of the individual members to raise a fund 
 which should enable the corporation to fulfil its engage- 
 ments. Where the liability of each member is expressly 
 limited to the amount of his subscription, he may not be 
 liable beyond it, without legislative enactment in the 
 charter. In such case, a certain amount of capital is 
 provided, to which all persons are supposed to give credit, 
 and not to any engagement of the individual members. 
 But where no such provision is made, but, on the con- 
 trary, the capital to which credit is given, consists of the 
 liability of the members to the payment of such sums of 
 money as the society from time to time may require, each 
 member is personally liable in equity for his proportion 
 of the debts of the corporation.-^ So, equity will compel 
 stockholders to pay the creditors of the corporation, when 
 the debt is established, in proportion to the amount of 
 their unpaid subscriptions to the capital stock.^ In such 
 
 ' Washington Beneficial Society v. BacBer, 8 Harris, 429. In the case of 
 the Marion Beneficial Society v. Drake, Chief Justice Lewis said, "The prin- 
 ciple seems to be a just one, that the members of incorporated companies are 
 bound to fulfil the obligations of the corporation itself, whenever their respon- 
 sibility is not restricted by the charter, as it may be by express provision ascer- 
 taining the amount of capital stock or the measure of liability. The members 
 are not directly responsible to the creditors of the corporation ; but when they 
 authorize it to contract debts for their benefit, they are each bound in con- 
 science to contribute to the corporation itself, a just proportion of the fund, ne- 
 cessary to meet the engagement thus made. And a court of equity will give 
 effect to this obligation by compelling the corporate authorities to make the 
 necessary assessment." 17 May 1855, MS. See Salmon v. Hamburg Com- 
 pany, 1 Chan. Cas. 206; 6 Viner's Abr. 310; Slee c. Bloom, 19 Johns. 484; 
 Hume V. Winyaw and Wando Canal Co. 1 Carolina Law Journal, 217; T Am. 
 Law Mag. 92. 
 
 ^ Bank of Virginia v. Adams, 1 Pars. 534. 
 
CORPORATIONS AND PARTNERSHIPS, 17S 
 
 cases, the decree is, first, that the company shall pay the 
 plaintiff's debt; secondly, upon non-payment thereof, 
 that the corporation officers make such assessment on the 
 members as will be sufficient to pay the sum due; and 
 lastly, that on failure to make such assessment, process 
 shall issue, to make every member of the company con- 
 tribute his quota to the payment of the plaintiff's debt.^ 
 Such a decree, however, cannot be made against a foreign 
 corporation ; to induce the court to interfere in causes of 
 action arising in a foreign jurisdiction, it must be compe- 
 tent to administer the appropriate equity required by the 
 case, and capable of giving effect to its decree.^ 
 
 § 197. On the dissolution of a corporation, a court of 
 equity will entertain a bill for an account and to settle 
 the equities between the different classes of the stock- 
 holders. This frequently gives rise to questions of great 
 embarrassment. Such was the case of Krebs v. The Di- 
 rectors of the Carlisle Bank:^ it was there held, that 
 where the stockholders in a bank, whose charter gave 
 them a right, but did not oblige them to pay in full, the 
 price of the stock subscribed, paid, some of them in full, 
 and some but in part, and the bank went into liquidation 
 from a loss sufficiently partial to allow such a rule ; that 
 the stockholders who had paid in full had a right to a 
 return of the excess paid by them above the others, who 
 had paid but in part, before any division of its balance 
 took place. This balance was then to be divided, (after' 
 deducting the loss) rateably among the stockholders, and 
 this, though the bank had been in operation for many 
 years, making dividends of profits in proportion to the 
 amounts paid in. The case was subsequently taken, by 
 
 1 Ibid. 547-8. " Ibid. 547 ; Morris v. Remington, Ibid. 387. 
 
 ' 2 Wall. Jr. 33. 
 
1 74 CORPORATIONS AND PARTNERSHIPS. 
 
 appeal, to the supreme court of the United States, where 
 the decree was affirmed by an equally divided court. 
 
 § 198. The most common instances of the interference 
 of courts of equity in reference to partnerships, are bills 
 for an account, either upon a dissolution, or during the 
 continuance of the partnership. It was at one time sup- 
 posed that, in consequence of the rule that comjjlete jus- 
 tice must be done with respect to the subject matter, the 
 court could not, and would not. interfere at all between 
 partners, unless the partnership was to be dissolved and 
 finally wound up and settled ; and there are several con- 
 flicting authorities in the books on the subject; different 
 judges having entertained strong opinions and different 
 views upon the question. But it is now settled, that a 
 court of equity will entertain a bill for an account filed 
 by one partner against his associate, where the bill does 
 not contemplate a dissolution of the partnership. In cases 
 of silent partnerships, where the active partner is rarely 
 the capitalist, the evil workings of the contrary rule 
 would be intolerable; as they would also specially be 
 under our law of limited partnership, where the capi- 
 talist partner is excluded from active participation by 
 positive law, and where he has little if any means of as- 
 certaining the veritable condition of the concern, if un- 
 justly denied him, except through the intervention of a 
 court of equity. If such a partner could not obtain this 
 aid except on the terms of dissolving the partnership, few 
 prudent men would enter into such an engagement; 
 where they are certain of hazarding their investment, 
 and where their continuance in the business, if profita- 
 ble, really must depend on the pleasure of the active as- 
 sociate, which would be the case if such were the doc- 
 trine in Pennsylvania.^ 
 
 ' Hudson V. Barrett, 1 Pars. 414, 418, 420. 
 
CORPORATIONS AND PARTNERSHIPS. 175 
 
 § 199. It is the duty of all courts, and specially so 
 of a court of equity, to adapt its practice and course of 
 proceeding, as far as possible, to the existing state of so- 
 ciety, and to apply its jurisdiction to all those new cases 
 which, from the progress daily making in the affairs of 
 men, must continually arise, and not, from too strict an 
 adherence to forms and rules established under very dif- 
 ferent circumstances, decline to administer justice and 
 to enforce rights for which there is no other remedy. 
 The principles of equity are broad and comprehensive : 
 they sprang into existence as a separate system from 
 the requisitions of a progressive civilization; to the neces- 
 sities of which, the narrow technicalities of the common 
 law afforded no adequate expansion. Though based, as 
 every system of philosophical jurisprudence must necessa- 
 rily be, on defined principles, still, in its application to the 
 affairs of men, equity ever looks to great principles, rather 
 than special modes of procedure, which latter must al- 
 ways give way when they come in conflict with the appli- 
 cation of those principles to cases embraced within them.^ 
 
 § 200. Where a dissolution has taken place, an ac- 
 count will not only be decreed, but if necessary, a re- 
 ceiver will be appointed to close up the partnership bu- 
 siness, in order to a final distribution of the effects. The 
 accounts are usually directed to be taken before a mas- 
 ter, who examines the parties, if necessary, and requires 
 the production of all books, papers, and vouchers of the 
 partnership, and is armed by the court with all the 
 powers necessary to effectuate the objects of the refe- 
 rence. If needful, the court will also restrain the part- 
 ners, by injunction, from collecting the debts or disposing 
 of the property, and will direct the moneys of the firm, 
 
 1 Ibid. 421. 
 
176 CORPORATIONS AND PARTNERSHIPS. 
 
 received by any of them, to be paid into court.^ A court 
 of equity will also decree the dissolution of a partner- 
 ship during the term, either on account of the gross mis- 
 conduct, or permanent incapacity, of one or more of the 
 partners, or where it has become impracticable to carry 
 on the undertaking, either at all, or according to the sti- 
 pulations of the articles.^ 
 
 § 201. By the general law of partnership, a partner 
 will, in many instances, be entitled to an injunction 
 against his co-partner; as when the latter has become in- 
 solvent and is receiving the partnership debts ; ^ or when 
 his conduct is overbearing and oppressive;* or when he 
 applies partnership property to uses not warranted by 
 the agreement ; ^ or when there is an execution against 
 the partnership property for a separate debt; ^ or when a 
 bill of exchange has been improperly accepted, to pre- 
 vent its negotiation.^ And a court of equity will some- 
 times grant an injunction under circumstances which 
 may not call for a dissolution.* But in the case of mines, 
 it would seem, that the court will in no case proceed by 
 injunction to restrain the actual working of them. The 
 consequences of such a step might be fatal to all parties, 
 and the appointment of a manager will suflBciently re- 
 medy any cause of complaint which could arise to de- 
 mand the interference by injunction.® 
 
 § 202. Whatever may be the rights of a partner 
 
 1 1 Story's Eq. I 6V2. 
 
 ' Ibid. I 673 ; 1 Pars, on Contr. 172-3 ; Gowan v. Jeffries, 2 Ash. 305. 
 
 ' Williams v. Bingley, 2 Vern. 278. 
 
 *■ Charlton v. Poulter, 1 Yes. 429 ; 19 Yes. 148. 
 
 " Glassington v. Thwaites, 1 S. & S. 124. 
 
 " Charlton v. Poulter, 19 Yes. 148, n ; Goodman r. Whitcomb, 1 J. & W. 592. 
 
 ' Taylor v. Field, 4 Yes. 396 ; Bevan v. Lewis, 1 Sim. 376. 
 
 * Hood V. Aston, 1 Rusa. 412. 
 
 ° Bainbridge on Mines, 310; see Shcppard v. Oxenford, 2o Law Times R. 90. 
 
COEPOEATIOKS AND PARTNERSHIPS. 177 
 
 upon a dissolution, it is clear that he cannot transfer to 
 a stranger his interest in the partnership, and thereby 
 introduce him into the concern as a partner.-^ Nor can 
 he, by a transfer, convey to a stranger those rights which 
 he possesses only because he is a partner. The stranger 
 thus coming into the concern is entitled to use the ap- 
 propriate means to ascertain the situation of the part- 
 nership; he may demand an account, and perhaps an 
 immediate settlement, but not being a partner, he has 
 no right personally to interfere ; and the refusal of the 
 remaining partners to permit him to do so, is no sufficient 
 reason for depriving them of any rights to which their 
 position entitles them. The remaining partners, after a 
 dissolution thus effected, are entitled to hold possession 
 for the purpose of paying off the debts and winding up 
 the assets of the firm.^ 
 
 § 203. Where the interest of one partner in the part- 
 nership property passes to another person, it is immate- 
 rial whether that transfer be effected by a sale by the 
 partner himself for a valuable consideration; by a sale 
 of his interest on execution; by his death and the suc- 
 cession of his executor or administrator; or by assign- 
 ment under the bankrupt or the insolvent laws. In all 
 these cases, the party coming in the right of the partner, 
 comes into nothing more than an interest in the partner- 
 ship which cannot be tangible, cannot be made available, 
 or be delivered, but under an account between the part- 
 nership and the partner; and it is an item in the account, 
 that enough must be left for the partnership debts.^ It 
 is a rule well settled, that as between the partners them- 
 selves, the partnership creditors must be first paid out of 
 
 ' Mason v. Connell, 1 Wh. 381 ; Cochran v. Perry, 8 W. & S. 2G2 ; Horton's 
 Appeal, 1 Harris, 67 ; Baker's Appeal, 9 Harris, 76. 
 
 2 M'Glensey v. Cox, 1 Am. L. R. 36. « Baker's Appeal, 9 Han-is, S2. 
 
178 Corporations and partnerships. 
 
 the partnership property. This rule is constantly recog- 
 nised in the distribution of assets, and is the vital element 
 in the contract of partnership, which gives it confidence 
 with the public.^ 
 
 § 204. But in administering partnership funds, prefe- 
 rence is given to joint creditors, not from any merit re- 
 siding in them, or because, considered in reference to 
 themselves alone, they are vested with rights superior to 
 the separate creditors. The equity, from the operation 
 of which they derive the incidental advantage, apper- 
 tains to the partners, and arises from the nature of the 
 contract of partnership. The equity springing from 
 their community of interest, in the capital stock and ef- 
 fects of the partnership, is to have the avails of these 
 applied in discharge of their mutual liabilities, before 
 any individual of their number is permitted to apply the 
 joint property to his private uses. As between them- 
 selves each is said to have a specific lien on the present 
 and future property of the association, as well to secure 
 payment of debts due to third persons, as for his own 
 share of the joint effects. It is by the working of this 
 equity, the partnership creditors are first let in on the 
 partnership funds, and only because it is necessary to the 
 administration of justice between the partners.^ 
 
 § 205. The creditors of the firm have no lien on the pro- 
 perty, and must work out their preference in the distri- 
 bution of the partnership funds, entirely through the me- 
 dium of the partners whose interests remain undisposed 
 of. If they consent or submit to a different disposition of 
 the assets, the preference of the creditors is at an end, 
 and they must rely upon the personal responsibility of 
 
 ' Deal V. Bogue, 8 Harris, 234. 
 
 '' Snodgrass's Appeal, I Harris, 474 ; Bell f. Newman, 5 S. & R. 85, 
 
CORPORATIONS AND PARTNERSHIPS. 179 
 
 the partners who contracted the debts. Where one part- 
 ner sells his interest to another, in consideration of an 
 engagement by the latter to pay the partnership debts, 
 the rule is the same. The engagement to pay them is 
 but a personal contract; it creates no lien on the pro- 
 perty. It follows as a necessary consequence, that if 
 the partner who has acquired the interests of his former 
 associates, and in whom resides the right to appropriate 
 the partnership assets to the payment of partnership lia- 
 bilities, think proper to exercise his dominion, and to 
 make a different disposition of them, he has a right to 
 do so; and the preference of the partnership creditors 
 engrafted upon, and deriving its support from his equity, 
 ceases to exist.^ 
 
 § 206. How far land conveyed to partners, as tenants 
 in common, shall be considered as partnership property, 
 and whether it changes its nature and becomes personal 
 estate, has been the subject of much discussion.^ Land, 
 except for the purpose of erecting necessary buildings, is 
 not naturally an object of trade or commerce. Yet there 
 is no doubt, that by the agreement of the partners, it 
 may be brought into the stock, and considered as perso- 
 nal property, so far as concerns themselves and their 
 heirs and personal representatives.' It would be absurd 
 to let the nature of the article dealt in change the na- 
 ture of the contract; or not to let partners give to land 
 the attributes of a commodity, as between themselves 
 and those standing in their place, especially in a country 
 where it is a chattel for the payment of debts, and not 
 unfrequently a subject of speculation. Where it is 
 
 ^ Baker's Appeal, 9 Harris, 82-3; Wharton v. Grant, 5 Barr, 39; and see 
 Kelly's Appeal, 4 Harris, 59. 
 2 See 1 Pars, on Cent. 125. 
 ' M'Dermot v. Laurence, 7 S. & R.440-1 ; Kipley w. Waterworth, Y Ves. Jr. 424. 
 
180 COEPOEATIONS AND PAETNERSHIPS. 
 
 brought into a concern as stock, it is, as between the 
 partners and a person who has knowingly dealt with one 
 of them for it, to be treated as personal estate belonging, 
 not to the partners individually, but to the company col- 
 lectively. The members of such a company, being 
 sharers of profit and loss, are partners to the world ; but, 
 between themselves, they have only a contingent inte- 
 rest in the profits to be derived from the lands when the 
 concern shall be wound up, not a vested estate as te- 
 nants in common of the lands themselves; and to a pur- 
 chaser with notice, or its equivalent, neither of them 
 can part with more, either by a voluntary or an invo- 
 luntary conveyance.-' 
 
 § 207. It is a consequence of the principle of land being 
 affected with a trust as partnership property, that when 
 one partner disposes of his separate interest in land held 
 as partnership stock, he sells only his residuary interest, 
 after the partnership debts and the share of the other 
 partner are paid. But though in equity land is thus af- 
 fected with trusts in the nature of personal estate, the 
 land does not become personal property in such a way 
 as to give one partner an implied power to dispose of the 
 whole partnership interest in it; as regards the power of 
 disposition, land held as partnership-stock is not subject 
 to the rule which makes each partner the agent of the 
 firm. Neither can sell more than his own undivided in- 
 terest, unless he have from the other a sufficient special 
 authority for that purpose.^ 
 
 ^ Kramer v. Arthurs, Y Barr, 171-2. Where real estate is brought into the 
 partnership business, it is treated, in equity, as personal estate ; and a lease of 
 it by one partner, in his own name, will enure to the benefit of the firm. 
 Moderwell v. MuUison, 9 Harris, 259 ; and see 1 Am. Lead. Cas. 49,5. 
 
 ' 1 Am. Lead. Cas. 506-7 ; Anderson i\ Tompkins, 1 Brock. 457, 463 ; 
 Taplcy V. Butterfield, 1 Mete. 515-18. 
 
CORPORATIONS AND PARTNERSHIPS. 181 
 
 § 208. But if a conveyance of land be taken to part- 
 ners, as tenants in common, without mention of any 
 agreement to consider it as stock, and afterwards a stran- 
 ger purchase from one of the partners, it would be un- 
 just if, without notice, he should be affected by any pri- 
 vate agreement.^ And accordingly, it has been deter- 
 mined, that where partners intend to bring real estate 
 into the partnership stock, that intention must be mani- 
 fested by deed or writing, placed on record, that pur- 
 chasers and creditors may not be deceived;^ or the con- 
 veyance must be made to them as partners, and not as 
 tenants in common.^ To affect the title or possession of 
 land, it is not competent to show by parol that real es- 
 tate, conveyed to two persons as tenants in common, was 
 purchased and paid for by them as partners, and was 
 partnership property. In all such cases parol testimony 
 is totally disregarded.* 
 
 § 209. An unincorporated association for purposes of 
 private and individual profit or pleasure, with no public 
 object, is treated as an ordinary partnership; and so, 
 where an association is for private emolument, or for be- 
 nevolence, confined exclusively to the associates, and in 
 which none others participate, as between themselves, 
 they are partners.^ But a private, unincorporated asso- 
 ciation, for general purposes of public utility, as a fire en- 
 gine or hose company, a court of equity will not treat as 
 a partnership, nor declare its dissolution and divide its 
 assets among the members. Property given to such an 
 association is pledged to the objects for which it was in- 
 
 ' M'Dermot v Laurence, 7 S. & R. 441. 
 
 ' Hale V. Henrie, 2 Watts, 146-7 ; Ridgway's Appeal, 3 Han-is, 181. 
 
 ' Lancaster Bank v. Myley, 1 Harris, 550. 
 
 * Eidgway's Appeal, 3 Harris, 181. 
 
 ^ Thomas v. EUmaker, 1 Pars. 98 ; Kramer v. Arthurs, 7 BaiT, 171. 
 
182 CORPORATIONS AND PARTNERSHIPS. 
 
 tended to be applied by the successive contributors, and 
 cannot be diverted from them, while those who remain 
 are ready and willing to execute the public trust with 
 which it has been clothed. In such private associations, 
 the majority cannot bind the minority, unless by special 
 agreement : nor will a court of equity suffer its funds to 
 be diverted to other uses than the donors intended. And 
 it seems, that if an individual be unjustly, and without 
 reasonable cause, deprived of his membership in such an 
 association, a court of equity may grant relief by reinsta- 
 ting him in his membership, and sustaining him in the 
 enjoyment of the functions of which he had been deprived 
 by the unjust acts of his associates.^ 
 
 § 210. Upon the dissolution of a partnership by death, 
 it becomes the duty of the surviving partners, with all 
 practicable diligence, to wind up and settle the partner- 
 ship concerns, to pay the partnership debts, and to dis- 
 tribute the surplus among those who are entitled to it, 
 according to their respective shares therein ; and in case 
 of delay, or danger of loss, or neglect of duty, to require 
 the aid of a court of equity to enforce the duty, and to 
 compel a full account and settlement of the whole con- 
 cern. Hence, the personal representatives of the de- 
 ceased partner have a right to insist upon the applicar 
 tion of the joint property, in the hands of the survivors, 
 to the payment of the joint debts, and a division of the 
 surplus.^ If the surviving partner neglect or refuse to 
 proceed, within a reasonable time, to close up the busi- 
 ness of the firm and settle its concerns, a court of chan- 
 
 ' Thomas v. EUmaker, 1 Pars. 98, 114; and see Blisset v. Daniel, 23 Eng. 
 L. & Eq. 105. But equity has no jurisdiction with regard to the election or 
 amotion of corporators, nor in case of a public officer de facto of a municipal 
 character. Hagner v. Heyberger,.7 W. & S. 104. 
 
 ' Holden's Administrators v. M'Makin, 1 Pars. 2V9. 
 
CORPORATIONS AND PARTNERSHIPS. 183 
 
 eery will take the property out of his custody, and com- 
 mit it to the care of a receiver, and direct him to make 
 sale of the same; and in ordering a sale of partnership 
 property, a court will direct all the property to be sold, 
 not only that which is of a tangible, but even of a specu- 
 lative value, such as leasehold property, the subscription 
 list of a newspaper, and the good will of the partnership.^ 
 § 211. It frequently happens that the same individual 
 is a member of two or more distinct firms, composed of 
 different persons, one of which is debtor to another. At 
 common law, no suit could be brought for the recovery 
 of such a debt, because under no state of circumstances 
 could the same person be plaintiff and defendant in the 
 same cause : the sole remedy in such cases was in a 
 court of equity. By statute, an action at law may be 
 maintained in this state between two firms composed 
 partly of the same individuals ; ^ but this act is restricted 
 to cases in which the same individual is a member of 
 two distinct co-partnerships; it does not authorize one 
 partner to bring an action against himself and his co- 
 partners ; ^ in such case a. party must still proceed by bill 
 in equity. And even where judgment is obtained in 
 such an action, the remedy is an imperfect one; for 
 although such judgment is a lien on the separate real 
 estate of the partners, yet their separate estate cannot be 
 seized in execution until the accounts are taken, and the 
 equities settled betAveen the parties.* The defendant, 
 whose estate is thus bound, will be driven to his action 
 of account render, or to his bill in equity, to free him- 
 self of the incumbrance.^ 
 
 ' Ibid. 270. ' Purd. Dig. 633. 
 
 ' Miller v. Knauff, 3 Penn. L. J. 225 ; M'Fadden v. Hunt, 5 W. & S, 472. 
 
 * Meconkey v. Rogers, Bright. R. 450. ° Ibid. 460. 
 
184 SPECIFIC PEEFOKMANCE. 
 
 CHAPTEK XL 
 
 SPECIFIC PERFORMANCE. 
 
 § 212. We will now pass to the consideration of 
 another branch of equitable jurisdiction, namely, the 
 cases in which a court of equity will decree a specific 
 performance of an agreement. In a court of law, when 
 a contract has been broken, the remedy is to recover 
 damages for its non-performance; in equity, the courts 
 will decree a specific performance. Our statutes have 
 granted to the courts, before enumerated,^ "the powers 
 and jurisdiction of courts of chancery, so far as relates to 
 the affording specific relief, when a recovery in damages 
 would be an inadequate remedy."^ The rule for grant- 
 ing relief in equity is, that where a party is entitled to 
 the thing in specie, and he cannot otherwise be fully 
 compensated, courts of equity will grant him a specific 
 performance.'' But this remedy extends only to con- 
 tracts of which a specific performance is essential to 
 justice; for, if damages for non-performance be all that 
 justice requires, as in the case of contracts for stock in 
 the public funds, or the sale of goods, a court of equity 
 will not interfere.* 
 
 § 213. As a general rule, equity will not entertain 
 
 ' Ante, § .S5. The jurisdiction of the supreme court, in such cases, extends 
 throughout the state. Purd. Dig. 308, pi. 25. 
 
 ■' Purd. Dig. 305-fi. ' 1 Fonbl. Eq., b. I. ch. i. ? 5, note P. 
 
 * 4 Bouv. Inst. 193. 
 
SPECIFIC PERFORMANCE. 185 
 
 jurisdiction for the specific execution of agreements re- 
 specting things merely personal in their nature; yet 
 this rule is limited to cases where a compensation in 
 damages furnishes a complete and satisfactory remedy. 
 But where there exists an utter uncertainty in any 
 calculation of the damages arising from the breach of 
 a contract personal in its nature, where the measure 
 of damages is purely conjectural, equity will intervene ; 
 because, though there may exist a remedy at law, yet 
 that remedy is inadequate and inefficient.^ Of this Bux- 
 ton V. Lister,^ furnishes an example. It was a bill to en- 
 force the performance of an agreement for the purchase 
 of several large parcels of growing wood, to be severed by 
 the defendants, who were to have eight years to dispose 
 of it, and to pay for it in six yearly instalments. Lord 
 Hardwicke was at first extremely reluctant to entertain 
 the bill, but after discussion came to the conclusion, that 
 though relating to a personal chattel, it was such an 
 agreement that the plaintiff might come into chancery 
 for a specific performance.^ 
 
 § 214. The courts will enforce a similar equity in the 
 analogous case of a bill for the delivery of a specific chat- 
 tel. Thus, where a defendant had in his custody and 
 possession a number of valuable plans, drafts, and maps 
 belonging to the plaintiff, which he refused to deliver to 
 the owner, the court decreed the specific return. In such 
 case chancery interferes, not only because there is no 
 standard by which the measure of damages can be ascer- 
 tained at law, but also because, generally, the defendant 
 is a depositary on an express trust for the re-delivery of 
 
 ' Palmer v. Graham, 1 Pars. 479 ; see 1 Pars, on Contr. 412-13. 
 
 2 3 Atk. 384. 
 
 ' M'Gowin V. Remington, 2 Jones, 61 ; Pooley v. Budd, 7 Eng. L. & Bq. 234. 
 
 13 
 
186 SPECIFIC PERFOEMANCK. 
 
 the goods claimed which, upon a common ground of 
 equity, gives the plaintiff a title to relief.^ So, a court of 
 equity will compel the delivery of the title deeds of an 
 estate to a party who has recovered possession of the 
 land at law.^ 
 
 § 215. Where the contract relates not alone to the sale 
 or enjoyment of personal chattels, but principally to per- 
 sonal acts, courts of equity will sometimes interfere and 
 compel the specific performance of such agreements, upon 
 the ground that no adequate remedy can be had at law.^ 
 Thus, if a vendor sell his place of business and the good 
 will of his trade, and in his contract of sale, stipulate not 
 to carry on his trade within certain defined limits; a 
 court of equity will enforce the specific execution of such 
 a contract, and, at the suit of the vendee, will, by injunc- 
 tion, restrain the vendor from carrying on his trade with- 
 in the place specified in the agreement. So, where a 
 partner sells his interest in the good-will of a trade or 
 business, and, on receiving a compensation therefor, 
 agrees not to commence a similar trade or business in 
 the same vicinity, a court of equity will restrain him, by 
 injunction, from prosecuting the same. In such cases, 
 equity entertains jurisdiction by compelling a specific 
 performance, on the ground of the inadequacy of an ac- 
 tion at law to give the party aggrieved a full and perfect 
 remedy for such a breach of good faith.* Another ex- 
 ception to the rule that equity does not decree specific 
 performance of a contract relating exclusively to a per- 
 
 ' M'Gowin V. Remington, 2 Jones, 56, 63. 
 
 ^ Mange v. Guenat, 6 Wh. 141. 
 
 ' The jurisdiction of the court of chancery In such cases is very ancient. 
 " A subpoena lieth on a promise or agreement by word of mouth, as to build a 
 house, or to do any other lawful act; 8 Ed. iv. 4." 2 West's Symb. 178. 
 
 * Palmer v. Graham, 1 Pars. 476 ; Hawk v. Greensweig, 2 Barr, 298. 
 
SPECIFIC PERFORMANCE. 187 
 
 sonal chattel, is that of an agreement which is to be 
 perfected by the execution of an instrument.^ 
 
 § 216. A bill for the specific execution of a contract, 
 is not entertained in equity as a matter of right, but it 
 is addressed to the discretion of the court ; not, indeed, 
 to its arbitrary and capricious discretion, dependent upon 
 the mere pleasure of the judge, but to that sound and 
 reasonable discretion which governs itself, as far as it 
 may, by general rules and principles ; but, at the same 
 time, which grants or withholds relief, according to the 
 circumstances of each particular case, when these rules 
 and principles will not furnish any exact measure of jus- 
 tice between the parties.^ It is a cardinal principle, that 
 a chancellor, when uncontrolled by arbitrary enactment, 
 executes no contract which is not the source of mutual 
 obligation and mutual remedy.^ To entitle a party to a 
 decree for specific performance, the contract must be mu- 
 tual. Both parties must, by the agreement, have a right 
 to compel specific performance; otherwise it would fol- 
 low, that the court would decree a specific performance 
 where the party called upon to perform it might be in 
 this situation, that, if the agreement were disadvan- 
 tageous to him, he would be liable to the performance, 
 and yet, if advantageous to him, he could not compel 
 a performance by the other party.* 
 
 § 217. Thus, a court of equity has jurisdiction to com- 
 pel a vendee to complete his contract for the purchase of 
 lands, as well as it has to compel a vendor to complete 
 his contract for the sale of such lands; for it has beea 
 
 ^ Insurance Co. of N. America v. Union Canal Co., Bright. R. 48. 
 
 ^ Pennock v. Freeman, 1 Watts, 408 ; Dalzell v. Crawford, 1 Pars. 37 ; 
 Farley i\ Stokes, Ibid. 429 ; Vint v. King, 2 Am. L. R. 743 ; Greenlee v. Green- 
 lee, 10 Harris, 235. 
 
 ' Wilson V. Clarke, 1 W. & S. 555. ■* Bodine v. Glading, 9 Harris, 53. 
 
188 SPECIFIC PERFORMANCE. 
 
 settled bj repeated decisions, that the remedy in equity 
 must be mutual, and that where a bill will lie by the 
 purchaser it will also lie for the vendor. Another ground 
 for the exercise of the jurisdiction in such cases is, that 
 a recovery in damages is not regarded in equity as an 
 adequate remedy for a breach of contract for the sale of 
 land. Nothing is better settled, than that a recovery in 
 damages is regarded as an inadequate remedy in cases 
 where they are estimable only by conjecture, and not by 
 any accurate standard. This consideration, enforced by 
 the morality of the requisition that men shall perform 
 their contracts, if they can, and by the immorality of 
 sanctioning their violation of them on the payment of 
 damages, is one of the very grounds on which equity de- 
 crees specific performance; and it is a sutficient one. 
 This reason applies to the duty of both vendor and ven- 
 dee; for damages for a breach of contract for the sale of 
 land, can have no standard, except that which arises 
 from a comparison between the real value of the land 
 sold and the contract price ; and experience teaches how 
 very uncertain must be this only standard on which a 
 recovery in damages can be based.^ 
 
 § 218. Another rule constantly enforced by courts of 
 equity is, that where the applicant for specific perfor- 
 
 ^ Finley v. Aiken, 3 Pittsburgh Leg. J. 1 ; Dalzell v. Crawford, 1 Pars. 42-3 ; 
 Twells V. Costen, Ibid. 381-2 ; Farley v. Stokes, Ibid. 431. Mr. Justice Black 
 dissented from the reasoning of the majority of the court in Finley v. Aiken, 
 and contended that a vendor, in such case, has a complete remedy at law, as 
 administered under our system ; he said, " If equity, in Pennsylvania, means 
 the power of doing justice, where Pennsylvania law fails, as it means, in Eng- 
 land, the power of doing justice where English law fails ; and if Pennsylvania 
 law does not fail in this case, then it follows most clearly that it cannot, con- 
 .stitutionally, be tried without a jury." In these views, Mr. Justice Knox fully 
 concurred, and Mr. J ustice Woodward said he would also have done so, if it 
 were now to be decided as a new question, but considered himself constrained 
 by former precedents to the contrary. 3 Pittsburgh Leg. J. 2-4. 
 
SPECIFIC PERFORMANCE. 189 
 
 mance has omitted to perform his own part of the agree- 
 ment, without being able to assign a justification or ex- 
 cuse for it; and where there is nothing in the acts or 
 conduct of the other party which amounts to an acquies- 
 cence in the delay, the court will not interfere.-^ Every 
 bill for a specific performance should state, either that 
 the plaintiff has performed the agreement on his part, or 
 that he is willing and prepared to perform it.^ Where 
 no time is fixed in the contract for its final completion, 
 it ought to be perfected in such time, as the court, having 
 regard to all the circumstances existing in a given case, 
 will regard as just and reasonable; a court of equity will 
 not exercise its power for the specific performance of a 
 contract where a party has slept on his rights ; diligence 
 is necessary to call the court into action; and where it 
 does not exist, equity will not lend its assistance.^ Nlt 
 can a party have the aid of a chancellor in executing a 
 contract, when by his own laches, the rights of third per- 
 sons, without notice, have intervened, which will be 
 prejudiced by the action asked for.* 
 
 § 219. In general, time is not of the essence of a con- 
 tract, in a court of equity. But time, unquestionably, 
 is regarded in equity as of the essence of the contract, 
 where from the nature of the estate, the uses to which 
 it was intended to be applied by the purchaser, or from 
 anything else, it is shown to have been so regarded in 
 framing the contract.^ Time may become of the essence 
 of the contract, either by the express stipulation of the 
 
 ' Fisher v. Worrall, 5 W. & S. 485 ; Benedict v. Lynch, 1 Johns. Ch. 374 ; 
 Peebles v. Reading, 8 S. & R. 497 ; Greenlee v. Greenlee, 10 Harris, 235. 
 ^ Chess's Appeal, 4 Barr, 52. 
 ' Parrish v. Koons, 1 Pars. 79. 
 
 * Insurance Co. of N. America v. Union Canal Co., Bright. R. 48. 
 ' Dalzell V. Crawford, 1 Pars. 56 j M'Crehsh v. Churchman, 4 Rawle, 37-8. 
 
190 SPECIFIC PERFORMANCE. 
 
 parties/ or, by implication, arising from the very na- 
 ture of the property, or the avowed objects of the pur- 
 chaser or seller; and even where time is not thus, 
 either expressly or impliedly, of the essence of the con- 
 tract, if a party seeking a specific execution have been 
 guilty of gross laches, or have been inexcusably negligent 
 in performing the contract on his part, or if, in the in- 
 termediate period, there have been a material change of 
 circumstances, affecting the rights, interests, and obligar 
 tions of the parties, equity will refuse to decree a specific 
 performance, on the ground that it would be inequitable 
 and unjust. But, except under these or analogous cir- 
 cumstances, time is not treated as of the essence of the 
 contract, and relief will be decreed to the party who 
 seeks it, if he have not been grossly negHgent, and come 
 Avithin reasonable time, although he have not complied 
 with the strict terms of the contract.^ A plaintiff, how- 
 ever, calling for performance, after a great lapse of time, 
 must satisfy the court, that he did not lie by to take ad- 
 vantage of fortuitous circumstances; that during the 
 whole period, he had it in contemplation to perform 
 the contract, and that the other party expected to be 
 called on.^ 
 
 § 220. As the specific performance of a contract in 
 equity is of grace and not of right; if there be anything 
 inequitable in it, the court will withhold its assistance, 
 and leave the parties to their legal remedies, on the 
 agreement; such is the course in respect of a purchase 
 from a party intoxicated, though not by the procurement 
 
 * Vint V. King, 2 Am. L. R. 745 ; Garnett v. Macon, 2 Brock. 18G. 
 
 ^ Tiernan v. Eoland, 3 Harris, 438 ; Taylor v. Longstrath, 14 Peters, 1T4; 
 and see Bodine v. Glading, 9 Harris, 54. 
 
 'Tiernan v. Roland, 3 Harris, 438; Alnj- f. Deschamps, 12 Ves. 225; 
 Peebles v. Beading, 8 S. & R. 493. 
 
SPECIFIC PERFOEMANCE. 191 
 
 of the purchaser; yet such a purchase is unimpeachable 
 at law.-^ So, a misrepresentation by the vendor of an 
 occult quality in land, although it may be made in igno- 
 rance of the truth, and although the vendee agree to 
 run the risk of it, is, in a suit for specific performance 
 of the contract, a decisive objection to the plaintiff's re- 
 covery.^ And although the subject and import of the 
 Avritten contract be clear, so that there is no necessity 
 to resort to evidence for its construction, yet, if the de- 
 fendant can show any circumstances, dehors, independent 
 of the writing, making it inequitable to interpose for the 
 purpose of a specific performance, a court of equity, 
 having satisfactory information on the subject, will not 
 interfere.^' A court of equity will never exert this ex- 
 traordinary branch of its jurisdiction, in a case where 
 the party, who asks its assistance, is chargeable with 
 unfair conduct in relation to the contract which he seeks 
 to enforce, but will turn him away from that forum, and 
 leave him to his legal remedy.* If, in such a case, the 
 court should doubt, it will withhold its aid; for it re- 
 quires much less strength of case on the part of the 
 defendant to resist a bill to enforce a contract, than it 
 does on the part of the plaintiff to maintain a bill 
 to enforce a specific performance.^ 
 
 § 221. A vendor cannot have the assistance of a court 
 of equity for the specific performance of a contract, which 
 he has induced the vendee to make by any kind of mis- 
 
 1 Pennock v. Freeman, 1 Watts, 408-9; but see Shaw v. Thackray, 23 Eng. 
 L. & Eq. 18. 
 
 ^ Fisher v. Worrall, 5 W. & S. 478. 
 
 ' Dalzell V. Crawford, 1 Pars. 45. 
 
 * Thompson v. Tod, 1 P. C. C. 385 ; Greenlee v. Greenlee, 10 Harris, 235 ; 
 Davidson v. Little, Ibid. 251. 
 
 ^ Farley v. Stokes, I Pars. 429 ; Hawk v. Greensweig, 2 Barr, 298 ; Brawdy 
 V. Brawdy, 1 Barr, 158. 
 
192 SPECIFIC PERFORMANCE. 
 
 representation concerning the subject matter. All the 
 authorities at home and abroad, with one voice declare, 
 that he who seeks equity must do equity; that he must 
 come with clean hands, with perfect propriety of con- 
 duct, and with a contract just and fair in all its parts. 
 The conduct of the plaintiff must be Hable to no impu- 
 tation whatever. He cannot demand this extraordinary 
 aid, if he have been guilty of misrepresentation in a de- 
 gree which operates only to a small extent in causing 
 the contract. Even suspicious circumstances have been 
 held a sufficient ground for refusing a decree. A con- 
 tract, to have the assistance of a chancellor, must have 
 an immaculate source. The bargain should be performed 
 fully, fairly, and honestly, on both sides, or on neither.^ 
 The undoubted rule, universally acknowledged, always 
 laid down, and never departed from, is, that a false state- 
 ment of the vendor concerning the subject matter of the 
 contract, whether made innocently or fraudulently, will 
 totally disable him from getting a decree for specific 
 performance.^ 
 
 § 222. It has been a subject of much discussion, 
 whether a specific performance ought to be decreed, 
 where a husband covenants that his wife shall execute 
 a conveyance to bar her right of dower in his estate; 
 and there are many cases, in which covenants of this 
 sort have been decreed to be specifically performed.^ 
 But it seems to be at last settled, on principles of policy 
 and humanity, that equity stirs not to enforce a contract 
 which involves in it a wife's volition in regard to her 
 property; and it seems strange to us now, that courts 
 
 ^ Finley v. Aiken, per Black, J., 3 Pittsburgh Leg. J. 3 ; Campbell v. Spencer, 
 2 Binu. 129 ; Patterson v. Martz, 8 Watts, 379. 
 ^ Finley v. Aiken, ut supra; 1 Pars, on Contr. 414. 
 ^ 2 Story's Eq. § 731. 
 
SPECIFIC PERFORMANCE. 193 
 
 of chancery should ever have hesitated about it. Con- 
 trary to the benign spirit of the common law, the 
 avowed purpose of process of contempt against the hus- 
 band, is to extort a conveyance from her affection or her 
 fear. It would be a mockery to tell her she is free to 
 act at her pleasure, while the machinery of a court is 
 put in motion to constrain her by the strongest sympa- 
 thies of her nature. The disposition evinced by chan- 
 cellors, in other cases, to set married women free from 
 restraints imposed for their protection, and to hold them 
 to the consequences of their acts performed notoriously 
 under the influence or coercion of their husbands, is one 
 of those things, in respect to which the superior wisdom 
 and fitness of the common law is vindicated by expe- 
 rience. "I would not," said Chief Justice Gibson, "were 
 it practicable to avoid it, expose the husband to impri- 
 sonment for a breach of the contract, even by an action ; 
 fear of which, doubtless, serves to loosen the wife's hold 
 on the property; but it is clear the contract will not be 
 decreed on terms that would jeopard his liberty."-^ A 
 party who covenants to procure such a joinder, is doubt- 
 less liable at law for a failure, in damages proportioned 
 to the loss ; but not stipulated damages, in the shape of 
 the whole purchase money, which may be exorbitant.^ 
 
 § 223. Before proceeding to the consideration of the 
 numerous class of cases in which courts of equity will 
 decree a specific performance of a contract respecting 
 lands ; it will be proper to observe, that equity will en- 
 tertain a bill to enforce a contract respecting land, al- 
 though it be situate out of the jurisdiction of the court, 
 if the parties be resident within its territorial jurisdic- 
 
 ' Clarks V. Seirer, 7 Watts, 110 ; Riddlesberger r. Mentzer, Ibid. 142 ; 
 Shurtz V. Thomas, 8 Barr, 363. ^ Fisher v. Worrall, 5 W. & S. 486. 
 
194 SPECIFIC PEEFORMANOE. 
 
 tion ; for although they cannot bind the land itself by 
 their decree, yet as courts of equity act upon the per- 
 son, they can bind the conscience of the party in regard 
 tg the land, and compel him to perform his agreement 
 according to conscience and good faith.-^ The jurisdic- 
 tion of a court of chancery is sustainable in cases of 
 fraud, trust, or contract, wherever the person be found, 
 although lands not within the jurisdiction of the court 
 may be affected by the decree ; ^ and the circumstance 
 that a question of title may be involved in the inquiry, 
 and may even constitute the essential point on which 
 the case depends, does not seem sufiicient to arrest the 
 jurisdiction. In a cause, however, involving a naked 
 question of title, the jurisdiction cannot be sustained/' 
 To justify the court in exercising a jurisdiction in cases 
 touching lands in foreign countries, the relief sought 
 must be of such a nature as the court is capable of ad- 
 ministering in the given case; therefore, they cannot 
 restrain a nuisance affecting lands out of their territo- 
 rial jurisdiction.* 
 
 § 224. Contracts respecting lands may be divided into 
 two great classes; namely, parol contracts within the 
 statute of frauds, and written contracts not falling within 
 the statute. That statute, as re-enacted in Pennsylvania 
 in 1772, declares, "that all leases, estates, interest of 
 freehold or term of years, or any uncertain interest of, 
 in, or out of any messuages, manors, lands, tenements, 
 or hereditaments, made or created by livery and seisin 
 only, or by parol, and not put in writing and signed by 
 the parties so making or creating the same, or their agents 
 
 1 2 Story's Bq. J 743. 
 
 ^ Morris v. Remington, 1 Pars. 392 ; Massie v. Watts, 6 Cranch, 148. 
 ' Morris v. Remington, 1 Pars. 393 ; Massie v. Watts, 6 Cranch, 158. 
 * Morris v. Remington, 1 Pars. 387. 
 
SPECIFIC PERFORMANCE. 195 
 
 thereunto lawfully authorized by writing, shall have the 
 force and effect of leases or estates at will only, and shall 
 not, either in law or equity, be deemed or taken to have 
 any other or greater force or effect, any consideration for 
 making such parol leases or estates, or any former law 
 or usage, to the contrary notwithstanding; except, never- 
 theless, all leases not exceeding the term of three years 
 from the making thereof. And moreover, no leases, 
 estates, or interests, either of freehold, or terms of years, 
 or any uncertain interest of, in, to, or out of any mes- 
 suages, manors, lands, tenements, or hereditaments, shall 
 at any time be assigned, granted, or surrendered, unless 
 _it.,he by deed, or note in writing, signed by the party so 
 assigning, granting, or surrendering the same, or their 
 agents thereto lawfully authorized by writing, or by act 
 and operation of law."^ 
 
 § 225. This statute presents a positive bar, both in 
 law and equity, to the enforcement of a parol unexecuted 
 contract for the sale of lands.^ It therefore becomes 
 necessary to consider the exceptions which have been en- 
 grafted on it by the decisions of courtsof chancery. For 
 it is well settled, that a statute made to suppress frauds 
 and perjuries shall not be so construed as itself to become 
 an instrument of fraud.^ The infirmities of memory, the 
 death of witnesses, the corruptibility of witnesses, the 
 honest mistakes of witnesses, and the misunderstanding 
 of parties, these are all elements of confusion and discord 
 which ought to be excluded from titles to the most co- 
 veted, if not most valuable of terrestrial objects. And 
 it is the purpose of the statute of frauds and perjuries 
 to exclude these elements, and to compel men to create 
 
 1 Purd. Dig. 627-8. ^ Irvine v. Bull, 4 Watts, 289. 
 
 ' Moore v. Small, 1 Harris, 466. 
 
196 SPECIFIC PEKFOEMANCE. 
 
 testimonials of their intentions which are certain and 
 enduring.^ 
 
 § 226. The first exception to the statute that will be 
 considered is, where the parol contract is fully set forth 
 in the bill, and is confessed in the defendant's answer;^ 
 in such case, a court of equity will enforce the specific 
 execution of the contract, for it is obvious that the case 
 is taken entirely out of the mischief intended to be 
 guarded against by the statute. But the contract ad- 
 mitted in the answer, must not essentially vary from 
 that set forth in the bill; unless they correspond, the 
 plaintiff must establish his case by legal proofs, showing 
 himself entitled to the relief prayed for.^ And if the 
 defendant, in his answer, even admit a parol contract, 
 as charged in the plaintiff's bill, still he may rely on the 
 statute as a complete bar. It is immaterial what admis- 
 sions are made by a defendant, who insists upon the be- 
 nefit of the statute, for he throws it upon the plaintiff 
 to show a complete written agreement; and it can 
 be no more thrown upon the defendant to supply the 
 defects in the agreement than to supply the want of an 
 agreement.* 
 
 § 227. In the next place, a court of equity will en- 
 force the specific execution of a contract within the sta- 
 tute, where such contract has been so far, in part, exe- 
 cuted, as to render it unjust to rescind the same.* This 
 
 ' Moore v. Small, 7 Harris, 465. 
 
 ' Parrish v. Koons, 1 Pars. 97 ; Christy v. Brien, 2 Harris, 249. 
 
 ' Parrish M. Koons, 1 Pars. 97 ; Thompson v. Tod, 1 P. C. C. 384 ; Gang- 
 were's Estate, 2 Harris, 426. 
 
 ' Parrish v. Koons, 1 Pars. 97. Thompson v. Tod, 1 P. C. C. 388 ; Thomp- 
 son V. Jamesson, 1 Cr. C. C. 295. 
 
 * This rule is indicated by the act of 10th March 1818, providing for the proof 
 and specific execution of the parol contracts of decedents ; Purd. Dig. 160. 
 And see Greenlee v. Greenlee, 10 Harris, 235. 
 
SPECIFIC PERFORMANCE. 197 
 
 excludes the possibility of the statute becoming an in- 
 strument or occasion of fraud, for if in any case it be 
 not unjust to rescind a parol contract, it cannot be fraud 
 to rescind it. The legislature seem to have considered 
 all parol contracts as within the statute of frauds and 
 perjuries; and that, though partly executed, they ought 
 to be rescinded, if it can be done without injustice to the 
 parties; but if they have been so far executed as to ren- 
 der it unjust to rescind them, then the courts shall hold 
 them to be without the statute, and go on and execute 
 them fully. And every parol contract is held to be 
 within the statute, except where there has been such 
 part performance as cannot Be compensated in damages.-' 
 § 228. This rule may be considered as well established : 
 what is such part performance, as will take the case out 
 of the statute, is a question of much more difficulty. It 
 seems formerly to have been thought, that a deposit, or 
 security, or payment of the purchase money, or at least 
 of a considerable part of it, was such a part performance 
 as took the case out of the statute of frauds and perju- 
 ries. But that doctrine was open to much controversy, 
 and has been finally overthrown. The distinction taken 
 in some of the cases, between the payment of a small 
 part and a payment of a considerable part of the pur- 
 chase money, seems quite too refined and subtle. For, 
 independently of the difficulty of saying what shall be 
 deemed a small, and what a considerable part of the pur- 
 chase money, each, upon principle, must stand on the 
 same reason, that it is a part performance in both cases, 
 or not in either. Nothing is to be considered a part per- 
 formance which does not put the party into a situation, 
 which is a fraud upon him, unless the agreement be per- 
 
 1 Moore v. Small, 1 Harris, 466-7. 
 
198 SPECIFIC PEKFOEMANCE. 
 
 formed. As, therefore, payment of part or the whole of 
 the purchase money, admits of full and direct compensa- 
 tion, there is no reason on that ground to take the case 
 out of the act. And although a party may become in- 
 solvent before a judgment at law can be executed, yet it 
 is better to submit to that inconvenience than to relax 
 the requirements of the, statute.-' 
 
 § 229. The delivery of possession, in pursuance of a 
 parol contract for an interest in lands, has uniformly 
 been considered such a part performance as to take the 
 case out of the statute;^ for, udless the contract be held 
 valid, the defendant would be liable to be treated as a 
 trespasser. And it is not easy to see how a vendee, who 
 has taken possession on the faith of the vendor, is not as 
 much defrauded, by being turned out in winter, or sub- 
 jected to mesne profits and the costs of an ejectment in 
 case of resistance, as he who delivered it would be by a 
 rescission of the contract; and it is still more difficult to 
 see. upon the all-pervading principle of mutuality which 
 governs a chancellor wherever he is left at liberty to act 
 on principles of general equity, why the contract would 
 be executed in behalf of the one party, if it would not be 
 executed in behalf of the other.^ Without possession 
 taken and maintained under the contract there can be 
 no pretence of part performance; and where that is an 
 act which can be compensated in damages, it is said that 
 even possession is not sufficient.* Be that as it may, 
 
 ' M'Kee v. Phillips, 9 Watts, 86 ; Parker v. Wells, 6 Wh. IGl ; Oangwer i: 
 Pry, 5 Harris, 495 ; 2 Story's Eq. § 760 ; see Malins r. Brown, 4 Comst. 403. 
 
 ^ Jones V. Peterman, 3 S. & R. 547 ; Parley v. Stokes, 1 Pars. 429. 
 
 ' Pugi V. Good, 3 W. & S. 62 ; Reed i\ Reed, 2 Jones, 121. Mutuality is of 
 the essence of all contracts, and indispensable to move the conscience of a 
 chancellor. Greenlee v. Greenlee, 10 Harris, 235. 
 
 * Moore v. Small, 7 Harris, 467. 
 
SPECIFIC PERFORMANCE. 199 
 
 however, if the purchaser have taken possession, and have 
 made such improvements as to render it inequitable to de- 
 prive him of the land, his case would be taken out of the 
 statute. But mere temporary erections, or repeated acts 
 of ownership, such as erecting a temporary cabin for 
 making sugar, or cutting timber, although repeated, do 
 not constitute such a possession as will take the case out 
 of the act.^ 
 
 § 230. Unquestionably, the mere possession by the 
 vendee, of the land which is the subject of the contract, 
 will not be sufficient to take the case out of the statute, 
 unless such possession be taken under and in pursuance 
 of the contract. It is consequently a settled rule, that a 
 parol sale to a tenant in possession, is within the statute, 
 though his possession be afterwards continued, because 
 there is no change of possession in execution of the con- 
 tract.^ Possession had before the agreement, and con- 
 tinued after it, is of too doubtful a nature to be consi- 
 dered as proof of part performance. A lessee, who con- 
 tinues in possession after the expiration of his lease, may 
 be supposed to retain the possession by permission of the 
 landlord, on the terms of the old lease ; it would not be 
 sufficient evidence of part performance of an agreement 
 to purchase the land, or of a new lease for more than a 
 year. The acts done in part performance must be such 
 as could be done with no other view, than in performance 
 of the agreement.^ So, the possession of the vendee will 
 
 ^ Gangwer v. Pry, 5 Harris, 495 ; Haslet v. Haslet, 6 Watts, 466 ; Hugus v. 
 Walker, 2 Jones, 174. 
 
 * Christy v. Barnhart, 2 Harris, 262 ; Galbreath v. Galbreath, 5 Watts, 146; 
 Brawdy v. Brawdy, 7 Barr, 157 ; Greenlee v. Greenlee, 10 Harris, 237. 
 
 ' Jones V. Peterman, 3 S. & R. 546 ; Frye v. Shepler, 7 Barr, 93 ; Parley v. 
 Stokes, 1 Pars. 428. The case of Lee v. Lee, 9 Barr, 169, was decided on its 
 peculiar circumstances, and was not intended to draw in question the principle 
 laid down in the text; 2 Harris, 262. 
 
200 SPECIFIC PERFORMANCE. 
 
 not be sufficient to take the case out of the statute, un- 
 less it be exclusive of that of the vendor.^ And such 
 possession must be public and notorious;^ and must not 
 only be delivered and taken, but must be maintained in 
 pursuance of the parol contract. Hence, if a purchaser 
 by parol take possession under his contract, and after- 
 vpards attorn to the vendor as landlord, or fix upon him- 
 self any other character than that with which he entered, 
 he lets go his equities, and his possession is referred to 
 his new agreement.^ 
 
 § 231. To take a case out of the statute of frauds, the 
 parol contract of sale must not only be established by 
 competent proof, but it should be clear, definite and un- 
 equivocal. If the conditions and terms be uncertain, or 
 not made out by satisfactory proof, a specific performance 
 will not be decreed.* It is the duty of the party, who 
 invokes the aid of this peculiar equity, to establish, by 
 clear, precise, and satisfactory proof, every requisite to 
 take the particular transaction from without the operation 
 of the statute.^ The boundaries of the land contracted 
 for ought to be so fixed and certain, by the terms of the 
 agreement, that the land could be set off, as the parties 
 intended it to be, by a surveyor, in the event of a decree 
 for a specific performance.^ But to show this, with rea- 
 sonable certainty, is sufiicient; it is not necessary that 
 lines of separation be actually run upon the ground, if, 
 from the agreement of the parties, and the distinct sub- 
 
 ' Prye v. Shepler, 7 Barr, 93; Blakeslee v. Blakeslee, 10 Harris, 243; 
 Greenlee v. Greenlee, Ibid. 237. 
 
 ^ Brawdy v. Brawdy, 7 Barr, 160. 
 
 ' Rankin v. Simpson, 1 Harris, 476. 
 
 * Charnley v. Hansbury, 1 Harris, 21 ; Greenlee v. Greenlee, 10 Harris, 
 235 ; Pricke v. Ozias, 8 Leg. Int. 54; Jones v. Fennel, 12 Leg. Int. 42. 
 
 ' Burns v. Sutherland, 7 Barr, 106. « Frye v. Sliepler, 7 Barr, 94. 
 
SPECIFIC PERFORMANCE. 201 
 
 sequent possession of the vendee, it be possible to ascer- 
 tain the boundaries and quantity of the land sold.'^ 
 
 § 232. The statute of frauds and perjuries established 
 a wise and safe rule, in relation to the purchase and sale 
 of real estate; and every departure from it, -when con- 
 templated through the medium of time, only impresses 
 on the mind the excellence of its provisions. If judges, 
 who allowed themselves originally to be seduced from it, 
 by the hardship of particular cases, had never swerved, 
 the statute itself, and the necessity of adhering to its 
 pi'ovisions, would have become so well known, that 
 many of those distressing cases, arising from parol con- 
 tracts, never would have occurred; and at all times, as 
 well now as soon after its enactment, there would have 
 been less hardship and injustice if its provisions had 
 been strictly followed.^ Hard cases make bad prece- 
 dents, is a maxim which has been strikingly illustrated 
 by the course of decision under this statute. Judges 
 have been borne away, by sympathy for parties, from 
 the letter of the law, and in their benevolent efforts to 
 accommodate it to the changeful circumstances of cases, 
 copious fountains of litigation have become | unsealed. 
 Nobody has lamented this- more than the judges them- 
 selves. For the last twenty years there has scarcely 
 been a judge of any considerable reputation, either in 
 England or the United States, who has not, in some 
 manner, put on record his regrets, the result of large ex- 
 perience, that the statute had been so widely departed 
 from, and his conviction, that more evils have resulted 
 from such departures than they have remedied.* 
 
 § 233. These considerations have led the courts to de- 
 
 ' Burns v. Sutherland, Y Barr, 108. * Frye v. Shepler, 1 Barr, 93. 
 
 ' Moore v. Small, 7 Harris, 466. 
 
 14 
 
202 SPECIFIC PERFOEMANCE. 
 
 clare, that they would not extend the doctrine of part 
 performance to cases which do not come clearly within 
 the equitable principle of previous decisions. Chancellor 
 Kent agrees "with those wise and learned judges, who 
 have declared that the courts ought to make a stand 
 against any further encroachment on the statute, and 
 ought not to go one step beyond the rules and pre- 
 cedents already established."^ And in Pennsylvania, 
 where an action may be maintained to recover damages 
 for the breach of a parol contract to convey lands, there 
 is less reason, than elsewhere exists, for giving to such 
 acts the effect of vesting in the purchaser a title to the 
 land, against the positive provisions of a most wise and 
 salutary enactment.^ 
 
 § 234. We have seen, that a parol contract will not be 
 decreed to be specifically executed, even where there has 
 been part performance, unless its terms be clearly and 
 definitely ascertained. The same rule apjDlies to written 
 agreements. Thus, a receipt for part of the purchase 
 money, defining the land sold but not fixing the price or 
 other terms of sale, will not entitle the vendee to a de- 
 cree for a specific performance. Such receipt is written 
 evidence of some kind of an agreement about the land, 
 and that it has been partly performed; but it does not 
 inform us of the terms of the agreement, and without 
 this it is impossible to enforce it. A contract is as much 
 void when the consideration, as when the subject, is un- 
 defined. Where the parties have left either uncertain, 
 the contract is legally incomplete, and therefore void. 
 When the law requires a contract to be in writing, it 
 means that the complete contract must be proved by the 
 
 ' Philips V. Thompson, 1 Johns. Ch. 132. 
 
 ' Gangwer v. Fry, 5 Harris, 496 ; Frye v. Shepler, 7 Barr, 93. 
 
SPECIFIC PERFORMANCE. 203 
 
 writing. That is not a written contract that is not 
 self-sustaining: it is verbal if it require verbal testi- 
 mony to sustain it, by proving any essential part of it.-^ 
 
 § 235. Another exception to the statute, turning upon 
 similar considerations, is where the agreement is intended 
 by the parties to be reduced to writing, according to the 
 statute, but it is prevented from being done by the fraud 
 of one of them : in such a case, courts of equity have 
 said, that the agreement shall be specifically executed, 
 for otherwise, the statute designed to suppress fraud 
 would be the greatest protection to it. It has sometimes 
 been attempted to except from the statute, all cases 
 where the parties have agreed that their contract should 
 be reduced to writing; but this doctrine, except in cases 
 of fraud, has been expressly denied.^ 
 
 § 236. We have also seen, that the specific execution 
 of a contract in equity, is a matter not of absolute right 
 in the party, but of sound discretion in the court; and 
 that it requires a much less strength of case, on the part 
 of the defendant, to resist a bill to perform a contract, 
 than it does on the part of the plaintiff, to maintain a 
 bill to enforce a specific performance : hence, a chancellor 
 will not lend his assistance to an unconscionable bargain, 
 accompanied with circumstances of suspicion, though 
 not positively unfair.^ And a court of equity will refuse 
 a specific performance, in cases where the agreement 
 may be perfectly gOod and binding upon both parties, 
 and the price agreed to be paid by the purchaser is equal 
 to the value of the property, without the slightest de- 
 
 ' Soles V. Hickman, 8 Harris, 180-3 ; Greenlee v. Greenlee, 10 Harris, 236. 
 = 2 Story's Bq. § Y68. 
 
 ' Campbell v. Spencer, 2 Binn. 129 ; Eemington v. Irwin, 2 Harris, 145 ; 
 Greenlee v. Greenlee, 10 Harris, 235. 
 
204 SPEOinC PERFORMANCE. 
 
 gree of blame attaching to him.^ Thus, if trustees for 
 sale, or those acting by their authority, fail in reasona^ 
 ble diligence; if they contract under circumstances of 
 haste and improvidence ; if they make the sale with a 
 view to advance the particular purpose of one party in- 
 terested in the execution of the trust, at the expense of 
 another party; a court of equity will not enforce a spe- 
 cific execution of the contract, however fair and reasona- 
 ble the conduct of the purchaser may have been.^ 
 
 § 237. Again, where poor uneducated parties are in- 
 duced, by a person who gets hold of them in the absence 
 of their professional adviser, to make an improvident 
 bargain, no assistance will be given by a court of equity 
 towards compelling its execution.^ And in the case of 
 an illiterate person, addicted to intoxication, whose course 
 •of life renders him extremely subject to imposition, such 
 habits, though not carried to an excess constituting ab- 
 solute incapacity, lay a ground for strict examination, 
 whether any instrument executed by him does not, in 
 itself, contain evidence that advantage was taken of those 
 habits.* Inadequacy of price, though not so gross as to 
 amount to fraud, and therefore no ground for setting the 
 contract of sale aside, may be sufficient for refusing to en- 
 force a specific performance of it.^ So, if the situation 
 of the parties be so unequal as to give one an oppor- 
 tunity of making his own terms, a court of equity would 
 not be disposed to lend its assistance towards carrying 
 the contract into execution, but would leave the plaintiff 
 
 ^ Henderson v. Hajs, 2 Watts, l'51-2. 
 2 Ord V. Noel, 5 Madd. 441. 
 
 ' Martin v. Mitchell, 2 Jac. & W. 423 ; Kenneys v. Hansard, Coop. 129. 
 * Say V. Barwioh, 1 Ves. & B. 199 ; Cook i'. Clayworth, 18 Ves. 16 ; Dunnage 
 V. White, 1 Swanst. 150 ; Mountain v. Bennett, 1 Cox, 353. 
 " Osgood V. Franklin, 2 Johns. Ch. 23 ; s. c. 14 Johns. 52Y. 
 
specifk;]^ performance. 205 
 
 to his remedy at law, without thinking it necessary to go 
 very accurately into the doctrine of inadequacy of valua- 
 tion.^ In short, if the conduct of the party, seeking a spe- 
 cific performance of a contract, be not perfectly conscien- 
 tious, honourable, and fair ; or, if the contract itself be 
 such that a specific execution of it would necessarily, in 
 its consequences to the defendant, produce a loss or injury 
 greatly above the value of the price to be received by 
 him under the contract, and which could not readily 
 have been foreseen, unless by a man perfectly competent 
 to the management of all concerns, possessing at the time 
 an unclouded mind, free from embarrassment, and capa- 
 ble of deliberating and reflecting maturely on what he 
 was about to do ; a specific performance, according to the 
 established principles of equity, ought not to be enforced.^ 
 § 238. And here it may be noticed, that there is a 
 material difference between circumstances which require 
 a chancellor to forbear and those which require him to 
 act. On a question of specific performance he may 
 choose to be silent; and his action, being of grace and 
 not of right, is to be directed by a sound though legal 
 discretion. But circumstances proper for the rescission of 
 an executed contract, involving, as, they do, the control 
 of a legal right, are necessarily of a more positive and 
 definite cast. The consequence of the distinction is, that 
 though equity will refuse to interfere for purposes of ex- 
 ecution wherever it would revoke, it may refuse to re- 
 voke where it would decline to execute.^ A chancellor 
 lends not assistance to an unconscionable bargain, accom- 
 panied with circumstances of suspicion, though not posi- 
 tively unfair; but hardship or suspicion of unfairness is 
 
 Lowther v. Lowther, 13 Ves. 103. ^ Henderson v. Hays, 2 Watts, 157. 
 
 ' Ley V. Huber, 3 Watts, 368. 
 
206 SPECIFIC PERFORMANCE. 
 
 9 
 
 certainly not ground of rescission.^ The grounds on which 
 equity interferes for rescission, are distinctly marked, and 
 every case, proper for this branch of its jurisdiction, is re- 
 ducible to a particular head ; they are principally fraud, 
 mistake, turpitude of consideration, and circumstances 
 entitling to relief on the principle of quia timet ; ^ and 
 each of these should be established by positive and defi- 
 nite proof.^ 
 
 § 239. It has been shown, that although time is not 
 generally of the essence of a contract, yet if a party, 
 seeking a specific execution, have been guilty of gross 
 laches, or have been inexcusably negligent in performing 
 the contract on his part; or if, in the intermediate period, 
 there have arisen a material change of circumstances, af- 
 fecting the rights, interests, and obligations of the par- 
 ties, a court of equity will refuse to decree a specific per- 
 formance.* But, although a plaintiff', who has failed to 
 perform his part of the agreement, or where it has be- 
 come impossible for him to perform it, cannot insist on a 
 specific performance by the defendant; yet, if he have per- 
 formed so much of his part of the agreement that he can- 
 not be put in statu quo, and there be no default in not 
 performing the residue; or he be prevented from com- 
 pleting it by the default of the defendant, he is entitled 
 to specific performance.^ 
 
 § 240. Courts of equity will also relieve a vendor, by 
 decreeing a specific execution, where he has been unable 
 to comply with his contract, according to the terms of it, 
 from the state of his title at the time, if he come within 
 
 1 Davidson v. Little, 10 Harris, 251. ' Delamater's Estate, 1 Wli. 374. 
 
 ' Yard v. Patton, 1 Harris, 282. 
 '- * Tiernan v. Roland, 3 Harris, 438 ; Cook r. Grant, 16 S. & R. 210. 
 
 ^ Larison v. Burt, 4 W. & S. 28; Greenlee i\ Greenlee, 10 Harris, 235. See 
 Oakley v. Morton, 1 Kern. 32-3. 
 
SPECIFIC PERFORMANCE. 207 
 
 a reasonable time, and the defect be cured.^ But as a 
 party can successfully come into equity for an execution 
 of the contract, only on the basis of strict propriety of 
 conduct, a chancellor will not compel a vendee to take 
 an estate of which the vendor was not the owner at the 
 sale, or at least had not a legal or an equitable means to 
 make himself so; and this, because one who speculates 
 on what is not within his control, is not a bond fide con- 
 tractor. His contract wants the indispensable ingredient 
 of mutuality, because it would be impossible to execute 
 in favour of the vendee, if the vendor should be unable 
 to procure the title.^ But if the seller, though not the 
 legal owner, have an equitable means to make himself so, 
 and if he employ that means successfully, though sub- 
 sequently to his contract of sale, he may compel a spe- 
 cific performance; for in this there is nothing inequita- 
 ble.^ Thus the owner of land, which has been sold for 
 taxes, has a perfectly legal and efficient means of be- 
 coming the absolute owner, by redemption, within the 
 time prescribed by law, and consequently, may have a 
 decree for a specific performance.* 
 
 § 241. And although an estate be sold free from in- 
 cumbrances, and the abstract show an amount of incum- 
 brances exceeding the purchase money, yet it must be 
 considered that the seller can make a good title, and for 
 this plain reason, that from the existence of such incum- 
 
 1 2 Story's Eq. ? Ill ; Magaw v. Lothrop, 4 W. & S. 321 ; Moss v. Hanson, 
 5 Harris, 382. 
 
 ' Ley V. Huber, 3 Watts, 368. ' Tiernan v. Roland, 3 Harris, 436. 
 
 * Ley V. Huber, 3 Watts, 3 67. The rule in equity is to decree a specific 
 execution of a contract for the sale of land, on the application of the vendor, 
 if the latter be able to make a good title, at any time before the decree is pro- 
 nounced. This rule has its exceptions in cases where a contract is made in 
 bad faith, by one who knows that he has neither title, nor the legal or equitable 
 means of procuring one. Moss v. Hanson, 5 Harris, 382. 
 
208 SPECIFIC PERFORMANCE. 
 
 brances, no fair inference can be drawn that the seller 
 has neither the ability nor disposition to remove them, 
 if the purchaser be otherwise content to execute his part 
 of the bargain. It would be a most unreasonable thing 
 to ask a vendor to extinguish money liens on his land, 
 until it was ascertained that the vendee would complete 
 his purchase. In the nature of things this is a step im- 
 mediately preceding the consummation of the final 
 treaty. In equity, on a bill to enforce specific perform- 
 ance, such a vendor must show that he could, within a 
 reasonable time, have removed the incumbrances, had 
 the vendee waived his other unsound objections to the 
 title, and he must actually extinguish them before the 
 court compels payment of the purchase money .-^ And 
 though equity will not compel a vendee to take a defec- 
 tive title, it will compel him to take a good title subject 
 to a pecuniary charge, against which adequate security 
 has been given.^ He will not, however, be compelled to 
 accept a title, subject to the incumbrance of a ground 
 rent which cannot be extinguished.^ 
 
 § 242. It is an invariable rule in a court of chancery, 
 that a purchaser shall not be compelled to accept a 
 doubtful title, nor will the court compel him to take an 
 estate which it cannot warrant to him; so that, on a 
 bill for specific performance, the question really is, not 
 so much whether the vendor's title be good, as whether 
 it be so clearly so, as to justify the court in directing the 
 vendee to take the estate and pay his money for it.* A 
 
 ' Dalzell V. Crawford, 1 Pars. 52-3. 
 
 " Thompson v. Carpenter, 4 Barr, 134; Tiernan v. Roland, 3 Harris, 441. 
 And see Clarke v. Seirer. 1 Watts, 112. 
 
 ' Gans V. Renshaw, 2 Barr, 3V. 
 
 * Bumberger v. CHppinger, 5 W. & S. 314; Creigh v. Sliatto, 9 W. & S. 83-4; 
 Gans V. Renshaw, 2 Barr, 35; Pyrke v. Waddingham, IT Eug. L. & Eq. 539. 
 
SPECIFIC PERFORMANCE. 209 
 
 marketable title, in equity, is one in which there is no 
 doubt involved, either as to matter of law or fact; for no 
 title will be forced on a purchaser, which is not so free 
 from difficulty, as to law and fact, that, on a re-sale, an 
 unwilling purchaser shall be unable to raise any objec- 
 tion, which may appear to a chancellor so doubtful, that 
 a title involving it ought not to be enforced. These 
 doubts must, however, in the language of Lord Eldon,^ 
 be "considerable and rational," such as would and ought 
 to induce a prudent man to pause and hesitate; not 
 based on captious, frivolous, and astute niceties, but such 
 as produce real, hond fide, hesitation in the mind of the 
 chancellor.^ A general agreement to sell a property. 
 
 1 Seapleton v. Scott, 16 Ves. 272. 
 
 2 Dalzell V. Crawford, 1 Pars. 46; Wetherill v. Mecke, Bright. E. 135. If 
 the doubts arise upon a question connected with the general law, the court 
 is to judge whether the general law upon the point is or is not settled, enforcing 
 specific performance in the one case, as in Moody v. Walters, 16 Ves. 283, 312, 
 and Biscoe v. Perkins, 1 Ves. & B. 485, 493; and refusing to enforce it in the 
 other, as in Bloss v. Lord Clanmorris, 3 BHgh, 62, and Sloper v. Pish, 2 Ves. 
 & B. 145. If the doubts arise upon the construction of particular instruments, 
 and the court be itself doiibtful upon the points, specific performance must of 
 course be refused, as in Sheffield v. Lord Mulgrave, 2 Ves. Jr. 526, 529, 
 Willcox V. Bellaers, 1 T. & B. 491, 495, and Jervoise v. The Duke of Northum- 
 berland, 1 J. & W. 559, 569; the doctrine in which case has been followed by 
 the Vice-Chaucellor Knight Bruce, in The Earl of Lincoln u. Arcedeckne, I 
 Coll. 98; and even though the court may lean in favour of the title, its duty is 
 either, as expressed by Lord Eldon, in Jervoise v. The Duke of Northumber- 
 land, following in effect what had been said in Sheffield v. Lord Mulgrave, to 
 consider whether it would trust its own money upon the title ; or, at least, as 
 stated by the same learned judge in Lord Braybroke v. Insip, 8 Ves. 428, with 
 reference to the doubt upon the legitimacy to weigh whether the dotibt is so 
 reasonable and fair that the property would be left in the purchaser's hands 
 not marketable. If the doubts which arise may be affected by extrinsic cir- 
 cumstances, which neither the purchaser nor the court has the means of satis- 
 factorily investigating, specific performance is to be refused, according to 
 Lowes V. Lush, 14 Ves. 547; Hartley v. Smith, Buck's B. Cases, 368; and 
 Smith V. Death, 5 Madd. 371-2; Pyrke v. Waddingham, 17 Eng. L. & Eq. 
 539; s. c. 10 Hare, 1. And see Creigh v. Shatto, 9 W. & S. 83-4. 
 
210 SPECIFIC PERFOEMANCE. 
 
 means a sale in fee simple, and chancery will not com- 
 pel a purchaser to take a life estate ; ^ nor will a party 
 contracting for the entirety of an estate be compelled to 
 take an undivided part of it.^ So where two parcels of 
 land are sold as one tract, a good title to both is essen- 
 tially necessary to sustain a bill for specific performance.^ 
 But there is an admitted difference in respect to this 
 matter, betwixt a vendor and a vendee ; for the latter 
 may insist on having the part to which title can be 
 made, though the former could not have compelled him 
 to accept it.* 
 
 § 243. The mere transmission of the legal title to 
 another, subject to the equity of the purchaser, creates 
 no impediment to a decree for a specific performance, 
 especially when the parties had the sale in view at the 
 time of the transmission ; for if the purchaser get the 
 estate he bargained for from the parties with whom he 
 contracted, or their privies, it is all that in equity he 
 can ask.° The conveyance, in such case, constitutes the 
 assignee a trustee, for the purpose of carrying into effect 
 the agreement for the sale of the land.^ 
 
 § 244. Unless the contract has been founded upon a 
 valuable or other meritorious consideration, or what is 
 so considered in a court of equity, as the payment -of_ 
 debts, a specific performance will not be decreed. In 
 general, a court of equity will not interfere to carry into 
 effect unexecuted voluntary contracts, inter vivos, but 
 will leave the parties to their remedies at law.' An ex- 
 ecutory contract must have a consideration to support it, 
 
 ' Tiernan v. Roland, 3 Harris, 435-6; M'Parson's Appeal, 1 Jones, 511. 
 ' Dalby v. PuUen, 3 Sim. 29. ' Barton v. Bouvier, 12 Leg. Int. IS. 
 
 * Clark V. Seirer, 7 Watts, 110. ^ Tiernan v. Roland, 3 Harris, 436. 
 
 ' De Chaumont v. Forsythe, 2 Penn. R. 515; Kerr r. Day, 2 Harris, 117. 
 ' Yard v. Patton, I Harris, 285; Read v. Robinson, 6 W. & S. 331. 
 
SPECIFIC PERFORMANCE. 211 
 
 without wliicla equity will no more execute it, than the 
 law would make the breach of it the subject of compen- 
 sation.^ But this, in the absence of fraud or mistake, is 
 the extent to which the principle is carried, for the doc- 
 trine is to be understood with the qualification, that 
 although chancery will withhold its aid to consummate 
 a voluntary agreement, unexecuted, where something 
 remains to be done by the contracting parties, yet where 
 . it is executed, equity will give effect to all its conse- 
 quences.^ 
 
 § 245. The ground upon which a chancellor executes 
 an executory contract for the sale of lands, is, that equity 
 looks upon things agreed to be done, as actually per- 
 formed; consequently, when an agreement is made for 
 the sale of an estate, the vendor is considered as a trus- 
 tee for the purchaser of the estate sold, and the pur- 
 chaser as a trustee of the purchase money for the ven- 
 dor.'' The vendee is, in contemplation of equity, ac- 
 tually seised of the estate, and is, therefore, subject to 
 any loss which may happen to it, between the agreement 
 
 ' Kennedy v. Ware, 1 Barr, 450; Campbell's Estate, 1 Barr, 100; Greenlee 
 V. Greenlee, 10 Harris, 235. "There is no such thing as the execution of a 
 gift of lands, under the statute of frauds, even between father and son. Gift 
 is indeed a common law mode of assurance, but it is a contract executed. Con- 
 tracts, to be executed by the extraordinary powers of a chancellor, in spite of 
 the statute of frauds, must be executory, and must be founded on a valuable 
 consideration. It is true, the consideration may be in a prejudice to the 
 vendee, as well as in a benefit to the vendor: and if it be said that a son, who 
 goes upon land under a promise of a conveyance from his father, and expends 
 his labour and money in making valuable improvements, which cannot be 
 reasonably compensated, is entitled to a decree of conveyance, it is because 
 he is a purchaser for a valuable consideration. It is inaccurate language to 
 call such a contract a gift." Moore v. Small, 7 Harris, 469. 
 
 ' Yard v. Patton, 1 Harris, 285. 
 
 ^ Rangler's Appeal, 3 Barr, 378; Williams v. Tiernan, Add. 349; Green v. 
 Smith, 1 Atk. 572; Craig w. Leslie, 3 Wheat. 578; Stewart J). Freeman, 10 
 Harris, 123. 
 
212 SPECIFIC PERFORMANCE. 
 
 and the conveyance, and ^yill enjoy any benefit which 
 may accrue in the same interval. As a consequence, he 
 may sell or charge the estate before conveyance exe- 
 cuted;^ it is subject in his hands to dower, and to all the 
 incidents of real estate, and upon his death it goes to his 
 heirs and not to his personal representatives;^ and the 
 death of either vendor or vendee, even before the time 
 of completing the contract, is held to be entirely imma- 
 terial.^ As a result of this principle, which seems to be; 
 of general application, it is settled, that an estate, under 
 contract of sale, is regarded as converted into personalty 
 from the time of the contract, notwithstanding an elec- 
 tion to 'complete the purchase rests entirely with the 
 purchaser; and, if the seller die before the election be 
 exercised, the purchase money, when paid, will go to his 
 executors as assets.* But if, from defect of title, insuf- 
 ficiency of contract, or other cause, the court should 
 think the contract ought not to be carried into execu- 
 tion, a conversion is prevented, and the estate will go to 
 the heir at law of the vendor, as though no contract had 
 ever existed.^ So also, if one covenant to lay out a sum 
 of money in the purchase of land, generally, and de- 
 vise his real estate before he has made the purchase, 
 
 1 Seton i: Slade, 7 Ves. Jr. 265; 1 Ves. 220 ; 6 Ves. Jr. 352. 
 ^ Lougwell V. Bently, 11 Leg. lut. 134. 
 
 ' Winged v. Lofebury, 2 Eq. Cas. Abr. 32, pi. 43; Paul r. Wilkins, Toth. 
 106; Baker i: HiU, 2 Ch. R. 113. 
 
 * Fisher v. Harris, 10 Barr, 459; Sikes v. Lister, 5 Vin. Abr. 561, pi. 28; 
 Baden v. Pembroke, 2 Vern. 213. " This conversion takes place not-with- 
 standing that it may afterwards be defeated by the non-payment of the pur- 
 chase money. Even where the conversion is subject to the happening of a 
 contingency, the property will be taken to be as of the nature it was intended 
 to be upon the happening of the contingency." Longwell i: Bently, 11 Leg. 
 Int. 134. 
 
 * R.ingler's Appeal, 3 Barr, 3T^<; Lacon v. Waters, 3 Atk. 1; Buckmaster i: 
 Harrop, 1 Ves. Jr. 361; Rose c. Conyugham, 11 Ves. Jr. 550. 
 
SPECIFIC PERFORMANCE. 213 
 
 the money agreed to be laid out will pass to the devisee, 
 as representing land.-^ These illustrations of the doctrine 
 of conversion are familiar instances, in which the rule, 
 that agreements to be performed are considered as per- 
 formed, has been practically applied.^ 
 
 § 246. No rule is more firmly established in equity, 
 than that land directed to be converted into money, or 
 money directed to be converted into land, is to be treated 
 as that species of property, into which one or the other 
 is directed to be converted.^ Such a direction, in a will 
 or other instrument, indelibly impresses the subject of it 
 with the character of realty or personalty, as the case 
 may be, although there be in fact no conversion ;* but in 
 general, it only retains that character down to the period 
 of its first descent; after money, impressed with the cha- 
 racter of realty, enters into the possession of the first 
 distributee, it assumes its natural character, and is from 
 thenceforth governed by the laws regulating the trans- 
 mission of personalty.^ It is to be observed, however, that 
 where the whole beneficial interest in the land or money, 
 directed to be converted, belongs to the person for whose 
 use it was given, equity will permit him to take in land 
 or money, as the subject happens to be at the moment. 
 But the right of election must be actually and unequivo- 
 cally exercised, and the onus of showing the act of elec- 
 tion, lies on the party alleging it. So, where there are 
 several interested in the subject matter, all must agree 
 to elect; an election by a less number than the whole 
 amounts to nothing; they cannot compel their associates 
 
 ' Green v. Smith, 1 Atk. 5Y3. ^ Kerr v. Day, 2 Harris, 114. 
 
 3 Allison i\ Wilson, 13 S. & R. 332; Wells v. Sloyer, 3 Penn. L. J. 206. 
 * Burr V. Sim, I Wh. 252; Wells v. Sloyer, 3 Penn. L. J. 206; Morrow i\ 
 Brenizer, 2 Eawle, 185. 
 ^ Dyer v. Cornell, 4 Barr, 359. 
 
214 SPECIFIC PERFORMANCE. 
 
 to elect to take as land that which is bequeathed to them 
 as money, or vice versa} 
 
 § 247. Before concluding this branch of the subject, it 
 will be proper to consider the questions of compensation 
 and damages, which chiefly, although not exclusively, 
 arise on bills for specific performance. The general rule 
 is, that for breaches of contract, and other wrongs and 
 injuries cognizable at law, equity does not entertain ju- 
 risdiction to give redress by way of compensation or 
 damages, where these constitute the sole object of the 
 bill; there being, in such cases, a plain, complete, and 
 adequate remedy at law. Where, however, compensation 
 or damages are incidental to relief, the jurisdiction pro- 
 perly attaches in equity as inseparable from proper relief. 
 It is where no other claim for relief is presented, and 
 where the remedy at law is plain, direct, and unembar- 
 rassed by any complexity in the subject matter of the 
 claim for compensation or damages, that the jurisdiction 
 in equity becomes questionable. If it do attach in any 
 other case, it must be under very special circumstances, 
 and upon peculiar equities ; as, for instance, in cases of 
 frauds, or where the party has disabled himself by mat- 
 ters ex post facto from a specific performance ; or in cases 
 where there is no adequate remedy at law.^ The mode 
 by which such compensation or damages are ascertained, 
 is either by a reference to the master, or by directing an 
 issue quantum damnificatus, which is tried by a jury.^ 
 
 § 248. The most usual cases in which plaintifis may 
 have compensation in equity, are those in which a spe- 
 cific performance is decreed, with an allowance for any 
 deficiency as to the quantity, quality, or description of 
 
 ' Miller v. Meetch, 8 Barr, 425; Wells p. Sloyer, 3 Penn. L. J. 203. 
 2 Bank of Kentucky v. Sohuylkill Bank, 1 Pare. 219-20. 
 » Ibid. 220. 
 
SPECinC PEEFOEIIANCE. 215 
 
 the property, or for any delay in performing the con- 
 tract.^ But where compensation is sought by the defen- 
 dant, in resistance or modification of the plaintiff's claim, 
 the maxim prevails, that he who seeks equity shall do 
 equity. Thus, where a party is lawfully in possession, 
 under a defective title, and has made improvements on 
 the land, if relief be asked in equity by the true owner, 
 he will be compelled to allow for the improvements. In- 
 deed, courts of equity have not confined the doctrine of 
 remuneration or lien for repairs and improvements to cases 
 of agreement or purchase; it is of general application, 
 and is extended to all cases, where the party making the 
 repairs and improvements has acted hond fide and inno- 
 cently, and substantial benefit has been conferred on the 
 owner ; so that, ex equo et hono, he ought to pay f but if 
 the defendant have been guilty of mala fides, and have 
 endeavoured to deceive the plaintiff, he is not entitled 
 to the benefit of this wholesome principle.^ 
 
 § 249. .Where the inability of a defendant to fulfil his 
 contract is set up as a bar to the relief sought by the 
 complainant, the latter is entitled to have the contract 
 fulfilled as far as practicable, and to obtain compensation 
 on those points which do not admit of fulfilment. Thus, 
 where a suit was brought for specific performance, by a 
 vendee against the vendor, who had disabled himself 
 from fulfilling the contract, by selling part of the land 
 to a third person ; it was contended on behalf of the de- 
 fendant, that as the execution of the original contract 
 had become impossible, equity would not make a new 
 one, and that the complainant must, consequently, be 
 
 ^ 2 Story's Eq. | Y9G; Hawk v. Greensweig, 2 Barr, 295. 
 ^ Beeson v. Beeson, 9 Barr, 288. 
 
 ' Werkheiser v. Werkheiser, 3 Eawle, 335 ; Dilwortli v. Sinderling, 1 Binn. 
 495 ; Larison v. Burt, 4 W. & S. 27. 
 
216 SPECnric performance. 
 
 remitted to his action at law for damages ; but the court 
 held, that a party ought not to be allowed to set up his 
 own default as a bar to a right, which would have been 
 valid, if that default had not happened; and that the 
 vendee was, consequently, entitled to have the contract 
 carried into effect as far as practicable, and to receive 
 compensation for that part which could not be exe- 
 cuted.^ 
 
 ^ Waters v. Travis, 9 Johns. 450; 2 Lead. Cas. Eq., part 2, p. 35. As to 
 the rule of compensation, see Dustin v. Newcomer, 8 Harris, 49; Young c. 
 Frost, 1 Maryland E. Z11. 
 
decedents' contracts. 217 
 
 CHAPTEK XII. 
 
 SPECIFIC PERFORMANCE OF DECEDENTS' CONTRACTS. 
 
 § 250. Besides the general equitable jurisdiction to 
 enforce the specific performance of agreements, which 
 has been already considered, the several orphans' courts 
 of this state are, by the act of 1834,^ invested with the 
 power to carry into effect the contracts of decedents for 
 the sale of -lands, "wherever any person shall, by a bar- 
 gain or contract in writing, bind himself to sell and con- 
 vey any real estate in this commonwealth, and shall die 
 seised or possessed of such real estate, without having 
 made any sufficient provision for the performance of such 
 bargain or contract;" and also, where a decedent shall 
 have entered into a like contract, by parol, and " such 
 parol contract shall have been so far executed that it 
 would be against equity to rescind the same f or, by act 
 of 1853, "whenever a decedent shall have contracted, by 
 parol, to sell real estate, and those interested do not 
 think it expedient to plead the statute, requiring con- 
 tracts to be in writing, to enable the purchaser to recover 
 the real estate agreed to be sold."^ The purpose of these 
 acts was to confer upon the orphans' courts, the power ex- 
 ercised by a court of chancery, to compel the specific ful- 
 filment of contracts for the sale and conveyance of land, 
 made by decedents who die without providing for the exe- 
 
 1 Purd. Dig. 161-2. ^ Ibid. 699. 
 
 15 
 
218 decedents' contracts. 
 
 cution of their agreements. Wherever, therefore, a chan- 
 cellor would, in these cases, direct a conveyance to be 
 made in discharge of a decedent's undertaking, the pro- 
 per orphans' court is bound to interpose its statutory au- 
 thority with like effect.^ 
 
 § 251. As a general rule, it is said, that to entitle an 
 agreement to be specifically performed, it must be exe- 
 cuted according to the forms prescribed by law, by par- 
 ties able and willing to contract, and should be certain 
 and defined, fair and equal.- But no express form of 
 words is necessary to its validity : any memorandum 
 in writing, indicative of the intent of the parties, and so 
 precise as to enable the inquirer to ascertain the terms 
 of the contract, the land to be conveyed, and the price 
 to be paid for it, is sufiicient.^ Thus, a correspondence 
 by letters, which reasonably import a conclusion, has 
 been sustained as an agreement:^ and this, though the 
 person did not intend to be bound,* or looked to the exe- 
 cution of a more formal instrument.^ And the statute 
 of frauds is satisfied by any note in writing, showing 
 that there is a contract, though not under seal ; ^ and it 
 is enough that it be signed by the party to be charged, if 
 the other party have accepted it.^ The contract must, 
 however, have a valuable consideration to support it, 
 
 ' M'Farson's Appeal, 1 Jones, 608; M'Kee v. M'Kee, 2 Harris, 235; Chess's 
 Appeal, 4 Barr, 54. 
 
 2 Walpole V. Orford, 3 Ves. 420; Buxton v. Liston, 3 Atk. 385. 
 
 ■'' Wetherill v. Seitzinger, 9 W. & S. 177; Huddlestone v. Briscoe, 11 Ves. 
 591; Stratford v. Bosworth, 2 Ves. 366. 
 
 * Wilford V. Beazly, 1 Ves. 8; s. c. 3 Atk. 503. 
 
 ^ Fowler v. Freeman, 9 Ves. 351. 
 
 •> Colt V. Selden, 5 Watts, 528 ; M'Farson's Appeal, 1 Jones, 510. There is 
 no authority for saying that the writing must be with ink ; a writing in pencil 
 is sufficient. Hill v. Scott, 2 Jones, 169-70. 
 
 ' Lowry v. Mehaffy, 10 "Watts, 387; WorraU t. Munn, 1 Seld. 229. 
 
decedents' contracts. 219 
 
 for a voluntary unexecuted agreement is not within 
 the act.^ 
 
 § 252. An agreement made, on a valuable considera- 
 tion, to devise lands, is within the equity of the statute, 
 and will be specifically enforced. The draftsman of the 
 act had, no doubt, in view, the case of an ordinary bar- 
 gain and sale; but as the statute is remedial and highly 
 beneficial, it is to be largely expounded. What differ- 
 ence can it make, in reason or justice, whether the con- 
 veyance was to be by deed or will? The same good faith, 
 which requires it to be enforced in the one case, requires 
 it to be enforced in the other, not in form but in effect.^ 
 The act applies to every contract made on a valuable 
 consideration, whether for money or otherwise.^ 
 
 § 253. In a proper case, the statute provides that "it 
 shall be lawful for the executors or administrators of such 
 decedent, or for the purchaser of such real estate, or other 
 person interested in such contract, to apply, by bill or 
 petition, to the orphans' court having jurisdiction of the 
 accounts of such executors or administrators, setting forth 
 the facts of the case."^ The bill or petition must aver 
 that the plaintiff is willing, and offers to perform the 
 agreement on his part; but an omission to make such 
 statement is a defect in form merely, which may be 
 amended.^ It must not, however, be a bill for discovery, 
 for although the orphans' court may require an answer 
 on oath, it cannot compel a discovery touching the mat- 
 ters set forth in the bill or petition.^ A prayer for gene- 
 ral relief is sufficient.^ 
 
 1 Hagerty's Case, 4 Watts, 305; Moore v. Small, V Harris, 468-9. 
 
 ^ Brinker v. Brinker, 7 Barr, 55. ' Meaner r. M'Kowan, 4 W. & S. oOj 
 
 * Purd. Dig. 161. ' Chess's Appeal, 4 Barr, 52. 
 
 ■^ Brinker v. Brinker, 7 Barr, 54-5. ' Ibid. 56. 
 
220 decedents' conteacts. 
 
 § 254. The first step consequent upon the presentation 
 of the petition is, to fix a day for the answer of the de- 
 fendants, and to give them notice thereof, by citation or 
 otherwise.^ The act directs due notice of the bill or pe- 
 tition to be given " to the purchaser, or the executors or 
 administrators, and heirs of the decedent, or devisees of 
 such estate, as the case may require, to appear in such 
 court, on a day certain, and answer such bill or petition."^ 
 The anxiety of the law makers to secure to the defen- 
 dants a day in court, after due notice, so sedulously 
 manifested, is but in accordance with the principle, that 
 before the rights of an individual can be bound by a ju- 
 dicial sentence, he shall have notice of the proceeding 
 against him. Such notice is indispensably necessary to 
 give jurisdiction over the person of the party; and it has 
 been truly said, that without citation and an opportunity 
 of being heard, the judgment of a court, whether eccle- 
 siastical or civil, is absolutely void.^ 
 
 § 255. The act further provides, that "such court shall 
 have power, if the facts of the case be sufficient in equity, 
 and no sufiicient cause be shown to the contrary, to de- 
 cree the specific performance of such contract, according 
 to the true intent and meaning thereof"* The only 
 final decree contemplated by the statute is one for a 
 specific performance;^ the orphans' court has the same 
 power and authority as a court of chancery, in such 
 cases, to decree, and by necessary implication, to enforce 
 by attachment, a specific performance of the contract ac- 
 cording to its true intent and meaning. This is a power 
 certainly exercised by courts of chancery. They have 
 
 ' M'Kee v. M'Kee, 2 Harris, 236. » Purd. Dig. 161. 
 
 ' M'Kee v. M'Kee, 2 Harris, 237; Com. j;. Green, 4 Wh. 568. 
 * Purd. Dig. 161-2. * M'Kee v. M'Kee, 2 Harris, 23T. 
 
decedents' contracts. 221 
 
 authority to decree and compel a specific performance by 
 an infant heir, or any other person, of any bargain, con- 
 tract, or agreement, made by any party who may die be- 
 fore the performance thereof. The remedy is adminis- 
 tered as here, on petition of the executors or administra- 
 tors of the estate, or of any person or persons interested 
 in such bargain, &c., hearing all parties concerned, and 
 being satisfied that the specific performance ought to be 
 decreed or compelled,^ There is another well ascertained 
 principle, proper to be noticed, as applicable to the in- 
 quiry we are now prosecuting : it is, that executory con- 
 tracts for the sale of lands, like wills, are to be interpre- 
 ted to give effect to the intention of the parties. There- 
 fore, in equity, where they operate as conveyances, an 
 express limitation to the heirs of the vendee, is not in- 
 dispensably required to carry a fee ; for words of inheri- 
 tance will be supplied, where the consideration paid, or 
 other circumstances, evince that no less than a fee was 
 intended. Generally, a covenant to make a lawful deed 
 of conveyance, or a sufficient title, is understood to mean 
 a fee.^ 
 
 § 256. The order or decree of the orphans' court for 
 the specific performance of any such contract, being duly 
 certified by the clerk of the court, may be recorded in 
 the office for recording of deeds, in the county where 
 such real estate is situate; in like manner as deeds are 
 recorded, and with the same effect. And when such 
 order or decree shall have been made, and the purchase 
 money paid or secured, according to the terms of the 
 contract, it becomes the duty of the executors or ad- 
 
 ' Chess's Appeal, 4 Barr, 54-5. 
 
 ' M'Parson's Appeal, 1 Jones, 511; Dearth v. Williamson, 2 S. & R. 500; 
 Defraunce v. Brooks, 8 W. & S. 68-9; Tiernan i\ Roland, 3 Harris, 435-6. 
 
222 decedents' contracts. 
 
 ministrators of the decedent, to execute such deed of 
 conveyance, as shall be directed by the court, in con- 
 formity with the intention of the contract; and the same 
 being so made, is of the same force and effect to pass and 
 vest the estate intended, as if it had been executed by 
 the decedent in his lifetime. If the party to whom the 
 deed is to be made be an executor or administrator of the 
 decedent, the deed must be made, as in other cases, b}^ 
 the co-executor or co-administrator, if there be one ; and 
 if there be none, then the deed is to be executed by the 
 sheriff, in compliance with the decree of the court, and 
 be delivered by the sheriff to the grantee, upon such 
 terms' as the court shall see fit to require from the 
 grantee, as executor or administrator of the decedent, for 
 securing the faithful appropriation of the unpaid pur- 
 chase money .-^ 
 
 § 257. The contract being established, the parties 
 stand at the execution of it, as the vendor and vendee 
 would have stood, and with the same reciprocity of re- 
 course. If the articles require not an unincumbered 
 title, the vendee cannot have it; he must content him- 
 self with the title subject to the widow's dower, for he 
 could have called on the vendor for no more. If he have 
 a right to a clear title, though unable to enforce it speci- 
 fically, he is not bound to accept of less, but may resort 
 to an action for damages. But if he be willing to accept 
 of such a title as the administrator can give, he may, if 
 it be withheld, retain his equitable title, paying or 
 tendering the residue of the purchase money, or rescind 
 the contract by an action for the breach of it ; and this 
 he might do, had he to deal with the vendor in person. 
 On the other hand, if the administrator wish to recover 
 
 ' Purd. Dig. 162. 
 
decedents' contracts. 223 
 
 the purchase money, or avoid an action for damages, it 
 behooves him, where the vendor was bound for a title, 
 to procure as best he may, the widow's rehnquishment 
 of her dower, else the contract will be at an end for 
 every purpose but to charge him. It is not an objection 
 to say there was no design to give him power over her 
 will. For purposes of liability, he stands in the place of 
 her husband, who, although unable to control it, was 
 answerable in damages for the exercise of it; and no 
 more is claimed in regard to his representative.^ The 
 acceptance of a conveyance is, however, a waiver of 
 the right to a title clear of the widow's dower.^ 
 
 § 258. In addition to the remedy by a decree for a 
 specific performance, the acts of 1792 and 1818^ provide 
 a method for taking proof, in the courts of common pleas, 
 of the unexecuted real contracts of decedents, previous to 
 the institution of any suit for the breach of them, and 
 enable the executor or administrator to make the neces- 
 sary conveyance, under the order of the court.* The 
 mischief intended to be remedied by these acts was, that 
 in case of death, there might remain a contract of the 
 deceased binding on his executors or administrators, but 
 no person in being capable of carrying it into specific 
 execution. The purchaser of land might be willing to 
 pay the purchase money on receiving a conveyance; the 
 executor might stand in need of these moneys to dis- 
 charge debts and legacies; yet notwithstanding, there 
 being no competent grantor, the contract must be re- 
 scinded or delayed, or a suit brought in a court of law to 
 recover damages for its non-performance. The acts of 
 assembly, therefore, require the contract to be judicially 
 proved, before suit brought, and then empower the exe- 
 
 1 Riddlesberger v. Mentzer, V Watts, 142. ^ Shurtz v. Thomas, 8 Barr, 363. 
 ' Purd. Dig. 159-61. * M'Kee v. M'Kee, 2 Harris, 235. 
 
224 decedents' contracts. 
 
 cutor or administrator to execute a deed to the purchaser. 
 The proceedings under these acts are in the court of 
 common pleas, who, in the first place, receive proof of 
 the contract, and afterwards, if there be any difficulty as 
 to the right to a specific performance, it must be enforced 
 by suit brought in the same court, through the medium 
 of a jury.-^ 
 
 § 259. Wherever real estate has been conveyed re- 
 serving a ground rent, with the right to demand a release 
 or extinguishment thereof, upon the payment of a sum 
 of money or other equivalent specified in the deed, and 
 the grantor or owner of the ground rent shall die, and 
 thereby, or in any other manner, the right to the rent 
 reserved shall become vested in minors, trustees, or other 
 persons not authorized to release or extinguish the 
 ground rent, the act of 5th February 1821, authorizes 
 the executors or administrators of the grantor, or other 
 owner of the rent, the guardian of such minor, or trustee, 
 or other person authorized for the time being to receive 
 the rent; or the grantee, or his heirs, or assigns, of 
 the real estate out of which the ground rent may have 
 been reserved, to present a petition to the supreme 
 court, or to the court of common pleas of the proper 
 county, praying that a release or discharge of such 
 ground rent may be executed by such executor or ad- 
 ministrator, guardian, trustee, or other person authorized 
 for the time being to receive the same, in such manner 
 and form as the court shall judge to be consistent with 
 the true intent and meaning of the parties to the deed; 
 whereupon the court, having considered the prayer of 
 the petition and the evidence of the contract, and 
 having adjudged the same to be obligatory, shall make 
 an order authorizing such persons to execute a release 
 
 ^ Chess's Appeal, 4 Barr, 53-4. 
 
CONTRACTS OF LUNATICS. 225 
 
 of the ground rent reserved, upon payment of the sum 
 specified in the deed, with all arrearages of the rent. 
 The court may also, in their discretion, require from the 
 person so authorized to extinguish the ground rent, se- 
 curity for the legal appropriation of the consideration for 
 such extinguishment. ^ 
 
 § 260. The act of 13th June 1836,^ provides a similar 
 remedy for enforcing the specific performance of the real 
 contract of a person, who shall subsequently be found by 
 inquisition to be a lunatic or habitual drunkard, as is 
 provided in the case of the contract of a decedent ; with 
 the exception, that the proceedings are to be had in the 
 court of common pleas having jurisdiction of the ac- 
 counts of the committee; and that, on a decree being 
 made for a specific execution of the contract, the con- 
 veyance is to be executed by the committee of such 
 lunatic or habitual drunkard. And either of the parties, 
 when facts are controverted, may require a decision 
 thereon by a jury. 
 
 § 261. If any person, so found to be a lunatic or habi- 
 tual drunkard, shall have previously contracted for the 
 purchase of any real estate within this commonwealth, 
 the court may, in like manner, on the application of the 
 vendor, or of the committee, or of any person interested 
 in such contract, make such order for the performance of 
 the contract, as shall be according to the rules of equity, 
 and the terms of the contract; or, on the application of 
 the committee or other person interested, with the assent 
 of the vendor, make a decree for the rescinding of such 
 contract, if such proceeding shall not be disadvantageous 
 to the estate of such lunatic or habitual drunkard, upon 
 such terms as shall be equitable and just.^ 
 
 ' Purd. Dig. 413. ' Ibid. 554. = Ibid. 
 
226 INTERPLEADKR. 
 
 CHAPTER XIII. 
 
 INTERPLEADER. 
 
 § 262. Another head of the concurrent jurisdiction of 
 courts of equity, is that of interpleader. A bill of inter- 
 pleader is a bill filed for the protection of a person, from 
 whom several persons claim, legally or equitably, the 
 same thing, debt, or duty; but who has incurred no in- 
 dependent liability to any of them, and does not himself 
 claim an interest in the matter. The equity is, that the 
 conflicting claimants should litigate the matter amongst 
 themselves, without involving the stakeholder in their 
 dispute.^ By our statutes, the courts before enumerated^ 
 are invested with the powers and jurisdiction of courts 
 of chancery, so far as relates to "the determination of 
 rights to property or money claimed by two or more 
 persons, in the hands or possession of a person claiming 
 no right of property therein."^ 
 
 § 263. The principle on which this jurisdiction is 
 based, (that of protecting a mere stakeholder between 
 conflicting claimants,) was always recognised at common 
 law, and was applied where a chattel had come to a 
 man's possession by accident, or by bailment from both 
 claimants jointly, or from those under whom both made 
 
 1 Adams' Eq. 202; Bedell v. Hoffman, 2 Paige, 199. 
 
 ^ Ante, § 35. The jurisdiction of the supreme court, in such cases, extends 
 throughout the state. Purd. Dig. 308. 
 ' Purd. Dig. 305-6. 
 
INTERPLEADER. 227 
 
 title.^ And though the common law interpleader pro- 
 cess was principally confined to the action of detinue, 
 yet, in equity, the principle was as wide as the demands 
 of justice required. And the principles of equity being 
 a part of our common law, our interpleader is no less 
 expansive in its principles than the equity process.^ 
 Under our practice, where the stakeholder is sued, he 
 may take the simple course of giving notice to another, 
 claiming the money or thing in controversy, to come in 
 and defend the action or be barred of his claim. If, 
 after appearing and pleading, the defence be neglected or 
 abandoned, the party is forever barred. Much more 
 will this be the case, if a party defend the cause and 
 lose it.^ But this course does not, in all cases, conclu- 
 sively save the stakeholder from his liability to action 
 by the claimant, for the latter not being a party on the 
 record, is not barred by the judgment, until the fact of 
 notice is properly proved. The stakeholder is not, 
 therefore, conclusively protected by such judgment; for 
 his proof of the notice may fail him. Besides, if the 
 stakeholder fail, he may have to pay the costs himself, 
 without any recourse.* 
 
 § 264. It would, therefore, seem more prudent for the 
 defendant to pursue the regular common law form, of 
 coming in and filing his petition or suggestion, admitting 
 the debt or duty, and his willingness to pay or perform; 
 stating the claim of the third person, and praying for a 
 scire facias to bring him in to interplead. Thus, the 
 third person, called the garnishee, (from being the per- 
 son warned) is compelled to come in and set up his claim, 
 
 1 Adams' Eq. 202. 
 
 ^ M'Munn v. Carotliers, 2 Am. L. J. 134; Coates v. Roberta, 4 Rawle, 100. 
 
 ' Coates V. Roberts, 4 Rawle, 111; Bird v. Neff, 1 T. & H. Pr. SU. 
 
 * M'Munn V. Carothers, 2 Am. L. J. 135. 
 
228 INTERPLEADER. 
 
 and is concluded by the proceeding, without extraneous 
 proof. By the service of the scire facias the garnishee 
 actually becomes a party, and if he make default, the 
 plaintiff will have judgment to recover the money or 
 thing claimed from the defendant, and his damages and 
 costs from the garnishee. If the garnishee come in and 
 disclaim, the plaintiff recovers of course. If he defend 
 unsuccessfully, the plaintiff will have judgment for the 
 thing claimed against the defendant, and for his costs and 
 damages against the garnishee. If the garnishee plead, 
 the issue to the court or jury is between him and the 
 plaintiff, and the defendant stands aside altogether, and 
 has nothing further to do but pay the money or deliver 
 the thing sued for, according to the judgment of the 
 court.^ 
 
 § 265. If the plaintiff recover, he has judgment against 
 the defendant for the thing claimed, and against the gar- 
 nishee for damages and costs; and if the garnishee re- 
 cover, he shall have judgment against the defendant for 
 the thing claimed, and against the plaintiff for his da- 
 mages and costs. If however the money be in court, 
 the judgment of course is, that the party recovering 
 shall take it out of court. Usually, when the suit is for 
 money, the defendant offers to bring it into court, and 
 often does bring it; and if it be for some other thing, he 
 keeps it safely to abide the order or judgment of the 
 court. If the stakeholder be sued by two claimants se- 
 verally, he must sue out his scire facias to interplead, in the 
 suit first brought; or, if they be both brought at once, 
 then in the one in which the declaration shall be first 
 filed, or which the court shall direct.^ The act of 1836^ 
 prescribes a special remedy by interpleader, in suits 
 
 1 Ibid. 135-6. « Ibid. 136. ' Purd. Dig. 245. 
 
INTERPLEADER. 229 
 
 brought in the district court of Philadelphia, which has 
 been subsequently extended to the court of nisi prius, 
 and to the courts of common pleas of Berks and Schuyl- 
 kill counties. 
 
 § 266. Where a suit is only apprehended, the stake- 
 holder is driven, of necessity, to a court of equity for 
 protection; a court of law being in such case without 
 power to grant relief. A bill of interpleader lies, where 
 a person claiming no right in the subject, and not know- 
 ing to whom to render a debt or duty, apprehends in- 
 jury from claims made by two or more claiming in diffe- 
 rent rights the same debt or duty. A mere claim is now 
 the subject of such bill, and that the one claim in a le- 
 gal, and the other an equitable right. It is granted on 
 an affidavit, by the plaintiff", that the bill is not exhibited 
 by fraud or collusion, but for his own security; but it 
 need not state that it is at his own expense, nor that it 
 *is filed without the knowledge of either party. The bill 
 must show that there are two persons in existence, each 
 of whom claims the property; if one of them do not 
 appear, or will not support his claim, the debt is given 
 to the one who does appear, and a perpetual injunction 
 is granted as to the other.^ Thus, where there are seve- 
 ral persons claiming rent in the hands of the assignee of 
 a term, the controversy may be settled by a bill of in- 
 terpleader.^ But in such case, the two persons must 
 claim the same rent in privity of tenure or of contract; 
 for where the claimants assert their rights, under adverse 
 titles, and not in privity, the bill is not maintainable." 
 
 § 267. In order to maintain a bill of interpleader, the 
 same thing, debt, or duty must be claimed by both par- 
 
 ' Coates V. Roberts, 4 Rawle, 109. ' Adams v. Beach, 1 Leg. Int. 178. 
 
 ' 3 Dan. Ch. Pr. 1754, 1758. 
 
230 INTERPLEADER. 
 
 ties. Thus, where an auctioneer, by direction of the 
 owner, had sold to two persons successively, and had re- 
 ceived a deposit from each, it was held that the auc- 
 tioneer could not support a bill of interpleader against 
 the owner and the two purchasers; because, although 
 there was one question in common between the purcha- 
 sers, namely, which was to be the purchaser of the es- 
 tate, their claims as against the auctioneer were for two 
 different things, namely, by each for his own deposit. 
 The bill, therefore, was dismissed as against the second 
 purchaser with costs, and it was decreed that the seller 
 and the first purchaser should interplead as to the first 
 deposit. And again, at law, where a purchaser of tea 
 was sued by the seller for the price, and was also sued 
 in trover by a person who alleged himself to be the real 
 owner, it was held not to be a case of interpleader; for 
 the parties were not seeking the same thing. The one 
 was endeavouring to obtain the price of the goods, the 
 other damages for their conversion.-' 
 
 § 268. Again, the party seeking relief must have in- 
 curred no independent liability to either claimant. In 
 the case, therefore, of a tenant sued by his landlord, or 
 an agent by his principal, a claim adverse to the land- 
 lord or principal, will not warrant a bill of interpleader, 
 unless it originate in his own act, done after the com- 
 mencement of the tenancy or agency, and creating a 
 doubt who is the true landlord or principal, to whom the 
 tenancy or agency refers.^ In like manner, a bill of in- 
 terpleader will not lie, if the party seeking relief have ac- 
 
 ' Glyn V. Duesbury, 11 Sim. 139; Ploggart i: Cutts, Cr. & P. 197; Slaney v. 
 Sidney, 14 Mee. & W. 800; Adams' Eq. 204. 
 
 ^ Where a person deposits money in a bank, as agent for the trustees of a 
 corporation, he may be compelled to interplead with other parties claiming to 
 be the trustees. AN'are v. The Western Bank, 1 T. & H. Pr. 373. 
 
INTERPLEADER. 231 
 
 knowledged a title in one of the claimants, and have thus 
 incurred an independent liability to him. Thus, where 
 a company has registered what is alleged to be a forged 
 transfer of shares, and is sued by the original shareholder 
 for dividends, and another is threatened by the alleged 
 transferee, an interpleader will not be allowed.^ If mis- 
 representation were used to obtain that acknowledgment, 
 it may create an equity to be released from the liability ; 
 but the right of the party deceived to insist on such re- 
 lease, is not matter of interpleader between the real and 
 apparent owners.^ 
 
 § 269. The case tendered by every such bill of inter- 
 pleader ought to be, that the whole of the rights claimed 
 by the defendants may be properly determined by litiga- 
 tion between them, and that the plaintiffs are not under 
 any liabilities to either of the defendants, beyond those 
 which arise from the title to the property in contest; if 
 the plaintiflfs have come under any personal obligation, 
 independently of the question of property, so that either 
 of the defendants may recover against them at law, with- 
 out establishing a right to the property, it is obvious that 
 no litigation between the defendants can ascertain their 
 respective rights as against the plaintiff; an injunction, 
 which is of course, if the case be a proper subject for in- 
 terpleader, would deprive a defendant, having such a 
 case beyond the question of property, of part of his legal 
 remedy, with the possibility, at least, of failing in the 
 contest with his co-defendant; in which case, the injunc- 
 tion would deprive him of a legal right, without afford- 
 ing him an equivalent or compensation.^ 
 
 1 Dalton V. The Midland Railway Co. 22 Bng. L. & Eq. 452. 
 
 2 Crawshay v. Thornton, 2 M. & C. 1 ; Stuart v. Welch, 4 M. & C. 305 ; Jew 
 V. Wood, Or. & P. 185; Adams' Eq. 204-5. 
 
 ' Crawshay v. Thornton, ut supra; Watts v. Hammond, 25 Law Times R. 40. 
 
232 INTERPLEADER. 
 
 § 270. The plaintiff must likewise negative any inte- 
 rest in himself in the matter in controversy, and show 
 that he is a mere stakeholder. It has been held, there- 
 fore, that if a deposit be made by a purchaser at an auc- 
 tion, and the auctioneer be afterwards sued for the de- 
 posit by the purchaser and vendor, he cannot sustain a 
 bill of interpleader against them, if he claim to deduct 
 from his deposit his commission and the duty.'^ The 
 plaintiff must, in all cases, admit his liability for the en- 
 tire amount of the claim.^ The prayer of the bill should 
 be, that the defendants may set forth their several titles, 
 and may interplead, and settle and adjust their demands 
 between themselves. The bill also generally prays an 
 injunction to restrain the proceeding of the claimants, or 
 either of them, at law; and whenever this is done, the 
 bill should offer to bring the money into court; and it 
 must be brought into court before the court will ordina- 
 rily act upon this part of the prayer.^ The injunction 
 may be obtained ex 'parte immediately on the bill being 
 filed, and stays proceedings both at law and in equity, 
 but it stays them until further order only, and not, like 
 the common injunction, till answer and further order.* 
 
 § 271. If the defendants do not deny the statements 
 of the bill, the ordinary decree is, that the defendants 
 do interplead ; and the plaintiff then withdraws from the 
 suit. But the defendants, or either of them, are at li- 
 berty to contest and deny the allegations in the bill, or 
 to set up distinct and independent facts in bar of the 
 suit; and in such a case, the plaintiff must reply to the 
 
 1 Mitchell V. Hayne, 2 S. & S. 63; Moore v. Usher, V Sim. 384; Begnold v. 
 Audland, 11 Sim. 24. 
 
 ' Bird V. Ne£F, 1 T. & H. Pr. 374. 
 
 ' Story's Eq. PI. J 297; 3 Dan. Ch. Pr. 1760. 
 
 * Adams' Eq. 205. 
 
INTERPLEADER. 233 
 
 answer, and close the proofs in the usual manner, before 
 he can bring the cause to a hearing between himself and 
 the defendants ; and at the hearing only can he insist (if 
 such be his right) upon a decree, that the defendants do 
 interplead.^ Where the plaintiff has brought a bill of in- 
 terpleader properly, and in good faith, as against both 
 the defendants, he will be entitled to his costs both in 
 equity and at law, (where he has been sued,) out of the 
 fund: it is otherwise, where the bill is unnecessarily 
 filed. And in the adjustment of the controversy between 
 the defendants, the party whose claim is adjudged 
 groundless, will be compelled to pay the costs, which 
 have been taken in the first instance from the fund, to 
 the rightful claimant of it; and he may also be de- 
 creed to pay the costs of the other defendant.^ 
 
 1 Story's Bq. PI. § 297 a; 3 Dan. Ch. Pr. 1764. 
 ' .3 Dan. Ch. Pr. 1766-7; Adams' Eq. 206. 
 
 16 
 
234 BILLS QUIA TIMET. 
 
 CHAPTEK XIV. 
 
 BILLS QUIA TIMET. 
 
 § 272. Another class of cases in whicli courts pos- 
 sessed of general equity jurisdiction, grant relief concur- 
 rently with courts of law, is that of bills quia timet. A 
 bill quia timet is in the nature of a writ of prevention to 
 accomplish some object of precautionary justice. Bills 
 of this sort are usually filed to prevent wrongs and an- 
 ticipated mischiefs, and not merely to redress them when 
 done. The jurisdiction to grant equitable relief by bill 
 quia timet does not appear to have been granted to the 
 courts of Pennsylvania, except where they are authorized 
 to interfere by injunction, or the appointment of a re- 
 ceiver, as incidental to another branch of their chancery 
 powers. They have authority however, by statute, to 
 grant relief on petition, in many cases in which a bill 
 quia timet might be sustained in a court of more general 
 jurisdiction. 
 
 § 273. Thus, if a trustee or assignee have neglected, 
 when required by law, to file an inventory, or to give 
 bond with surety, or to file an account of his trust, or be 
 wasting, neglecting, or mismanaging the trust estate, or 
 be in failing circumstances, or about to remove out of the 
 jurisdiction, the court of common pleas having jurisdic- 
 tion of the accounts of such trustee or assignee, may, on 
 the petition of any person interested in the trust estate, 
 issue a citation to such trustee or assignee, to appear and 
 
BILLS QUIA TIMET. 235 
 
 show cause why he should not be dismissed from his 
 trust. And on the return of the citation, the court may 
 require such security, or further security, from such 
 trustee or assignee, as they may think reasonable; or 
 may proceed at once to dismiss such trustee or assignee 
 from the trust. And the like proceedings may be 
 had, whenever it is made to appear to such court, that 
 any person who has become surety for any such trus- 
 tee or assignee, in any bond given for the due exe- 
 cution of the trust, is in failing circumstances, or has re- 
 moved out of the commonwealth, or signified his inten- 
 tion so to do.^ 
 
 § 274. The like proceedings may be had in the proper 
 orphans' court against an executor, administrator, or guar- 
 dian, who is wasting or mismanaging the estate, or is 
 like to prove insolvent, or has neglected to file a proper 
 inventory, or a just account of such estate; and if in 
 any such case, it be made to appear that the defendant 
 is about to remove from the commonwealth, or that the 
 property under his charge may be wasted or materially 
 injured, before he can be reached by the ordinary process 
 of the court, a writ of attachment may be forthwith 
 awarded against him ; on the return of which the court 
 may proceed as in case of a citation. And these pro- 
 ceedings may be had upon the application of a surety of 
 such executor, administrator, or guardian, in order to 
 compel him to give counter-securities to indemnify such 
 surety against loss. So also, where an executrix has 
 married, or is about to marry another husband, she may 
 be required to give security, or in default, her letters 
 testamentary may be vacated.^ 
 
 ^ Purd. Dig. 803; see Piper's Appeal, 8 Harris, 70. 
 ^ Purd. Dig. 215-17. 
 
236 BILLS QUIA TIMET. 
 
 § 275. Another instance of the application of this prin- 
 ciple, occurs in the case of certain public officers who are 
 required to give security for the faithful discharge of their 
 official duties. Thus, if a justice of the peace have be- 
 come, or be likely to become insolvent, or by reason of 
 habits of intemperance be likely to increase the respon- 
 sibilities of his sureties, the court of common pleas of the 
 proper county may require him to give counter-security, 
 to indemnify his original sureties against loss by reason 
 of their suretyship.^ And the sureties of a constable may 
 have the same relief whenever it appears that, from 
 habits of intemperance, or neglect of duty, such constable 
 is unfit or incompetent to discharge his official duties.^ 
 
 § 276. By the ancient common law, there could, in 
 general, be no future right of property created in per- 
 sonal goods and chattels, to take effect in expectancy; 
 for they were considered to be of so transitory a nature, 
 and so liable to be lost, destroyed, or otherwise impaired, 
 that future interests in them were not, in law, treated 
 as of any account.^ But yet, in last wills and testaments, 
 such limitations of personal goods and chattels in re- 
 mainder, after a bequest for life, were permitted ; though 
 originally that indulgence was only shown when merely 
 the use of the goods, and not the goods themselves, was 
 given to the first legatee ; the property being supposed 
 to continue all the time in the executor of the devisor : 
 but now that distinction is disregarded; and therefore, 
 if a man, either by deed or will, limit his books or fur- 
 niture to A. for life, with remainder over to B., this re- 
 mainder is good.* 
 
 § 277. At law there was no remedy, in such cases, 
 
 ' Ibid. 479. ^ Ibid. 153. 
 
 » 2 Story's Eq. f 844; 2 Bl. Com. 398. * 2 Bl. Com. 398. 
 
BILLS QUIA TIMET. 237 
 
 ■whereby the legacy, whether of a specific chattel, or of 
 a sum of money, could be secured to the person entitled 
 in remainder ; and therefore, courts of equity interposed 
 to grant relief upon a bill quia timet, wherever there was 
 any danger of loss, or deterioration, or injury to it, in 
 the hands of the party entitled to the present possession. 
 By our statute, " whenever personal property is bequeathed 
 to any person for life, or for a term of years, or for any 
 other limited period, or upon a condition or contingency, 
 the executor of such will shall not be compelled to pay 
 or deliver the property so bequeathed to the person so 
 entitled, until security be given, in the orphans' court 
 having jurisdiction of his accounts, in such sum and 
 form, as in the judgment of such court shall sufficiently 
 secure the interest of the person entitled in remainder, 
 whenever the same shall accrue or vest in possession."^ 
 Legacies payable by a devisee, and charged upon his 
 land, are within the spirit of the law, if the case be with- 
 in its equity. The statute, however, was not designed 
 to change or defeat the intention of the testator, but as 
 a rule to interpret that intention, founded on the pre- 
 sumption that he would not have left the legacy in dan- 
 ger in the hands of the first legatee, if his mind had ad- 
 verted to that point. A case not falling within the let- 
 ter of the statute, cannot therefore be treated as within 
 its equity, if it be most probable that the testator, had the 
 question been presented to his mind, would have declared 
 that the legacy should be paid without security." 
 
 § 278. Another instance, in which courts of equity in- 
 terpose their remedial justice in the nature of a bill quia 
 timet, is by injunction to prevent waste, or the destruc- 
 tion or deterioration of property, pendente lite, or to pre- 
 
 ' Purd. Dig. 213. ' Fisher i\ Redsecker, 7 Harris, 115. 
 
238 BILLS QUIA TIMET. 
 
 vent irreparable mischief.^ This class of cases will be 
 considered when we come to treat on the subject of in- 
 junctions. It may however be observed, that in Penn- 
 sylvania the operation of the writ of estrepement, to 
 stay waste, has been extended, by statute, to many cases 
 in which it was not originally applicable, and that in 
 practice it is essentially an equitable remedy. This 
 writ lay, at the common law, after judgment obtained 
 in an action real, as on a writ of right, before possession 
 was delivered by the sheriff, to stop any waste, which 
 the vanquished party might be tempted to commit in 
 lands which were determined no longer to be his.^ But 
 for waste and destruction, committed by the defendant 
 in the course of the suit, Avhich a party knowing the 
 weakness of his title, might, in the certain anticipation 
 of a decision against him, feel inclined to attempt, an 
 adequate remedy was still wanting. The statute of 
 Gloucester, 6 Edw. I. ch. 13, therefore, gave the writ of 
 estrej^ement, pendente placiio J which is a continuing in- 
 junction upon the sheriff, to prevent waste at all times 
 during the pendency of the suit, and gave him power, if 
 he could not otherwise effect the object, to imprison the 
 wasters, and if necessity required, to call to his aid 
 the posse comitatiis.^ 
 
 ^ It is settled, that the working of open mines by a tenant for life, is not 
 waste. Neel v. Neel, Y Harris, 327. And a reversioner cannot have a writ of 
 estrepement to restrain a . tenant for life from working an open coal mine, al- 
 though the work may be prosecuted by aid of railroads, engines, and other 
 such modern appliances, so as to render it probable that the mine will be ex- 
 hausted during the continuance of the life estate. Irvine v. Covode, 3 Pitts- 
 burgh Leg. J. 26. 
 
 ' Jones V. Whitehead, 1 Pars. 306; Brown ;■. O'Brien, 4 Penn. L. J. 4o7-8; 
 2 Inst. 328. 
 
 ' Brown I. O'Brien, 4 Penn. L. J. 458; Jones v. Whitehead, 1 Pars. 306. 
 This statute, by the report of the judges of the supreme court, in 1808, is in 
 force in Pennsylvania. 
 
BILLS QUIA TIMET. 239 
 
 § 279. The writ of estrepement may issue, by statute, 
 in Pennsylvania, at tlie instance of a plaintiff in eject- 
 ment, or scire facias on a mortgage ; of a lessor, after no- 
 tice to quit; of a judgment creditor, after lands have 
 been levied on and condemned, or are liable to be sold 
 on execution; of a purchaser at sheriff's sale; of a re- 
 mainder-man against tenant for life ; of the creditors of 
 a decedent's estate;^ and of the plaintiff in a foreign at^ 
 tachment who has attached the interest of a mortgagee 
 or judgment creditor.^ And in all such cases, the te- 
 nant or party in possession may apply to the court from 
 which th*writ issued, who may hear the parties in a 
 summary manner, and may dissolve the writ, or make 
 such further order therein as to them may seem just 
 and right.^ If faithfully executed, the remedy by es- 
 trepement seems to be ample; for, if the parties in pos- 
 session commit waste, after service of the writ, they may 
 be committed to prison for their contempt. The sheriff 
 may rouse the posse comitatus to resist or restrain those 
 who commit the waste, and it has been said that he may 
 likewise imprison offenders, if he be put to it; and he 
 may make a warrant to others to do it.* 
 
 ' Purd. Dig. 836-7. ' Act 8 May 1855, § 4. P. L. 532. 
 
 ' Purd. Dig. 836-7. 
 
 * Jones V. Whitehead, 1 Pars. 306-7; 2 Inst. 329. 
 
240 INJUNCTIONS. 
 
 CHAPTER XV. 
 
 INJUNCTIONS. 
 
 § 280. There still remains to be considered one of the 
 most important heads of the concurrent jurisdiction of 
 courts of equity; that of injunctions. An injunction is 
 a writ framed according to the circumstances of the case, 
 commanding an act which the court regards as essential 
 to justice, or restraining an act which it esteems con- 
 trary to equity and good conscience. By various acts of 
 assembly, the courts, before enumerated,^ are invested 
 with the power and jurisdiction of courts of chancery, 
 so far as relates to "the prevention or restraint of the 
 commission or continuance of acts contrary to law, and 
 prejudicial to the interests of the community, or the 
 rights of individuals."^ It will be seen that these sta- 
 tutes by no means confer a general equity jurisdiction 
 upon the courts in injunction causes; it is restricted to 
 the prevention or restraint of the commission or conti- 
 nuance of acts contrary to laio; that the act complained 
 of is contrary to equity is not sufficient to found the ju- 
 risdiction. Injunctions on equitable grounds are granta- 
 ble only where they are incidental to the relief prayed 
 for, and that relief is within some other head of equi- 
 
 ' Ante, I 35. The jurisdiction of tlic supreme court in injunction cases 
 extends throughout the state. Purd. Dig. 308. 
 ' Purd. Dig. 305-7. 
 
INJUNCTIONS. 241 
 
 table jurisdiction/ such as fraud, accident, mistake, or 
 account.^' 
 
 § 281. Injunctions are of two kinds; the remedial 
 writ, which operates as a restraint upon the party in the 
 exercise of his real or supposed rights; and the judicial 
 writ, which issues subsequent to a decree ; it is a direc- 
 tion to yield up, to quiet, or to continue the possession 
 of lands, and is properly described as being in the na- 
 ture of an execution.^ The object of this process, which 
 is most extensively used in equity proceedings, is gene- 
 rally preventive and protective, rather than restorative ; 
 although it is by no means confined to the former. It 
 seeks to prevent a meditated wrong more often than to 
 redress an injury already done. It is not confined to 
 cases falling within the exercise of vthe concurrent ju- 
 risdiction of the court; but it equally applies to cases 
 belonging to its exclusive and to its auxiliary jurisdic- 
 tion.* The cases here treated of are, however, those in 
 which there is a special prayer for this process and re- 
 lief, and which are hence denominated injunction bills.^ 
 
 § 282. It is obviously impracticable to enumerate the 
 various cases in which our courts may interfere by the 
 writ of injunction. The object of the statute was to 
 furnish adequate redress in cases where, although an ac- 
 tion at law was maintainable, yet the injury might be 
 irreparable, and it was necessary to justice to step in 
 and prevent its being committed, by a summary process. 
 
 ^ Gilder v. Merwin, 6 Wh. 541; Hagner c. Heyberger, 7 W. & S. 106-7; 
 Com. V. Rush, 2 Harris, 193. 
 
 ' Riley v. BDmaker, 6 Wh. 545. The equity powers of the courts of Pennsyl- 
 vania do not extend to restraining an equitable tenant for life from waste. 
 Woodman v. Good, 6 W. & S. 173. 
 
 ^ Eden on Injunctions, 10-13. 
 
 * 2 Story's Eq. ? 862; Jeremy's Eq. 308. ^ Ibid. 
 
242 INJUIfCTIONS. 
 
 Thus, if there were sufficient ground to believe, in conse- 
 quence of threats or otherwise, that an individual was 
 about committing waste in timber, &c. ; or that a corpora- 
 tion was grossly abusing its privileges ; or that a public 
 ofl&cer, municipal or otherwise, was destroying or about 
 to destroy public books and papers, or materially injure 
 the public interests, or embezzle or waste the public 
 moneys or properties; or, in short, any act was doing, 
 or likely to be done, for Avhich damages could not, per- 
 haps, compensate, and the legal redress might be too 
 tardy and ineffectual; which was in the nature of mis- 
 feasance, nuisance, waste, spoil, or destruction to pro- 
 perty; and the act was contrary to law, and injurious to 
 the community or individuals; a summary remedy is 
 given by the strong arm of an injunction to stop it, or 
 prevent its being done.'' 
 
 § 283. In courts of general equity jurisdiction, injunc- 
 tions are constantly granted to stay proceedings at law. 
 But under our restricted equity powers, it is obvious, 
 that such a bill can seldom be sustained; for however 
 inecjuitable, under the particular circumstances of the 
 case, it cannot be contrary to law, for a party to pursue 
 his legal remedy; and therefore, except as incidental to 
 some other head of equitable relief, as fraud,^ accident, 
 or mistake, or where a discovery is necessary to a just 
 determination of the issues at law, our courts have no 
 jurisdiction to enjoin proceedings before a legal tribunal. 
 And there is the less occasion for the exercise of such 
 a jurisdiction in Pennsylvania, where a defendant has, 
 from the earliest period, been permitted to plead an 
 equitable defence at law; and where, if judgment have 
 been entered, on making out a case entitled to relief, the 
 
 ' Hagner v. Heyberger, 7 W. & S. 107. ' Holl i\ Holl, 4 Am. L. J. 224. 
 
INJUNCTIONS. 243 
 
 courts have power to open the judgment and let the de- 
 fendant into a defence, or to direct an issue to try the 
 right of the party to such equitable relief. An injunc- 
 tion, however, has been granted to restrain the creditor 
 of a lunatic from levying an execution upon his personal 
 property in the hands of the committee j for such act is 
 contrary to law.^ 
 
 § 284. Injunctions to restrain suits at law are usually 
 spoken of as common or special. The common injunc- 
 tion is issued upon and for the default of the defendant, 
 in not appearing to, or answering the bill ; or where the 
 defendant obtains further time to answer, or a commis- 
 sion to take his answer.^ Whenever an injunction is 
 asked for by the bill to stay proceedings at law, if the 
 defendant do not enter his appearance, and plead, demur, 
 or answer to the same within the time prescribed by the 
 rules of court, the plaintiff is entitled, as of course, upon 
 motion and notice, to such injunction.^ No affidavit is 
 necessary to obtain such injunction, unless the defendant 
 be abroad; and the reason is obvious — the defendant 
 himself can at any moment dissolve the injunction by 
 filing his answer. Our courts have adopted the prac- 
 tice, without putting the party to his writ, of continu- 
 ing a cause during the pendency of a bill of discovery 
 unanswered.* Injunctions granted upon other occa- 
 sions, or involving other directions, are called special 
 injunctions. 
 
 § 285. Injunctions to restrain the alienation of pro- 
 perty pendente lite, are another instance, of the equita- 
 ble relief which may be obtained by means of this writ. 
 
 ' Eckstein's Estate, 1 Pars. 59 ; Wright's Appeal, 8 Barr, 5T. 
 
 ' 2 Story's Eq. ? 892. » Equity Eules, Hii. p. 130. 
 
 ' M'Canlea v. Coolbaugh, 1 T. & H. Pr. 84. 
 
244 INJUNCTIONS. 
 
 In regard to negotiable securities, as by their being 
 transferred to a hond fide holder without notice, the lat- 
 ter may be entitled to recover upon them notwithstand- 
 ing any fraud in their original concoction, or the loss of 
 them by the real owner; it is often indispensable to the 
 security of the party, against whose rights they may be 
 thus made available, to obtain an injunction prohibiting 
 any such transfer.^ So an injunction will be granted, 
 to restrain a party from conveying the legal title to 
 real estate, pending a suit for specific performance. For 
 although such transfer cannot affect the rights of the 
 parties, yet the plaintiff may be put to the expense and 
 delay occasioned by the necessity of filing a supplemen- 
 tal bill, to make the alienee a party to the proceeding.^ 
 
 § 286. We will now proceed to the consideration of 
 injunctions to restrain waste. No principle of law is 
 better settled, than that a court of chancery will inter- 
 pose by injunction to restrain such persons, as tenants 
 and others, from committing waste, having but a limited 
 interest in, or possession of property, when the acts 
 about to be done will work a lasting injury to the in- 
 heritance, nor do the courts restrict their power of 
 granting injunctions to that species of waste which 
 goes merely to the destruction of the freehold, or a part 
 of it; nor is it confined to that species of waste which 
 is sometimes called a lasting injury to the inherit^ce, 
 as by cutting down timber, or other trees growing upon 
 the land, or the destruction of buildings, or a direct in- 
 jury to them; but it seems to be extended to all those 
 kinds of waste or injury to the inheritance, which dete- 
 riorate the land when used for agricultural purposes ; es- 
 pecially when carried to such an extent as will mate- 
 
 ' 2 Story's Eq. ^ 906. ' Ibid. § 908. 
 
IKJUNCTIONS. 245 
 
 rially injure the rights of the landlord or reversioner 
 when coming into the possession; so that the property 
 cannot be well appropriated to those purposes for which 
 it was originally intended, when he parted with the pos- 
 session. The doctrine seems to be, that the tenant is 
 bound by law, when he rents, to farm the land in an 
 honest and husbandlike manner, according to the custom 
 of the country where the land is situated. And if the 
 tenant attempt to divert the land from the usual course 
 of husbandry, in such a way as materially to injure the 
 same, a court of equity will restrain him by injunction 
 from committing waste of this description.-^ 
 
 § 287. Thus a tenant, who has leased property for 
 farming purposes, will be restrained by injunction from 
 removing from the premises the manure made upon the 
 farm. Good husbandry requires that the tenant should 
 leave the manure upon the premises ; in the absence of 
 any stipulation in the lease to the contrary, the law im- 
 plies that the tenant consented that it should be left, and 
 in their agreement the legal implication is, that the parties 
 treated it as real estate, and the right of its removal is 
 as much forbidden by law as that of any other fixture.^ 
 The current of the American authorities certainly estab- 
 lishes the rule, that where no reservation is made in the 
 lease, the manure made on the farm belongs to the land, 
 and cannot be severed from it.^ But unless the acts 
 complained of are contrary to law, as we have already 
 seen, the courts cannot interfere by injunction; thus, 
 they cannot restrain the commission of acts which only 
 amount to equitable waste, nor can they restrain waste 
 by an equitable tenant for life.* 
 
 1 Jones V. Whitehead, 1 Pars. 307, 309. 
 
 ' Barrington v. Justice, 4 Penn. L. J. 29j; Lewis v. Jones, 5 Harris, 262. 
 
 3 Wain V. O'Connor, 9 Leg. Int. 6Y. ■* Woodman v. Good, 6 W. & S. 173. 
 
246 INJUNCTIONS. 
 
 § 288. Let us, in the next place, consider the granting 
 of injunctions in cases of nuisance. Nuisances are of 
 two kinds; pubhc nuisances, or such as are injurious to 
 the public at large; and private nuisances, or such as 
 injuriously affect the rights and interests of private per- 
 sons. The jurisdiction of courts of equity, in cases of 
 purpresture and nuisance, though not frequently exer- 
 cised, seems undoubted. It is said to be founded on the 
 right to restrain the exercise or the creation of that, from 
 which irreparable damage to individuals, or great public 
 injury, must necessarily ensue. By purpresture is meant 
 an encroachment upon the king, either upon part of his 
 demesne lands, or upon rights and easements held by the 
 crown for the public, such as highways, public rivers, 
 forts, streets, squares, bridges, quays, and other public 
 accommodations. A purpresture may exist, without 
 being an actual general public nuisance, although it 
 may be both. And of this nature seem to be all perma- 
 nent encroachments on, and occupations of any part of a 
 public street, by an owner of land bounding thereon. 
 Besides the ordinary remedy by indictment, an informa- 
 tion lies in equity to redress the grievance by way of 
 injunction.^ 
 
 § 289. A court of equity will interfere in cases of 
 nuisance, not only on the information of the attorney- 
 general, but also upon the application of private parties 
 directly affected by the nuisance. When private indi- 
 viduals suffer an injury, quite distinct from that of the 
 public, in consequence of a public nuisance, they will be 
 entitled to an injunction and relief in equity; and this, 
 not because the act complained of is a nuisance, but 
 on account of the irremediable injury to their private 
 
 ' Commissioners v. Long, 1 Pars. 145; Biddle v. Asli, 2 Ash. 220. 
 
INJUNCTIONS. 247 
 
 rights of property.^ xVs a general rule, the court will 
 not interfere finally, where a doubt exists as to the cha- 
 racter and illegality of the act complained of, until both 
 have been ascertained by a trial ;^ but where the right 
 is clear, and the threatened injury irreparable, an in- 
 junction will be awarded, although the right have not 
 been established at law.^ 
 
 § 290. Courts of equity will enjoin an individual from 
 carrying on an offensive trade, when from its locality it is 
 injurious to the health or comfort of those residing in its 
 immediate vicinity. To constitute a nuisance, it is not 
 necessary that the noxious trade or business should en- 
 danger the health of the neighbourhood; it is sufficient 
 if it produce that which is offensive to the senses, and 
 which renders the enjoyment of life and property un- 
 comfortable. If a slaughter house have been erected 
 in a remote part of a city, but as the city extends, the 
 vacant grounds are occupied by the erection of valuable 
 buildings for residence, the continuance of such a busi- 
 ness there is a nuisance which may be restrained by 
 injunction.* 
 
 § 291. In regard to private nuisances, the interference 
 of courts of equity by way of inj unction, is undoubtedly 
 founded upon the ground of restraining irreparable mis- 
 chief, or of suppressing oppressive and interminable liti- 
 gation, or of preventing multiplicity of suits.^ That a 
 court of equity will interfere, and by injunction, pro- 
 
 ' Commissioners v. Long, 1 Pars. 148; Smith v. Cummings, 2 Pars. 97; 
 City of Georgetown v. The Alexandria Canal Co., 12 Peters, 98-9; Attorney- 
 General V. The Sheffield Gas Consumers' Co., 19 Eng. L. & Eq. 639; Whitfield 
 V. Rogers, 3 Am. L. R. 47. 
 
 ^ Commissioners v. Long, 1 Pars. 146; Attorney-General?). Cleaver, 18 Ves. 
 218; Borough of Frankfort v. Lennig, 1 Am. L. R. 358; Ramsey v. Riddle, 
 1 Cr. C. C. 399. 
 
 ^ Com. V. Rush, 2 Harris, 195; Smith v. Cummings, 2 Pars. 102. 
 
 * Smith V. Cummings, 2 Pars. 92. ^ 2 Story's Eq. I 925. 
 
248 INJUNCTIONS. 
 
 tect the clear rights of a suitor, derived either from con- 
 tract or ancient possession, against a nuisance produced 
 by the erection of a building by his neighbour, which 
 darkens his windows, or destroys his right of way, is un- 
 doubted, Such an injury being continuous, operates to 
 diminish the comfort and use of property, and the re- 
 medy by a multiplicity of actions, for the continuance of 
 it, would furnish no substantial protection. But a clear 
 right in the complainant must be shown before an 
 injunction can be awarded.^ 
 
 § 292. At the old common law, and before chancery 
 had made its modern strides towards general civil juris- 
 diction, the remedy for a party in such cases would have 
 been an assize of nuisance. The modern remedy for such 
 a tort is an action on the case. But the superior prompt- 
 ness of, and vigour of the action of equity, has given rise 
 to the modern procedure in that court by bill. In all 
 their various forms, however, these remedies are local in 
 their character, and chancery can no more enjoin against 
 a nuisance out of the jurisdiction of the court, than an 
 assize or action on the case could be brought out of the 
 county where the land lies. Broad as is the language 
 of the text writers, and even of the courts, in regard to 
 the position, that equity having possession of the person 
 of the wrong-doer, acts without regard to the local origin 
 of the tort; it is nevertheless true that proceedings in 
 chancery are, like proceedings in all other judicial tri- 
 bunals, sometimes local, and sometimes transitory. The 
 jurisdiction of a court of chancery is sustainable in a case 
 of fraud, trust, or contract, wherever the person be found, 
 although lands not within the jurisdiction of the court 
 may be affected by the decree; but to justify the juris- 
 
 ' Biddle V. Ash, 2 Ash, 221. 
 
INJUNCTIONS. 249 
 
 diction in cases touching lands in foreign countries, the 
 relief sought for must be of such a nature as the court is 
 capable of administering in the given case. The reme- 
 dies in equity, in cases of private nuisances, to be co-ex- 
 tensive with the wrong, must have a triple aspect. They 
 must include the restraint and prevention of a contem- 
 plated nuisance; the removal of such a nuisance, when 
 perpetrated before the action of the court has been in- 
 voked; and compensation in damages for injuries re- 
 sulting from such nuisance, where restraint and removal 
 fall short of doing entire justice to the party aggrieved. 
 To this extent fully has the action of courts of equity 
 gone, in cases of private nuisances. And the reason 
 chancery will not exercise extra-territorial jurisdiction 
 in cases of nuisance, is because it lacks the powers to car- 
 ry its decree into execution. It cannot send a writ of 
 assistance into another jurisdiction to prostrate the al- 
 leged nuisance, neither can it award an issue to the place 
 where the nuisance exists, to inquire into the damages 
 sustained by its perpetration and continuance.^ 
 
 § 293. To justify the court in granting an injunction 
 to restrain a party in his acts, the injury must be shown 
 to be such, as from its nature is not susceptible of being 
 adequately compensated by damages at law ; or by a con- 
 tinuation of the same, a permanent injury would ensue, 
 or occasion a constantly recurring grievance, which could 
 only be prevented by an injunction. The mere diminu- 
 tion of the value of property by the nuisance, without 
 irreparable mischief, will not furnish sufficient ground 
 for equitable relief. On the other hand, where a court of 
 equity sees that the injury might be irreparable, by the 
 loss of health, loss of trade, or a destruction of the means 
 
 ^ Morris v. Remington, 1 Pars. 387-98. 
 
 17 
 
250 INJUNCTIONS. 
 
 of living might ensue from erecting a building, its juris- 
 diction would be exercised for preventing the injury. 
 Thus, if a party should build so near the house of another, 
 as to darken his windows, against the clear rights of the 
 latter, either established by contract or ancient posses- 
 sion, courts of equity will interfere by injunction to pre- 
 vent the nuisance, as well as to remedy it, if already 
 done, although an action for damages would lie at law; 
 and for this reason, that in many cases the damages 
 would in no just sense be deemed an adequate relief in 
 the case.^ 
 
 § 294. Kestrictions and limitations imposed by gran- 
 tors of land on their grantees, are always made with re- 
 gard to the usefulness, comfort, and consequent value of 
 conterminous property; and are often vital to its enjoy- 
 ment. Common law remedies, in i^ersonam, for breaches 
 of such agreements, against the immediate party who 
 builds in defiance of restriction, are but feeble means of 
 preventing such injuries. The prompt and vigorous ac- 
 tion of an injunction, operating on all who, as agent or 
 principal, are engaged in violating the restriction, is not 
 only the best, but almost the only remedy worthy of 
 being called such, within the command of the judicial 
 authority. Hence injunctions, in the nature of specific 
 performance to restrain the violation of covenants, are 
 among the most common, as well as the most valuable 
 means employed by courts of equity, to make men do 
 what conscience ought to lead them to — perform their 
 contracts specifically according to the terms thereof. 
 Thus, in Barrett v. Blagrave,^ the proprietors of Vauxhall 
 Gardens demised a contiguous property, under an express 
 
 ' SutoHff u. Isaacs, 1 Para. 496-7; Whitfield v. Rogers, 3 Am. L. R. U. 
 ■' 5 Yes. Jr. 65. 
 
INJUNCTIONS. 251 
 
 covenant that the tenant should not carry on the trade 
 of a victualler, retailer of wine, and other trades therein 
 named. The lessee made an under-lease to Blagrave, the 
 defendant, who became insane, but his wife kept the 
 house open for public entertainment, during the season 
 for Vauxhall Gardens. On a bill filed, praying for an 
 injunction to restrain the defendants from carrying on 
 this business there. Lord Chancellor Eldon declared, that 
 it was "in the nature of a specific performance;" and 
 granted the injunction. In Franklin v. Tuton,^ the de- 
 fendant, a lessee of certain building ground, covenanted 
 that the house to be built should correspond with the 
 house already built, in elevation. The bill was to com- 
 pel the defendant, who had not conformed to the cove- 
 nant, to alter accordingly; and Sir Thomas Leech, vice- 
 chancellor, so decreed. In Hills v. Miller," the chancel- 
 lor decided that the grantee of such easement is entitled 
 to an injunction, to restrain the owner of the servient te- 
 nement from erecting buildings thereon, in violation of 
 his covenant.^ 
 
 § 295. It is upon similar grounds that courts of 
 equity interfere in cases of trespass, that is to say, to 
 prevent irreparable mischief, and to suppress multiplicity 
 of suits. For if the trespass be fugitive and temporary, 
 and adequate compensation can be obtained in an action 
 at law, there is no ground to justify the interposition of 
 courts of equity. Thus, a railroad company will be en- 
 joined from entering upon private property for the pur- 
 pose of constructing their road, until compensation shall 
 have been made to the owner.* That the complainant 
 
 1 5 Madd. 469. ' 3 Paige, 254. 
 
 ' Scott V. Burton, 2 Ash. 325. In Watertown i'. Cowen, 4 Paige, 510, the 
 same principles are asserted and carried out. 
 * Jarden v. The Philadelphia, Wilmington and Baltimore Bailroad Co., 3 
 
252 INJUNCTIONS. 
 
 niEiy recover damages at law, is no answer to the appli- 
 cation for an injunction against the permanent appropri- 
 ation of his property for the road, under a claim of right; 
 this is deemed an irreparable injury, for which the law 
 can give no adequate remedy, or none equal to that 
 which is given in equity, and is an acknowledged ground 
 for its interference. Trespass is destruction, in the eye 
 of equity ; when there is no privity of estate, it prevents 
 its repetition or continuance, protects the right, arrests 
 the injury, and prevents the wrong; this is a more bene- 
 ficial remedy than the law can give, and therefore the 
 proper one for a court of equity to administer.^ So also, 
 a court of equity will grant an injunction to restrain a 
 builder from using his neighbour's party wall, before pay- 
 ment of a moiety of the cost thereof; ^ or from construct- 
 ing a party wall on the land of another, without having 
 the boundaries duly regulated.^ 
 
 296. Courts of equity interfere, on like principles, to 
 restrain violations of patents and of copyrights; but as 
 these are matters within the exclusive jurisdiction of the 
 federal courts, they are foreign to the purpose of this 
 
 Wh. 502. When railway companies or individuals exceed their statutory 
 powers in dealing vrith other people's property, no question of damage is raised 
 where an injunction is applied for; but simply one of the invasion of a right. 
 Railway companies must stand upon a strict construction of their chartered 
 privileges. Pennsylvania Railroad Co. v. Canal Com., 9 Harris, 22. If they 
 step one inch beyond them to the prejudice of others or of their stockholders, 
 or offer to do any act without the prescribed preKminary steps, they are Uable 
 to be enjoined irrespective of the amount of damage. Com. v. Pittsburgh 
 and Connelsville R. R. Co., Sup. Court, 12 March 1855. MS. 
 
 ' Bonaparte v. The Camden and Amboy Railroad Co., 1 Bald. 233. But an 
 injunction will not be granted against public officers, acting under the authority 
 of the state, to restrain them from taking private property for a, public im- 
 provement, until suitable compensation shall be made, where a mode is pro- 
 vided by law for the assessment of the damage sustained. Heston v. Canal 
 Commissioners, Bright. R. 183. 
 
 = Cox V. WiUetts, 2 Am. L. J. 327. ' Sutcliff v. Isaacs, 1 Pars. 497. 
 
INJUNCTIONS. 253 
 
 work. There is, however, a subject of a kindred nature 
 which it will here be pi'oper to consider, namely, cases of 
 injunctions to restrain the fraudulent use of another's 
 trade marks. Where a manufacturer adopts a certain 
 trade mark, and stamps it upon the articles manufac- 
 tured, he is entitled to the exclusive use of it, and a 
 court of equity will restrain, by injunction, any other 
 person who pirates such trade mark from using it.^ On 
 such a bill, the question is not whether the complainant 
 was the original inventor of the mark alleged to have 
 been pirated, nor whether the article sold under the 
 pirated mark is of equal value with the genuine ; but the, 
 ground is, that the complainant has an interest in the 
 good will of his trade or business, and having taken a 
 particular label or sign, indicating that the article sold 
 under it was made by him, and sold under his authority, 
 or that he carries on business at a particular place ; he is 
 entitled to protection against one who attempts to pirate 
 upon the good will of his friends or customers, by using 
 such label or sign, without his consent or authority.^ 
 
 § 297. Where the mark, used by the defendant, re- 
 sembles the plaintiff's mark so closely as to be calculated 
 to deceive, and to induce persons to believe the defend- 
 ant's goods to be the plaintiff's manufacture, and the 
 defendant uses such mark with intent to deceive, an in- 
 junction will be granted. In every such case the court 
 must ascertain whether the differences were made bond 
 fide in order to distinguish the one article from the other, 
 whether the resemblances and differences were such as 
 naturally arose from the necessity of the case, or 
 
 1 Taylor v. Carpenter, 11 Paige, 292. 
 
 2 Partridge v. Menok, 2 Sand. Ch. 622; Davis v. Kendall, 2 Rhode Island^ 
 566; s. c. 2 Am. L. R, 681; 3 Danl. Ch. Pr. 1870. 
 
254 INJUNCTIONS. 
 
 whether, on the other hand, the differences were simply 
 colourable, and the resemblances were such as were obvi- 
 ously intended to deceive the purchaser of the one article 
 into the belief of its being the manufacture of another 
 person. Resemblance is a circumstance of primary im- 
 portance for the court to consider, because .it will al- 
 most invariably be found, that there was no reason for 
 the resemblance, except for the purpose of misleading.^ 
 The court, or a jury, would, in such a case, be bound to 
 presume, that it is not a fortuitous concurrence of events 
 which has produced the similarity ; it would be irrational 
 not to rest convinced that such coincidence is the result 
 of design ; and the object of that design could only be 
 that the manufacture of the defendant might pass, in the 
 eyes of beholders, for the particular manufacture of the 
 plaintiff.^ 
 
 § 298. It is to be observed, however, that a court of 
 equity will not, in a contest between persons who profess 
 to be manufacturers of quack medicines, interfere to pro- 
 tect the use of trade marks, by injunction.^ A com- 
 plainant, whose business is imposition, cannot invoke the 
 aid of equity against a piracy of his trade mark. The 
 only remedy in such a case is at law.* So, if the plain- 
 tiff have falsely made the word "patented" a part of his 
 trade mark, when, in truth there never was a patent for 
 the article, he will not be protected in the use of it. By 
 using this appellation, he misleads the public; every 
 body knows that patented articles are dearer, and there- 
 fore, purchasers are more readily inclined to give a higher 
 price for a patented article than if it were open to unre- 
 
 1 Taylor v. Taylor, 23 Eng. L. & Eq. 282. 
 
 ^ Edleston v. Vick, Ibid. 54. 
 
 ^ Fowle V. Spear, 7 Penn. L. J. 176. •• Pidding i\ Hoiv, 8 Sim. 477. 
 
INJUNCTIONS. 255 
 
 stricted competition.^ But if the article have once been 
 patented, it matters not that the patent has expired; if 
 the designation were originally accurate, the party will 
 be protected in the use of his trade mark. It would be 
 hard if, when a patentee had by his exertions made his 
 patent article, and the label by which it was recognised, 
 to be well known in trade, the whole public were, on the 
 expiration of the patent, not only to make and sell his in- 
 vention under the name which he had given it, but also 
 to use his label. The public or purchasers may have 
 confidence in the original maker of the patented article, 
 as having acquired a greater skill than others in the 
 manufacture of it, and, recognising the label, prefer the 
 article so labelled, as believing it to come from him.^ 
 
 § 299. Courts of equity will, upon similar grounds, re- 
 strain a party, by injunction, from the disclosure of se- 
 crets, communicated to him in the course of a confiden- 
 tial employment. There is no doubt whatever, that 
 where a party who has a secret in a trade employs per- 
 sons, under contract express or implied, or under duty 
 express or implied, those persons cannot gain the know- 
 ledge of that secret, and then set it up against their em- 
 ployer; and therefore, a party was restrained, by in- 
 junction, from using the secret of compounding a medi- 
 cine not protected by patent, it appearing that the se- 
 cret was imparted to him, to his knowledge, in breach 
 of faith or contract.^ 
 
 § 300. There are many other cases in which courts of 
 equity will grant relief by a special injunction. Thus, 
 a turnpike-road company will be protected, by injunc- 
 
 1 Plavell V. Harrison, 19 Eng. L. & Bq. 17. 
 ' Edleston v. Vick, 23 Eng. L. & Eq. 55. 
 
 ' Morison v. Moat, 6 Eng. L. & Eq. 14; s. o. 9 Eng. L. & Eq. 182; 3 Dan. 
 Ch. Pr. 1870. 
 
256 INJUNCTIONS. 
 
 tion, against a continued invasion of its franchises, as 
 where a by-road is made to enable travellers on its 
 road to avoid the toll-gate.^ So an injunction may be 
 granted to restrain a partner from exercising a control 
 over partnership property, where the interests of a de- 
 ceased partner require it ; ^ to restrain the removal of 
 a body from a common burial ground, against the con- 
 sent of the relatives of the deceased;^ and to restrain a 
 banking company from paying out money which had 
 been deposited with them by the plaintiff, and to which 
 the plaintiff had a priority over the stockholders.* 
 
 § 301. Injunctions will also be granted to compel the 
 due observance of personal covenants, where there is no 
 effectual remedy at law. Thus, where a celebrated can- 
 tatrice had covenanted to sing and perform at the plain- 
 tiff's theatre, for a specified period, and that, during her 
 engagement with the plaintiff, she would not sing else- 
 where, without his license in writing ; the court granted 
 an injunction to restrain her from singing elsewhere 
 than at the plaintiff's theatre during the period speci- 
 fied.^ So a vendor, who has sold his place of business 
 and the good-will of his trade, and covenanted not to 
 carry on the trade within certain defined limits, will be 
 restrained, by injunction, from so doing.** And in such 
 case, it is not necessary that the defendant should have 
 a place of business within the prohibited places ; he will 
 be restrained from soliciting orders within the restricted 
 limits, although his place of business may be elsewhere.' 
 
 ' Turnpike Eoad Co. v. Briedenthal, 1 Wh. Dig. 121, I 249. 
 
 ^ Holden v. M'Makin, 1 Para. 284. 
 
 ' In re Stephen Girard, 4 Am. L. J. 101. 
 
 ' Com. V. Bank of Pennsylvania, 3 W. & S. 184. 
 
 * Lumley v. Wagner, 13 Eng. L. & Eq. 252. 
 
 " Palmer v. Graham, 1 Pars. 476. 
 
 ' Turner v. Evans, 21 Eng. L. & Eq. 5985 s. 0. 22 Eng. L. & Eq. 144. 
 
INJUJ^CTIONS. 257 
 
 § 302. In regard to public functionaries, the rule is, 
 that so lorig as they confine themselves within the exer- 
 cise of those duties which are confided to them by law, 
 a court of equity will not interfere. The court will not 
 interfere to see whether any regulation or alteration which 
 they may direct is good or bad ; but, if they are depart- 
 ing from that power which the law has vested in them, 
 if they are assuming to themselves a power over pro- 
 perty which the law does not give them, the court no 
 longer considers them acting under the authority of their 
 commission, but treats them, whether they be a corpora- 
 tion or individuals, merely as persons dealing without 
 legal authority. And the rule seems to be clear, that in 
 all cases of incorporate bodies, such as canal or rail- 
 road companies, courts of chancery do not interfere, 
 while they act clearly within the authority the law gives 
 them, and it is only when they transcend those legal 
 limits, that they are amenable to a court of equity by 
 way of injunction.^ 
 
 § 303. The granting or refusing of an injunction 
 is a matter resting in the sound discretion of the court ; 
 and it is never awarded except where the plaintiff 
 shows a clear equity entitling him to its aid and re- 
 lief. A preliminary injunction is emphatically the 
 strong arm of the court, and is never awarded except 
 
 ' Hill V. Tbe Commissiouers, 1 Pars. 510; Frewin v. Lewis, 4 M. & C. 254. 
 In Benton v. Stewart, an application was made to the court of common pleas 
 of Philadelphia county, for an injunction to restrain the defendants from ex- 
 tending a wharf into the river Delaware, in pursuance of a pei'mit granted by 
 the board of wardens, which, it was alleged, would inflict great injury on the 
 complainant; but the court refused the motion, saying that, so long as the 
 wardens, in the exercise of their discretion, inflicted upon holders of wharf 
 property no wanton or unnecessary damage, and did no act contrary to law, or 
 injurious to the public interests, the court had no power to interfere with their 
 action by way of injunction. 28 October 1854. MS. 
 
258 INJUNCTIONS. 
 
 in clear cases of right, and where no doubt exists as to 
 the claim of the plaintiff to the remedy he invokes.^ A 
 doubt, however, about the legal rights of the parties, 
 would be no reason for deciding either one way or the 
 other on a motion for an injunction. On a question of 
 mere law the courts are bound to have an opinion, what- 
 ever may be the difficulty of making it up.^ But not 
 so where the contest relates to a matter of fact. There 
 to be in doubt, is to be resolved. The party on whom 
 the burden of proof lies gains nothing, if he do no 
 more than balance the case ; for the presumption of law 
 is in the scale of his adversary, and throws the prepon- 
 derance against him. And there are some subjects of 
 judicial investigation in which even common probabili- 
 ties will not be weighed — where every fact is taken not 
 to exist, unless it be made so manifest that it cannot be 
 seriously contradicted. By this latter rule a chancellor 
 judges of the evidence on which he is asked to issue an 
 injunction: he must not strike in the dark, nor act at 
 all, when there is any reason to fear that he may do 
 a wrong.^ A refusal to award such a preliminary act in 
 no respect decides the controversy, it is the simple as- 
 sertion on the part of the court, that the case is not one 
 which requires it to move until the cause is ripe for 
 final adjudication.* 
 
 § 304. In awarding an injunction, a very delicate and 
 highly responsible power is used, which ought not to be 
 exerted when there is reasonable doubt as to the exis- 
 
 ' Waring r. Cram, 1 Pars. 526; Langolf v. Seiberlitch, 2 Pars. 1\. 
 
 ^ This is the doctrine held by the supreme court; but it seems, that a court 
 of common pleas is not bound to decide doubtful and difficult questions of law, 
 on a motion for injunction. Hill i\ The Commissioners, 1 Pars. 509. 
 
 ^ The Lehigh Coal and Navigation Co. v. The Lehigh Valley Railroad Co., 
 Supreme Court, 16 May 1854, per Black, C. J. MS. 
 
 * Langolf V. Seiberlitch, 2 Pars. 11. 
 
INJUNCTIONS. 259 
 
 tence of any fact on which the application is founded. 
 If there appear, from the affidavits of the parties or 
 witnesses, such a repugnancy in point of fact as makes 
 it necessary to decide on the relative truth of their con- 
 flicting statements, or the credibility of the affirmants, 
 no prudent judge will undertake so dangerous an in- 
 quiry in the first stage of the cause. Great latitude is 
 allowed in order to present the application with all its 
 attendant circumstances operating in favour of or against 
 it, though the range may be wider than the bill. It de- 
 pends on the matters of fact or law, which appear to be 
 contested, whether the chancellor will examine the whole 
 oase involving the respective rights of the parties. The 
 great object is to look for that full information which will 
 lead his mind to a certainty as to all material facts, for 
 doubt or uncertainty is fatal to the motion to grant the 
 injunction, though it is a good cause for continuing it 
 on a motion to dissolve ; the burden of proof being on the 
 plaintiff in the one case, and on the defendant in the 
 other. On the other hand, if the bill or affidavit state 
 any facts not denied in the affidavits on the part of the 
 defendant, or the plaintiff by counter-affidavits do not 
 deny the statement of the defendant, such facts are as- 
 sumed as a safe basis for a decision on the motion, though 
 they may be open to inquiry at a subsequent state of 
 the cause; and the matters of law involved in the mo- 
 tion will be considered with reference thereto.^ 
 
 § 305. The reason on which any action is declined, 
 when there is an issue of fact between the parties or 
 their affirmant, is obvious. By granting the injunction, 
 positive credence is given to the^aflfidavits on the part of 
 the plaintiff, and those of the defendant are repudiated 
 
 ' Cooper V. Mattheys, 5 Penn. L. J. 40-1. 
 
260 INJUNCTIONS. 
 
 directly, whereas, by refusing the injunction nothing 
 more is done or intended than a decision that the fact is 
 so doubtful, as not to be safe to act on the assumption of 
 its truth, thus leaving it entirely open to future investi- 
 gation. It must be obvious too, that in applying for an 
 injunction, the plaintiff seeks either to interrupt the 
 course of the common law, or to ask some relief which 
 he cannot have at law; he must consequently state and 
 make out a case for equitable relief, on such facts as 
 bring his case within the jurisdiction of courts of equity, 
 and proper for its exercise. Hence, if he fail to satisfy 
 the conscience of the chancellor affirmatively, he has no 
 case before him; for doubt or uncertainty as to facts, i^ 
 of the same effect, on a motion, as their non-existence.^ 
 § 306. Again, a court of equity, which is never active 
 in relief against conscience or public convenience, has 
 always refused its aid to stale demands, where the party 
 has slept upon his rights, or acquiesced for a great length 
 of time. Nothing can call this court into action but 
 conscience, good faith, and diligence: when these are 
 wanting, the court is passive and does nothing; laches 
 and neglect are always discountenanced. A court of 
 equity frequently refuses an injunction, where it ac- 
 knowledges a right, when the conduct of the party has 
 led to a state of things which occasions the application, 
 and therefore will refuse or dissolve an injunction with- 
 out saying in whom the right is. An injunction will not 
 be granted to restrain a party, who has been in possession 
 any length of time, claiming by a title adverse, till the 
 right is first settled at law : a plaintiff, who states such 
 a case, puts himself out of court. It is a proper remedy 
 to protect a possession till it appear to be against right, 
 
 1 Ibid. 41. 
 
INJUNCTIONS. 261 
 
 but is never used to disturb a possession under claim and 
 colour of right. The rule on which courts of equity act 
 by an injunction, in the first instance, is to leave the par- 
 ties in the same position as it finds them when the ap- 
 plication for relief is made, by protecting the plaintiff 
 in the same possession which he had before enjoyed, and 
 when the possession of the defendant has been unmo- 
 lested, leaving the right of possession to be settled at 
 law. No cases come before courts of equity, in which a 
 greater degree of diligence is required, than applications 
 for injunctions : their nature and effect are such as to 
 produce the most irreparable injury when they are im- 
 providently granted.^ 
 
 § 307. Where the application is for an injunction upon 
 affidavit, before answer, upon the ground of apprehended 
 irremediable injury, the court will hear counter-affidavits 
 until satisfied with the information offered; and the 
 course is the same where the application is to dissolve an 
 injunction before answer. But if the defendant have 
 filed his answer, then it is a general rule that no affidavit 
 can be read to contradict it ; for where the answer is full 
 and denies all the circumstances upon which the equity 
 is founded, it has become the universal practice, with re- 
 ference to an injunction, to give credit to the answer. 
 The plaintiff is strictly tied down to reading the answer 
 in support of his case, whether the motion be for an in- 
 junction, or, upon the merits, against dissolving a com- 
 mon injunction.^ And the answer, in such case, has 
 been held to maintain its ground, even where an indict- 
 ment for perjury, upon the answer, had been found by 
 
 1 Ibid. 44-5. 
 
 ' Lessig V. Langton, Bright. R. 193-4; Com. v. Bank of Pennsylvania, 3 W. 
 & S. 199; Carpenter v. Burden, 2 Pars. 27; HoU v. Holl, 4 Am. L. J. 225. 
 
262 INJUNCTIONS. 
 
 the grand jury, and the injunction held not to be thereby 
 revived, or the ground sufficient to warrant the court in 
 making an order to revive it.^ 
 
 § 308. The exceptions to this rule seem to be cases of 
 waste, or the infringement of patents; and some other 
 cases, such as fraud; and after considerable hesitation, the 
 exception was extended to cases of partnership, where in 
 principle these are analogous to waste. But this is ad- 
 mitted with great caution, and the reading of affidavits 
 is only permitted when it is made clearly to appear, that 
 one partner, by acts of extreme misconduct, is bringing 
 the subject of the partnership within the principle of ir- 
 reparable mischief, and so making the case analogous to 
 waste. They are permissible in refutation of the defen- 
 dant's answer, only to show fraud, mismanagement or im- 
 proper conduct in the acting partner, or to show actual 
 or threatened waste ; but never to show title in the plain- 
 tiff, or the fact of partnership denied.^ But an answer 
 filed after the plaintiff has served his notice of a motion 
 for a special injunction, can only be used as an affidavit 
 in opposition to those used by the plaintiff, and the de- 
 fendant cannot insist, that under such circumstances, the 
 plaintiff is confined in his application to the equity con- 
 fessed in the answer.^ 
 
 § 309. Special injunctions are grantable only upon due 
 notice to the other party, by the court in term, or by a 
 judge thereof in vacation, after a hearing, which may be 
 ex parte, if the adverse party do not appear at the time 
 and place ordered.* And when awarded, the writ of in- 
 
 ' Clapham v. White, 8 Ves. 35; Com. v. Bank of Pennsylvania, 3 W. & S. 199. 
 
 ' Lessig V. Langton, Bright. E. 194; Com. i: Banlc of Pennsylvania, 3 W. 
 & S. 199; and cases there cited. Cases of nuisance form another exception 
 to the rule. Smith v. Cummings, 2 Pars. 9G. 
 
 ^ Waring v. Cram, 1 Pars. 525; Lessig r. Langton, Bright. R. 193. 
 
 * Equity Rules, liil. p. 130-1. 
 
INJUNCTIONS. 263 
 
 junction cannot actually issue, (except where the com- 
 monwealth is plaintiflf,) until the party applying for the 
 same have given bond, with sufficient sureties, to be 
 approved by the court or judge, conditioned to indem- 
 nify the other party for all damages that may be sus- 
 tained by reason of such injunction.-' This rule applies 
 to injunctions to stay proceedings at law.^ And the 
 courts of the city and county of Philadelphia are inter- 
 dicted, by statute, from granting or continuing injunc- 
 tions against the erection or use of any public works of 
 any kind, erected or in progress of erection, under the 
 authority of an act of the legislature, until the question 
 of title and damages be finally decided at law.'' 
 
 § 310. The form of granting injunctions at present 
 used, and which was established by Lord Eldon, is " till 
 answer or further order." This has been adopted as 
 giving the defendant the liberty to move, if necessary, to 
 dissolve the injunction before answer filed, upon an af- 
 fidavit denying the equity of the bill.* An application to 
 dissolve, must be by a special motion, whether before or 
 after answer filed, the rule being that an injunction can- 
 not be dissolved, unless upon motion in open court.^ Of 
 such application a previous reasonable notice must be 
 given, to allow the complainant to take affidavits in sup- 
 port of his bill.^ When the application to dissolve an 
 injunction is made before answer, it must be supported 
 by affidavits on the part of the defendant in answer to 
 .those upon which the injunction was obtained, and the 
 case thus made by the defendant, may be met by coun- 
 
 ' Purd. Dig. 308. ' HoU v. HoU, 4 Am. L. J. 224. ' Purd. Dig. 308. 
 
 * 3 Dan. Ch. Pr. 1894; Bead v. Consequa, 4 W. C. C. 178; HoU v. Holl, 4 
 Am. L. J. 224. 
 
 5 3 Dan. Ch. Pr. 1895. ' " Wilkins v. Jordan, 3 W. C. C. 226. 
 
264 INJUNCTIONS. 
 
 ter-affidavits on the part of the plaintiff, and upon hearing 
 the motion, the court will judge between them.^ The 
 defendant may also, before answer, move to dissolve the 
 injunction on the ground of want of equity in the bill.^ 
 If the defendant do not succeed in satisfying the court, 
 that the injunction ought either to have been refused, or 
 that it ought not to be continued, it will direct it to be 
 continued until the hearing.^ 
 
 § 311. An injunction is never made perpetual but 
 upon the hearing of the cause; when however it is once 
 made perpetual, it seems to be so far final as to remain 
 in force notwithstanding the death of the party; for if 
 it were necessary to revive upon every abatement, that 
 would be, in effect, a perpetual suit. It may be men- 
 tioned here, that if an inj unction have been obtained upon 
 an interlocutory order, care must be taken to introduce 
 a direction to that effect in the decree, otherwise it will 
 not be supported.* 
 
 § 312. Where a party is guilty of a contempt, by the 
 breach of an injunction, the proper course of proceeding 
 is to obtain an order for his committal. This order must 
 be obtained upon motion, of which notice must have 
 been duly served upon him personally.^ If the decree 
 require the delivery of the possession of lands, and the 
 lands be within the jurisdiction of the court, and the de- 
 fendants refuse to perform the decree, the court will en- 
 force it by a writ of assistance, directed to the sheriff. 
 This writ is an incident to the injunction, and is issued, 
 Avhenever it becomes necessary to aid in enforcing it.^ 
 
 1 3 Dan. Ch. Pr. 1895. 
 
 ^ Minturn v. Seymour, 4 Johns. Ck. 173; Chesapeake and Ohio Canal Co. v. 
 Baltimore and Ohio Railroad Co., 4 Gill and Johns. 7. 
 
 ' 3 Dan. Ch. Pr. 1896. * Ibid. 1902-3. » Ibid. 1909. 
 
 " Com. V. Diffenbach, Nisi Prius, Lewis, J., 5 May 1854. MS. 
 
INJUNCTIONS. 265 
 
 The rule of court provides that " when any decree or or- 
 der is for the deUvery of possession, upon proof made by 
 affidavit of a demand and refusal to obey the decree or 
 order, the party prosecuting the same shall be entitled 
 to a writ of assistance from the prothonotary of the 
 court." ^ And this writ is so much a matter of course that 
 the prothonotary may issue it in the cases prescribed by 
 the rule, without any application to the court.'^ 
 
 § 313. The effect of a committal for a breach of in- 
 junction, is usually that of retaining the offender in pri- 
 son until he submits by paying the adverse party his 
 costs. It is to be observed, however, that if the breach 
 of injunction wei'e the result rather of an error in judg- 
 ment than of a wilful contempt, the court will not di- 
 rect a commitment, but will merely order the party to 
 pay costs incurred by the breach of the injunction, and 
 by the application. The plaintiff may also, by his ac- 
 quiescence in the breach, dispense with the ordinary pro- 
 cess; though, strictly speaking, no act of the parties can 
 amount to a waiver of a contempt of the court.^ 
 
 ^ Equity Rules, ix. p. 114. ^ Com. v. Diffenbach, ut supra. 
 
 2 3 Dan. Ch. Pr. 1911. 
 
 18 
 
266 TRUSTS. 
 
 CHAPTER XVI. 
 
 TRUSTS. 
 
 § 314. We come now to treat of what is generally 
 termed the exclusive jurisdiction of courts of chancery, 
 although in Pennsylvania, this jurisdiction is to a great 
 extent exercised concurrently by the courts of law; and, 
 first, in relation to trusts, which form one of the most 
 important divisions of this branch of our subject. The 
 supreme court, the several district courts, and the courts 
 of common pleas are invested, by statute, with the ju- 
 risdiction and powers of a court of chancery, so far as re- 
 lates to the control, removal, and discharge of trustees, 
 the appointment of trustees, the settlement of their ac- 
 counts, the care of trust moneys and property, and other 
 moneys and property made liable to the control of the 
 said courts.-^ Many of the powers here referred to, the 
 courts are empowered, by other acts of assemblj^, to ex- 
 ercise on petition, without bill; the principles, however, 
 on which relief is granted are the same, in whatsoever 
 mode the jurisdiction may be enforced;" and in regard 
 to testamentary trusts, the orphans' courts are invested, 
 in all cases, with a concurrent jurisdiction.^ 
 
 ' Purd. Dig. 305. ^ Ibid. 802. 
 
 ' Ibid. 621. The object of tlie legislature, in the enactment of the seTeral 
 acts of assembly relating to trusts, was to invest our courts with tlie powers 
 elsewhere exercised by courts of chancery generally, to supervise the execu- 
 tion of trusts, to prevent their failure, to punish their abuse, and to compel 
 
TRUSTS. 267 
 
 § 315. The jurisdiction to enforce performance of 
 trusts arises where property has been conferred upon, 
 and accepted by, one person on the terms of using it for 
 the benefit of another. The former person, or owner at 
 law, is called the trustee ; the latter, or owner in equity, 
 the cestui que trust. In order to originate a trust, two 
 things are essential: first, that the ownership conferred 
 be coupled with a trust, either declared by the parties, 
 or resulting by presumption of law; and secondly, that 
 it be accepted on those terms by the trustee.-^ 
 
 § 316. It is well settled, that in Pennsylvania a trust 
 may be created by parol; the seventh section of the Eng- 
 lish statute of frauds, which requires all declarations of 
 trust to be in writing, not having been adopted in this 
 state.^ Parol trusts, in opposition to written titles, are 
 not to be favoured ; still it is true, that trusts may 
 be established by parol; and when clearly proved, 
 equity will decree the execution of them.® The evidence 
 to sustain a parol declaration of trust ought to be scru- 
 tinized with care and caution ; the party may demand 
 an issue, by which the facts will be ascertained by a jury 
 trial; and the conscience of the court must be satisfied 
 as well as that of the jurors. But still, if it produce a 
 full and conscientious conviction, it must have its effect.* 
 
 exhibits, from time to time, of tlieir state and condition, where accounts are 
 necessary and proper for that purpose. Being highly remedial in their cha- 
 racter, they should be liberally expounded, and extended in cure of the defect 
 which was so glaring in our original legal system, as to become the object of 
 universal complaint. Kuhler v. Hoover, 4 Barr, 333-4. 
 
 ^ Adams' Eq. 26-7. To constitute a valid trust, three circumstances must 
 concur: sufficient words to raise it, a definite subject, and a certain and ascer- 
 tained object. Vint v. King, 2 Am. L. R. 724. 
 
 2 Murphy i\ Hubert, 1 Barr, 420; Champlin v. Williams, 9 Barr, 342; Tritt 
 V. Crotzer, 1 Harris, 451; Wetherell v. Hamilton, 3 Harris, 198; Kirkpatrick 
 V. M'Douald, 1 Jones, 391. 
 
 2 Lynch v. Cox, 11 Leg. Int. 166. * Tritt v. Crotzer, 1 Harris, 455. 
 
268 TRUSTS. 
 
 § 317. It is said, that uses or trusts to be raised by 
 any covenant or agreement of a party in equity, must 
 be founded upon some meritorious or some valuable con- 
 sideration; and that courts of equity will not enforce a 
 mere gratuitous gift, or a mere moral obligation.^ But 
 is it true, that equity will not enforce an executory trust 
 in favour of a volunteer? It will doubtless not enforce a 
 contract to create a trust, though it were under hand and 
 seal, and in this respect it carries the doctrine of nudum 
 pactum farther than even the law does ; but the differ- 
 ence between a covenant to create a trust and a trust 
 created, is as wide as the difference between a covenant to 
 convey and a conveyance executed. It enforces no exe- 
 cutory contract which does not rest on a valuable, or at 
 least a meritorious consideration ; but it enforces an exe- 
 cuted contract with as much alacrity as the law would 
 enforce it. The reason of the difference in regard to the 
 effect of a seal is, that the interposition of a chancellor is 
 matter of favour; but that the interposition of a court of 
 law, with whom a seal stands for a consideration, is 
 matter of right. While a contract for a trust, therefore, 
 is executory, the trust itself is held to be executorj^, and 
 it stands on the footing of any other executory contract, 
 in respect to which a chancellor is guided by his appre- 
 hension of the justice of the contract, in applying or re- 
 fusing his power to the execution of it ; but when the 
 legal estate has passed by a conveyance, in which a 
 trust is distinctly declared, the trustee will not be 
 allowed to set up want of consideration to defeat it.^ 
 
 § 318. It is generally true, that equity applies the 
 same rules of construction to trust estates that a court 
 of law applies to legal estates. This general proposition, 
 
 ' 2 Story's Eq. § 973. ' Deunison i\ Goehring, Y Barr, 178. 
 
TRUSTS. 269 
 
 however, is liable to many exceptions, where a departure 
 from the rigid technical rules of law is necessary, to give 
 effect to the limitations of the trust estate. Fearne says, 
 after noticing some of these exceptions, and particularly 
 cases in which Lord Hardwicke had denied the applica- 
 tion of the rule in Shelley's case to limitations of trust 
 estates, that "even a court of equity, in order to pre- 
 serve as near a correspondence as may be, between the 
 rules of construction, with regard to trust estates and 
 those laws by which legal estates are construed, con- 
 siders itself as bounden, even in the case of trust estates, 
 to decree according to the rule I have been speaking of, 
 wherever it can be done without manifest violation of 
 the intention of the parties."^ And in discussing the 
 same rule, Judge Story says, that "trusts in real pro- 
 perty, which are exclusively cognizable in equity, are now 
 in many respects governed by the same rules as the like 
 estates at law, and afford a striking illustration of the 
 maxim cequitas sequitur legem. Thus, for example, they 
 are descendible, devisable, and alienable; and heirs, de- 
 visees, and alienees may, and generally do, take therein 
 the same interests in point of construction and duration, 
 and they are affected by the same incidents, properties, 
 and consequences, as would, under like circumstances, 
 apply to similar estates at law." ^ And therefore, on the 
 death of a feme covert possessed of an equitable estate in 
 real and personal property, her husband becomes entitled 
 to her portion of the trust estate, absolutely so far as it con- 
 sists of personalty, and to a life estate in the real property.^ 
 
 ' Fearne, 184; Vint v. King, 2 Am. L. R. 727. 
 
 2 2 Story's Bq. § 974; Vint v. King, 2 Am. L. E. 727-8; Wilhetei). Folmer, 
 6 Barr, 299. 
 
 "'' Van Rensalaer v. Duncan's Estate, Supreme Court, 4 January 1855. MS. 
 
270 TRUSTS. 
 
 § 319. A trust estate is not only alienable by the act 
 of the party, but it is also liable to be disposed of by 
 operation of law, in invitum, like any other property.'^ It 
 is well settled, that in Pennsylvania, a judgment is a 
 lien on every kind of equitable, as well as legal estate in 
 land, vested in the debtor, at the time of the judgment; 
 and such interest may be seized and sold in execution 
 in payment of debts.^ Thus, although it is true, that an 
 assignment of real estate for the benefit of creditors 
 passes the legal title, which is not defeated by the as- 
 signees' refusal to act, but vests in those whom the court 
 appoints to execute the trust, yet a trust results by opera- 
 tion of law, which, as soon as the debts are satisfied, en- 
 titles the assignor to the possession of whatever of the 
 estate remains unconverted : and this interest is the 
 subject of lien, of levy, and of sale.' 
 
 § 320. It not unfrequently happens that a trust has 
 been created, and no person has been appointed, either 
 by name or description, to execute the same; in such 
 cases the courts are empowered to appoint a proper and 
 suitable person to execute the trust, it being a rule in 
 
 1 2 Story's Bq. | 974 b; Wilhelm i\ Folmer, 6 Barr, 299. 
 
 ^ Thomas r. Simpson, 3 Barr, 69; Eickert v. Madeira, 1 Rawle, 329; Streaper 
 V. Fisher, Ibid. 162; Humphreys v. Humphreys, 1 Yeates, 429; Shaupe i\ 
 Shaupe, 12 S. & E. 12; and see M'Kissick v. Pickle, 4 Harris, 149-50. But 
 where a father devised lauds to trustees, in trust, during the life of his son, to 
 pay the income thereof to the son, or to such person as he should appoint; 
 and, after his death, to convey according to the son's appointment by "nill, or 
 in default, to such as would be his heirs, if he died intestate, with power to 
 the trustees and son to dispose of the property and re-invest the proceeds; and, 
 with a proviso, that if the son should become so relieved from embarrassment 
 as, in the opinion of the trustees, to render it expedient, they should convey to 
 him in fee; it was held, that the son had no estate in the land, legal or equita- 
 ble, which could be seized and sold by execution, on a judgment obtained 
 against him. Vaux i'. Parke, 7 W. & S. 19. 
 
 ' Webb V. Dean, 9 Harris, 32. 
 
TRUSTS. 271 
 
 equity that a trust shall never fail for want of a proper 
 trustee.^ The courts are also authorized to appoint 
 trustees, whenever "any sole trustee shall renounce the 
 trust, or refuse to act under, or fully execute the same; 
 or when any such trustee shall die, or be dismissed from 
 the trust, or be discharged therefrom; or when one or 
 more of several trustees shall renounce or refuse as 
 aforesaid, or shall die, or be dismissed, or discharged, and 
 the duties of the trust require the joint act of the trus- 
 tees."^ They may also appoint a trustee to act during 
 the infancy or temporary absence of the proper trustee.^ 
 And when the trustees of any estate reside out of 
 the commonwealth, and any part of the trust estate is 
 situated within the state, the courts may appoint a trus- 
 tee or trustees resident within the commonwealth, to act 
 in conjunction with such foreign trustees in the manage- 
 ment of the trust.* And in general, it may be stated, 
 that by the common law, the heir of a trustee of real 
 estate succeeds to the trust at the death of his ancestor, 
 because the title to the legal estate descends upon him. 
 But he becomes a trustee only prospectively, and ac- 
 countable only for his own management of the trust; 
 he has no concern with the accounts of his predecessor, 
 which can be settled only by his personal representa- 
 tive.' When, however, a trustee is appointed by the 
 court to fill a vacancy in the trust, all the trust estate, 
 forthwith, by operation at law, without any act or deed, 
 passes to, and vests in such succeeding trustee.^ 
 
 § 321. Whenever the trust is of such a nature as to 
 require any personal attention or active duty to be per- 
 formed; or the exercise of a power to be exerted on the 
 
 1 Purd. Dig. 804; Eyrick v. Hetrick, 1 Harris, 494. 
 
 2 Purd. Dig. 804. ' Ibid. * Ibid. 807. 
 
 5 Baird's Appeal, 3 W. & S. 460. « Purd. Dig. 805. 
 
272 TRUSTS. 
 
 part of the trustee, either for the purpose of carrying the 
 trust into effect, or for keeping it alive and fully opera- 
 tive at all times, in favour of the cestui que trust or other 
 persons interested therein, agreeably to the intent of its 
 author; the court of common pleas of the proper county 
 may, upon the application, by petition, of such cestui que 
 trust or other person interested in the execution of the 
 trust, appoint a trustee, if one should be wanted for such 
 purpose. But v^^hen the original trustee or trustees are 
 made the mere receptacles and depositories, as it were, 
 of the legal title, in fee, to the estate granted to them in 
 trust, without the requirement of any positive duty or 
 act whatever, either express or implied, to be done and 
 performed by them, it is clear that the interference of 
 the court is not called for by the acts of assembly, as 
 long as any one of the trustees or heirs of the survivor 
 is in being; and the appointment of a trustee by the 
 court would, in such case, be unauthorized. The deaths 
 of the original trustees in such instances cannot affect 
 the interests of the cestid que trust or other persons in- 
 terested in the trust estate ; because, upon the death of 
 one of the trustees, the legal title to the trust estate will 
 survive to the other; and again, upon the death of the 
 survivor, the title will pass, by operation of law, to his 
 heir at common law, who will be quite as capable of re- 
 ceiving and preserving the title of the trust estate till his 
 death, as his ancestor was, when the law will again trans- 
 mit the title to the heirs at law of the heirs of the sur- 
 vivor; and will thus, by means of every succeeding heir 
 at law of the person last invested with the legal title, 
 continue to transmit it so long as heirs to the surviving 
 trustee shall remain or continue to exist. ^ 
 
 ' Carlisle's Appeal, 9 Watts, 332; and see Ex parte Conrad, 2 Ash. 528-9. 
 
TRUSTS. 273 
 
 § 322. The power of a trustee over the legal estate or 
 property vested in him, properly speaking, exists only 
 for the benefit of the cestui que trust} It is true, that he 
 may, as legal owner, do acts to the prejudice of the rights 
 of the cestui que trust, and he may even dispose of the 
 estate or property, so as to bar the interest of the latter 
 therein; as by a sale to a hcmd fide purchaser, for a 
 valuable consideration, without notice of the trust.^ But 
 it is well settled, that a trust will be enforced not only 
 against those who are rightfully possessed of the fund as 
 trustees, but also against all others who have obtained 
 it without consideration, or with notice of the trust.^ 
 The conversion of trust money, or choses in action, into 
 land, is not permitted to divest its fiduciary character, 
 and a court of chancery will pursue it wherever it can 
 be traced.* Equity looks to the manner in which a trus- 
 tee has disposed of the fund, and pursues it into the 
 hands of any one who has received it maid fide — in 
 other words, with notice of the trust.^ For courts of 
 equity consider the purchaser with notice, of trust pro- 
 perty, from a fraudulent trustee, as a trustee for the 
 beneficial owner, and what is sufficient to put a party on 
 inquiry is considered in equity as notice ; for the law im- 
 putes to a purchaser the knowledge of a fact, of which 
 the exercise of common prudence and ordinary diligence 
 
 By act of 3d May 1855, the courts are authorized to appoint trustees to fill a 
 vacancy in the trust, occasioned by the death of a surviving trustee, although 
 the legal title may have descended to his heir at law. P. L. 415. 
 
 1 Wilhelm v. Polmer, 6 Barr, 300. 
 
 ^ 2 Story's Eq. i 977; Lee v. Tiernan, Add. 349; Shortz v. Unangst, 3 W. 
 & S. 55; Bracken v. MiUer, 4 W. & S. 102; Ooxe v. Blanden, 1 Watts, 535. 
 
 ' Harrisburg Bank v. Tyler, 3 W. & S. 377. 
 
 * Kirkpatrick v. M'Donald, 1 Jones, 393; Philips v. Crammond, 2 W. C. C. 
 441; Pierce v. M'Keehan, 3 W. & S. 280; Thompson's Appeal, 10 Harris, 17. 
 
 5 Harrisburg Bank v. Tyler, 3 W. & S. 378. 
 
274 TRUSTS. 
 
 must have apprized him. And to make a^purchaser of 
 the legal estate a trustee for the cestui que trust, it is not 
 necessary that he should have notice of the particular 
 cestui que trust; it is sufficient if he have notice that the 
 person from whom he purchased is a trustee.^ So long 
 as it can be identified either as the original property of 
 the cestui que trust, or as the product of it, equity will fol- 
 low it; and the right of reclamation attaches to it, until 
 detached by the superior equity of a hond fide purchaser, 
 for a valuable consideration, without notice. The sub- 
 stitute for the original thing follows the nature of the 
 thing itself, so long as it can be ascertained to be such. 
 But the right of pursuing it fails when the means of as- 
 certainment fail. This is always the case, when the sub- 
 ject matter is turned into money, and mixed and con- 
 founded in a general mass of property of the same de- 
 scription.^ 
 
 § 323. The powers that may be properly exercised by 
 a trustee, depend upon the nature of the trust, and some- 
 times upon the character and situation of the cestui que 
 trust. It is clear that a trustee, not specially authorized, 
 cannot go beyond the line of duty prescribed by law, and 
 make changes of property from money into land, or 
 from land into money : if he invest money in land, the 
 cestui que trust may, at his option, accept of the land, or re- 
 fuse it and demand the money .^ He may do such things 
 in respect of the trust estate as he is expressly empowered 
 to do; and thus sometimes, incumber, or even sell it; as 
 where he is directed to raise money out of the rents and 
 profits, for meritorious pui-poses, such as the payment 
 
 " Walsh V, Stille, 2 Pars. 21-3; see Scott v. Gallaglier, U S. & R. 333; 
 Stewart v. Freeman, 10 Harris, 123-4. 
 ^ Thompson's Appeal, 10 Harris, lY. 
 ' Kaufman v. Crawford, 9 W. & S. 134; Bonsall's Appeal, 1 Rawle, 274. 
 
TRUSTS. 275 
 
 of debts and legacies. It is perhaps also true, that 
 where a trustee, from the nature of it, cannot properly 
 discharge his trust, -without the exercise of power over 
 the subject intrusted to him, the law concedes to him the 
 necessary authority and discretion, so far as is essential 
 to effectuate the object of the trust. But the principle 
 that lies at the foundation of such a right cannot be in- 
 voked to sanction the creation of an incumbrance by 
 judgment, which might eventually defeat the trust at 
 law, though the object be to secure payment of part of 
 the purchase money. Powers of leasing, sale, and ex- 
 change are said to be, in fact, powers of revocation ; and 
 the same is true, at least to a certain extent, of a power 
 to incumber; all of which must be reserved to the trus- 
 tee expressly, or at least by strong implication.^ 
 
 § 324. The courts have the power, on application of 
 the party interested, to compel the conveyance by trus- 
 tees of the legal estate, when the trust has been exe- 
 cuted or has expired;^ where, however, the legal estate 
 is vested in the cestui que use, by force of the statute of 
 uses, a conveyance of it will not be decreed.^ They may 
 also compel an infant trustee, or his guardian, to make 
 and execute such deeds or assurances of the trust estates, 
 to the persons entitled thereto, as shall be equitable and 
 just, with the same effect as if such infant trustee were 
 of full age.* And they may make such orders and de- 
 crees for carrying any trust into effect, either for the dis- 
 tribution of moneys in the hands of trustees for the 
 benefit of creditors, or for the payment or transfer of 
 funds or effects in the hands of other trustees, or other- 
 
 ' Wilhelm v. Polmer, 6 Barr, 300. ' Purd. Dig. 805. 
 
 ' Eush fr. Lewis, 9 Harris, 72. * Purd. Dig. 807. 
 
276 TRUSTS. 
 
 wise as shall be according to law, or the terms or intent 
 of the trust/ 
 
 § 325. Whatever may be the rule in courts of equity 
 in England, and in other states, it is well settled in Penn- 
 sylvania, that all trustees are entitled to compensation 
 for their services in the execution of the trust, whether 
 there be any provision or agreement respecting it or not. 
 The amount of such compensation depends on the nature 
 of the trust, and the fund or property ; as the execution 
 of the trust is more or less burdensome to the trustee, the 
 compensation varies accordingly.^ Unless a contrary in- 
 tention appear, the compensation must come out of the 
 income of the fund with which they are intrusted.^ The 
 amount of compensation to be allowed to an executor, or 
 other trustee, is a subject on which there has been great 
 difference of opinion ; and it is no wonder ; for the law 
 has fixed no certain compensation, nor is it possible for 
 the court to establish a rate of commission which will 
 do justice in all cases. An executor, or other trustee, 
 should receive a compensation adequate to his care and 
 trouble, besides a liberal allowance for all necessary ex- 
 penses ; but it would be debasing the sanctity of the 
 trust, to consider it as an office of profit; it is an honoura- 
 ble duty, which ought not to be undertaken from motives 
 of mere gain. Still, it is not to be expected, that exe- 
 cutors should sacrifice their time, and subject themselves 
 to hazard, without some remuneration ; but the difficulty 
 is in fixing the quantum. It is very desirable, both for 
 the sake of the executors and the family of the testator, 
 that there should be some standard to which both may 
 look, on the subject of commissions ; and in the cases 
 
 Purd. Dig. 805. ' Burr v. M'Ewen, 1 Bald. 1G3; Purd. Dig. 805. 
 
 ' Spangler's Estate, 9 Harris, 337. 
 
TRUSTS. 277 
 
 that generally occur, it appears that the common opinion 
 and understanding of the country has fixed upon five 
 per cent, as a reasonable allowance. But to this rule 
 there must be exceptions : there are estates where the 
 total amount is small, and that too collected in driblets ; 
 in such, five per cent, would be insufficient. On the con- 
 trary, there are others, where the total amount being 
 very large, and made up of sums collected and paid away 
 in large masses, five per cent, would be too much. It must 
 be left to the discretion of the courts, to ascertain those 
 cases in which the general rule should be departed from. 
 The personal care and anxiety of the executor is a fair 
 subject of consideration : an estate not equal to the pay- 
 ment of its debts is always attended with hazard, which 
 should not be forgotten in fixing the compensation.-^ 
 
 § 326. We have already seen, that all trustees are lia- 
 ble to account in a court of equity for the management 
 of the trust estate;^ and the courts are empowered to 
 dismiss a trustee from his trust and to appoint another 
 in his place, whenever it shall appear that such trustee 
 is wasting, neglecting, or mismanaging the trust estate ; 
 or is in failing circumstances; or is about to remove out 
 of the commonwealth ; in all such cases, the courts may 
 either require security from the trustee for the due exe- 
 cution of the trust, or dismiss such trustee, or make such 
 other order in the cause as may be agreeable to the rules 
 of equity. They may also, on due proof, dismiss a trus- 
 tee, who shall have been declared to be a lunatic or ha- 
 bitual drunkard, or shall have removed from the state, 
 or ceased to have a known place of residence therein, 
 during the period of a year or more. And on the dis- 
 missal of a trustee, they may appoint a receiver of the 
 
 1 Pusey V. Clemson, 9 S. & R. 209. ' See Purd. Dig. 803-5. 
 
278 TRUSTS. 
 
 trust estate.^ It is not within the design of this work 
 to enter more minutely into an examination of the sta- 
 tutory provisions in regard to oiiicial and other trustees, 
 and the jurisdiction conferred upon the several courts to 
 regulate their proceedings : for these matters the reader 
 is referred to Purdon's Digest of the Laws of Pennsyl- 
 vania, where they will be found at large.^ 
 
 § 327. We will now proceed to the consideration of 
 the doctrine in regard to trusts, as divided into express 
 trusts and implied trusts; the latter class comprehend- 
 ing all those which are called constructive and resulting 
 trusts. Express trusts are those which are created by 
 the direct and positive acts of the parties. Implied 
 trusts are those which are deducible from the nature of 
 the transaction, as matter of clear intention; or which 
 are superinduced upon it, as matter of equity, indepen- 
 dent of the particular intention of the parties. ** The 
 most usual instances of express trusts are found in 
 marriage settlements, mortgages, assignments, and in 
 last wills and testaments. Many of these instruments 
 will also be found to contain implied, constructive, and 
 resulting trusts, and the separate consideration of them 
 would require frequent repetition : in our subsequent re- 
 marks, therefore, no attempt will be made to distinguish 
 between them, except where it is called for by the par- 
 ticular nature of the subject. 
 
 ' Purd. Dig. 804. "■ Ibid. 802-9. ' 2 Story's Eq. ? 980. 
 
MAERIAGE SETTLEMENTS. 279 
 
 CHAPTER XVII. 
 
 MARRIAGE SETTLEMENTS. 
 
 § 328. A MARRIAGE Settlement is an agreement made 
 by the parties in contemplation of marriage, in relation to 
 their estate or some parts of it, by which it is tied up and 
 declared to be for the uses therein mentioned. But a 
 distinction must be observed between a settlement made 
 before marriage, and marriage articles only for a settle- 
 ment; when a settlement is made after marriage in pur- 
 suance of articles made before, it will be controlled by 
 the articles.^ In regard to the construction of these in- 
 struments, the rule is, that with regard to marriage set- 
 tlements, when the trusts are accurately created and de- 
 fined by the parties, and consequently may be said to be 
 executed, courts of equity construe them in the same way 
 as legal estates of the same kind would be construed at 
 law, if the same terms had been used. Technical words 
 in such a contract must have a technical interpretation; 
 and hence, a relinquishment by the intended wife of all 
 right of dower to, in, or out of the estate of the husband, 
 will not exclude her, after his decease, from a share of 
 his personal estate under the statute of distributions.^ 
 But in moulding legal conveyances, to give effect to exe- 
 cutory trusts in marriage settlements, a chancellor inter- 
 prets the deed as freely as he would interpret a will, be- 
 
 1 4 Bouv. Inat. 238. ' EUmaker v. EUmaker, 4 Watts, 89. 
 
280 MARRIAGE SETTLEMENTS. 
 
 cause it contains no more than hints or instructions for a 
 formal settlement; and he consequently treats an execu- 
 tory limitation to heirs of the body, as a direction to dis- 
 pose of the estate at law, in strict settlement, by giving 
 estates to the first and other sons in tail. -^ 
 
 § 329. Articles in consideration of and previous to 
 marriage, are considered in equity as the heads of an 
 agreement for a valuable consideration ; ^ they will be so 
 construed as to carry into effect the intention of the par- 
 ties, for the benefit of the issue, for whom they are pur- 
 chasers; and any mistakes will be corrected by reform- 
 ing the article or settlement. A settlement after mar- 
 riage, reciting articles before marriage, may be reformed 
 by them, if it were intended to be pursuant to the ar- 
 ticles; any variation between them being presumed to be 
 by accident. But the evidence of the intention, by which 
 to make the reformation, must be by a recital, a letter of 
 instructions, or declaration of intention, not by conjec- 
 ture, but in words showing it; otherwise the variance is 
 presumed to be by a new agreement.* A settlement 
 preceded by articles, and executed before the marriage, 
 will not be reformed so as to render it conformable to the 
 articles, unless it purport to have been made in pursu- 
 ance of the articles, or there be proof of a mistake dehors; 
 the variation being attributed to a change of intention, 
 which the parties had a right to make. A contract exe- 
 cuted at law, and passing nothing but real estate, actually 
 in the grantor at the time of the delivery, can be tui-ued 
 into an agreement in equity, only to subserve some clear 
 and indisputable intention, inconsistent with the legal 
 effect of the instrument.* 
 
 ' Hileman v. Bovislaugh, 1 Harris, 352. 
 
 ^ Middleton v. Middleton, 8 Leg. Int. 115. 
 
 ' Tilghman v. Tilghman, 1 Bald. 48;i; Tilghman's Estate, 5 Wh. 63. 
 
 * Biddle v. Ash, 1 Rawle, 86-8. 
 
MARRIAGE SETTLEMENTS. 281 
 
 § 330. The great object of marriage settlements, is to 
 restrain the parties from disposing of the fund to the pre- 
 judice of the wife and issue; and it is in their favour, and 
 necessarily against the husband, that equity reforms and 
 construes them liberally to embrace the object intended : 
 this will be done in favour of the husband or wife, where 
 they claim in consideration of a settlement made, or to 
 be made by them or their friends, so as to make the con- 
 tract operate beneficially for the party intended to be be- 
 nefited by it. But if the plaintiff in equity have not com- 
 pleted his promised provision for his wife and issue, or 
 if, by her death without issue, he have suffered no pre- 
 judice' by what he has done towards its completion, or if, 
 by the agreement, the portions were to be equal, and the 
 husband have not made up his, equity will leave him to 
 his legal remedy.^ 
 
 § 331. If an instrument, professing or intending to 
 carry an agreement into effect, be so drawn by mistake 
 as not to effect the object, it will be reformed in confor- 
 mity therewith; the instrument being insufficient for the 
 purpose intended, the agreement is considered unexe- 
 cuted, and the delinquent party will be held to its per- 
 formance. If, however, the parties have deliberately 
 agreed on an instrument to effect their intention, which 
 meets the views of both, it becomes incorporated into 
 their agreement, and if not founded in mistake in fact, 
 and executed in strict conformity with itself, equity 
 will not decree another security, or act as if it had been 
 agreed on or executed. It will compel the execution of 
 agreements fairly made, but will not make them for par- 
 ties, or decree the execution of any other instrument 
 than the one agreed on. The death of the party who 
 
 1 Tilghman v. Tilghman, 1 Bald. 489. 
 
 19 
 
282 MARRIAGE SETTLEMENTS. 
 
 Avas to execute the instrument which would give efficacy 
 to the agreement, though it frustrates the intention of the 
 parties by an event not provided for, does not alter the 
 case. But where the parties have, on deliberate advice, 
 rejected one instrument and adopted another, equity will 
 not decree a different one to be executed, or that to be 
 done which the parties supposed would be effected by the 
 instrument finally agreed upon.-^ 
 
 § 332. A contract, in consideration of a future mar- 
 riage, creates a legal and equitable obligation to perform 
 it in good faith : if the contract be executed, the parties 
 become purchasers ; if it remain executory till after mar- 
 riage, they become creditors after its consummatien ; or 
 assume pro tanto the character and rights of both, if exe- 
 cuted only in part; entitled to the protection of all 
 courts in enjoying what is granted, and their aid in en- 
 forcing performance of what remains to be done. And 
 if either party voluntarily perform what a court would 
 compel to be done, it will be as valid as if done by its 
 judgment or decree, or as if the execution had been com- 
 pleted in the date of the contract.^ 
 
 § 333. Every kind of interest, legal or equitable, whe- 
 ther in real or personal estate, may be the subject of a 
 marriage settlement. It is certain that though a contin- 
 gent limitation by will after the death of the testator, 
 or by deed, is a legitimate subject of grant, even at law, 
 yet the hope or expectation of succeeding to the property 
 of another, by descent or devise, is not so. But it is 
 equally certain that such an interest may be bound by a 
 settlement in equity. Indeed, it is no more than the fa- 
 miliar principle, that he who executes a convej-ance, on 
 valuable consideration, purporting to pass a title before 
 
 ' Ibid. 490; Hunt v. Rousmaniere, 1 Pet. 9, IV; s. c. 8 Wheat. 201, 210. 
 ^ Magniac v. Thompson, 1 Bald. 359. 
 
MARRIAGE SETTLEMENTS. 283 
 
 it is in him, will be bound to make it good, whenever he 
 acquires it. Such a conveyance is liberally interpreted 
 as an agreement.-^ Where the subject of the marriage 
 contract is the wife's chattels, it need not be in writing. 
 Such a parol antenuptial settlement being in considera- 
 tion of marriage, which is a valuable one, is binding at 
 the expiration of the coverture.^ 
 
 § 334. It is said, that "where an infant wife's property 
 consists of land, an antenuptial agreement binds neither 
 the wife nor her heir. But it will bind her adult hus- 
 band; who, accordingly, will not be allowed to aid the 
 wife in any attempt to defeat the uses of the articles. 
 Thus, as a married woman, she cannot, even after attain- 
 ing majority, dispose of her estate without her husband's 
 consent. And he cannot consent, because the articles 
 prevent him from doing so. This, therefore, is but ano- 
 ther example of an agreement binding on the adult hus- 
 band, but not binding on the infant wife; for the re- 
 straint upon her arises, not from the articles, but from 
 her coverture."^ Our courts have not yet decided how 
 far a female infant may bind her estate in this way; 
 but they have declared that the adult husband is bound 
 by his covenant not to assume any power over the set- 
 tled estate, and that, in equity, he has no interest in it 
 inconsistent with the settlement. He cannot join his 
 wife in aliening or incumbering it; and as she cannot 
 do it without him, therefore the settlement is necessa- 
 rily operative during his life, not by her contract, but by 
 reason of her marital, and his contract disability.* 
 
 * Wilson's Estate, 2 Barr, 330. 
 
 ^ Gaokenbach v. Brouse, 4 W. & S. 547. 
 
 ' Macqueen on Husband and Wife, 252; Macpherson on Infants, 522; Roper 
 on Hnsband and Wife, 27; Atlierly on Marriage Settlements, 49. 
 
 * Wilson V. M'CuUough, 7 Harris. 87; s. c. 9 Harris, 441. 
 
284 MOETGAGES. 
 
 4 
 
 CHAPTER XVIII. 
 
 MORTGAGES. 
 
 § 335. By the principles of the common law, the exe- 
 cution of a mortgage vests the legal estate in the mort- 
 gagee, subject to be defeated upon performance of the 
 condition.^ The possession of the tenant in the mortgage 
 was viewed, at law, as that of a tenant at sufferance.^ 
 But although, in form, a conveyance of the land, a 
 mortgage is, in substance, but a security for the payment 
 of money; and the debt being paid, or in any other man- 
 ner extinguished, the mortgagee becomes a trustee for 
 the mortgagor.^ It is but a chose in action,^ and confers 
 upon the mortgagee nothing more than a lien on the 
 land, which may be defeated by payment of the money 
 loaned, at any time before a sale by the sheriff. The 
 equity of redemption is every where considered as an 
 interest in the land mortgaged, which will descend upon 
 the heir of the mortgagor, who, in legal contemplation, 
 continues to be the owner of the land for every benefi- 
 cial purpose. So far is this doctrine carried, that a de- 
 vise of a man's personal estate carries with it all his 
 mortgages; and though the land mortgaged may be taken 
 
 1 4 Kent's Com. 154; Garro v. Thompson, 7 Watts, 419. 
 ' Schuylkill Navigation Co. v. Thoburn, 7 S. & E. 419. 
 'Wentz V. Dehaven, 1 S. & R. 317; Rickert v. Madeira, 1 Rawle, 328; 
 Perry's Appeal, 10 Harris, 46. 
 
 * Craft V. Webster, 4 Eawle, 255; Woods i\ Wallace, 10 Harris, 177. 
 
MORTGAGES. 285 
 
 in execution for the debt of the mortgagor, it is not so 
 liable upon process against the mortgagee, before fore- 
 closure of the equity of redemption.^ 
 
 § 336. A mortgagee, in possession, is treated as a trus- 
 tee, but, out of possession, he is a mere lien creditor. 
 By the terms of the contract, it is true, he is to have, 
 not a lien, but an estate; but the effect of the instru- 
 ment is to give him only a lien, which differs from a 
 lien by judgment in only two essential particulars, dura- 
 tion and extent. It is subject to no statute of limita- 
 tions like a judgment, and instead of extending to all 
 the debtor's lands in the county, it affects only such as 
 are described in the mortgage. But a mortgagee is no 
 more a trustee of the debtor, than a judgment creditor 
 is; both have liens, and only liens. The whole legal 
 and equitable estate remains in the mortgagor, and every 
 incident of seisin and ownership pertains to him, whilst 
 no one of them belongs to the mortgagee. For purposes 
 of taxation, inheritance, execution, sale, and protection 
 from trespass, the mortgagor's title is treated as if the 
 mortgage had not been made. In all respects, he is the 
 sole and absolute owner of the estate; an incumbered 
 estate, but nevertheless a complete legal and equitable 
 estate. The mortgagee, on the other hand, has only a 
 cliose in action, a security for debt, which may be trans- 
 ferred by parol, and which, at his death, descends to his 
 administrator as mere personalty.^ 
 
 § 337. Every conveyance of land which is in fact a 
 security, either for an antecedent debt, or for advances 
 made at the time, is, in contemplation of equity, a 
 
 ^ Asay V. Hoover, 5 Barr, 35; Rickert v. Madeira, 1 Rawle, 325; Claason's 
 Appeal, 10 Harris, 363. 
 
 ^ Blocker v. Blocker, 11 Leg. Int. 62; Presbyterian Corporation v. Wallace, 
 3 Rawle, 127-30. 
 
286 MORTGAGES. 
 
 mortgage, and entitles the debtor to a re-conveyance of 
 the estate, on payment of the debt. This right is one of 
 pure equity, not only independent of the agreement be- 
 tween the parties, but paramount to it, and may be en- 
 forced without regard to the form of the conveyance, 
 and even in opposition to its terms. It has long been 
 well settled, under this doctrine, that where a deed ab- 
 solute on its face is conditioned to be void on the pay- 
 ment of a debt, at a day certain, payment may be made 
 after the day, although in direct contravention of the 
 deed. The general rule is, that every one may renounce 
 a right introduced for his own benefit. But no waiver 
 or renunciation by the mortgagor of the right of re- 
 demption, however express, will be allowed to defeat or 
 even impair his power of exercising it himself, or trans- 
 ferring it to others. It has its origin in a general poHcy 
 superior to particular agreement, and is a necessary and 
 inseparable incident to every conveyance, which is in 
 substance a security for a debt.^ 
 
 § 338. There is, however, no principle of law or equity, 
 which prohibits a conditional contract for the sale of real 
 or personal property, or forbids a vendor to make an ab- 
 solute conveyance of the property sold, subject to an 
 agreement, that he shall be entitled to a re-conveyance, 
 upon re-payment of the purchase money, or paying any 
 other sum certain, or capable of being reduced to cer- 
 tainty, on or before a period fixed by the terms of the 
 agreement.^ The criterion between a mortgage and a 
 conditional sale is, a redeemable quality in the grant, 
 and right to exact the whole money, if the property were 
 
 ' 2 Lead. Gas. in Eq., Am. Ed., pt. 2, p. 430; Rankin v. Mortimere, 7 "Watts, 
 375; Stoever v. Stoever, 9 S. & R. 446-7; Hiester r. Maderia, 3 W. & S. 388; 
 Wharf t). Howell, 5 Binn. 503; Colwell v. Woods, 3 Watts, 196. 
 
 - 2 Lead. Gas. in Eq., Am. Ed. pt. 2, p. 437. 
 
MORTGAGES. 287 
 
 of less value than the money advanced.^ But in Penn-- 
 sylvania it has been determined, that a conveyance and 
 simultaneous covenant to re-convey on re-payment of the 
 purchase money before a given day, must be construed 
 to be a mortgage, though it appear by parol that the 
 parties did not intend it to be so; and that it is not com- 
 petent to the parties to prove by parol, that the defea- 
 sance was a subsequent and independent agreement.^ 
 
 § 339. It is a necessary result of the doctrine, that the 
 right of redemption attached by chancery to every deed 
 made merely as a security, qualifies the deed itself; that 
 when an absolute deed, subject to an express or implied 
 defeasance, is recorded without the defeasance, the re- 
 cord is invalid, and consequently inoperative as notice 
 to a subsequent incumbrancer. For, under these circum- 
 stances, the instrument put on record is only a part of 
 the contract between the parties, and does not satisfy the 
 requisitions of the law, which requires that the whole 
 should be recorded.^ A mortgage thus imperfectly re- 
 corded, is void as an unrecorded mortgage, against subse- 
 quent liens. But if a purchaser or a subsequent mort- 
 gagee have notice of the fact of such a deed and defear 
 sance, he is, in equity, bound to the same extent and in 
 the same manner as the person of whom he purchased.'^ 
 
 § 340. There is no doubt that a valid mortgage may 
 be created by a written instrument not under seal.^ But 
 
 ' Stoever v. Stoever, 9 S. & R. 454; Russell's Appeal, 3 Harris, 322. See 
 Colwell V. Woods, 3 Watts, 197; Brown v. Niokle, 6 Barr, 391. 
 
 2 Brown v. Niokle, 6 Barr, 391; Woods v. Colwell, 3 Watts, 196; Korr v. 
 Gilmore, 6 Watts, 405; Woods v. Wallace, 10 Harris, 176. 
 
 ' 2 Lead. Cas. in Eq., Am. Ed. pt. 2, p. 443; Priedley v. Hamilton, 17 S. k 
 R. 70. 
 
 * Jacques v. Weeks, 7 Watts, 261; Manufacturers and Mechanics' Bank v. 
 Bank of Pennsylvania, 7 W. & S. 335. 
 
 ^ Woods V. Wallace, 10 Harris, 171. 
 
288 MORTGAGES. 
 
 there can be no such thing in Pennsylvania, as a valid 
 and efficacious parol mortgage by deposit of the title 
 deeds; whether considered as a conveyance of lands, as 
 it may ultimately prove to be, or as a lien upon lands, 
 which is its ordinary state, a parol mortgage is contrary 
 to the spirit of our legislation, in the statute of frauds, 
 in the acts for recording of mortgages, and to the uniform 
 current of decisions on these subjects.-^ In case of an 
 equitable mortgage, which may be created by a written 
 agreement and deposit of the title papers, a chancellor 
 will decree a sale of the land in payment of the debt ; for 
 it is but a security for the debt, and does not vest any 
 interest, or estate, in the land itself. The equitable 
 mortgagee cannot by any process obtain possession, for 
 an ejectment will not lie as on a legal mortgage;^ nor, 
 it seems, could he maintain a scire facias, under the 
 act of 1705, whereby the mortgaged premises might be 
 taken in execution, and sold for payment of the debt.^ 
 
 § 341. Though there have been some doubts enter- 
 tained of the effect of a mortgage to secure the mortgagee 
 against debts or responsibilities not then incurred, and 
 therefore not appearing of record; yet it seems to be 
 settled, that a mortgage or judgment may be taken and 
 held as a security for future advances and responsibilities 
 to the extent of it, when this is a constituent part of the 
 original agreement; and the future advances will be 
 covered by the lien, in preference to a claim under a 
 junior intervening incumbrance, with notice of the agree- 
 ment. A mortgage is always good to secure future loans, 
 when there is no intervening equity. It is necessary, 
 
 ' Shitz V. Dieffenbacli, 3 Ban-, 234; Bowen v. Oyster, 3 Penn. R. 240-1; 
 Insurance Co. v. Union Canal Co., Bright. R. 51. 
 ^ Rickert v. Madeira, 1 Rawle, 327-8. 
 ' Insurance Co. v. Union Canal Co., Bright. R. 51. 
 
MORTGAGES. 289 
 
 however, that the agreement, as contained in the record 
 of the lien, should give all the requisite information of 
 the extent and certainty of the contract, so that a junior 
 creditor may, by inspection of the record, and by com- 
 mon prudence and ordinary diligence, ascertain the ex- 
 tent of the incumbrance.^ Utjs_ only 3rh.erethe^ rights 
 of third , persons are prejudiced by want of notice, that 
 the extent of the security is prevented.^ 
 
 § 342. It may also be regarded as settled, that when 
 such mortgagee makes future advances, upon the faith of 
 his incumbrance, with actual notice of a new intervening 
 incumbrance, the latter will be entitled to a preference. 
 And where the party is under no obligation, by his con- 
 tract, to make such future advances, he is bound, before 
 doing so, to look to the existing state of the record; and a 
 junior intervening incumbrancer will have a preference, 
 in such cases, over the lien of the mortgagee for such 
 future advances.* Where, however, the obligation to 
 make such future advances, is a constituent part of the 
 agreement, the prior mortgagee will be entitled to a pre- 
 ference, whether he have notice or not of the junior in- 
 tervening incumbrance; and the junior incumbrancer 
 will only be preferred where he has no notice, or means 
 of knowing the agreement under which such future ad- 
 vances have been made.* And if there be a covenant to 
 make such future advances, it matters not that it is con- 
 tained in a separate unrecorded instrument.* 
 
 ^ Garber v. Henry, 6 Watts, 59; Lyle M. Ducomb, 5 Binn. 585; Irwin «. 
 Tabb, 17 S. & R. 422. 
 
 ^ James v. Johnston, 6 Johns. Ch. 429; Trusoott v. King, 2 Seld. 161. 
 ' Ter Hoven v. Kerns, 2 Barr, 96. 
 
 * Parmentier v. Gillespie, 9 Barr, 86; Ter Hoven v. Kerns, 98-9; Trusoott 
 V. King, 2 Seld. 157. 
 
 * Moroney's Appeal, 3 Am. L. R. 169. 
 
290 MORTGAGES. 
 
 § 343. The right of redemption exists, not only in the 
 mortgagor himself, but in his heirs and personal repre- 
 sentatives, and assignees, and in every other person who 
 has an interest in, or a legal or equitable lien upon the 
 lands; and, therefore, a tenant in dower or jointress, a 
 tenant by the curtesy, a remainder-man or reversioner, a 
 judgment creditor or any other incumbrancer, may re- 
 deem.^ In a bill to redeem a mortgage, it is essential that 
 the plaintiff offer to pay to the defendant his debt, in- 
 terest, and costs ; for such an offer is a condition precedent 
 to any interference with the existing legal rights of the 
 defendant.^ But the mortgagee or his assignee can re- 
 cover no more than the principal, interest, and costs due 
 on the mortgage, on payment of which the court will 
 stay proceedings on the scire facias. In Pennsylvania 
 a simple contract debt cannot be tacked to a mortgage.^ 
 And when once paid by the principal debtor, a mortgage 
 is extinguished, and cannot be kept alive by assignment 
 in fraud of his rights.* 
 
 § 344. In Pennsylvania the legislature, as early as 
 1705, provided a remedy for the foreclosure of a mortgage 
 by writ of scire facias, whereby the mortgagee can in all 
 cases, after the expiration of one year from the time the 
 mortgage became payable, have a judgment or decree 
 for the sale of the mortgaged premises; and such sale 
 will pass a title to the purchaser freed and discharged 
 from the mortgagor's equity of redemption.^ Our action 
 upon a mortgage is a substitute for the chancery remedy 
 by bill of foreclosure, and it is not unreasonable to look 
 to the chancery practice for the principles that govern 
 
 1 4 Kent's Com. 162. ^ Lanning v. Smith, 1 Pars. 16-17. 
 
 ' Dorrow V. Kelly, 1 Ball. 142. ' Kinley i\ Hill, 4 W. & S. 426. 
 
 s Purd. Dig. 234-5. 
 
MORTGAGES. 291 
 
 the remedy, except so far as these principles are expli- 
 citly or implicitly altered by our acts of assembly. For 
 the defences that may be set up, we must look almost 
 exclusively to chancery practice ; bearing in mind, how- 
 ever, some substantial differences in our remedy, by 
 which some of the chancery defences are necessarily ex- 
 cluded. Thus, in equity, a party has a right to bring 
 his bill of foreclosure, on the first default in making 
 payments ; yet the court will stay the foreclosure on the 
 defendant paying the instalments due, with interest and 
 costs, and will allow the decree of foreclosure to be en- 
 tered, and to remain subject to the order of the court on 
 the next default.^ But under our practice, where a 
 mortgage is given to secure payment of money by in- 
 stalments, a scire facias cannot be issued, until the whole 
 becomes due ; ^ except there be a stipulation, that on non- 
 payment of any instalments the mortgagee may sue out 
 a scire facias immediately : ^ unless there be such a stipu- 
 lation, the only remedy to recover the several instal- 
 ments is by ejectment upon the mortgage, or by action 
 upon the accompanying bond.* 
 
 § 345. If the mortgagee suffer the mortgagor to re- 
 main in possession for twenty years after breach of the 
 condition, without any payment of interest, or any ad- 
 mission of the debt, the right to a foreclosure will gene- 
 rally be deemed to be barred and extinguished.^ A pre- 
 sumption of payment from lapse of time, arises in the 
 case of every species of security for the payment of 
 money, whether bond, mortgage, judgment, or recogni- 
 sance ; and the computation runs from the period when 
 
 ' Ewart V. Irwin, 1 Leg. Int. 134. _ ^ Fiokes v. Ersick, 2 Rawle, 1G6. 
 
 s Huling V. Drexell, 7 Watts, 126." * Fickes v. Ersick, 2 Eawle, 166. 
 
 = 2 Story's Eq. ? 1028 b. 
 
292 MORTGAGES. 
 
 the money was demandable.^ But this, like other pre- 
 sumptions, must yield and give way before any circum- 
 stances and facts, on which the mind can satisfactorily 
 rest, by which it is rebutted or repelled. It has not 
 the power or effect of a positive statutory enactment of 
 limitation or oblivion, which extinguishes the original 
 demand and requires a new promise to pay, or its equi- 
 valent. The mind must be free to admit the presump- 
 tion, and if the exhibition of facts or circumstances in- 
 terdict and forbid the conclusion, its protection is re- 
 moved.^ 
 
 § 346. It is also a settled rule of equity, that if a 
 mortgagor permit the mortgagee to hold possession for 
 twenty-one years, without accounting, or without admits 
 ting that he possessed the mortgage title only, the mort- 
 gagor loses his right of redemption, and the title of the 
 mortgagee becomes as absolute in equity as it previously 
 was at law. Chancery will not interfere in favour of 
 the mortgagor after twenty-one years, where the entry 
 of the mortgagee was equivocal, or only under his defea- 
 sible legal title, or where no account has been rendered 
 or demanded, or other acknowledgment of privity, trust, 
 or subjection to the claim of the mortgagor.^ A chan- 
 cellor applies the statute of limitations, in such cases, 
 with the same substantial effect that it receives in a 
 court of law.* 
 
 § 347. It is not now to be questioned that a mortgage, 
 being considered and treated as a mere security for the 
 payment of money, or the performance of some other 
 
 ^ Diemer v. Sechrist, 1 Penn. E. 420; Foulk r. Brown, 2 Watts, 214; In- 
 graham V. Cox, 1 Para. 7C; Wilkinson's Estate, Ibid. 175. 
 ' Eby V. Eby, 5 Ban-, 437-8. 
 
 » Cromwell v. Bank of Pittsburgh, 2 Wall. Jr. 578. 
 * Hamilton v. Hamilton, 6 Harris, 22. 
 
MORTGAGES. 293 
 
 act, is simply a chose in action extinguishable by a parol 
 release, which equity will execute as an agreement not 
 to sue, or by turning the mortgagee into a trustee for 
 the mortgagor; provided it proceed upon a sufficient 
 consideration. Nor can it be doubted that such a re- 
 lease or agreement may be established, presumptively, 
 by showing declarations and acts of the parties inconsis- 
 tent with the averment of the continued existence of the 
 mortgage, and repugnant to the rights and liabilities 
 created by it, as well as by express proofs And in ge- 
 neral, the satisfaction of the principal debt, by payment 
 or otherwise, will be deemed in equity an extinguish- 
 ment of the mortgage.^ There is no doubt, however, 
 that a mortgage may be kept alive, even after payment 
 in full, if such were the intention of the parties, and 
 even though there be no actual assignment to a trustee, 
 ifquily-will consider that as actually done which was 
 agreed to be done, and not suffer the trust to fail for 
 want of a trustee. l]But this is under the necessary ex- 
 ception that the rights of third persons, strangers, inter- 
 veniiig^"af e not affected ; for if they have equal equity, 
 anTrtheTaw be on their side, they must prevail in such 
 a contest.^ 
 
 § 348. A mortgage will also, in general, be extin- 
 guished, where the mortgagee becomes the purchaser of 
 the equity of redemption ; for in such case it is a mat- 
 ter of indifference to the party, in whom the interests 
 are united, whether the charge should or should not sub- 
 sist.* But it will have that effect in no case in which it 
 is the interest and intent of the incumbrancer to keep the 
 
 • Ackla V. Ackla, 6 Barr, 230. ^ Kinley v. Hill, 4 W. & S. 426. 
 
 ' Wilson V. Murphy, 8 Leg. Int. 106; Mead v. York, 2 Seld. 449; Trusoott v. 
 King, Ibid. 147. 
 
 * Helmbold v. Man, 4 Wh. 422. 
 
294 MORTGAGES. 
 
 incumbrance afoot.'' A merger is not favoured in equity, 
 and is never allowed unless for special purposes, and to 
 promote the intention of the party. It is only in those 
 cases where it is perfectly indifferent to the party in 
 whom the interests are united whether the charge should 
 or should not subsist, that in equity the term is merged.^ 
 § 349. In a suit to foreclose a mortgage, one who 
 claims adversely to the title of the mortgagor, cannot 
 properly be made a party defendant, for the purpose of 
 trying the validity of such adverse claim or title. So 
 far as mere legal rights are concerned, upon a bill of 
 foreclosure, the only proper parties to the suit are the 
 mortgagor and mortgagee, and those who have acquired 
 rights or interests under them, subsequent to the mori> 
 gage.'' No one can be admitted to defend who would not 
 be prejudiced by the judgment; consequently, he who 
 may come in as a terre tenant must have an estate from 
 the incumbrancer, which might be bound by the incum- 
 brance, whether judgment, mortgage, or recognisance.* 
 Strictly speaking, only the debtor's subsequent grantee 
 of the fee simple is a terre tenant.^ 
 
 ^ Huston V. Wickerham, 8 Watts, 523. 
 
 =i Dougherty v. Jack, 5 Watts, 458; Forbes v. Moffit, 18 Ves. 394. 
 
 ' Corning v. Smith, 2 Seld. 82; Eagle Fire Co. v. Lent, 6 Paige, 637. 
 
 * Catlin V. Eobinson, 2 Watts, 379. 
 
 5 Mitchell V. Hamilton, 8 Barr, 491. 
 
ASSIGNMENTS. 295 
 
 CHAPTER XIX. 
 
 ASSIGNMENTS. 
 
 § 350. We have already, under the head of construc- 
 tive fraud/ had occasion to consider under what circum- 
 stances assignments, in trust for the benefit of creditors, 
 (which comprise the most extensive of this class of 
 trusts,) will be deemed fraudulent or bond fide? Inde- 
 pendently of the acts of assembly prohibiting preferences 
 in assignments, there is no doubt of the right of a debtor 
 in failing circumstances to prefer one creditor to another, 
 or even to stipulate for a release on the part of the cre- 
 ditors coming in under the assignment.^ And these 
 statutes operate no further than to forbid preferences in 
 and by the instrument by which the debtor surrenders 
 to his creditors all dominion over his property : * whilst 
 a man retains dominion of his property he may incum- 
 ber and convey it as he pleases, if not directly forbidden 
 by law, and prefer such creditors, by payment or trans- 
 fer, as he chooses.^ 
 
 § 351. "When the assignment has been accepted by the 
 
 ^ Ante, §111. 
 
 ^ A general voluntary assignment, valid by the laws of the state where it was 
 made, though void in another, will carry property in that other, against an 
 attaching creditor. Caskie v. Webster, 2 Wall. Jr. 131. 
 
 ' Cameron v. Montgomery, 13 S. & R. 132; Livingston v. Bell, 3 Watts, 201. 
 
 * Wormau v. Wolfersberger, Y Harris, 59; Breading v. Boggs, 8 Harris, 33; 
 Hutchinson v. M'Clure, Ibid. 63. 
 
 ' Blakey's Appeal, 7 Barr, 451. 
 
296 ASSIGNMENTS. 
 
 assignee, he becomes a trustee for the creditors, and 
 chancery will compel the execution of the trust for their 
 benefit. The creditors, who are the cestuis que trust, 
 having acquired an equitable interest, are regarded, as the 
 persons beneficially interested in the thing which is the 
 subject of the trust; and the trustee, after an acceptance 
 of the conveyance for the purposes of the trust, cannot 
 divest himself of the legal estate by a mere refusal to 
 carry the trust into execution, or withdraw from its sup- 
 port without the consent of all the parties interested.^ 
 Nor will any subsequent fraudulent dealings between the 
 assignor and assignees have the effect of re-vesting the 
 assigned property in the assignor, or have a retroactive 
 effect, so as to avoid the assignment.^ But in order to 
 protect the property from execution, it is necessary that 
 there should be a delivery of the instrument to consti- 
 tute it a deed. To give it instant operation, does not re- 
 quire it to be put immediately into the hands of the as- 
 signee; but it is indispensable to its effect, that the as- 
 signor should part with it by putting it into a course of 
 transmission to him, either by delivery of it to a mes- 
 senger, or by a deposite of it in the post office.^ 
 
 § 352. It is a well known rule of the common law, 
 that no possibility, right, title, or thing in action, can be 
 granted to a third person. But courts of equity will 
 support assignments, not only of cJwses in action, but of 
 contingent interests and expectations, and of things 
 which have no present actual existence, but rest in pos- 
 sibility only, provided the agreements be fairly entered 
 into, and it would not be against public policy to uphold 
 
 ^ Seal V. Duffy, 4 Barr, 277-8; Klapp v. Shirk, 1 Harris, 592. See Adams' 
 Eq. 31; Watson v. Bagaley, 2 Jones, 104; Brooks c. Marbury, 11 Wheat. 78. 
 ' Klapp V. Shirk, ut supra. 
 • M'Kinney v. Rhoads, 5 Watts, 344-5. 
 
ASSIGNMENTS. 297 
 
 tliem.^ Indeed, it is no more than the familiar principle, 
 that he who executes a conveyance, on valuable consi- 
 deration, purporting to pass a title before it is in him, 
 will be bound to make it good whenever he acquire it. 
 Such a conveyance is liberally interpreted as an agree- 
 ment.'^ On this principle, an assignment of freight to be 
 earned in future, will be upheld, and enforced against the 
 party from whom it becomes due.^ Where a person, 
 having a demand due him, assigns parts of it to different 
 persons, to secure the payment to them of specific sums, 
 in succession, a court of equity has jurisdiction of a suit 
 by one of the assignees, to collect his part of the 
 demand.* 
 
 § 3-53. It was formerly held, that such assignments of 
 reversionary interests, though valid in equity, would not 
 generally be carried into effect in favour of mere volun- 
 teers, but only in favour of persons claiming for a valu- 
 able consideration.** But in the recent case, of Keke- 
 wich V. Manning,^ a more liberal and enlightened view 
 of the law upon this subject was taken. And it is now 
 held, that where the deed of assignment is complete in 
 form, and not a mere agreement or executory instrument, 
 no valuable consideration is necessary to support it. To 
 treat an actual assignment by deed as a mere agreement, 
 was a device resorted to, in the earlier efforts to get rid 
 of the legal doctrine, that no possibility, right, title, or 
 thing in action should be granted or assigned to stran- 
 
 ^ Field V. The Mayor of New York, 2 Seld. 187. Though a mere possibility 
 cannot be directly granted at law, yet it may be, by release, devise, or estoppel, 
 and is directly assignable in equity, and therefore, at law, in Pennsylvania. 
 M'Clure v. M'Clure, 7 Leg. Int. 195; Smilie's Estate, 10 Harris, 134. 
 
 ' Wilson's Estate, 2 Barr, 330. See Vint v. King, 2 Am. L. R. 721. 
 
 " Field V. The Mayor of New York, 2 Seld. 1S7. •* Ibid. 
 
 \ 1 Story's Eq. ? 1040 c. " 12 Eng. L. & Eq. 120. 
 
 20 
 
298 ASSIGNMENTS. 
 
 gers; but according to the modern doctrine, if the deed 
 of assignment be a perfect instrument, there is no room 
 for the argument against its effectiveness, founded on 
 the doctrine that an incomplete gift is invalid in equity.^ 
 Whatever may be the rule against volunteers, it does not 
 apply to the case of one who, in the language of a court 
 of equity, is termed a cestui que trust, claiming against 
 his trustee; for that which is considered by this juris- 
 diction a trust, may certainly be created gratuitously; 
 so that the absence of consideration for its creation, is in 
 general absolutely immaterial.^ 
 
 § 354. In order to constitute an assignment of a debt, 
 or other chose in action, in equity, no particular form is 
 necessary : an equitable assignment may be made by mere 
 delivery ; or, without delivery, by words of grant, or of au- 
 thority ; by the most informal appropriation in pais, or the 
 execution of the most formal conveyance. Every thing, 
 in short, which shows an intention to transfer an interest 
 of any description, and a sufficient cause or consideration 
 for the transfer, will operate as an assignment in equity. 
 
 1 Voyle V. Hughes, 23 Eng. L. & Eq. 272-5. 
 
 ' Kekewich v. Manning, 12 Eng. L. & Eq. 127. See Nesmith v. Drum, 8 
 W. & S. 10. It is no doubt well settled, that equity will not enforce an exe- 
 cutory trust in favour of volunteers. Kennedy's Executors v. Ware, 1 Barr, 
 450. A consideration of some sort is as necessary to such an agreement as 
 to any other. Whitehill v. Wilson, 3 Penn. E. 413. But it is equally well settled, 
 that where the trust is actually created, no consideration to support it is neces- 
 sary: whilst equity refuses to enforce a contract to create a trust, without a 
 valuable consideration, it enforces an executed contract with as much alacrity 
 as the law would enforce it. Dennison v. Goehring, 7 Barr, 179. It was at one 
 time doubted, by high authority, (Lord Hardwicke, in Bagshaw v. Spencer, 1 
 Yes. 152) whether every trust be not executory in its character, because equity 
 must be Invoked to give effect to the trust; a position, subsequently however, 
 abandoned by him, in Exel v. Wallace, 2 Ves. 323. In an executed trust, the 
 uses are clearly defined, and the limitations certain and final; but in executory 
 trusts, it is otherwise; the settlement of the uses requiring the intervention of 
 a, chancellor to mould them into form and shape, conformably to the intention 
 of the grantor. Greenfield's Estate, 12 Leg. Int. 7. 
 
ASSIGNMENTS. 299 
 
 whatever may be its apparent character at law.^ Thus, a 
 draft upon a particular fund in the hands of an attorney 
 for collection, is an equitable assignment of it, though not 
 accepted by the attorney. An equitable assignment is an 
 agreement in the nature of a declaration of trust, which a 
 chancellor never hesitates to execute when it has been 
 made on a valuable, or even good consideration.^ After 
 such assignment, the fund will not be liable to attachment 
 for the debt of the assignor; ^ and payment to the original 
 creditor, after notice of the assignment, would constitute 
 no defence to a suit by the assignee.* An assignment of 
 a promissory note transfers to the holder the rights of 
 the assignor, at a price presumed to be no more than 
 equal to the value of the claim against the maker, taking 
 into consideration his character for punctuality and his 
 ability to pay. On such a transfer the assignor is re- 
 sponsible for nothing but the genuineness of the claim.^ 
 § 355. It is a principle of equity, settled by many de- 
 cisions, that the assignment of a debt carries with it all 
 the creditor's securities for it; and the assignee will be 
 entitled to the full benefit of such securities, unless it be 
 otherwise agreed between the parties.® Thus, the as- 
 signee of one of several obligations secured by a mort- 
 gage, acquires an equitable interest in the collateral se- 
 curity of the mortgage pro tanto; he is a purchaser of 
 all the securities of his assignor, and of all his remedies ; ' 
 and this, though the assignee were not aware of the ex- 
 
 * M'llree v. Guy, 11 Leg. Int. 91. ^ Nesmith v. Dunn, ut supra. 
 » Ibid.; King V. Gorsline, 4 Cr. C. C. 150. 
 
 * Field V. The Mayor of New York, 2 Seld. 179. 
 
 * Lyons v. Divelbis, 10 Harris, 189. And see Gompertz v. Bartlett, 24 Eng. 
 L. & Eq. 156; Gurney v. Womersley, 19 Jurist, 329; s. c. 3 Am. L. R. 502. 
 
 ^ Foster v. Fox, 4 W. & S. 94; Fitzsimmons' Appeal, 4 Barr, 251; Bank v. 
 Fordyce, 1 Barr, 455. ' Roberts v. Halstead, 9 Barr, 34-5. 
 
300 ASSIGNMENTS. 
 
 istence of the mortgage, at the time he purchased.-^ But 
 the right of an assignee to have the ancillary securities 
 of the debt, is only an equity resulting from a presump- 
 tion of intention that they should pass as accessaries of 
 the principal; and it may consequently be rebutted by 
 parol evidence that they were to be retained. Parol 
 evidence is indisputably proper to rebut a presumption 
 or an equity. A right to the benefit of the concomitant 
 securities, is an equity which can be enforced only by a 
 chancellor; and an agreement to waive it ought equally 
 to be enforced by him.^ 
 
 § 356. In England and some of our sister states, there 
 is a check to the power of alienation of a right or interest 
 in land, taken from the statute of 32 Hen. VIII. ch. 9, 
 against selling pretended titles. It is there held, that 
 every grant of land, except a release, is void, if at the 
 time the lands be in the actual possession of another 
 person, claiming under a title adverse to that of the 
 grantor; but this doctrine does not prevail in -Pennsyl- 
 vania.^ From the equality of condition of persons in 
 this country, there is no danger of maintenance from the 
 interference of powerful individuals, and the abundance 
 and cheapness of land, rendered it necessary, at an early 
 period, to admit of its transfer with almost the same 
 facility as personal property.* It was chiefly on the 
 ground of champerty and maintenance, that the courts 
 of common law refused to recognise the assignment of 
 debts and other rights in action; though the same doc- 
 trine does not prevail in equity. And it is well settled 
 
 ^ Betz V. Heebner, 1 Penn. R. 280; Cathcart's Appeal,,! Harris, 421. 
 
 ^ Bank v. Pordyce, 9 Barr, 278-9. 
 
 ^ Cresson v. Miller, 2 Watts, 275 ; Humes i\ M'Farlane, 4 S. & R. 435 ; 
 Girard v. City of Philadelphia, 2 Wall. Jr. 306; Dewitt f. Eldred, 4 W. & S. 
 419. The law against maintenance has never been adopted in this state. 
 M'Kissick v. Pickle, 4 Harris, 149-50. 
 
 * Steover v. Whitman, 6 Binn. 421. 
 
ASSIGNMENTS. 301 
 
 by a numerous train of decisions, that in this state a 
 party may purchase, by assignment, the interest of ano- 
 ther in a contract, or other security, which is the subject 
 of a pending action.^ 
 
 § 357. There are, however, hmits to this doctrine. 
 Thus, a mere right of action for a personal tort, is not 
 assignable ; ^ nor is a bare right to file a bill in equity 
 for a fraud committed upon the assignor.^ Indeed, it 
 has been laid down as a general rule, that where an 
 equitable interest is assigned, in order to give the 
 assignee a standing in a court of equity, the party assign- 
 ing such right must have some substantial possession, 
 and some capability of pei'sonal enjoyment, and not a 
 mere naked right to overset a legal instrument, or to 
 maintain a suit.* Thus, where a party assigns his whole 
 estate, and afterwards makes an assignment generally of 
 the same estate to another person, a court of equity will 
 not sustain a bill by the second assignee to set aside the 
 first assignment as fraudulent and void, the assignor 
 himself not joining in the prayer for relief.^ In this 
 state, however, the trustees of an insolvent debtor may 
 recover property fraudulently transferred by him prior to 
 his discharge under the insolvent laws.'^ And it may be 
 observed, that the mere fact that a claim is disputed, will 
 not forbid its transfer or assignment, nor will public 
 policy avoid such a sale, simply because it may become 
 necessary in the assignee to set aside the fraud of the 
 debtor, in order to effectuate his purchase.'' 
 
 ' See 1 Wh. Dig. 929. ' North v. Turner, 9 S. & R. 248. 
 
 ^ Prosser v. Edmonds, 1 Younge & Coll. 481; Morrison v, Deaderiok, 10 
 Humph. 342; 1 Pars, on Cont. 194. * 2 Story's Eq. ^ 1040 g. 
 
 '^Prosser v. Edmonds, 1 Younge & Coll. 481; Morrison v, Deaderick, 10 
 Humph. 342. 
 
 ' Moncure v. Hanson, 3 Harris, 385 ; Thomas v. Phillips, 9 Barr, 355. 
 
 ' Calcote V. Stanton, 3 Am. L. R. 48; Hoyt v. Thompson, 1 Seld, 34T. 
 
302 WILLS. 
 
 CHAPTER XX. 
 
 WILLS AND TESTAMENTS. 
 
 § 358. We will now pass to the consideration of trusts 
 created by last wills and testaments ; such as trusts for 
 securing the rights of infants and married women, for the 
 payment of debts and legacies, for the sale of real estate, 
 or for objects of charity. Many trusts also arise under 
 wills by implication of law : but however created they 
 are cognizable in a court of equity; and, in this state, 
 the various orphans' courts have concurrent jurisdiction 
 in all cases of testamentary trusts. 
 
 § 359. In the first place, as we have already seen,^ 
 trusts are often created by will, without the designation 
 of any person to execute them. Now it is a settled doc- 
 trine in courts of equity, that a trust shall never fail for 
 want of a proper trustee ; and accordingly, our courts are 
 authorized to appoint a trustee, "in any case in which a 
 trust shall have been created and no person appointed, 
 either byname or description, to execute the same." ' And 
 by another statute it is provided, that "all powers, autho- 
 . rities, and directions, relating to real estate, contained in 
 any last will, and not given to any person by name or 
 description, shall be deemed to have been given to the 
 executors thereof; but no such power, authority, or di- 
 rection, shall be exercised or carried into effect by them, 
 
 ' Ante, I 320. ' Purd. Dig. 804. 
 
WILLS. 303 
 
 except under the control and direction of the orphans' 
 court having jurisdiction of their accounts."^ 
 
 § 360. Tlae same statute declares, that "the executors 
 of the last will of any decedent, to whom is given thereby 
 a naked authority only to sell any real estate, shall take 
 and hold the same interests therein, and have the same 
 powers and authority over such estate, for all purposes 
 of sale and conveyance, and also of remedy by entry, by 
 action or otherwise, as if the same had been thereby de- 
 vised to them to be sold, saving always, to every testa- 
 tor, his right to direct otherwise."^ This act converts 
 the power into an interest, but it also restricts the in- 
 terest to the limits of the power. It gives the executors 
 the legal estate in the land, only for the purpose of 
 effecting a sale, but not for the purpose of receiving 
 and recovering the rents and profits; nor does it invest 
 them generally with the Control and management of 
 the testator's real estate. The estate of the executors 
 may, like that of trustees to protect contingent remain- 
 ders, attend on that of the heirs until an occasion occurs 
 which requires its exercise, and then come into operation 
 with full force and efficiency; or it may be viewed in 
 the light of an executory devise, or springing use, which 
 has no being until the occurrence of the event on which 
 it is limited.^ The like powers are given to a surviving 
 or acting executor; and to an administrator with the will 
 annexed.* 
 
 § 361. No statute of Pennsylvania, however, empowers 
 an administrator with the will annexed, to execute a 
 trust of land confided to an executor by title or by name, 
 for any other purpose than to sell for payment of debts. 
 
 » Act 24 February 1834, § 12; Ibid. 194. ^ Ibid. 194. 
 
 ' Bliglit V. Wright, 12 Leg. Int. 62. • Purd. Dig. 194-5. 
 
304 WILLS. 
 
 By force of the act of 1834, he may execute a power to 
 sell, in order to bring the land into a course of administra- 
 tion, but not to execute a trust for a collateral purpose ; 
 for instance, to manage the property and invest the pro- 
 ceeds for accumulation ; or to maintain the widow and 
 children; or to turn the land into money for the con- 
 venience of partition; or to exercise any discretionary 
 power confided to his predecessor in the administration 
 for his personal fitness and fidelity. For purposes purely 
 administrative, the statute gives the devise of a power, 
 the effect of a devise of the title, and puts an adminis- 
 trator with the will annexed on a footing with a sur- 
 viving executor, but not on a footing with a testamen- 
 tary trustee.^ 
 
 § 362. The intent of the statute was, to prevent the 
 object of a power given to several, from being frustrated 
 by the death or renunciation of one or all of them; not 
 to vest the execution of an unofficial trust in a stranger 
 to the testator's confidence. True it is, that for the pur- 
 pose of selling, or otherwise, the act gives a surviving 
 executor, and consequently an administrator with the 
 will annexed, the same interest in, and power over the 
 estate, as all the executors might have exercised for the 
 same purpose; but as trusts survive on the principles of 
 joint-tenancy, the section seems to have been enacted, as 
 to them, ex majori cautela; or for such as are annexed to 
 an ordinary administration, not to those which might as 
 well have been placed elsewhere. On the foot of the 
 maxim, that when different rights meet in the same per- 
 son, they are to be treated as if they were in different 
 persons; courts of equity, recognising the union of exe- 
 cutor and trustee in the same individual, reddendo sin- 
 
 ' Ross V. Barclay, 6 Harris, 183-4. 
 
WILLS. 305 
 
 gula singulis, have considered real estate directed to be 
 sold for payment of debts, as equitable assets, and con- 
 sequently as the subject of a trust. Now the object of 
 the statute was to make lands legal assets in all cases ; 
 not to confound the distinction between trusts and pow- 
 ers. With us land has perhaps always been legal assets, 
 and when a trust is created to bring it into a course of 
 administration, it is proper that an administrator should 
 succeed to the execution of it; but the statute was not 
 intended for a trust unconnected with an executor's or- 
 dinary duties.^ 
 
 § 363. On the same equitable principle, that a trust 
 shall not fail for want of a proper trustee, it is held, that 
 where a power of appointment is given by will, to dis- 
 tribute property among certain classes of persons, as 
 among relations of the testator, the power is to be treated 
 as a trust; and if the party die without executing it, a 
 court of equity will distribute the property among the 
 next of kin.^ Where a power is in the nature of a trust, 
 that is, where its execution is essential to give effect to 
 rights of property, vested or intended to be vested in 
 others, its fulfilment is regarded as a duty which may be 
 compelled ; and, of course, the subject will, in the mean- 
 time, be impressed with the incidents of equitable con- 
 version. But there is no room for the operation of this 
 rule where the beneficiaries are themselves clothed with 
 the privilege of decision, not to defeat the estate of any 
 one of them, but to determine the shape in which it shall 
 vest in possession; in such cases no conversion takes 
 place until the power be actually exercised.^ 
 
 § 364. It is a general rule that, in the execution of a 
 
 1 Ibid. 184. ' 2 Story's Eq. | 1061. 
 
 " Nagle's Appeal, 1 Harris, 263. 
 
306 WILLS. 
 
 power, tlie donee of the power must clearly show that 
 he means to execute it, either by a reference to the power, 
 or to the subject matter of it; for if he leave it uncer- 
 tain whether the act be done in execution of the power 
 or not, it will not be construed to be an execution of the 
 power.^ Three classes of cases have been held to be 
 sufficient demonstrations of an intention to execute a 
 power. 1. Where there has been some reference to the 
 power in the instrument of execution. 2. Where there 
 has been a reference to the property which was the sub- 
 ject on which it was to be executed. 3. Where the in- 
 strument of execution would have no operation what- 
 ever, except as an execution of the power.^ Where the 
 donee of a power to sell land possesses also, an interest 
 in the subject of the power, a conveyance by him, with- 
 out actual reference to the power, will not be deemed an 
 execution of it, except there be evidence of an inten- 
 tion to execute it ; but where the donee has no estate in 
 the premises, and his conveyance can only be made ope- 
 rative by treating it as an exertion of the power to sell, 
 it will be so considered.^ 
 
 § 365. A general power of appointment is, in regard 
 to the estates which may be created by force of it, tan- 
 tamount to a limitation in fee, not merely because it 
 enables the donee to limit a fee, which a particular power 
 may also do, but because it enables him to give the fee 
 to whomsoever he pleases. He has an absolute dis- 
 posing power over the estate, and may bring it into the 
 market whenever his necessities or wishes lead him to 
 do so. But a power to sell implies a power to mortgage, 
 
 1 2 Story's Eq. § 1062 a. 
 
 ' WetheriU v. Wetherill, 6 Harris, 271 ; M'Konkey's Appeal, 1 Harris, 259. 
 
 ' Jones V. Wood, 4 Harris, 42-3; Hay i'. JIayer, 8 Watts, 209. 
 
WILLS. 307 
 
 a mortgage being a conditional sale, and it would seem, 
 for the same reason, that a power to charge will not im- 
 ply a power to mortgage.^ It is a settled rule in equity, 
 that powers appendant may be exercised at different 
 times, over different portions of the land made subject 
 to them, and also over different portions of the estate, 
 the only consequence of a partial execution, as to the 
 estate, being to postpone the right of possession under a 
 future exercise of the power over the residue of the 
 estate, until the termination of the estate created in the 
 first instance; but this does not suspend the right to 
 execute the residue of the power, and perfect the title 
 to the estate granted. Thus, a power to sell, mortgage, 
 or devise in fee, is not exhausted by mortgaging the 
 estate, but the donee may devise the same, subject to 
 the mortgage.^ 
 
 § 3'66. A power to appoint by will the proceeds of 
 land directed to be sold, is not well executed by a will 
 devising the land itself; because no power is thereby 
 given over the corpus of the estate, but it is a limited 
 one, and expressly confined to the proceeds.^ It is, 
 however, by no means a necessary result of this doctrine, 
 that a power to appoint the lands is not well executed 
 by a direction to sell and an appointment of the proceeds. 
 A power over the corpus of the estate is a more general 
 one, and may well include an authority to direct a sale. 
 It was accordingly ruled, by Sir William Grant, M. E., 
 in Kenworthy o. Bute,* that a power of appointing real 
 
 ■* Lancaster v. Dolan, 1 Rawlej 248. 
 
 ^ Asay V. Hoover, 5 Barr, 36. A power to appoint, by deed or will, does not 
 constitute two separate and distinct powers, but is a single power, with a 
 restriction on its exercise, requiring it to be exercised by one or other of two 
 instruments, but leaving to the donee the option, within the limits of that 
 restriction, to choose which instrument he will use in exercising the power. 
 Evans v. Saunders, 19 Jurist, 265; s. c. 3 Am. L. E. 509. 
 
 • Woods' Estate, 1 Barr, 370. * 6 Ves. Jr. 793. 
 
308 WILLS. 
 
 estate, is well executed by a devise to trustees to sell, 
 and an appointment of the money produced by the sale. 
 And he there remarks, that the cases of Thwaytes v. Dye,^ 
 Koberts v. Dixall,^ and Long v. Long,^ must have been 
 ill decided, if it be true that, substantially, a power to 
 appoint land can be executed in no other way than by 
 limiting the land itself The principle of these cases 
 has been since recognised in Trollope v. Linton,* where 
 it was held, that a power to appoint lands to children for 
 such estates, and in such manner and form as the donee 
 should, by deed or will, appoint, was well executed by 
 an appointment to trustees for a term of five hundred 
 years, upon trust to raise portions for the younger chil- 
 dren; and that the words, "in such manner and form," 
 authorized him to give equitable interests to the children.^ 
 § 367. Money appointed by will, under a general power 
 to appoint for any purpose, is held by English chancellors 
 to be equitable assets for payment of the appointor's 
 debts; but such is not the doctrine of the courts of Penn- 
 sylvania. Such a fund is certainly not legal assets, for 
 it does not go into the executor's hands in a course of ad- 
 ministration. It could not be a part of the appointor's 
 effects while he was living, and it cannot be so when he 
 is dead; for a title which did not vest in him when he 
 had a capacity to take, could not vest in him when his 
 capacity was lost. Yet an English chancellor intercepts 
 the money on its way to the appointee, and applies it to 
 the appointor's debts, not as an actual part of his effects, 
 but on what, according to the chancellor's notion of jus- 
 
 ' 2 Vern. 80. ' 2 Eq. Cas. Ab. 668. 
 
 » 5 Ves. Jr. 44i. * 1 S. & S. 477. 
 
 ' The same doctrine was held in Palmer v. Wheeler, 2 Ball & B. 28; Bullock 
 V. Flodgate, 1 Vea. & B. 478. And see Sugden on Powers, 510; Chance on 
 Powers, § 1285. 
 
WILLS. 309 
 
 tice, ought to have been made so for the benefit of his 
 creditors. There is such flagrant injustice in applying 
 the bounty of a testator to the benefit of those for whom 
 it was not intended, that the mind revolts from it. An 
 appointee derives title immediately from the donor of the 
 power, by the instrument in which it was created; and 
 consequently not under, but paramount to the appointor, 
 by whom it was executed : by reason of which it is im- 
 possible to conceive that the appointor's creditors have 
 an equity. A man who is employed to manage the 
 conduit-pipe of another's munificence, is authorized by 
 a general power of disposal to turn the stream of it to 
 any person or point within the compass of his discretion ; 
 and his creditors have no right, in justice or reason, to 
 control him in performing his function, because it was 
 not assigned to him as their trustee. It is the bounty of 
 the testator, and not the property of his steward, that is 
 to be dispensed.^ 
 
 § 368. In the administration or distribution of assets, 
 it is sometimes difficult to say who are the parties en- 
 titled to take, and to point out the exact limitation of 
 their respective interests. In such cases courts of equity 
 exercise a beneficial jurisdiction, by which the cross- 
 equities, and the conflicting claims of the various claim- 
 ants, are settled and equitably adjusted. Embarrassing 
 questions also arise in respect to the persons who are en- 
 titled to take under words of general description. As, 
 for example, where there was a bequest of a residue to a 
 daughter, and at her death, within age, to the testator's 
 "nearest relations or connections, according to the laws 
 of the commonwealth;" it was held, that these words did 
 not include his widow.^ 
 
 1 Com. V. Duffield, 2 Jones, 279-80. ^ Storer v. Wlieatley, 1 Barr, 506. 
 
310 WILLS. 
 
 § 369. It frequently happens, that an absolute gift of 
 property is made to a person by will, accompanied by 
 expressions, indicating a wish on the part of the testator, 
 that certain other parties should participate in the bene- 
 ficial enjoyment. The strong disposition of the courts to 
 give effect to the intentions of testators gave rise, in Eng- 
 land, to a species of trusts founded on expressions of this 
 nature, and differing in some respects from absolute 
 trusts. These recommendatory trusts were enforced in 
 favour of the particular objects or purposes thus desig- 
 nated, although they might be insufficient to impress the 
 gift with the character of a trust generally.^ After some 
 conflict of decision, this doctrine has been much modified 
 in Pennsylvania, and it is here settled that words in a 
 will expressive of desire, recommendation, and confidence, 
 are not words of technical, but of common parlance, and 
 are not, prima facie, sufficient to convert a devise or be- 
 quest into a trust ; and that the old Koman and English 
 rule on this subject is not part of the common law of 
 Pennsylvania. But such words may amount to a decla- 
 ration of trust, when it appears from other parts of the 
 will that the testator did not intend to commit the estate 
 to the devisee or legatee, or the ultimate disposition of 
 it to his kindness, justice, or discretion.^ 
 
 § 370. It will be proper here, to consider the doctrine 
 of courts of equity respecting election and satisfaction, 
 
 ^ Hill on Trustees, Yl. See Lomax v. Eipley, 19 Jurist, 272; s. c. 3 Am. 
 L. R. 510. 
 
 ^ Pennock's Estate, 8 Harris, 268, 280. The point to be decided in all such 
 cases is, whether, looking at the whole context of the will, the testator has 
 meant to impose an obligation on his legatee to carry his express wishes into 
 effect; or whether, having expressed his wishes, he has meant to leave it to the 
 legatee to act on them or not at his discretion. Williams c. Williams, 5 Eng. 
 L. & Eq. 49-50. 
 
WILLS. 311 
 
 which, in practice, arises frequently, although not exclu- 
 sively, in cases of wills. Election, in the sense here 
 used, is the obligation imposed upon a party to choose 
 between two inconsistent or alternative rights or claims, 
 in cases where there is a clear intention of the person 
 from whom he derives one, that he should not enjoy 
 both.^ It is a conclusion in equity, that where any per- 
 son, having a claim on a man's estate independently of 
 him, and also a claim on his estate under his will, which 
 claims are repugnant to each other, pursues the former, 
 the latter is thereby waived or abandoned.^ 
 
 § 371. This springs from the well settled equity that 
 prohibits claims in repugnant rights, and as a consequence 
 says, that he who claims an estate or other advantage by 
 devise, shall not be permitted to disappoint any part of 
 the will, but is bound to acquiesce in all its provisions.^ 
 "No man," says Lord Alvanley, "shall claim any benefit 
 under a will, without confirming, so far as he is able, and 
 giving effect to every thing contained in it, whereby any 
 disposition is made, without reference to the circumstance 
 whether the testator had knowledge of the extent of his 
 power or not."* Thus, if one devise land entailed, or 
 under settlement, and also lands in fee simple, it is on 
 the implied condition that each party shall acquit and 
 release the other, and one who takes the fee simple un- 
 der the will, cannot claim by force of the settlement, or 
 as heir in tail.^ Lord Talbot thus states the doctrine : — 
 " Where a man undertakes to devise what he has no 
 
 1 2 Story's Eq. ? 1075. 
 
 ' Cauflman v. Cauffman, 17 S. & R. 24. 
 
 ' Prestoa v. Jones, 9 Barr, 459; Randall v. Silverthorn, 4 Barr, 176. 
 
 * Whistler v. Webster, 2 Ves. Jr. 367. 
 
 5 Noyes v. Mordant, Gilb. Eq. R. 2 ; s. o. 2 Vern. 581 ; Anon. Gilb. Eq. R. 15. 
 
312 WILLS. 
 
 power over, upon the supposition that his will will be acqui- 
 esced in, chancery will compel the devisee, if he will take 
 advantage of the will, to take entirely and not partially, 
 under it, there being a tacit condition annexed to all 
 devises of this nature, that the devisee do not disturb the 
 disposition the devisor has made." -^ And it is immate- 
 rial, whether the testator believed he had a right to dis- 
 pose of the estate, over which he had no control, or in- 
 tended to assume an arbitrary power.^ 
 
 § 372. Where there has been an acceptance under the 
 will, it operates to estop the accepting party from deny- 
 ing the title of the devisee of his own estate ; for an af- 
 firmance of part of the will by entering upon the enjoy- 
 ment of a benefit conferred by it, is a tacit repudiation of 
 all rights and claims inconsistent with the other disposi- 
 tions made by it, at least to the extent of the advantage 
 derived under it.^ By electing to take the property de- 
 vised, he thereby, ipso facto, releases all his right to that 
 given to other devisees, as completely as if he had exe- 
 cuted the most formal deed that could be devised and 
 drawn for that purpose.* 
 
 § 373. This doctrine of election is not confined to 
 wills, nor is it exclusively enforced in courts of equity. 
 In courts of law, as well as of equity, no one can claim 
 under a deed, without claiming under the whole of it, 
 or take one clause, and reject the rest : the whole must 
 be confirmed, or the whole abandoned.^ In general, 
 the law is, that a grantor is estopped by his own deed 
 to say he had no interest, when by a subsequent deed 
 
 1 Streatfield v. Streatfield, Cas. Temp. Talbot, 182-3; Hamilton v. Buck- 
 waiter, 2 Yeates, 398; Wilson v. Big-cr, 7 W. & S. 125. And see also Blake 
 r. Bunbury, 1 Ves. Jr. 523. 
 
 '' Stump V. Findlay, 2 Eawle, 174. ' Preston i\ Jones, 9 Burr, 4G0. 
 
 ' Plummer v. Neile, 6 W. & S. 93. * Stump i: Findlay, 2 Rawle, 174. 
 
WILLS. 313 
 
 he acquires a title. As where an heir apparent, having 
 the hope only of succession, conveys, during the life of 
 his ancestor, an estate which afterwards descends to 
 him, he is estopped to say that he had no interest at 
 the time of his grant. These estoppels run with the 
 land into whatever hand it comes. As, if A. make a 
 lease by indenture, of black acre, and after purchase and 
 convey it to B. ; B. is bound by this estoppel.^ These 
 estoppels are founded in law, honour, and conscience, and 
 the true reason is, that a man having received a benefit 
 in one character, (the value of the thing) shall not after- 
 wards recover the thing itself, in another character. 
 This legal and equitable principle runs through all the 
 transactions and contracts of life. As, in an action by 
 the assignee of a patentee against the patentee himself, 
 he is estopped from saying it is not a new invention, be- 
 cause he has received the benefit of it as such, and though 
 all the world else may show this, he shall not be permit- 
 ted to do it.^ 
 
 § 374. In the event of an election to take against the 
 will, a court of equity will treat the substituted devise 
 as a trust in the devisee for the benefit of the disappointed 
 claimants, to the extent of their interest therein. Chan- 
 cery, in such case, would sequester the thing devised, to 
 make compensation and satisfaction to the disappointed 
 devisee.'* "If," said Sir William Grant, "the will be in 
 other respects so framed as to create a case of election, 
 then, not only is the estate given to the heir under an 
 implied condition that he shall confirm the whole of the 
 will; but, in contemplation of equity, the testator means, 
 
 ' Trevanniou v. Lawrence, 2 Salk. 266. 
 = M'Pherson v. CunlifiF, 11 S. & R. 427. 
 ' CaufFman v. Cauffman, 17 S. & B. 25. 
 
 21 
 
314 WILLS 
 
 in case the condition shall not be complied with, to give 
 the disappointed devisees, out of the estate over which 
 he had a power, a benefit correspondent to that which 
 they are deprived of by such non-compliance. So that 
 the devise is read, as if it were to the heir absolutely, if 
 he confirm the will, if not, then in trust for the disap- 
 pointed devisees, as to so much of the estate given to 
 him as shall be equal in value to the estate intended for 
 them."^ 
 
 § 375. In such case, however, there is not an absolute 
 forfeiture of the whole of the benefit proposed to him, 
 but of so much only as is requisite to compensate, by an 
 equivalent, those claimants whom he has disappointed; 
 so that he may entitle himself to the surplus. By the 
 doctrine of sequestration to make compensation, the in- 
 tention of the testator, so far as circumstances will admit, 
 is efiected; by the doctrine of forfeiture, that intention, 
 in many cases, would be defeated. If, in Pennsylvania, 
 the forfeiture would not be exacted absolutely, still it 
 would be a forfeiture, until the party made compensation 
 and satisfaction. But though the usual course, in Eng- 
 land, is to resort to a court of equity, because at law the 
 party cannot be put to elect, yet even courts of law ap- 
 ply the principle of election ; and it is a good defence in 
 a court of law, where the party has acted upon it in such 
 a manner as to be concluded by what he has done; that 
 is, to have elected. But if it be a matter only in equity, 
 equity would grant relief in case of a recovery at law in 
 an action of dower, where the devise was in bar of dower. 
 
 ■^ Welby I: Welby, 2 Ves. & B. 190-91. The mere joinder by a legatee, 
 having a paramount estate, in a conveyance by the devisee and other owners, 
 will not preclude her claiming a legacy under the will which affected to dispose 
 of the land. Thompson v. Thompson, 7 Barr, IS. 
 
WILLS. 315 
 
 (as all devises here are, by positive law) and carry into 
 execution the trusts of the will.^ 
 
 § 376. A receipt of a legacy under the will, has never 
 been held to be a forfeiture of the right to the thing which 
 is acquired by the legatee, through a title paramount to 
 the will, or otherwise than under it. It has been con- 
 sidered as, at most, only creating an obligation to indem- 
 nify the disappointed claimant, to the extent of the value 
 of what was designed for him by the will, out of that 
 which is thereby given to the party electing, if it should 
 be sufficient ; and also, as authorizing a court of equity, 
 with a view to secure such indemnity, to sequester that 
 which is elected to be so taken under the will. In no 
 case, however, does election create an absolute forfeiture, 
 when the value of the thing elected to be taken under 
 the will is more than sufficient to make a compensation 
 to the disappointed party, equal to his loss ; for if there 
 should remain a surplus beyond that, th6 party electing 
 is entitled to it.^ 
 
 § 377. The doctrine of equitable election is founded 
 on the intention of the author of the instrument, and 
 must be collected from the instrument itself When the 
 intention, necessary to raise the question of election, is 
 clearly expressed or necessarily implied, the party to 
 whom a benefit is given by the instrument, but claiming 
 a right adverse thereto, may either be compelled to make 
 his election, or otherwise to make compensation out of 
 what is thereby given to him. But unless the intention 
 be so expressed or implied, he cannot be put to his elec- 
 tion, nor called on to make compensation. The heirs at 
 law of a testator will not be put to make their election, 
 
 '■ Cauffman v. Cauffman, 17 S. & E. 26 ; Lawrence v. Lawrence, 2 Vern. 365-6. 
 2 City of Philadelphia v. Davis, 1 Wh. 511. 
 
316 WILLS. 
 
 when the will is susceptible of a construction that does 
 not require it. Thus, where a testator gave certain lega- 
 cies to his heirs, and devised the residue of his estate in 
 trust for the foundation of a charity, and added, that it 
 was his intention to pass by his will any real estate 
 that he might thereafter purchase ; it was held, that the 
 heirs, who had accepted their legacies, were not thereby 
 estopped from recovering real estate purchased by the 
 testator after the publication of his will. Where the land 
 cannot pass by the will the legatee cannot be called on 
 to make an election.^ 
 
 § 378. In Pennsylvania it is provided, by statute,^ that 
 a devise or bequest by a husband to his wife of any por- 
 tion of his estate or property, shall be deemed and taken 
 to be in lieu and bar of her dower in the estate of such 
 testator, in like manner as if it were so expressed in the 
 will, unless such testator shall in his will declare other- 
 wise. The widow, however, may elect either to take 
 the estate or property so devised or bequeathed, or her 
 dower in his lands and her share of his personal estate, 
 as a distributee under the intestate laws. And in 
 every such case, the orphans' court may, on the appli- 
 cation of any person interested in the estate of the dece- 
 dent, issue a citation, at any time after twelve months 
 from the death of the testator, to any such widow, 
 to appear at a certain time, not less than one month 
 thereafter, in the said court, to make her election, either 
 to accept such devise or bequest in lieu of dower, or to 
 waive such devise or bequest and take her dower; of 
 which election a record is to be made, which will be 
 conclusive on all parties. If the widow neglect or re- 
 fuse to appear upon such citation, then, upon due proof 
 
 ' City of Philadelphia v. Davis, 1 Wh. 490, 502, 510. ' Purd. Dig. 266. 
 
WILLS. 317 
 
 to the court of the service thereof, such neglect or refusal 
 will be deemed an acceptance of the devise or bequest, 
 and a bar of dower ; of which also a record is to be made.^ 
 
 § 379. The widow's election to take under the will of 
 her husband, although not made in the orphans' court, 
 under the provisions of the act of assembly, will estop 
 her from claiming dower.^ If a widow who is acquainted 
 with all the facts, but is wholly unaware that by law she 
 has a right of dower, be induced by one who knows the 
 law, and at the same time knows her ignorance of it, to 
 release or assign it, for a totally inadequate consideration, 
 she ought to be relieved. But where the error is her 
 own, and no imposition has been practised, nor any frau- 
 dulent advantage taken, her acts done under the influ- 
 ence of it, are as binding upon her as if she knew the 
 law perfectly;^ and an election once made is irrevocable.* 
 
 § 380. The party is not bound to make any election 
 until all the circumstances are known, and the state, 
 condition, and value of the funds are clearly ascer- 
 tained ; for, until so known and ascertained, it is impos- 
 sible for the party to make a discriminating and deli- 
 berate choice, such as ought to bind him in reason and 
 justice.* And therefore a widow is entitled, in order 
 that she may be enabled to make her election, to a fair 
 account of the personal estate by the executor.^ The 
 doctrine of election applies to the interests of persons 
 under disabilities, as infants and married women ; nor is 
 it material whether those interests be immediate or 
 remote, vested or contingent, of value or not of value; 
 
 ' See Melizet's Appeal, 5 Harris, 453-4. 
 
 2 Cauffman v. Cauifman, 17 S. & R. 16; Light v. Light, 9 Harris, 407. 
 
 » Light V. Light, 9 Harris, 412. 
 
 * Baney v. Killmer, 1 Barr, 35. ^ 2 Story's Eq. ? 1098. 
 
 « Melizet's Appeal, 5 Harris, 449-50. 
 
318 WILLS. 
 
 and, after a great lapse of time, an election will be 
 presumed.^ 
 
 § 381. By the act of 4tli May 1855,' the same right 
 of election is secured to a husband, under the will of his 
 wife, made in pursuance of the act of 1848; and the 
 power of a married woman to bequeath or devise her 
 property by will, is thereby restricted, as regards her 
 husband, to the same extent as the husband's power so 
 to dispose of his property is restricted, as regards the 
 wife; namely, so that any surviving husband may, 
 against her will, elect to take such share and interest in 
 her real and personal estate, as she could, when sur- 
 viving, take, against his will, in his estates ; or otherwise, 
 only her real estate as tenant by the curtesy. This act, 
 however, does not affect the right or power of a married 
 woman, by virtue of any authority or appointment con- 
 tained in any deed or will, to grant, bequeath, or devise, 
 as heretofore, any property held in trust for her sole and 
 separate use. 
 
 § 382. We will now proceed to the consideration of the 
 kindred doctrine of satisfaction; which may be defined, 
 in equity, to be the donation of a thing, with the inten- 
 tion, expressed or implied, that it is to be an extinguish- 
 ment of some existing right or claim of the donee. It 
 usually arises in courts of equity as a matter of presump- 
 tion, where a man, being under an obligation to do an 
 act, (as to pay money) does that by will which is ca- 
 pable of being considered as a performance or satisfaction 
 of it, the thing performed being ejiisdem generis with 
 that which he has engaged to perform. Under such 
 circumstances, and in the absence of all countervailing 
 
 ' Tiernan v. Roland, 3 Harris, 451. So a married woman is bound by an 
 estoppel. Couch v. Sutton, Sup. Court, 3 Pittsburgh Leg. J. 60. 
 2 Purd. Dig. 1136. 
 
WILLS. 319 
 
 equities, the ordinary presumption in courts of chancery- 
 is, that the testator has done the act in satisfaction of his 
 obligation.'^ 
 
 § 383. The law presumes that every legacy is intended 
 to be a clear gratuity;^ but the rule prevails, in equity, 
 that wherever a person, by his will, gives a legacy as 
 great or greater than the debt he owes to the legatee, 
 such legacy shall be a satisfaction of the debt, on the. 
 presumption that a man must be intended just, before he 
 is bountiful, and that his intent is to pay a debt and not 
 to give a legacy.^ The rule itself is not founded in 
 reason, and often tends to defeat the bounty of testators, 
 and able chancellors have thought it more agreeable to 
 equity, to construe a testator to be both just and generous, 
 where the interests of third persons are not affected. And 
 courts of justice will now lay hold of slight circumstances 
 to get away from the rule. Legacies are considered as 
 gratuities, and are always construed favourably. If they 
 be less than the sum due, payable on a contingency or a 
 future day, in these and the like circumstances, they 
 will be construed as additional bounties and not as satis- 
 factions. And although the contingency do actually 
 happen, and the legacy thereby becomes due, yet it shall 
 not go in satisfaction of the debt, because a debt which is 
 certain, shall not be merged or lost by an uncertain and 
 contingent recompense. For whatever is to be a satis- 
 faction of a debt, ought to be so in its creation and at 
 the very time it is given, which such contingent provi- 
 sion is not.* 
 
 § 384. The general rule is, that the legacy must be in 
 all respects, ejusdem generis, to cause a satisfaction of 
 
 1 1 Jarman's Powell on Devises, 433, note 4; 2 Story's Eq. I 1099. 
 
 2 Zeigler v. Eckert, 6 Barr, 13. 
 
 ' 1 Bq. Cas. Ab. 203; Cranmer's Case, 2 Salk. 508. 
 * Byrne v. Byrne, 3 S. & R. 60-1. 
 
320 WILLS. 
 
 the debt, and an apparent intention must appear in the 
 will, that the testator meant it as such;^ and therefore 
 it is held, that a devise of land is not a satisfaction, or 
 part performance, of an agreement to pay money .^ The 
 presumption may be rebutted, like any other presump- 
 tion, by proof arising either on the face of the will, or 
 dehors. It is not adduced to control the will, but to 
 rebut a presumption from matter extrinsic to it. That 
 parol evidence is admissible to rebut an equity, is an 
 elementary principle, guarded from abuse by the con- 
 sideration, that the court never decrees on the basis of it 
 when the fact is at all in doubt.^ 
 
 § 385. Questions of satisfaction generally arise in three 
 clfctsses of cases: 1. In cases of portions secured by a 
 marriage settlement. 2. In cases of portions given by 
 will, and an advancement to the donee afterwards in the 
 life of the testator. 3. In cases of legacies to creditors. 
 The first class may be illustrated by a case in which a 
 husband, by the marriage contract, bound himself to 
 assure to the trustees of his intended wife, a sufficient 
 real or personal estate to secure the payment of $5000 
 for her sole use, in case she should survive him; or that 
 he would, by his last will, within one year from the date 
 of the obligation, bequeath to her such estate as should 
 be fully adequate to the intended provision; he accord- 
 ingly made a provision for her by will, and although not 
 made within the year, it was held to be, to all intents 
 and purposes, a performance, or part performance of the 
 contract; and although the testator did not so declare in 
 his will, it was to be presumed that the will was in- 
 tended as a compliance with the condition of the bond.* 
 
 ' Ibid. 2 Bryant r. Hunters, 3 W. C. C. 53. 
 
 » Zeigler v. Eckert, 6 Barr, 18-19. * 2 Story's Eq. | 1109. 
 ' Bryant v. Hunters, 3 W. C. C. 53-4. 
 
 4 
 
WILLS. 321 
 
 § 386. In regard to the second class, Lord Eldon ob- 
 serves, "that where a father gives a legacy to a child, the 
 legacy coming from a father to his child must be under- 
 stood as a portion, though it be not so described in the 
 will ; and afterwards advancing a portion to that child, 
 though there may be slight circumstances of difference 
 between the advance and the portion, and a difference 
 in amount, yet the father will be intended to have the 
 same purpose in each instance, and the advance is there- 
 fore an ademption of the legacy ; but a stranger giving a 
 legacy is understood as giving a bounty, not as paying a 
 debt; he must, therefore, be proved to mean it as a por- 
 tion or provision, either on the face of the will, or if it 
 may be, and it seems it may, by evidence, applying 
 directly to the gift proposed by the will."-^ The pre- 
 sumed ademption may be destroyed or confirmed by the 
 application of parol evidence of a different intention by 
 the testator.^ 
 
 § 387. This doctrine equally applies, where the testator 
 has placed himself in loco parentis to the legatee. Where 
 the testator's assumption of the oflBce of a parent is estab- 
 lished, his legacy will be considered a portion, and a 
 subsequent advancement will be an ademption, in all 
 cases where it would be so if made by a natural father. 
 In the extensive class of cases on this doctrine, to be 
 found in the equity reports, the chief difficulty in its 
 application seems to have arisen from the inquiry, what 
 are circumstances sufficient to invest the testator with 
 the assumed relation of parent to the legatee; and the 
 
 ^ Ex parte Page, 18 Ves. 135; Garrett's Appeal, 3 Harris, 212; Zeiter v. 
 Zeiter, 4 Watts, 214. 
 
 ^ Biggleston v. Grrubb, 2 Atk. 48; Eonnell v. Barnett, 3 Atk. 11; Trimmer 
 V. Bayne, 1 Ves. 508; Robinson v. Whitely, 9 Ves. 577; Thelluson v. Wood- 
 ford, 4 Madd. 420; Gill's Estate, 1 Pars. 141; Zeiter v. Zeiter, 4 Watts, 214. 
 
322 WILLS. 
 
 evidence competent to prove that he placed himself in 
 such character. Roper declares the test in such cases to 
 be, whether the circumstances, taken in the aggregate, 
 amount to moral certainty that a testator considered 
 himself in the place of the child's father, and as meaning 
 to discharge that natural obligation which it was the 
 duty of a parent to perform. The assumption by a per- 
 son of the relation of a parent to the legatee may be 
 proved by parol, and is not required to be collected from 
 the face of the will itself^ 
 
 § 388. It is provided by the intestate law of Pennsyl- 
 vania, that "if any child of an intestate shall have any 
 estate by settlement of such intestate, or shall have been 
 advanced by him in his lifetime, either in real or in per- 
 sonal estate, to an amount or value equal to the share 
 which shall be allotted to each of the other children of 
 such intestate, such child shall have no share in the real 
 or personal estate of such intestate ; and if such settle- 
 ment or advancement be to an amount or value less than 
 the share to which he would otherwise be entitled, if no 
 such advancement had been made, then so much only of 
 the real or personal estate of such intestate shall be al- 
 lotted to such child, as shall make the estate of all the 
 children to be equal as near as can be estimated."^ 
 
 § 389. An advancement is an irrevocable gift by a 
 parent, in his lifetime, to his child, on account of such 
 child's share of the estate after the parent's decease.^ All 
 such questions must depend on the intention of the parent 
 in making the gift; and of this, the declarations of the 
 parent at the time would be evidence, or the admissions 
 of the children against themselves, at the time, or after- 
 
 1 Gill's Estate, 1 Pars. Ml. ^ Purd. Dig. 454-5. 
 
 ' Hengat'a Estate, 6 Watts, 87. 
 
WILLS. 323 
 
 wards. If there be no evidence at all on the subject, 
 then whether it was a gift or an advancement may 
 be judged of by its amount and character.-^ As a general 
 rule, money expended in the education of a child, is not 
 presumed to be an advancement. The presumption is, 
 that the parent makes these expenditures in discharge of 
 his parental duties, and that all his children are treated 
 with equality in this respect. But this presumption may 
 be repelled by evidence.^ If a parent purchase land in 
 the name of his son, it will, prima facie, be deemed an 
 advancement.^ And an acquittance of a bond and mort- 
 gage given to husband and wife by the wife's father, is 
 an advancement to the daughter.* So, it may be shown 
 that a deed for a money consideration was intended 
 as an advancement beyond the nominal consideration.^ 
 And in reference to this subject, it may be here re- 
 marked, that after some conflict of decision, it has been 
 determined, that the orphans' court has exclusive juris- 
 diction in all cases of advancement." 
 
 § 390. The third class of cases, where a legacy is given 
 to a creditor, has been already considered, in stating the 
 general doctrine of satisfaction in equity.'' It may be ob- 
 served, however, that where a creditor leaves a legacy to 
 his debtor, it is not, per se, a discharge or release of the 
 debt. But the presumption that no release was intended 
 when a debt stands against a legacy may, like any other 
 presumption, be repelled by proof, either on the face of 
 the will, or aliunde.^ 
 
 § 391. In the case of a prior legacy followed by a 
 
 1 King's Estate, 6 Wh. 373. 
 
 2 Kiddle's Estate, Y Harris, 433; Lentz v. Hertzog, 4 Wh. 523. 
 
 = Phillips V. Gregg, 10 Watts, 158. * Wentz v. Dehaven, 1 S. & R. 312. 
 
 5 Hayden v. Mentzer, 10 S. & R. 329. « HoUiday v. Ward, 7 Harris, 485. 
 ' Ante, i 382-3. * Zeigler v. Eckert, 6 Barr, 19. 
 
324 WILLS. 
 
 legacy of a later date, the question which arises is, 
 whether the later legacy was intended to be identical 
 with the first, so as to operate as a reiteration of the 
 original gift. If it were so intended, and the intention be 
 proved by admissible evidence, the first legacy is as ob- 
 viously at an end, as if a man were to bequeath a par- 
 ticular horse, and were afterwards again to bequeath it 
 to the same person. The construction put by law on 
 the later legacy is, prima facie, against its being meant 
 as identical, and in favour of its being held an indepen- 
 dent benefit. This construction, however, may be al- 
 tered by a presumption of law to be raised by a compari- 
 son of the two gifts, of the motives respectively assigned 
 for each, or by the relative position in which the parties 
 stand.'^ As for example, if the testator connect a mo- 
 tive with both, and that motive be the same, the double 
 coincidence will induce the court to believe that repetition 
 and not accumulation is intended. 
 
 § 392. Before closing this chapter there remains for 
 our consideration, another question, which most fre- 
 quently arises in cases of testamentary trusts; namely, 
 under what circumstances a purchaser from a trustee is 
 bound to look to the due application of the purchase 
 money. Where a trust is created by deed, it is custom- 
 ary to insert a proviso that purchasers shall not be under 
 any such obligation. The doctrine is not universally 
 true, that a purchaser, having notice of a trust, is bound 
 to see that the trust is in all cases properly executed by 
 the trustee. On the contrary, there are many qualifica- 
 tions and limitations of the doctrine in its actual appli- 
 cation to sales both of personal and real estate.* 
 
 § 393. To hold a purchaser from a trustee who has 
 
 1 Adams' Eq. 103. "2 Story's Eq. | 1125. 
 
WILLS. 325 
 
 power to sell, liable to the proper application of the pur- 
 chase money, has nothing to recommend it to the courts 
 of this country. Our policy is to render titles to land 
 as little embarrassed as practicable; and hence, a Penn- 
 sylvania tribunal would lean against any extension of a 
 doctrine which interferes with the convenient transmis- 
 sion of lands from hand to hand. Even in England, 
 where feudal restraints on the convertibility of land into 
 money, have not been entirely shaken off, the doctrine 
 is by no means a favourite. Mr. Butler^ seems to incline 
 to the opinion that the admission of the doctrine has 
 been more productive of inconvenience than real good; 
 that it retards, and often absolutely impedes the progress 
 of business, and is in other respects a useless expense. 
 And Sir William Grant declares the doctrine to have 
 -been carried further than any sound equitable principle 
 will warrant. "Where," says he,^ "the act is a breach 
 of duty in the trustee, it is very fit that those who deal 
 with him should be affected by an act tending to defeat 
 the trust of which they have notice. But where the 
 sale is made by the trustee in the performance of his 
 duty, it seems extraordinary that he should not be able 
 to do what one should think incidental to the right ex- 
 ercise of his power; that is, to give a valid discharge 
 for the purchase-money." ^ 
 
 § 394. The general rule adopted by courts of equity 
 is this; that where the trust is for the payment of debts 
 generally, the purchaser is not bound to see to the ap- 
 plication of the purchase-money, although he have notice 
 of the debts. For a purchaser cannot be expected to 
 see to the observance of a trust so unlimited and unde- 
 
 ' Co. Litt. 290 b, note 1. ' Balfour v. Welland, 16 Ves. 156. 
 
 ^ Dalzell V. Crawford, 1 Pars. 48-9; Grant v. Hook, 13 8. & R. 262. 
 
326 WILLS. 
 
 fined. If the trust be of such, a nature, that the pur- 
 chaser can reasonably be expected to see to the apphca- 
 tion of the purchase-money — as if it be for the payment 
 of legacies, or of debts scheduled or otherwise speci- 
 fied, he is bound to see that the money is applied ac- 
 cordingly. But he is not bound to see the money ap- 
 plied, where the trust is for the pajnoaent of debts gene- 
 rally, and also for the payment of legacies; because, to 
 hold that he is liable to see the legacies paid would in 
 fact involve him in the account of the debts, which 
 must be first paid.^ And the rule equally applies, where 
 there is a devise for the payment of debts, and to dis- 
 tribute the surplus among children.^ 
 
 § 395. Even where the trusts are defined, and yet the 
 money is not merely to be paid over to third persons, 
 but is to be applied by the trustees to certain purposes, 
 which require, on their part, time, deliberation, and dis- 
 cretion, it seems that the purchaser is not bound to see 
 to the due application of the purchase-money. When- 
 ever a trustee, empowered to sell, is at the same time au- 
 thorized and required to re-invest the avails of the trust 
 property, under the same trusts with which the original 
 estate was clothed, the purchaser is discharged from all 
 obligation to see to the proper application of the pur- 
 chase-money, paid by him to the trustee ; and it is diffi- 
 cult to perceive how it could practically be otherwise. 
 Re-investments are eminently matters for the exercise of 
 sound discretion. The failure of a due exercise of such 
 discretion may involve the trustee in direct personal ha- 
 bility for a breach of trust. To coerce precipitate action 
 by the trustee may be most deleterious to the trust fund ; 
 while to keep the purchaser in a state of suspended har 
 
 ' Grant v. Hook, 13 S. & B. 2(32. ^ Cadbury v. Duval, 10 Barr, 267-S. 
 
WILLS. 327 
 
 bility, until such re-investment be properly made, and 
 duly secured, according to the terms of the trust, would 
 embarrass, if not totally nullify the whole power to 
 sell.i 
 
 § 396. And there is much reason in the doctrine, that 
 where the trust is defined in its object, and the purchase- 
 money is to be re-invested upon trusts which require 
 time and discretion; or the acts of sale and re-inves1> 
 meht are manifestly contemplated to be at a distance 
 from each other, the purchaser shall not be bound to look 
 to the application of the purchase-money; for the trus- 
 tee is clothed with discretion in the management of the 
 trust fund, and if any persons are to suffer by his mis- 
 conduct, it should rather be those who have reposed 
 confidence in him, than those who have bought under an 
 apparently authorized act.^ The doctrine, however, is 
 to be taken with this qualification, that the purchaser be 
 not both buyer and seller ; for where the trustee himself 
 becomes the purchaser, there is no reason why the cestui 
 que trust should be remitted to a personal right against 
 the fraudulent trustee.^ 
 
 1 Dalzell V. Crawford, 1 Pars. 49-50; Doran v. Wiltshire, 3 Swanst. 699; 
 Wood V. Harman, 5 Madd. 368; Garnett v. Macon, 2 Brock. 234; Lining v. 
 Peyton, 2 Dessaus. 3Y5. 
 
 " Wormley v. Wormley, 8 Wheat. 422. 
 
 ' Bruck V. Lantz, 2 Rawle, 417; Cadbiiry v. Duval, 10 Barr, 272. 
 
328 CHARITIES. 
 
 CHAPTER XXI. 
 
 CHARITIES. 
 
 § 397. The subject of charities, arising as it most com- 
 monly does, in cases of wills, and constituting a large 
 and important branch of the equitable jurisdiction re- 
 lating to trusts, still remains to be considered. Charities 
 have always been favoured in the law, by excepting them, 
 when fastened on lands, from ordinary rules. Courts of 
 common law and equity, were astute in devising means 
 of giving application and effect to the intent of the donor 
 in favour of a charity ; whenever the instrument would 
 pass the legal estate, either to the trustee or cestui que 
 trust, or use, they supported the charity; the mode of 
 establishment, or the distribution, was a circumstance in 
 which they would relieve, according to their respective 
 powers, against any defects in the disposition by will or 
 deed. A donation to a charity could only fail for want 
 of a capable object, where there was neither a devisee 
 to use, in trust, nor a cestui que use capable of hold- 
 ing; they took effect whenever a trust was created and 
 vested in any body or person who was named, described, 
 or could be brought within the scope of the will, and 
 was capable of holding, either as cestui que trv^t, or as 
 trustee.^ 
 
 § 398. The English statute of 43 Eliz., commonly 
 
 ' Magill V. Brown, Briglit. R. 386-7. See Fontain !•. Ravenel, 3 Am. L. R. 269. 
 
CHARITIES. 329 
 
 called the statute of charitable uses, never was in force, 
 as a statute, in Pennsylvania, simply because its pecu- 
 liar machinery was wholly inapplicable to our colonial 
 institutions. But its conservative provisions have been 
 in force here by common usage and constitutional recog- 
 nition ; and not only these, but the more extensive range 
 of charitable uses which chancery supported before that 
 statute and beyond it.^ The jurisdiction of chancery 
 over trusts was never questioned by the most strenuous 
 advocates of the common law: so, cases of covin and 
 fraud were cognizable in equity from the earliest times. 
 It has never been pretended that the course of equity on 
 these subjects was regulated or in any way affected by 
 the 43 Eliz. ; it was founded on principles which Avere 
 the origin and foundation of its jurisdiction, and became 
 gradually developed, according to the exigency of the 
 times. There is no reason which would prevent their 
 application to charities in all cases between subjects, be- 
 fore the 43 Eliz., in the same manner as after. So far as 
 any traces of its jurisdiction are to be found in the 
 books, it seems to have been under the three heads of 
 fraud, trust, and accident, and exercised without any 
 doubt of the power, in all cases where either circum- 
 stance existed.^ 
 
 § 399. It would seem, that every kind of legal public 
 benefaction is included in the notion of a charity. One 
 of its qualities is generality, but this is satisfied by a 
 comprehension of particular classes of persons or design 
 nated communities. From its nature, permanency either 
 of the donation, or its object, would seem to be also re- 
 
 1 Zimmerman v. Anders, 6 W. «fe S. 220; Pepper's Will, 1 Pars. 450; Witmau 
 r. Lex, 17 S. & R. 91; Vidal v. Girard's Executors, 2 How. 155, 196; Fontain 
 V. Eavenel, 3 Am. L. R. 273. 
 
 2 Magill V. Brown, Bright. E. 390-1. 
 
 22 
 
330 CHARITIES. 
 
 quisite. Yet certainly, perpetuity is not and therefore 
 a charity may exist consistently with an express or im- 
 plied limitation.^ Not only are charities for the mainte- 
 nance and relief of the poor, sick, and impotent, chari- 
 ties in the sense of the common law, but also donations 
 given for the establishment of colleges, schools, and se- 
 minaries of learning, and especially such as are for the 
 education of orphans and poor scholars.^ So also, funds 
 given for supplying a town with water ; ^ for the improve- 
 ment of a city ; * for establishing a life-boat for the use 
 of a town;* for a fire-engine or hose company;^ and for 
 any legal, general, or public purpose, have been held to 
 be charitable funds to be administered by courts of 
 equity.^ 
 
 § 400. A devise to a charity will be supported in 
 equity, notwithstanding an apparent uncertainty both as 
 to the trustees and the objects of the charity, if a dis- 
 cretionary power of selection be vested any where. Thus, 
 a devise of real and personal estate to the monthly meet- 
 ing of Friends of Philadelphia, for the northern district, 
 (an unincorporated religious association) to be applied as 
 a fund for the distribution of good books, among poor peo- 
 ple in the back part of Pennsylvania, or to the support 
 of an institution or free-school in or near Philadelphia, 
 was established as a charity against the heirs and re- 
 presentatives of the testator ; * and so was a bequest of 
 
 ' Wright V. Linn, 9 Barr, 438. 
 
 = Vidal V. Girard's Executors, 2 How. 191-2. 
 
 ' Jones !'. Williams, Amb. 651. * Howse v. Chapman, 4 Yes. 542. 
 
 ^ Johnson v. Swan, 3 Madd. 464. 
 
 " Thomas v. EUmaker, 1 Pars. 98; MagiU v. Brown, Bright. K. 405. 
 
 ' Thomas v. Ellmaker, 1 Pars. 108. 
 
 " Pickering v. Shotwell, 10 Barr, 23. In the books, it is said, the thing given 
 becomes a charity, where the uncertainty of the recipient begins. This is 
 beautifully illustrated in the Jewish laws, which required the sheaf to be left 
 
CHARITIES. 331 
 
 money to a churcli, to be laid out in bread annually, for 
 ten years, for the poor of the congregation.'^ Nothing is 
 more frequent in Pennsylvania than bequests to unin- 
 corporated congregations, without the intervention of 
 trustees ; and such bequests have uniformly been upheld 
 by the courts as charities.^ 
 
 § 401. This matter is now regulated by statute, 
 whereby it is provided "that no disposition of property 
 hereafter made for any religious, charitable, literary, or 
 scientific use, shall fail for want of a trustee, or by rea- 
 son of the objects being indefinite, uncertain, or ceasing 
 or depending upon the discretion of a last trustee, or 
 being given in perpetuity, or in excess of the annual va- 
 lue hereinbefore limited ; ^ but it shall be the duty of any 
 orphans' court, or court having equity jurisdiction in 
 the proper county, to supply a trustee, and by its decrees 
 to carry into effect the intent of the donor or testator, so 
 far as the same can be ascertained, and carried into ef- 
 fect, consistently with law or equity ; for which purpose, 
 the proceeding shall be instituted, by leave of the attor- 
 ney-general of the commonwealth, on the relation of any 
 institution, association, or individual, desirous of carry- 
 ing such disposition into effect, and willing to become re- 
 sponsible for the costs thereof; subject to an appeal, as 
 
 in the field for the needy and passing stranger. Fontain v. Ravenel, 3 Am. 
 L. R. 269. 
 
 ' Witman v. Lex, 17 S. & R. 88. 
 
 2 Methodist Church v. Remington, 1 Watts, 224. 
 
 ' This act provides that no unincorporated charity shall acquire and hold, 
 either in the associate name, or that of trustees, or otherwise, real or personal 
 property that, in the aggregate, is of a greater yearly value than, if incor- 
 porated it would be allowed to hold, under the general laws for incorporation 
 of such associations. The same act limits the amount of real and personal 
 estate, which such societies and corporations may acquire and hold, at the sum 
 of five thousand dollars per annum. Act 26 April 1855. Purd. Dig. 1119. 
 
332 CHARITIES. 
 
 in other cases in said courts respectively, and to be re- 
 viewed, reversed, affirmed, or modified, by the supreme 
 court of this state; but if the objects of the trust be not 
 ascertainable, or have ceased to exist, or such disposition 
 be in excess of the annual value permitted by law, or in 
 perpetuity, such disposition, so far as exceeding the power 
 of the courts to determine the same, by the rules of law 
 or equity, shall be taken to have been made, subject to 
 be further regulated and disposed of by the legislature 
 of this commonwealth, in manner as nearly in confor- 
 mity with the intent of the donor or testator, and the 
 rules of law against perpetuities, as practicable ; or other- 
 wise, to accrue to the public treasury, for the public use." ^ 
 
 § 402. Charities are so highly favoured in the law, 
 that they have always received a more liberal construc- 
 tion than the law will allow in gifts to individuals.^ 
 Thus, a bequest to an executor not nominated, or to an 
 executor nominated but dead before the testator, though 
 void at law, will be executed in equity where the object 
 is a charitable one.^ And it is immaterial whether the 
 person to take be in esse, or not; or whether the legatee 
 were at the time of the bequest a corporation capable of 
 taking, or not; or how uncertain the objects may be, pro- 
 vided there be a discretionary power vested any where, 
 over the application of the testator's bounty to those ob- 
 jects; or whether their corporate designation has been 
 mistaken; if the intention sufiiciently appear on the 
 bequest, it will be held valid.* 
 
 § 403. So also, a defective execution of a power will 
 be aided in favour of a charity. Thus, where a power 
 
 ' Act 26 April 1855, § 10. Purd. Dig. 1118-19. ^ 2 Story's Bq. 0165. 
 
 » Pickering v. Shotwell, 10 Barr, 27. 
 
 * Witman v. Lex, 17 S. & R. 93; Vidal v. Girard"s Executors, 2 How. 197. 
 
CHARITIES. 333 
 
 of appointment was given by deed, to be executed by 
 writing under hand and seal, in the nature of a last 
 will and testament, and duly attested by two or more 
 witnesses ; a writing in the nature of a last will, exe- 
 cuted in the presence of two witnesses, but not under 
 seal, was held not to be a valid execution of the power; 
 yet, in favour of a charity, any writing, however in- 
 formal as an execution of a power, is good as an ap- 
 pointment. The aid thus given by equity to a power 
 defectively executed in favour of a charity, is one of the 
 conservative doctrines flowing from, or expanded by the 
 statute of charitable uses, which forms part of our sys- 
 tem of the law of charities.-^ 
 
 § 404. But although the principles of the statute of 
 charitable uses have been adopted by the courts of Penn- 
 sylvania, they will not exercise the discretion assumed 
 by an English chancellor, of directing the disposition of 
 the funds, on the doctrine of cy 'pres. No court here 
 possesses the specific powers necessary to give effect to 
 the principle of cy pres, even were the principle itself 
 not too grossly revolting to the public sense of justice to 
 be tolerated in a country where there is no ecclesiastical 
 establishment.^ No one would desire to see the doctrine 
 of cy pres carried to the extravagant length that it was 
 formerly in England, or witness the exercise of an arbi- 
 trary discretion, in giving effect to a general intention to 
 leave a sum of money to charitable purposes, to be de- 
 signated thereafter, by disposing of it to such charities as 
 the court chooses to direct. No such discretion is vested 
 in our courts.^ If the trusts limited in a devise be such 
 
 1 Pepper's Will, 1 Pars. 436, 451; Magill v. Brown, Bright. R. 408. 
 ' Methodist Ghurcli v. Remington, 1 Watts, 226. 
 
 ' Witman v. Lex, 17 S. & R. 93; Flaherty's Estate, 2 Para. 190; Fontain v. 
 Ravenel, 3 Am. L. R. 2V6. Although the doctrine of cy pres has not been 
 
334 CHARITIES. 
 
 as a chancellor would not execute, it has been held, that 
 equity will treat the devisees as trustees for the heirs at 
 law or next of kin of the testator.'- But since the pas- 
 sage of the act of 1855, it would seem that the property 
 would vest in the state, for the public use.^ 
 
 § 405. A gift to a charity is not necessarily affected 
 by the rule against perpetuities, as it is in the very na- 
 ture of such a gift to withdraw the thing given from 
 commerce and circulation, since ahenation of it would be 
 inconsistent with the use to which it had been dedicated. 
 But a trust for perpetual accumulation of a part of the 
 income, though a consequence not intended, and though 
 the founding of a charity were the exclusive motive, 
 would be a perpetuity productive of all the evils which 
 the law abhors ; and such trust being absolutely void, 
 the heirs at law of the testator would be entitled to re- 
 cover the lands devised.^ But a devise of lands in fee 
 
 adopted by our courts, it appears that the power may be exercised by the legis- 
 lature, under the act of 1855, above cited. Ante, | 401. 
 
 1 Miller !'. Lerch, 1 Wall. Jr. 216; Hillyard v. Miller, 10 Barr, 326; Metho- 
 dist Church V. Remington, 1 Watts, 226. 
 
 2 See Ante, § 401. 
 
 * Hillyard v. Miller, 10 Barr, 335. The act of 1855 provides, that "to avert 
 the evil of an indefinite Increase of the property in mortmain and perpetuity, 
 it shall not be lawful for any religious, charitable, literary, or scientific society, 
 association, or corporation, present or future, to accumulate Income into capital 
 or Invested estate, so that the clear annual value thereof, as regards future 
 acquisitions, with those now held, shall exceed the limitation hereinbefore con- 
 tained ($5000 per annum,) and as regards acquisitions now held by or for any 
 such body, shall not exceed said annual amount, except as the property now 
 held does, or being made more productive, may exceed such amount, but all 
 such clear income, after such amount of capital, or invested estate, shall be 
 attained, shall be expended annually in and for the purposes, uses, and trusts 
 upon and for which the property producing it is held; and if there be not 
 objects within the intent of such purposes, uses, and trusts sufficient to exhaust 
 such income, it shall be the duty of such body or association holding such pro- 
 perty, to apply to the legislature for authority to expend the income thereof 
 upon such practicable objects as shall most nearly conform to the intent of the 
 
CIIAEITIES. 335 
 
 for the objects of a cliarity, does not necessarily exclude 
 the power of alienation for general purposes ; the donees 
 hold the lands for a qualified purpose, becavise the law 
 does not allow them to hold for general purposes; but 
 this qualification has place only as between the public 
 and the holders, and not between the grantors and the 
 holders. It is not a qualification of the estate as granted, 
 but of the uses to which, in such hands, it may lawfully 
 be applied. It is not intended to prevent alienation for 
 general purposes, but to prevent the donees from using 
 the land for general purposes ; it defines a duty of the 
 donees to the state, not to their grantors. Such grants 
 are, as between the grantor and grantees, fees simple, 
 and as between the trustees and beneficiaries, they are 
 trusts. To reduce them to qualified fees, words must be 
 added showing clearly that the testator intended that 
 the land should revert on the abandonment of the par- 
 ticular use.-^ 
 
 § 406. The statutes of mortmain have been extended 
 to this state, only so far as they prohibit dedications of 
 property to superstitious uses, and grants to corporations 
 and to unincorporated religious, and other societies, with- 
 out a statutory license.^ As to the statutes of supersti- 
 tious uses, it suffices to say, that where there can be no 
 religious establishment, no restraint on the free exercise 
 of religion, and no preference of modes of worship, the 
 celebration of divine service according to the rites of any 
 
 uses and trusts upon which such property is held; and in default thereof, such 
 income as shall not be so expended in execution of its trust, shall be paid into 
 the treasury of the commonwealth; provided, that this section shall not be 
 taken as intended to apply to any corporation or trust, if any there be, placed 
 by contract beyond such legislative requisition." Purd. Dig. 1119. 
 
 1 Griffitts V. Cope, 5 Harris, 95, 100; Barr v. Weld, 3 Pittsburgh Leg. J. 27. 
 
 ' Methodist Church v. Remington, 1 Watts, 224. 
 
336 CHARITIES. 
 
 church or society worshipping the Supreme Being, can- 
 not be deemed unlawful or superstitious.^ 
 
 § 407. The act of 1855, however, has very materially 
 narrowed the extent and operation of the statute of cha- 
 ritable uses; this act provides "that no estate, real or 
 personal, shall hereafter be bequeathed, devised, or con- 
 veyed, to any body politic, or to any person, in trust for 
 religious or charitable uses, except the same be done by 
 deed or will, attested by two credible and, at the time, 
 disinterested witnesses, at least one calendar month be- 
 fore the decease of the testator or alienor; and all dis- 
 positions of property contrary hereto, shall be void, and 
 go to the residuary legatee, or devisee, next of kin, or 
 heirs, according to law ; provided that any disposition of 
 property, within said period, hondfide made, for a fair 
 valuable consideration, shall not be hereby avoided."^ 
 
 ' Magill V. Brown, Bright. E. 373 ; Methodist Chvirch v. Remington, v.t supra. 
 ^ Act 26 April 1855. Purd. Dig. 1119. 
 
IMPLIED TRUSTS. 337 
 
 CHAPTER XXII. 
 
 IMPLIED TRUSTS. 
 
 § 408. In connexion with the equitable doctrine in re- 
 lation to trusts, there still remains to be considered the 
 class comprised under the head of implied, constructive, 
 and resulting trusts. An implied trust is one which, 
 without being expressed, arises upon the presumed in- 
 tention of the parties ; or which, independent of any such 
 intention, arises, ex maleficio, by operation of law, as in 
 case of fraud, imposition, notice of an adverse equity, and 
 others of a like nature.-^ It is to be observed, however, 
 that the law never presumes a trust, but in case of 
 absolute necessity; for if a chancellor may construe a 
 trust by implication, or presume a trust unnecessarily, a 
 way is opened by which any man may be construed or 
 presumed out of his estate.^ A trust, therefore, is never 
 presumed or implied, as the intention of the parties, un- 
 less, taking all the circumstances together, that is the 
 fair and reasonable interpretation of their acts and trans- 
 actions.^ 
 
 § 409. If a trust be created for the benefit of a third 
 person, without his knowledge, he may, when he has no- 
 tice of it, affirm the trust, and call upon the court to en- 
 force the performance of it.* This is one of the most 
 
 1 2 Story's Eq. ? 1195; 4 Bouv. Inst. 242. 
 
 2 Cook V. Fountain, 3 Swanst. 585. ' 2 Story's Eq. | 1195. 
 * 4 Kent's Com. 307. 
 
338 IMPLIED TRUSTS. 
 
 simple forms in which an impHed trust can be presented. 
 Thus, if one procure a conveyance of land to be made to 
 him, upon the promise and assurance that he will hold it 
 in trust for another, that trust may be established by the 
 parol testimony of the grantor; and if the land be sold 
 by the grantee, the cestui que trust may maintain an ac- 
 tion against him to recover the price. ^ 
 
 § 410. So, when an estate is conveyed in trust to serve 
 certain uses, a resulting trust arises by implication of law 
 to the grantor, for all such parts of the equitable estate 
 as are not disposed of by the deed : ^ where a trust has 
 been declared of but part of the estate, the law implies 
 an intent to reserve the beneficial ownership of the re- 
 sidue.^ And if the trusts limited on a devise, be such 
 as a chancellor would not execute, a court of equity will 
 treat the devisees, as trustees for the heirs at law or next 
 of kin of the testator, and will decree a conveyance of 
 the legal estate to them.* In all cases of this kind, the 
 rule of law is, that the beneficial interest undisposed of, 
 results back to the original owner, or to his representa- 
 tives, real or personal, according to the nature of the pro- 
 perty. 
 
 § 411. Another instance of a resulting trust is, where 
 a conveyance is made without any consideration, or with- 
 out any distinct use being declared. In such case, the 
 intent is presumed to be, that it shall be held by the 
 grantee for the benefit of the grantor, as a resulting 
 trust.^ As for instance, where land is conveyed for a 
 consideration which is to be afterwards ascertained by 
 
 ^ Miller v. Pearce, 6 W. & S. 97. And see Kirkpatrick v. M'Donald, 1 Jones, 
 387. 
 " Huston V. Hamilton, 2 Binn. 387. ' Kisler v. Kisler, 2 Watts, 324. 
 
 * Miller V. Lerch, 1 Wall. .Ir. 216. * 2 Story's Eq. ? 1197. 
 
IMPLIED TRUSTS. 339 
 
 the price at which the grantee may sell it, there arises a 
 resulting trust to the grantor until the sale be made; and 
 the grantee becomes a truste'e, subject to all the equita- 
 ble rules which would have bound him, had the deed in 
 express terms empowered him to sell for the use of the 
 grantor.^ 
 
 § 412. A resulting trust likewise arises, where an 
 estate has been purchased in the name of one person, 
 and the purchase money or consideration has proceeded 
 from another.^ In this case, the presumption of law is, 
 that the party paying for the estate intended it for his 
 own benefit, and that the nominal purchaser is a mere 
 trustee. It is the law of England and of Pennsylvania, 
 that where one buys land and pays for it with his own 
 money, but permits the conveyance to be made in the 
 name of another, a resulting trust arises in favour of him 
 who paid the purchase money; and the nominal grantee 
 holds the land as trustee for the real purchaser. This 
 principle is applicable, as well to purchases from the 
 commonwealth as to conveyances from one private indi- 
 vidual to another. The person whose name is used as a 
 warrantee, is a trustee for him who took out the warrant 
 and paid the fees and purchase money.'' 
 
 § 413. This presumption exists, in all cases where the 
 legal title is made to one who has not really advanced 
 the price; and it is equally applicable whether such con- 
 veyance be in the name of a stranger only, without men- 
 tion of the actual purchaser, or in the joint names of a 
 stranger and the purchaser himself; whether the estate 
 
 ' Prevost V. Gratz, 1 P. C. C. 367. 
 
 2 Wallace v. Duffield, 2 S. & R. 529; German v. Gabbald, 3 Binu. 305; 
 Kisler v. Kisler, 2 Watts, 324; Robertson i>." Robertson, 9 Watts, 35. 
 
 ' Strimpfler v. Roberts, 6 Harris, 295; Cox v. Grant, 1 Yeates, 164; Pogler 
 V. Evig, 2 Yeates, 119. 
 
340 IMPLIED TRUSTS. 
 
 be originally conveyed to one purchaser out of many, or 
 become ultimately vested in one as the survivor, under 
 an assurance which has created a legal joint tenancy ; or 
 whether, in the case of several nominal purchasers, an 
 immediate joint estate be given to all, or the grant be to 
 take successively one after another. Whatever be the 
 peculiar form in yrhich the assurance is made, it does not 
 affect the presumption, that an estate or share of an 
 estate, vested in a man who did not pay its price, was 
 not intended by way of beneficial ownership ; and there- 
 fore, in all those cases alike, if there be no evidence of 
 an opposite intention, the trust of such legal estate will 
 result to the parties who have advanced the purchase 
 money, in proportion to the amount of their respective 
 advances. And as trusts of this kind are expressly ex- 
 empted from the statute of frauds, it is competent for 
 the real purchaser to prove his payment of the purchase 
 money by parol evidence, even though it be otherwise 
 expressed in the deed.^ 
 
 § 414. It is well settled, that nothing more is necessary 
 to establish such a resulting trust, than to prove that the 
 lands were paid for with the money of the cestui que trust. 
 This naked fact is enough to make out a prima facie 
 case, liable however to be overthrown, by proving that 
 the payment was a gift of the money to the grantor of 
 the legal title. One who takes a deed in his own name 
 for land paid for by another, is a trustee by force and 
 operation of law, not because he agrees to hold for the 
 other party, but because he cannot hold for his own use, 
 without violating conscience, good faith, and honesty. 
 
 ^ Adams' Eq. 33-4; Strlmpfler v. Roberts, 6 Harris, 295; Jackman v. Ring- 
 land, 4 W. & S. 150; Lloyd v. Ca"rter, 5 Harris, 221; Blyholder v. Gilson, G 
 Harris, 137; Slaymaker v. St. John, 5 Watts, 30; Stewart t'. Brown, 2 S. & 
 R. 461-2. 
 
IMPLIED TEUSTS. 341 
 
 The trust results from, and the obligation to execute it 
 is implied by, not his will, but the nature of the trans- 
 action.^ 
 
 § 415. This doctrine, however, is subject to several 
 exceptions; thus, in the first place, equity will not, by 
 implication, raise a use for a person who, by law, is 
 incapable of holding, as an alien : in such case, a result- 
 ing trust will not be enforced in favour of the alien pur- 
 chaser, in fraud of the rights of the commonwealth or 
 the law of the land.^ And since the resulting trust is 
 merely that of an equity, founded upon the presumptive 
 intention of the parties, that equity may be rebutted, 
 even by parol evidence, and circumstances to defeat it. 
 If, for instance, the petson, for whose benefit the trust 
 would otherwise be created, declare that the purchase 
 was not made for him, or if both parties treat it as a 
 purchase for the use of him to whom the conveyance is 
 made, no resulting trust will arise.^ 
 
 § 416. Another exception is, where a purchase has 
 been made in the name of a child, or of one towards 
 whom the party paying the money has placed himself 
 in loco parentis. For when a parent purchases in the 
 name of the son, the purchase will be deemed, prima 
 facie, an advancement, so as to rebut the presumption of 
 a resulting trust for the parent. The moral obligation 
 of a parent to provide for his children is the foundation 
 for the exception ; or rather of the rebutter of the pre- 
 sumption; since it is not only natural but reasonable to 
 presume, that a parent, by purchasing in the name of a 
 child, intends it as a benefit to the latter, in discharge 
 
 '' Lynch p. Cox, 11 Leg. Int. 166. 
 
 ^ Philips V. Crammond, 2 W. C. C. 447; Leggett v. Dubois, 5 Paige, 114. 
 
 3 Philips V. Crammond, 2 W. C. C. 445; Adams' Eq. 33 n. 
 
342 IMPLIED TRUSTS. 
 
 of the moral obligation, and also as a token of parental 
 affection.-^ 
 
 § 417. And here it may be observed, that the party 
 who undertakes to establish a resulting trust by parol 
 evidence, takes the burden of proof upon himself. He 
 claims an estate in land, not only without a deed, but in 
 opposition to the written title. The whole doctrine of 
 resulting trusts is a violation of the sound principles on 
 which the statute of frauds is based, and ought not to be 
 favoured, except when the trust originated in the bad 
 faith of the nominal purchaser. The extension of it to 
 cases in which the cestui que trust has voluntarily placed 
 his rights in such a condition, that he can only establish 
 them by parol, is of doubtful policy; and, like other de- 
 partures from the statute of frauds, has probably done 
 more mischief than it has ever corrected.^ 
 
 § 418. The doctrine, that parol evidence may be re- 
 ceived to establish a trust, is confined to those cases of 
 resulting trusts which arise by implication of law. In 
 such cases, the legal title is in one, the equitable title in 
 another, and to prevent fraud, the fact of payment of the 
 purchase money may be established by parol evidence; 
 and equity will decree the nominal purchaser a trustee 
 for the use of him who paid the purchase-money.® Such 
 an implied trust is not within the statute of uses, and can 
 only be executed by the voluntary conveyance of the 
 trustee, or by a decree in chancery ; and after a lapse of 
 time sufficient to bar the claim at law, by force of the 
 statute of limitations, equity will grant no relief. Evi- 
 dence of purchase money paid by the plaintiff, will in such 
 cases be disregarded, if the date of the payment be more 
 
 ' Phillirs V. Gregg, 10 Watts, IVl. ^ Strimpfler v. Roberts, 6 Harris, 298. 
 ' Jackman v. Rirgland, 4 W. & S. 150. 
 
IMPLIED TRUSTS. 343 
 
 than twenty-one years before suit brought, unless accom- 
 panied by proof of such acknowledgments as will take 
 the case out of the rule.^ 
 
 § 419. Another instance inwhich a resulting trust arises 
 by implication of law is, where one of two joint tenants, 
 under a defective title, purchases the adverse title : in such 
 case he will be held a trustee for his co-tenant, subject to 
 the payment of a due proportion of the purchase money. 
 The purchase of one accrues for the benefit of both.^ So 
 one of two devisees cannot purchase an incumbrance on 
 their joint estate, and use it to sell the land, and deprive 
 the other of his property : in that case, he is but a trus- 
 tee.' It is not consistent with good faith, nor the duty 
 which the state of the parties as claimants of a common 
 subject created, that one of them should be able, without 
 the consent of the other, to buy in an outstanding title, 
 and appropriate the whole to himself, and thus under- 
 mine his co-tenant. It would be an unusual act, repug- 
 nant to a sense of refined and accurate justice. It can- 
 not be tolerated in a common subject, in which the par- 
 ties had an equal concern, and which created an obliga- 
 tion to deal candidly and honestly with each other.* 
 
 § 420. A resulting trust, properly so called, arises 
 where the purchaser of land pays the purchase money, 
 but takes the conveyance in another person's name ; but 
 where a trustee purchases with the trust fund, and takes 
 the conveyance in liis own name, there is, properly 
 
 ' Strimpfler v. Roberts, 6 Harris, 301-2. 
 
 ^ Smiley v. Dixon, 1 Penn. R. 441. A resulting trust would arise to a 
 partnership, in lands purchased by one of the partners, and paid for out of the 
 joint funds. Philips v. Crammond, 2 W. C. C. 445. 
 
 ^ Myers' Appeal, 2 Barr, 466. 
 
 ' M'Pherson v. CunKfT, 11 S. & R. 427 n; Van Home v. Fonda, 5 Johns. Ch. 
 388 ; Eakin v. Raub, 12 S. & R. 377. 
 
344 IMPLIED TRUSTS. 
 
 speaking, no resulting trust, though it is usually called 
 so ; for there is, in equity, a very substantial difference 
 between them, both in the quality and extent of the re- 
 lief that can be called for. In the former, the trustee 
 will be compelled to execute the trust, by a conveyance 
 of the land ; in the latter, chancery will raise the money 
 out of the land, by a sale of the whole, or such part of 
 it as may be necessary to produce the sum withdrawn 
 from the trust; and this mode is peculiarly convenient, 
 where only a part of the consideration has been taken 
 from the trust fund.^ The person who is entitled to the 
 money, which has been thus invested, may however, at 
 his election, consider the purchase as made for his use, 
 and the purchaser a trustee for him.^ 
 
 § 421. In all cases of fraud, and where transactions in 
 relation to the purchase of land, have been carried on 
 mold fide, there is a resulting trust by operation of law; ^ 
 thus, where one purchases at sheriff's sale, in trust for 
 another, and thereby prevents others from bidding, a 
 trust arises ex malefido, and the case is excepted out of 
 the statute of frauds and perj uries.* But unless there be 
 something in the transaction more than is implied from 
 the violation of a parol agreement, equity will not decree 
 the purchaser to be a trustee. And this distinction is in- 
 dispensable, otherwise there would be a repeal of the sta- 
 tute, under the pretence of preventing fraud by decreeing 
 an express trust, which would be introductive of the very 
 evils the statute was designed to prevent.* A purchaser 
 
 ' ■R'allace v. Duffield, 2 S. & E. 529; Evans' Estate, 2 Ash. 482 ; German c. 
 Gabbald, 3 Binn. 305; Kisler v. Kisler, 2 Watts, 324. 
 2 Philips V. Crammond, 2 W. C. C. 445 ; OUver i\ Piatt, 3 How. 333. 
 ' Robertson v. Robertson, 9 Watts, 36; Haines i: O'Connor, 10 Watts, 320. 
 * Brown v. Dysinger, 1 Rawle, 408; Graham ;■. Donaldson, 5 Watts, 452. 
 ' Robertson v. Robertson, 9 Watts, 36. 
 
IMPLIED TRUSTS. 345 
 
 at sheriff's sale, who has paid the money, can only be 
 held a trustee ex malejwio, on the ground of fraud ; and 
 where he is guilty of fraud, he is a trustee for the credi- 
 tors, and for the debtor also, unless the debtor be parti- 
 ceps criminis. But without the ingredient of fraud, as in 
 case of private sales, he may avail himself of the protec- 
 tion of the statute.^ Equity will not, however, permit 
 one to hold a benefit, which he has derived through the 
 fraud of another, and much less will it do so, if he have 
 acquired it by means of his own fraud. This principle 
 seems not only to be just and to commend itself strongly 
 to the moral sense, from the bare statement of it, but it 
 has been acted upon, and made the foundation of a series 
 of decisions.^ 
 
 § 422. We have already seen,^ that whatever acts are 
 done by trustees, in regard to the trust property, shall be 
 deemed to be done for the benefit of the cestui que trust, 
 and not for the benefit of the trustee ; and that if a trus- 
 tee, executor, or other person, occupying a fiduciary cha- 
 racter, buy in a debt due by his cestui que trust, testator, 
 or principal, for less than its nominal amount, the benefit 
 derived thereby belongs not to him, but to the person for 
 whom he acted.* And the same principle applies to all 
 persons standing in fiduciary relations to each other; 
 thus, courts of equity exact the most scrupulous good 
 faith from agents of every description, during the conti- 
 nuance of their agency : to prevent fraud, they cannot 
 purchase the estate of their principals, but in trust. When 
 
 1 Haines v. O'Connor, 10 Watts, 320; M'CuUoch v. Cowher, 5 W. & S. 430; 
 Fox V. Heffner, 1 W. & S. 376. 
 
 "Miller v. Pearce, 6 W. & S. 100; Sheriff v. Neal, 6 Watts, 540-1; and 
 cases there cited. 
 
 3 Ante, § 99. 
 
 * Prevost V. Gratz, 1 P. C. C. 373; Saeger v. Wilson, 4 W. & S. 504-5. 
 
 23 
 
346 IMPLIED TRUSTS. 
 
 confidence is reposed, the law forbids it shall be abused : 
 to prevent abuse it turns the purchaser into a trustee.^ 
 § 423. Cases of equitable conversion of property, are 
 also properly referable to the doctrine of implied trusts. 
 By equitable conversion is intended an implied change of 
 property from personal to real, or from real to personal, 
 so that each is deemed to be transferable and descendible 
 according to its new character.^ This change is a conse- 
 quence of the doctrine, that equity looks upon things 
 agreed to be done as actually performed.^ Thus, when 
 an agreement is made for the sale of an estate, the ven- 
 dor is considered as a trustee for the purchaser of the 
 estate sold, and the purchaser as a trustee of the pur- 
 chase money for the vendor.* Under such circum- 
 stances, the vendor is treated as the owner of the land, 
 and he may dispose of it by contract, will, or deed.' So, 
 if one covenant to lay out a sum of money in the pur- 
 chase of land, generally, and devise his real estate 
 before he has made the purchase, the money agreed to be 
 laid out will pass to the devisee as representing land." 
 So also, where the property devised is real, and directed 
 to be divided for the general purposes of the will, as for 
 instance, to form with the personalty a common fund, 
 for all the purposes of the will; although it should hap- 
 pen that some of them fail, it will be considered an 
 absolute conversion. The new character is definitively 
 and imperatively fixed upon the property, or in more 
 technical words, it is said to be converted out and out.'^ 
 
 ^ Myers's Appeal, 2 Barr, 466; Rankin v. Porter, 7 Watts, 390; Moore r. 
 Moore, 1 Seld. 256. ^ 2 Story's Eq. ^ 1212. » Ante, ? 245. 
 
 ■* Rangler's Appeal, 3 Barr, 3'i'8; Lee c. Tiernan, Add. 349; Stewart c. 
 Freeman, 10 Harris, 123. 
 
 ■^ Fisher v. Harris, 10 Barr, 459; Allison v. Wilson, 13 S. & E. 332; Wells 
 «. Sloyer, 3 Penn. L. J. 206; Kerr v. Day, 2 Harris, 114. 
 
 " Kerr v. Day, 2 Harris, 114. ' Burr v. Sim, 1 Wh. 263. 
 
IMPLIED TRUSTS. 347 
 
 § 424. We will now proceed to the consideration of 
 that species of implied trusts arising from what are 
 termed equitable liens. A lien is neither a, jus in re, nor 
 a jus ad rem ; that is, it is not a property in the thing 
 itself, nor does it constitute a right of action for the 
 thing; it is simply a charge upon it.'^ Liens are divided 
 into legal and equitable. The former are those which 
 may be enforced in a court of law; the latter are valid 
 only in a court of equity. Equitable liens arise from 
 constructive trusts, and are wholly independent of the 
 possession of the thing to which they are attached as a 
 charge or incumbrance.^ 
 
 § 425. The lien which the vendor of real estate has 
 on the land sold for the unpaid purchase money, is a 
 familiar example of an equitable lien. It is a well set- 
 tled doctrine of courts of equity, that the vendor of land 
 has a lien for the amount of purchase money, not only 
 against the vendor himself and his heirs, and others, 
 privies in estate, but also against all subsequent pur- 
 chasers having notice that the purchase money remains 
 unpaid. This doctrine, it is said, was taken from the 
 civil law; and the principle upon which the courts of 
 equity have proceeded in establishing this lien in the 
 nature of a trust is, that a person having gotten the 
 estate of another ought not, in conscience, as between 
 them, to be allowed to keep it, and not to pay the con- 
 sideration money. A third person, having a full know- 
 ledge that the estate has been so obtained, ought not to 
 be permitted to keep it, without making such payment; 
 for it attaches to him also, as a matter of conscience and 
 duty. This is now the uncontested doctrine of courts of 
 equity.^ 
 
 1 2 Story's Eq. § 1215; 4 Bouv. Inat. 244. » 4 Bouv. Inst. 245. 
 
 » Bear v. Whisler, 1 Watts, 147. 
 
348 IMPLIED TRUSTS. 
 
 § 426. But this is not the doctrine of the courts of 
 Pennsylvania, except in cases in which the vendor re- 
 tains the legal title, or where the deed contains an ex- 
 press stipulation, that the balance of the purchase money- 
 shall be a lien on the land until the whole amount be 
 paid.^ Where an absolute conveyance is made of land, 
 a receipt given for the purchase money, and the posses- 
 sion given to the vendee, part of the purchase money 
 being unpaid, and the bond of the vendee, or a surety, 
 taken for the residue thereof; the vendor has not a lien 
 for such residue of the purchase money against judgment 
 creditors of the vendor, whose j udgments are subsequent 
 to the conveyance, although they had notice of the ba- 
 lance of the purchase money due.^ The implication that 
 there is an intention to reserve a lien for the purchase 
 money, in all cases where the parties do not, by express 
 acts, evince a contrary intention, is in almost every case 
 inconsistent with the truth of the fact, and in all in- 
 stances, without exception, in contradiction of the ex- 
 press terms of the contract, which purports to be a con- 
 veyance of every thing that can pass.^ 
 
 § 427. Another species of equitable lien, is that which 
 results to a joint owner of real estate, or other joint 
 property, from repairs and improvements made thereon 
 for the joint benefit, and for disbursements touching the 
 same.* This doctrine of equitable lien has not, however, 
 been engrafted on the jurisprudence of this state;* with 
 us, liens on land which are to bind it in the hands of 
 
 ' Stouffer V. Coleman, 1 Yeates, 393; Stewart v. Coder, 1 Jones, 94; Barnitz 
 V. Smith, I W. & S. 145. 
 
 ^ Bear «. Whisler, 7 Watts, 147; Patterson v. Forry, 2 Barr, 459; Mode's 
 Appeal, 6 W. & S. 285; Zentmeyer v. Jlittower, 5 Barr, 412; Hepburn r. 
 Snyder, 3 Barr, 78. 
 
 3 Kau£felt v. Bower, 7 S. & R. 76-7. * 2 Story's Bq. § 1234. 
 
 =• Hepburn v. Snyder, 3 Barr, 78; Sanda r. Smith, 3 W. & S. 13. 
 
IMPLIED TRUSTS. 349 
 
 purchasers, are strictissimi juris. They are cautiously 
 prescribed by law, and the modes of entering and conti- 
 nuing them must be strictly complied with. It is well 
 settled, that two parties cannot by their private agree- 
 ment create a parol mortgage, which shall have the le- 
 gal effect of a mortgage by reason of verbal notice to 
 creditors or purchasers. This would overthrow the re- 
 cording acts, and the acts relative to judgments and 
 other liens. It would be inconsistent with the whole 
 tenor of our decisions, contrary to the settled policy of 
 the legislature, and productive of infinite peril to land- 
 holders and creditors, and of strife and uncertainty to 
 the community.^ This doctrine may appear inconsistent 
 with the acknowledged right of a vendor who has not 
 parted with the legal title ; but it may be observed, that 
 an equitable lien can only properly arise where the le- 
 gal title has been conveyed. One who has the legal 
 title stands in need of nothing more to enable him to 
 recover the purchase money at law, as the land is pledged 
 for the payment by the retention of the title. ^ 
 
 §428. Another class of implied liens or trusts arises, 
 where property is devised by will subject to a charge 
 for the payment of debts or legacies.^ Charges of this 
 nature are often expressly created, but they may un- 
 doubtedly arise by implication.* No form of words is 
 necessary to produce such effect, and where the intent is 
 manifest, courts are bound to carry it into execution.''^ 
 It must however appear, by direct expression or plain 
 implication, that such was the intention of the testator, 
 or the claim of the legatee will not follow the lands into 
 
 1 Mode's Appeal, 6 W. & S. 284. * Bear v. Whisler, 7 Watts, 148. 
 
 5 2 Story's Eq. ? 1244. 
 
 * Nichols V. Postlethwaite, 2 Dall. 131; Hassanclever j'. Tucker, 2 Biun. 526: 
 Witman v. Norton, 6 Binn. 395; Dobbins r. Stevens, 17 S, & R, 13, 
 5 Ripple V. Ripple, 1 Rawle, 390, 
 
350 IMPLIED TRUSTS. 
 
 the hands of an innocent purchaser.^ Thus, an intent 
 to charge has been imphed from a devise of the residue, 
 real and personal, after payment of legacies; whence a 
 supposed design, that the devisee should have nothing 
 till the legacies were first taken out of the land.^ And 
 so also, where the real estate is blended by the testator 
 with the personal, the land is charged with the payment 
 of legacies; and the reason is, that the whole will may 
 take effect, and all the legacies be paid, which is justly 
 supposed to be the intention of the testator, when both 
 funds are put into one.^ 
 
 § 429. But to make a legacy a charge upon land, it is 
 necessary that it should be declared to be so by express 
 words, or that it may be inferred from the whole will 
 that such was the intention of the testator.* It is not 
 the policy of the law to encourage charges on lands, as 
 it trammels the transfer of that species of property, and 
 creates embarrassment to vendor, vendee, and creditors ; 
 and hence it is, that the law is so stringent in respect to 
 incumbrances. Indeed, the rule adopted by the courts, 
 in most cases, carries into effect the intention of the tes- 
 tator; for when he designs to charge his real estate, he 
 usually says so in express terms, or the implication is so 
 strong from the whole will that it is difficult to mistake 
 his intention. He usually places so much confidence in 
 his devisees, not only as to integrity, but ability to pay, 
 that he supposes it unnecessary to do more than to cast 
 on them a personal liability to pay the legatees.* And 
 hence it is clear, that a devise of land, simply, accom- 
 panied b}' a direction to the devisee to pay certain sums 
 
 1 Brandt's Appeal, 8 Watts, 202. ' Tower's Appropriation, 9 W. & S. 105. 
 ° M'Lanahan v. M'Lanahan, 1 Penn. R. 112. 
 * Montgomery v. M'Elroy, 3 W. & S. 371. 
 ' Wright's Appeal, 2 Jones, 257. 
 
IMPLIED TRUSTS. 351 
 
 to others, does not constitute those sums an incumbrance 
 upon the devised lands, but they become a personal 
 charge on the devisee, in respect to the land devised to 
 him, which, by acceptance, he undertakes to discharge.-^ 
 
 § 430. Another instance of an implied trust is, where 
 a party takes an estate, which is already subject to an in- 
 cumbrance, and by his own express covenant makes him- 
 self personally liable for the debt. In such case the real 
 estate is treated as the primary fund for the payment of 
 the incumbrance. Thus, where a person takes a con- 
 veyance of land subject to a mortgage, covenanting to 
 indemnify the grantor against the mortgage, and having 
 j)aid off part of the incumbrance, dies intestate, the land 
 is the primary fund to be resorted to for the payment of 
 the residue, and the heir xsannot throw the charge upon 
 the personal representatives.^ 
 
 § 431. Implied trusts and constructive trusts are fre- 
 quently confounded or classed together; and the same 
 trusts are sometimes designated by the name of implied 
 trusts, and at other times by that of constructive trusts. 
 But a constructive trust, as distinguished both from ex- 
 press and from implied trusts, may be defined to be a 
 trust which is raised by construction of equity, in order 
 to satisfy the demands of justice, without reference to 
 any presumable intention of the parties.^ Several in- 
 stances of this species of constructive trusts have been 
 already considered. 
 
 § 432. Thus we have seen, that a trust will be en- 
 forced not only against those who are rightfully possessed 
 of the fund as trustees, but also against all others who 
 
 ' Miltenberger v. SoUegel, 1 Barr, 243; Brandt's Appeal, 8 Watts, 198; 
 Dewitt V. Eldred, 4 W. & S. 422; Lobach's Case, 6 Watts, 169. 
 
 ' Mason's Estate, 1 Pars. 133; Cumberland v. Codrington, 3 Johns. Ch. 229. 
 See 1 Lead. Cas. Eq. 448. " Smith's Bq. 117. 
 
352 IMPLIED TRUSTS. 
 
 have obtained it, without consideration, or with notice 
 of the trust; for courts of equity consider the purchaser, 
 with notice, from a fraudulent trustee, as a trustee for 
 the beneficial owner.^ The mere possession, however, of 
 a cestui que trust, and the exercise by him of acts of 
 ownership, are not constructive notice to a purchaser of 
 the legal title from the trustee; there should be direct, 
 express, and positive notice of the fact.^ The undis- 
 turbed possession of land, has generally been considered 
 as legal notice, because the fact of possession being no- 
 torious, it is sufficient to put the purchaser on his guard, 
 and to induce him to inquire into the title of the posses- 
 sion. But to entitle the bare possession to such weight, 
 it ought to be a clear unequivocal possession; and the 
 doctrine is subject to many exceptions.^ 
 
 § 433. So also it is well settled, that if a trustee, in 
 violation of his duty, invest the trust money in lands, 
 the cestui que trust may, at his option, accept the lands, 
 or he may refuse them, and demand his money.* So 
 long as it can be identified either as the original property 
 of the cestui que trust, or as the product of it, equity will 
 follow it, unless the right of reclamation be detached by 
 the superior equity of a hond fide purchaser, for a valua- 
 ble consideration, without notice. This right, however, 
 fails, when the subject matter is turned into money, and 
 mixed and confounded in a general mass of property of 
 the same description.^ 
 
 ' Ante, ? 322. 
 
 ' Hood V. Fahnestock, 1 Ban-, 4T7. See Moyer v. Scliieh, 3 Barr, 246-7; 
 Keeler !>. Vantuyle, 6 Barr, 250. 
 
 « Billington v. Welsh, 5 Binn. 132 ; Plumer v. Robertson, 6 S. & R. 184; Boggs 
 V. Varner, 6 W. & S. 474. 
 
 * Bonsall's Appeal, 1 Rawle, 274; Kanfinan v. Crawford, 9 W. & S. 134. 
 
 ' Thompson's Appeal, 10 Harris, 17. 
 
TRUSTEES. . 353 
 
 CHAPTER XXIII. 
 
 OF TRUSTEES. 
 
 § 434. The nature of a trustee's duty will, in a great 
 measure, appear from a reference to the limitations in 
 the instrument in which it originates : it consists chiefly 
 in the due perception and application of the profits', the 
 execution of estates, and the protection of the property. 
 The application of the profits must of course be accord- 
 ing to the instrument declaring the trust, or to the equi- 
 ties of the parties; the execution of estates, where the 
 trusts are executed, must be according to the lawful di- 
 rection of the cestui que trust; where they are executory, 
 to the appropriate construction of the instrument by 
 which they are prospectively ci-eated; and the protec- 
 tion of the property, is the maintaining possession of the 
 legal estate or interest which is vested in him.^ As it 
 is not always easy to determine what is the precise duty 
 of a trustee, he has an undoubted right to come into a 
 court of equity for its assistance and protection in all 
 cases of doubt or difiiculty in the administration of the 
 trust, and the personal representatives of a deceased 
 trustee are entitled to the same privilege; and so where 
 any legal proceedings have been commenced against 
 trustees, they are entitled to come to the court for its 
 protection, and to obtain directions as to the mode of de- 
 
 1 Jeremy's Eq. 139, 
 
354 • TRUSTEES. 
 
 fence, if any, to be adopted, and to stay the proceedings 
 against them in the mean time, and if a suit be pending 
 between the parties at the time, the application may be 
 made by a petition in that suit.^ 
 
 § 435. A trustee is bound by an implied obligation, to 
 perform all those acts which are necessary and proper 
 for the due execution of the trust which he has under- 
 taken. The fact that a trustee is unwilling to assume 
 any further or additional duties or responsibilities in the 
 execution of the trust, is a matter which a court of 
 equity will not regard, if the necessity or propriety of 
 the case require that additional duties should be as- 
 sumed for the benefit of the trust property, or the inte- 
 rest of the cestui que trust. It is the duty of the court, 
 where a proper case is presented, to direct that to be 
 done, by which the trust shall be rendered most benefi- 
 cial; and if the trustees be unable or unwilling to act 
 as required, the trust will not be allowed to suffer, but 
 such means as may be necessary will be adopted, to carry 
 into effect the order of the court.^ 
 
 § 436. Thus, trustees may be decreed to sell, mort- 
 gage, lease, or convey on ground rent, any part of the 
 real estate held in trust, whenever the court shall be of 
 opinion that it is for the interest and advantage of those 
 interested therein, and it may be done without prejudice 
 to the trust, charity, or purpose for which the same shall 
 be held.^ The courts may also, in decreeing such sales, 
 leases, or conveyances on ground rent, order the premises, 
 if necessary, to be so subdivided as to command the 
 highest price or greatest rents, and for such purposes, 
 where the premises may admit or require of it, may lay 
 
 ' Hill on Trustees, 543. = Carswell's Estate, 12 Leg. Int. 14-15. 
 
 ' Purd. Dig. 699. 
 
TRUSTEES. 355 
 
 out roads or streets, and vacate sucli as shall not have 
 been paid for, or received into actual use by the public, 
 if found to be inconvenient, or to make an unprofitable 
 division of the property.^ Trustees may also be decreed 
 to make and take conveyances to square and adjust lines 
 between adjoining owners; to perfect the partition of 
 real estate held in common with others; to purchase 
 other real estate when needful to that already owned by 
 such party, or useful to the business thereupon carried on ; 
 or when necessary to protect any security or rent held on 
 property exposed to judicial sale.^ And in all such cases, 
 jurisdiction is conferred upon the proper orphans' court, 
 or court of common pleas, to make such decree in the 
 premises as the circumstances of the case may require.^ 
 
 § 437. The courts are also empowered, whenever in 
 their opinion it will promote the interest of any estate 
 held in trust composed of both real and personal pro- 
 perty, to order, on the petition of the trustee, or benefi- 
 cial owner for at least a life estate, that the personal pro- 
 perty, or a portion thereof, shall be applied for the im- 
 provement and greater productiveness of the real estate ; 
 and in such case, it is the duty of the trustee to keep an 
 account of such expenditure ; and if the personal and 
 real estate go to different persons in remainder or rever- 
 sion, no change will be thereby effected in their rights, 
 but such expenditure will be a charge on the real estate, 
 in favour of those entitled to the personalty; and may be 
 recovered by decree in such court, and if necessary, by an 
 order or decree of sale, as in case of an orphans' court sale.* 
 
 § 438. "We have seen, that in Pennsylvania all trus- 
 tees are entitled to compensation for their services in the 
 
 1 Purd. Dig. 700. ^bid. vol. « Ibid. 700. 
 
 * Act 3 May 1855, ? 3; Ibid. 1156. 
 
356 TRUSTEES. 
 
 execution of the trust, whether there be any provision 
 or agreement respecting it or not; '^ but this is strictly 
 ex gratia, and not of right.^ A trustee, therefore, in ge- 
 neral, is answerable for negligence only when it is so 
 gross as to be evidence of wilful misconduct; but the 
 rule does not apply where he is to receive a stipulated 
 compensation; in such cases, a trustee is liable to ac- 
 count as a bailee for hire.^ Trustees are bound to act 
 with judgment, discretion, and fidelity, in the manage- 
 ment and disposition of the property; with such dih- 
 gence and care as they would bestow upon their own; 
 but they ought not to be held answerable for acts or 
 omissions which would not be ' deemed culpable in ma- 
 naging their own concerns, even when acting according to 
 their own judgment.* A trust, it is said, is an office ne- 
 cessary between man and man, and which, if faithfully 
 discharged, is attended with great trouble, and it is an act 
 of great kindness to undertake it. To add hazard or risk 
 to that trouble, and to subject a trustee to losses which he 
 could not foresee, would be a manifest hardship, and would 
 deter every man from accepting so necessary an office.^ 
 § 439. If a trustee exercise so much caution in re- 
 spect to the trust fund, as a prudent man would in re- 
 gard to his own money, and a loss happen, equity will 
 excuse him. But all the authorities distinguish between 
 such a case and that where the trustee has actually re- 
 covered the fund. He is then bound carefully to secure 
 the money which comes to his hands, and if he fail to 
 
 1 Ante, I 325. 
 
 ^ Ex parte Cassel, 3 Watts, 448; Jones's Appeal, 8 AY. & S. 150. 
 
 ■'' Und. * Ban- r. M'Ewen, 1 Bald. 162. 
 
 ^ Goclienauer v. Froelicli, 8 Watts, 22; Johnson's Appeal, 12 S. & E. 324-5; 
 Pirn V. Downing, II S. & R. 66; Konigmacher v. Kimmel, 1 Penn. R. 213; 
 Nyce's Estate, 5 W. k S. 254. 
 
TRUSTEES. 357 
 
 do so, and a loss happen, he is responsible. What shall 
 be such apparent adequate security as will excuse a 
 trustee, has been the subject of some diversity of opi- 
 nion ; but it now seems to be agreed that the personal se- 
 curity of an individual is insufficient.-' And, after some 
 conflict of opinion, the supreme court has held it to be 
 the settled law of Pennsylvania, that a trustee can only 
 protect himself from risk when he invests the trust 
 funds in real or government securities, or makes the in- 
 vestment in pursuance of an order by the court.^ 
 
 § 440. And if a trustee invest the trust fund in his 
 own name, it will render him personally responsible for 
 the amount invested.* It is of the first importance to 
 the cestui que trust, and for the benefit of the trustee 
 himself, that their funds should not be intermixed, but 
 should be kept separate and distinct. For unless this 
 rule be observed it puts the trustee in the power of the 
 cestui que trust, who may, at his option, either insist on 
 the transfer of the investment, or charge the trustee with 
 the price and legal interest.'' This elementary principle, 
 applicable to every investment by a trustee, is essen- 
 tially that which forbids him to place trust money in the 
 hands of a banker in his own name, except at the risk 
 of the banker's insolvency, or in any other way to con- 
 found it with his own.^ An agent who places his prin- 
 cipal's money to his own account with his general banker, 
 takes the risk of the banker's failure; for he cannot so 
 
 ' Nyce's Estate, 5 W. & S. 256; Swoyer's Appeal, 5 Ban-, 384; Hemphill's 
 Appeal, 6 Harris, 306. 
 
 ^ Hprnphill's Appeal, 6 Harris, 305-6; Worrell's Appeal, 11 Leg. Int. 54. 
 And see Purd. Dig. 197; Barton's Estate, 1 Pars. 24. 
 
 5 Stanley's Appeal, 8 Barr, 432. 
 
 * Morris v. Wallace, 3 Barr, 323; Lukens' Appeal, 7 W. & S. 61. 
 
 ' Stanley's Appeal, 8 Barr, 435. 
 
358 TRUSTEES. 
 
 deal with it as to be able to treat it as the money of his 
 principal, or as his own, according to the event.^ 
 
 § 441. In regard to interest upon trust funds, it is an 
 established principle, that a trustee is chargeable with 
 interest whenever through negligence he has suffered it 
 to remain uninvested ; and much more so when he has 
 used it for his own purpose.^ And, as a general rule, he 
 is allowed six months for the investment of the funds, 
 from the time they came into his hands, during which 
 time interest will not run against him.^ But, except in 
 cases of malfeasance, trustees are only chargeable with 
 simple interest on the sums actually received, the prac- 
 tice of making triennial or other rests in the account, and 
 thus charging them with compound interest has not been 
 adopted in Pennsylvania.* It is provided by statute, 
 that the amount of interest to be paid in all cases by 
 executors, administrators, and guardians, shall be de- 
 termined by the orphans' court, under all the circum- 
 stances of the case; but shall not, in any instance, ex- 
 ceed the legal rate of interest for the time being." It is, 
 however, by no means settled, that under no circum- 
 stances, can a trustee be charged with compound inte- 
 rest; it is a fundamental rule of equity that a trustee 
 
 1 Myers v. Entriken, 6 W. & S. 46 ; Lukens' Appeal, 7 W. & S. 61. 
 
 2 Fox V. Wilcoeks, 1 Binn. 199; Findlay v. Smith, 7 S. & R. 264. 
 
 ' Merrick's Estate, 1 Ash. 305; Dietterich u. Heft, 5 Barr, 91 ; Laua r. Keck, 
 11 Leg. Int. 31; Worrell's Appeal, Ibid. 55. 
 
 * Dietterich v. Heft, 5 Barr, 87. See Brinton's Estate, 10 Ban-, 408. 
 
 ^ Purd. Dig. 210. Courts of equity recognise the distinction between negli- 
 gence and corruption in the conduct of trustees, and measure the rate of in- 
 terest accordingly. The consequence of charging the full legal rate of interest 
 in the case of mere negligence, would frequently be to compel payment by a 
 trustee of what he could not, in the ordinary course of things, have received; 
 and to give to those interested a profit on their funds which they could not 
 easily have made by their usual mode of investment. Report on the Civil 
 Code, 1830-31. And see English r. Harvey, 2 Rawle, 305. 
 
TRUSTEES. 359 
 
 shall not make profit of the fund for himself, and the 
 substitution of interest for profits not ascertainable is but 
 a modification of it ; and therefore it would seem, that 
 where a trustee has used the trust fund for his own pur- 
 pose, he may be chargeable with compound interest, un- 
 less he duly account for the profits.^ 
 
 § 442. Trustees are, in general, responsible only for 
 their own acts, and not for those of their co-trustees; 
 and the mere fact that they have executed a joint re- 
 ceipt, will not have the effect of making them jointly 
 liable ; ^ for when the administration of a trust is vested 
 in co-trustees, they all form but one collective trustee ; 
 they must, therefore, execute the duties of the office in 
 their joint capacity. Thus, a receipt for money, or a 
 certificate of bankruptcy, &c., must receive the joint 
 signature of the whole body; for the power, interest, and 
 authority of co-trustees in the subject matter of the trust, 
 being equal and undivided, they cannot like executors 
 act separately, but all must join.® The distinction be- 
 tween executors and trustees, in this respect, is impor- 
 tant : an executor joining with his colleague in the sig- 
 nature of a receipt or conveyance, makes it his own ; for, 
 as each has a several right to receive the assets, it is un- 
 necessary for them to join; and where they gratuitously 
 assume the character of joint receivers, they agree to 
 trust each other, and become joint accountants; while 
 
 ' Harland's Accounts, 5 Rawle, 331-3. Interest will be compounded, or 
 computed with annual rests, where the trustee is guilty of gross delinquency, 
 or mingles the trust property with his ovm for his own benefit, or otherwise so 
 uses the trust funds as to justify the belief that he has actually earned interest 
 upon the interest; and the reason for charging compound interest is much 
 stronger, when the trustee refuses to exhibit the accounts, which would show, 
 precisely, what loss or advantage he has derived from the trust funds. 1 Pars, 
 on Cont. 103. And see Lukens' Appeal, 7 W. & S. 62. 
 
 ^ Jones' Appeal, 8 W. & S. 143; 1 Pars, on Cont. 27-8. 
 
 ' Vandever's Appeal, 8 W. & S. 409. 
 
360 
 
 TRUSTEES. 
 
 no such conclusion is to be drawn from the receipt of 
 trustees who cannot choose but join.^ 
 
 § 443. Even in the case of executors, modern good 
 sense, looking beyond the technical reason of the rule, 
 which was supposed to be applicable to the peculiarity 
 of the trust devolved on them, seems to have broken 
 down the distinction between them and other trustees, 
 by denying that, in reason, an intent to be jointly charge- 
 able is deducible from the mere fact of joining in a re- 
 ceipt. And it is said, that executors who give no bond, and 
 general trustees, are liable only for the amount that comes 
 to their hands; though it is otherwise with administrators, 
 who, by giving bonds, become sureties for each other.^ 
 
 § 444. As has been before observed, the courts are 
 empowered to remove trustees in all cases of wilful de- 
 fault or mismanagement of the trust estate, and to ap- 
 point new trustees to carry out the purposes of the trust.^ 
 It is not, indeed, every mistake, or neglect of duty, or 
 inaccuracy of conduct of trustees, which will induce the 
 courts to adopt such a course. But the acts or omissions 
 must be such as to endanger the trust property, or to 
 show a want of honesty, or a want of proper capacity to 
 execute the duties, or a want of reasonable fidelity.* 
 Thus, the loan of part of the trust funds on personal 
 security, is sufficient to authorize the dismissal of the 
 trustee for mismanagement.^ And so is a refusal on the 
 part of the trustee to undertake additional duties, which 
 are deemed necessary by the court for the proper exe- 
 cution of the trust.^ 
 
 'Jones's Appeal, 8 W. & S. 147-8. See Brown's Appeal, 1 Ball. 311; 
 Sterrett's Appeal, 2 Penn. R. 421 ; Evans's Estate, 2 Ash. 479; Adams' Eq. 58 n. 
 
 ' Stall's Appeal, 10 Barr, 152-3; M'Nair's Appeal, 4 Eawle, 155; Boyd v. 
 Boyd, 1 Watts, 367. ' Ante, § 320. 
 
 ' 2 Story's Eq. ^ 1289. ^ Johnson's Appeal, 9 Barr, 416. 
 
 « Carswell's Estate, 12 Leg. Int. 14. 
 
INFANTS. 361 
 
 CHAPTER XXIV. 
 
 INFANTS, LUNATICS, AND MAERIED WOMEN, 
 
 § 445. Another important branch of equitable juris- 
 diction, arising partly out of the doctrine of trusts, and 
 partly from the relation of the parties who are the objects 
 of it, is that which is exercised over the persons and 
 property of infants, lunatics, and married women.^ And 
 first, as to infants ; the j urisdiction over whose persons and 
 estates has been vested by statute in the orphans' courts.^ 
 
 § 446. The orphans' courts are invested by law with 
 the power of appointing and removing guardians. The 
 origin of this jurisdiction is found in the act of 27 March 
 1713,^ which conferred upon them the authority to ad- 
 mit orphans or minors, when and as often as there 
 might be occasion, to make choice of guardians or tutors ; 
 and to appoint guardians, next friends, or tutors, over 
 such as the court should judge too young, according to 
 the rules of the common law, to make choice themselves;* 
 provided that they should not have any power to com- 
 mit the tuition or guardianship of any orphans or minors, 
 to any person or persons, whose religious persuasion 
 should be different from what the parents of such orphan 
 or minor professed at the time of their decease; or against 
 
 ' 2 Story's Eq. 2 1327. ' Pu»d. Dig. 191. ' 1 Sm. 84^5. 
 
 * At fourteen, an infant is at years of discretion, and may choose his guardian. 
 1 Bl. Com. 463; 1 Bouv. Inst. 63. 
 
 24 
 
362 INFANTS. 
 
 the minor's own mind and inclination, so far as he or 
 she had discretion or capacity to express or signify the 
 same ; or to persons that were not of good repute ; so as 
 others, of good credit and of the same persuasion, might 
 or could be found. Under this act, the appointment of 
 guardians was in the legal discretion of the court, and was 
 not confined to the guardian in soccage or by nurture.^ 
 
 § 447. The provisions of this statute are substantially 
 re-enacted by the revised act of 29th March 1832,^ with 
 the further restriction, that no executor or administrator 
 shall be admitted or appointed by the orphans' court 
 the guardian of a minor, having an interest in the estate 
 under the care of such executor or administrator; pro- 
 vided, that such prohibition shall not be construed to ex- 
 tend to the case of a testamentary guardian. The same 
 act provides that no foreign appointment shall authorize 
 the person so appointed to interfere with the estate, or 
 control the person of a minor, in this state; provided, 
 that such foreign guardian may, in its discretion, be 
 appointed by the proper orphans' court, on giving secu- 
 rity for the due performance of his trust.^ 
 
 § 448. The several orphans' courts have also power to 
 appoint guardians of the estates of minors residing out of 
 the commonwealth, in all cases where such minors are 
 possessed of estates lying within the jurisdiction of the 
 court, upon the petition of the minors, or of any of their 
 relations or friends, or any person interested in such 
 estates, without requiring such minors to appear in court 
 to make choice of guardians.'' 
 
 § 449. The law which forbids the appointment of a 
 
 ' Graham's Appeal, 1 Dall. 136. ^ Purd. Dig. 191. 
 
 ^ AH guardians are treated by the Courts as trustees; and except in the case 
 of testamentary guardians, are required to give security for the faithful dis- 
 charge of their duty. 1 Pars, on Cont. 113. * Purd. Dig. 191. 
 
INFANTS. 363 
 
 guardian whose religious faith differs from that of the 
 infant's parents, should be most strictly obeyed wherever 
 it is practicable, for reasons, so many and so obvious, that 
 they need not be repeated. But a difference of religious 
 opinion is no cause for discharging one from a trust with 
 which he is already clothed. A guardian can only be 
 removed for mismanagement or misconduct. But if he 
 should attempt, by any harsh or unfair means, to erase 
 the impressions made by the parents on the mind of the 
 child, and much more, if he should put its conscience to 
 any kind of torture, the law would not only justify but 
 demand his removal.^ To disqualify an executor for the 
 appointment of guardian, it is not necessary that the land 
 devised to the minor be placed under his care as exe- 
 cutor.^ The husband of the widow and administratrix 
 may, however, be appointed guardian of his step-child, 
 after a final settlement of the administration.^ 
 
 § 450. The orphans' courts have power to remove any 
 guardian, whether testamentary or otherwise, on proof 
 of his mismanagement of the minor's estate, or miscon- 
 ducting himself in respect to the maintenance, education, 
 or moral interests of his ward.* And ignorance of duty 
 on the part of the guardian, through which the interests 
 of the minor have suffered, is within the mischief to be 
 remedied, and sufficient ground for his removal ; for it 
 matters little to an orphan child whether his interests 
 be sacrificed and his prospects blighted by well-meaning 
 ignorance or by wilful malice : either is within the defi- 
 nition of misconduct, a word which applies, not to the 
 motive but to the act.^ A complaint against a guardian 
 
 ' Nicholson's Appeal, 8 Harris, 54. ^ Senseman's Appeal, 9 Harris, 331. 
 ' Stewart's Case, 1 Browne, 288. "^ Purd. Dig. 192. 
 
 ' Nicholson's Appeal, 8 Harris, 54. 
 
364 INFANTS. 
 
 must be sustained by proof; it is irregular to take the 
 couiplaint pro confesso, because of his refusal to appear 
 to the citation; the proper course is to examine the 
 complainant's witnesses, and judge how far it is sus- 
 tained by the evidence.'^ 
 
 § 451. The superintendency of the guardianship of 
 the person, so as to discharge from illegal custody, or to 
 protect from cruelty or ill usage by the legal guardian, 
 is exercised by the supreme court and the several courts 
 of common pleas on writ of habeas corpus. It is princi- 
 pally upon this ground that the courts interfere with the 
 ordinary rights of parents, as guardians by nature, or by 
 nurture, in regard to the custody and care of their chil- 
 dren. As a consequence of the obligation of the father 
 to provide for the maintenance and education of his in- 
 fant children, he is entitled to the custody of their per- 
 sons, and to the value of their labour and services.^ And 
 as between husband and wife, the custody of the children 
 generally belongs to the former. But we have never, in 
 this state, held that the courts are bound to a strict ad- 
 herence to the old common law rules as to the custody 
 of children. We do not look upon the wife and the 
 children as mere servants of the husband and father, and 
 as therefore held subject to his will, so long as he do not 
 transcend the power of an absolute master. We do not 
 hold that, though a husband drive a wife away from his 
 house by his crimes or his cruelty, still he is entitled to 
 take away from her the custody of her children. We 
 have always, in disputes between parents, acted upon 
 much the same principles as a court of chancery acts, 
 when a petition is presented for the custody of a child; 
 
 1 Shilling's Appeal, 1 Barr, 90. = 2 Kent's Com. 193. 
 
INFANTS. 365 
 
 and as the chancellor, for the king, acts as parens patrice 
 in such cases, so our courts have considered it their duty 
 to act, looking to the good of the child as far as they can, 
 and restraining the absoluteness of the parental right, 
 when exercised inconsistently with this end.^ 
 
 § 452. It is the duty of the parent to maintain and 
 educate the child, and he possesses the resulting autho- 
 rity to control it in all things necessary to the accom- 
 plishment of these objects. The law has assigned no 
 limits to the authority of the parent over the child, ex- 
 cept that it must not be exercised in such a manner as 
 to endanger its safety or its morals.^ This parental autho- 
 rity, however, is always for the good of the child, and 
 therefore is not absolute in all things, or despotic. It 
 must at all times be exercised in subservience to the 
 laws and to the rights of others. A father has no right- 
 ful authority to compel his child to prostitute its person, 
 or its morals, to the commission of crime. He dare not 
 force it to commit acts of idolatry or of blasphemy. 
 Against any such parental control, our constitution and 
 laws would at once interpose their authority, and wrest 
 the child from the dangers of such false teachings, and 
 from the influence of such unholy opinions and practices. 
 In every well regulated Christian community, it is 
 obvious that all parental authority must be subject to its 
 institutions and its laws.^ 
 
 § 453. In exercising its superin tendency over an in- 
 fant's estate the courts will make a reasonable allowance 
 for maintenance. The orphans' courts are invested, by 
 statute with authority, when any one shall die, leaving 
 an infant child or children, without having made an 
 
 » Com. V. Gilkeson, 3 Am. L. J. 506-7. 
 
 ' Com. V. Armstrong, 1 Penu. L. J. 396. ' Com. v. Sigman, 3 Ibid. 255. 
 
366 INFANTS. 
 
 adequate provision for the support and education of such 
 child or children during their minority, to direct a suit- 
 able periodical allowance out of the minor's estate, for 
 the support and education of such minor, according to 
 the circumstances of each case; which order may, from 
 time to time, be varied by the court, according to the 
 age of the minor and the circumstances of the case.^ And 
 whenever it shall happen that a devisee, legatee, or dis- 
 tributee, in his or her minority, shall reside out of the 
 state, and the whole or any portion of his or her devise, 
 legacy, or share, shall be necessary for the support, main- 
 tenance, or education of such minor, the proper orphans' 
 court is vested with power to make such order touching 
 the payment of the same, or of part thereof, for the use 
 and benefit of such minor, as shall appear necessary and 
 proper : such payment to be made to the persons desig- 
 nated by the court.^ And the courts may make such or- 
 der for maintenance notwithstanding any direction to ac- 
 cumulate the rents and profits for the benefit of the minor.^ 
 § 454. An allowance for maintenance will be ordered, 
 notwithstanding the infants may have a father in full 
 life, if he be without adequate means to maintain and 
 educate them, according to their future expectations in 
 life.* Courts of equity will direct the maintenance of in- 
 fants from the funds in the hands of trustees: 1. Where 
 a legacy has been given by a parent to a child, an infant : 
 in which case, whether the legacy be vested or contingent, 
 interest is given for maintenance, on the principle of the 
 natural obligation of parents to provide for the present 
 as well as the future maintenance of their children : 2. 
 
 1 Purd. Dig. 192. ' Ibid. 193. 
 
 ' Ibid. 701; Newport v. Cook, 2 Ash. 342. 
 
 ' Newport v. Cook, 2 Ash. 332; 1 Pars, on Cont. 256. 
 
INFANTS. 367 
 
 Where a legacy has been given by a party who puts 
 himself m loco parentis; the intent to do which appear- 
 ing from the face of the whole will in which a legacy is 
 given, the same doctrine holds as in the case of a legacy 
 to a child by a parent : 3. Where a legacy has been given 
 to an infant absolutely, payable however at full age, 
 with no devise over; no person being in any way inte- 
 rested in presenti or in futuro in the fund. In such a 
 case, there can be no doubt but that a court of equity 
 will compel a trustee, holding such a fund to appropriate 
 or pay the interest, where the legacy carries interest, or 
 even the principal, where it does not, for the support, 
 education, and advancement of the infant.^ 
 
 § 455. As a general rule, the courts, in allowing main- 
 tenance, confine it within the limits of the income; it is 
 rarely permitted to break in upon the capital; yet under 
 circumstances of extraordinary character it will be done.^ 
 In Barlow v. Grant,^ the rule is thus determined by the 
 Lord Keeper : — " It is fit and reasonable," says his lord- 
 ship, "that part of the principal of a child's legacy of one 
 hundred pounds should be allowed for his education. 
 The money laid out in the child's maintenance and edu- 
 cation is most advantageous and beneficial for the infant, 
 and therefore he should make no scruple in breaking into 
 the principal, where so small a sum was devised, that the 
 interest thereof would not suffice to give the legatee a com- 
 petent maintenance and education. But in the case of a 
 legacy of one thousand pounds, or the like, there it is rea- 
 sonable, to restrain the maintenance to the interest money." 
 
 § 456. The courts also exercise a vigilant supervision 
 
 ' Corbin v. Wilson, 2 Ash. 207; Seibert's Appeal, 7 Harris, 54-5; Bitzer v. 
 Hahn, 14 S. & R. 237; Magoffin v. Fatten, 4 Rawle, 119. 
 2 Potts's Case, 1 Ash. 344. 3 1 Vern. 255. 
 
368 INFANTS. 
 
 over guardians in the management of the property of the 
 infant. They will not ordinarily be permitted to change 
 the personal property of the infant into real estate ; such 
 a conversion of it can only be justified by imminent neces- 
 sity.-^ Nor can they effect a conversion of the infant's 
 real estate into personalty, for this would not only affect 
 the rights of the infant himself, but also of his represen- 
 tatives, if he should die under age.^ The courts, however, 
 have power in all cases to direct the real estate of 
 minors to be sold, mortgaged, leased, or conveyed on 
 ground rent, wherever it will be for the interest and ad- 
 vantage of those interested therein.* And such sale will 
 not effect a conversion of the real estate, but the proceeds 
 thereof, except so far as they may be required for the pay- 
 ment of liens, the improvement of the estate, or the main- 
 tenance and education of the parties, will be held for the 
 same uses as the real estate had previously been holden.* 
 § 457. The supreme court and the several courts of 
 common pleas are expressly invested, by the constitution 
 of Pennsylvania, with the powers of a court of chancery, 
 so far as relates to the care of the persons and estates of 
 those who are non compos mentis.^ And the manner of 
 exercising this jurisdiction by the courts of common pleas 
 has been regulated by the act of 13th June 1836.® These 
 proceedings may be had upon the application in writing 
 of a relative by blood or marriage of the alleged lunatic, 
 or of a person interested in his estate, or where he has 
 no relative by blood or marriage residing within the state, 
 of some disinterested person of the same township, ward, 
 or borough, in which the supposed lunatic resides. The 
 
 ^ Boyer'a Appeal, 1 Jones, 36. ^ 2 Story's Bq. ^ 1357. 
 
 » Purd. Dig. 200-3; Ibid. 699. ' Ibid. 700. 
 
 ' Const, of Penn. Art. 5, ? 6. Purd. Dig. 13. « Purd. Dig. 550. 
 
LUNATICS. 369 
 
 petition must be accompanied by an affidavit of the truth 
 of the facts therein stated. And the jurisdiction to issue 
 a commission in the nature of a writ de lunatico inqui- 
 rendo, is vested in the court of the county in which the 
 supposed lunatic resides ; or, if he have no residence with- 
 in the state, in the court of the county in which he may 
 be found; or, if an inhabitant of the commonwealth 
 be absent therefrom, in the court of the county in which 
 he had his last place of residence, or in which he may 
 have any real estate. It is in all cases to be executed 
 in the same county, unless the alleged lunatic be under 
 restraint, in any place within the commonwealth, out of 
 the county of his residence, and he cannot be conve- 
 niently removed to his place of residence.^ 
 
 § 458. The inquisition is had, and the question of 
 alleged limacy is tried by a jury, whose finding is con- 
 clusive upon the fact of lunacy, in that proceeding, un- 
 less traversed by the party aggrieved. Upon the return 
 of any inquisition finding the person to be a lunatic, the 
 court proceeds to commit the custody and care of his 
 person or estate, or of both, to such person or per- 
 sons as it deems most suitable. Such committee must 
 give security for the faithful performance of his trust, 
 and is removable by the court in its discretion. The 
 management of the estate and the application of the in- 
 come are the only things the committee may do without 
 the precedent authority of the court. It is a naked 
 power, and that carefully limited and restrained, that is 
 intrusted to the committee, without any interest what- 
 ever in the estate.^ 
 
 § 459. This jurisdiction is not confined to idiots or 
 lunatics, strictly so called,^ but is extended to all persons 
 
 1 Purd. Dig. 550. ' Black's Case, 6 Harris, 437. 
 
 ' See Beaumont's Case, 1 Wh. 52. 
 
370 LUNATICS. 
 
 of unsound mind, whether they may have been so from 
 their nativity as idiots, or may have become so from any 
 cause whatever. It is also extended by the act of assem- 
 bly to habitual drunkards ; ^ that is, to such persons who 
 have acquired a fixed habit of intemperance; for occa- 
 sional acts of drunkenness do not make one an habitual 
 drunkard within the meaning of the statute.^ 
 
 § 460. We will now proceed to consider the jurisdic- 
 tion of courts of equity in relation to married women. 
 "The legal effects of marriage are generally deducible 
 from the principle of the common law, by which the 
 husband and wife are regarded as one person, and her 
 legal existence and authority in a degree lost or sus- 
 pended, during the continuance of the matrimonial union. 
 From this principle it follows, that at law, no contracts 
 can be made between the husband and wife without the 
 intervention of trustees; for she is considered as being 
 sub potestate viri, and incapable of contracting with him ; 
 and except in special cases, within the cognizance of 
 equity, the contracts which subsisted between them prior 
 to the marriage are dissolved." ^ It is also a settled rule, 
 of the common law, that the husband becomes entitled, 
 upon the marriage, to all the goods and chattels of the 
 wife, and to the rents and profits of her lands, and he be- 
 comes liable to pay her debts and perform her contracts.* 
 
 § 461. Courts of equity, on the contrary, treat the 
 husband and wife, for many purposes, as distinct per- 
 sons, capable of contracting with each other, and of 
 having separate estates and interests.* And we have 
 seen,^ that in this state, a married woman, since the act 
 
 ' Purd. Dig. 550. ' Ludwick t!. Commonwealth, 6 Harris, 174^-5. 
 
 " 2 Kent's Com. 129. * Ibid. 129-30. 
 
 '■ Duffy V. Insurance Co., 8 W. & S. 432-3. " Ante, ^ 76. 
 
MARRIED WOMKN. 371 
 
 of 1848, is considered as B.feme sole in regard to her se- 
 parate estatp, whetlier owned by her before marriage or 
 subsequently acquired. We will examine, in the first 
 place, the cases in which contracts between husband and 
 wife will be recognised and enforced in equity. 
 
 § 462. A contract between husband and wife, before 
 marriage, is in general extinguished, both at law and in 
 equity, by their subsequent union. But an ante-nup- 
 tial agreement for a settlement upon the wife, although 
 without the intervention of trustees, and therefore void 
 at law, will be enforced in equity, for the husband be- 
 comes thereby virtually a purchaser of his wife's estate; 
 and where the wife, before marriage, gave- a bond to her 
 intended husband, that in case the marriage took effect, 
 she would convey to him her estate in fee, the contract 
 was, after the marriage, enforced in equity, though void 
 at law.^ And it may be laid down as a rule, that where 
 the agreement is such, that it cannot create a debt, or 
 raise a demand during the coverture, the marriage will 
 not extinguish the agreement.^ 
 
 § 463. As the legal existence of the wife is merged in 
 the husband, a conveyance by the husband to the wife, 
 without the intervention of a trustee, is certainly void 
 at law;^ but where a gift to the wife is reasonable, and 
 not in fraud of creditors, equity sustains it as a provision 
 for her, to which the interposition of a trustee is not in- 
 dispensable; yet in consideration of the facility with 
 which evidence of it may be fabricated, resting, as it 
 usually does, on the testimony of witnesses domesticated 
 in the family, and tinctured with the prejudices and par- 
 
 1 Cannel v. Buckle, 2 P. Wms. 243; 2 Eden, 252. 
 
 = 4 Bouv. Inst. 270; Gackenbach v. Brouse, 4 W. & S. 546. 
 
 ' Stiokney v. Borman, 2 Barr, 68. 
 
372 MARRIED WOMEN. 
 
 tialities of its members, a chancellor exacts clear and con- 
 vincing proof of the act of donation and delivery, followed 
 by the same custody that a wife has of her wardrobe or 
 the ornaments that belong to the person : in fine, distinct 
 proof of what would constitute a gift to any one else.^ 
 
 § 464. But there mu^t be some meritorious or valua- 
 ble consideration, either before or after marriage, to in- 
 duce the court to lend its aid to a defective or void con- 
 veyance.^ And therefore, if it appear to be more than 
 a reasonable provision for her, taking into consideration 
 the circumstances of the husband, as, for instance, where 
 he by deed grants all his estate or property to her, or is 
 at the time of the conveyance to her largely indebted in 
 proportion to his means, the deed will be held inopera- 
 tive in equity, as it would at law; for it could in no just 
 sense be deemed a reasonable provision for her, which is 
 the utmost, as it is said, that courts of equity will hold 
 a wife entitled to.^ 
 
 § 465. So, a wife may become a creditor of her hus- 
 band by acts and contracts during marriage; and her 
 rights as such will be enforced against him and his re- 
 presentatives. As, for instance, if a wife should unite 
 with her husband to pledge her estate, or otherwise to 
 raise money out of it to pay his debts or meet aAy other 
 occasion for his accommodation, whatever may be the 
 mode or form adopted to carry such purpose into effect, 
 the transaction will, in equity, be treated according to 
 the true intent of the parties.* And a married woman, 
 having a separate estate, may dispose of the income of 
 
 ' Herr's Appeal, 5 W. & S. 499; M'Kennau v. Phillips, 6 Wh. 571; Fisher 
 V. Filbert, 6 Barr, 66; Duffy v. Insurance Co., 8 W. & S. 433. 
 ^ Stickney v. Borman, 2 Barr, 68. 
 
 " Benedict v. Montgomery, 7 W. & S. 242; Stickney v. Borman, 2 Barr, 68-9. 
 * Duffy V. Insurance Co., 8 W, & S. 433. 
 
MARRIED WOMEN". 373 
 
 it, at her pleasure, either by gift or loan, as well to her 
 husband as to a stranger : if she loan money to her hus- 
 band, he is as much bound to repay it as a stranger 
 would be.^ And by the act of 15th April 1851, it is 
 provided, that it shall be lawful for married women to 
 loan to their husbands money, being of the separate 
 estate of the wife, and to take in security therefor a judg- 
 ment or mortgage against the estate of the husband, in 
 the name of a third person, who shall act as trustee for 
 such married woman; and that every such security hond 
 fide taken, to secure such loan or moneys received by the 
 husband from the proceeds of the real or personal estate 
 of the wife, shall be as good and valid in law against the 
 estate of the husband, as though the same had been in- 
 vested by a trustee appointed by the court.^ 
 
 § 466. We will now pass to the consideration of the 
 mode in which a married woman may acquire a separate 
 estate, and as to her powers and interests therein. At 
 common law, a wife could not take or enjoy either real 
 or personal estate separate from or independent of her 
 husband. But by our statute of 1848, it is provided, 
 that every species and description of property, real or 
 personal, which may be owned by or belong to any single 
 woman, shall continue to be the property of such woman, 
 as fully after her marriage as before ; and all such proper- 
 ty, of whatever name or kind, which shall accrue to any 
 married woman during coverture, by will, descent, deed of 
 conveyance, or otherwise, shall be owned, used, and enjoy- 
 ed by such married woman as her own separate property.^ 
 
 § 467. Of property thus acquired by a married wo- 
 man, possession is no test of title; she cannot have or 
 use her property exclusively, unless she live apart from 
 
 1 Towers v. Hagner, 3 Wli. 5T. ' Purd. Dig. 571. » Ibid. 570. 
 
374 MARRIED WOMEN. 
 
 her husband; and it was not the intention of the legis- 
 lature to compel a separation in order tp protect the 
 wife's rights.^ But it is obvious, that the statute would 
 be the means of protecting and covering the grossest 
 frauds, if the mere fact of the legal title being vested in 
 a married woman were sufficient to protect it from her 
 husband's creditors, or to throw on them the burden of 
 proving that it was purchased with his money. Such a 
 construction, however, has not been placed upon the act. 
 To bring the property of a married woman under its 
 protection, it is made necessary, by the letter, as well as 
 the spirit of the statute, to prove that she owns it. She 
 must identify it as property which was hers before mar- 
 riage; or show how she came by it afterwards. Evi- 
 dence that she purchased it amounts to nothing, un- 
 less accompanied by clear and full proof that she paid 
 for it with her separate funds. In the absence of such 
 proof, the presumption is a violent one that her hus- 
 band furnished the means of payment. And this rule 
 applies to purchases of real estate as well as perso- 
 nal. No agreement of the husband and wife about the 
 property of either, whether it be made in writing or by 
 parol, can avail against creditors, without proof which 
 will render the fact indubitable, that it was hers indepen- 
 dent of all agreements between themselves.^ 
 
 § 468. In regard to the wife's power of disposition 
 over her separate property, we have seen,^ that the En- 
 glish rule gives her the entire control of it, so far as her 
 power has not been restricted by the terms of the settle- 
 ment; but that the contrary doctrine has been estabhshed 
 
 '■ Gamber v. Gamber, 6 Harris, 366. 
 
 ■" Keeney v. Good, 9 Harris, 355; Gamber v. Gamber, 6 Harris, 366. The 
 rule stated in the text does not apply in an action against a mere trespasser. 
 Hoar V. Axe, 10 Harris, 381. ' Ante, § 76. 
 
MARRIED WOMEN". 375 
 
 in Pennsylvania, where it is held that she has no power 
 which is not given to her, either expressly, or by neces- 
 sary implication.^ But the act of 1848 has worked a 
 radical and thorough change in the condition of a mar- 
 ried woman ; she is now considered as a feme sole, in re- 
 gard to her separate estate, and may dispose of it by 
 will, or otherwise.^ The statute does not, however, ena- 
 ble her to convey by deed, to which her husband is not 
 a party; and the salutary rule is still in force, which for- 
 bids any one from taking title to the wife's property, un- 
 less it be conveyed by a deed made not only with her 
 own free consent, but under the protection and by the 
 advice of her husband." And if she dispose of her pro- 
 perty by will, the statute requires that it be executed in 
 the presence of two or more witnesses, neither of whom 
 shall be her husband.* 
 
 § 469. Subject to these restrictions, her power of dis- 
 position is unaffected by the coverture, and, unless li- 
 mited by the terms of the settlement, she may dispose 
 of her separate estate in the same manner as a feme sole. 
 She may execute a power of appointment for the benefit 
 of her husband ; for, being considered a feme sole to the 
 full extent of her power over the property, she must, of 
 course, be permitted to judge for herself as to the par- 
 ticular use she shall make of it, in order most effectually 
 to promote her own comfort and happiness.^ If she 
 have no trustee of her separate estate, the act of 25th 
 
 ' Chrisman v. Wagner, 9 Barr, 473; Lancaster v. Dolan, 1 Eawle, 247; 
 Thomas v. Folwell, 2 Wh. 11; Wallace v. Coston, 9 Watts, 137; Cochran v. 
 O'Hern, 4 W. & S. 100; WetheriU v. Mecke, Bright. R. 140-1. 
 
 ^ Cumming's Appeal, 1 Jones, 275; Groodyear v. Rumbaugh, 1 Harris, 480. 
 
 ' Peck V. Ward, 6 Harris, 509; Ulp v. Campbell, 7 Harris, 361; Haines v. 
 Ellis, 12 Leg. Int. 66. . ■* Purd. Dig. 570. 
 
 ' Hoover v, Samaritan Society, 4 Wh. 445, 454. 
 
376 MARRIED "WOMEN. 
 
 April 1850, authorizes her to apply by petition to the 
 court of common pleas of the county where she was do- 
 miciled at the time of her marriage, for the appointment 
 of a trustee of the same, and the court is thereupon to 
 appoint a trustee of the said estate, not being the hus- 
 band of the petitioner. The same act enables a married 
 woman to declare a trust in regard to her separate pro- 
 perty, in favour of any of her children.^ 
 
 § 470. The act of 4th May 1855, confers a further 
 power on a married woman, whensoever her husband, from 
 drunkenness, profligacy, or other cause, shall neglect or 
 refuse to provide for his wife, or shall desert her; by pro- 
 viding, that in such case, she shall have all the rights 
 and privileges secured to a /erne sole trader; and that her 
 property, howsoever acquired, shall be subject to her free 
 and absolute disposal during life, or by will, without any 
 liability to be interfered with, or obtained by her hus- 
 band ; and in case of her intestacy, shall go to her next 
 of kin, as if he were previously dead. The same act pro- 
 vides, that whensoever any husband or father, from simi- 
 lar causes, shall neglect to provide for his children, the 
 mother shall have all the rights, and be entitled to claim, 
 and be subject to all the duties reciprocally due between 
 a father and his children; and that she may place them 
 at employment, and recover their earnings, or bind them 
 to apprenticeship, without the interference of such hus- 
 band, the same as the father could do by law.^ 
 
 § 471. In general, the wife cannot bind her person or 
 general property: she is allowed to bind her separate 
 property, because as to that she is considered as a. feme 
 
 ^ Purd. Dig. 571. The act doea not authorize the appointment of a trustee 
 of property which was owned by a married woman prior, to the act of 1848. 
 Burson's Appeal, 10 Harris, 164. " Purd. Dig. 1136. 
 
MARRIED WOMEN. 377 
 
 sole} And since, under our statute, all the property of 
 a married woman is to be held and enjoyed by her as 
 her separate estate, she may, in this commonwealth, 
 charge the whole of her estate, by any instrument which 
 she is legally competent to execute, and by which she 
 manifests her intention to charge her own estate. Thus, 
 she may execute a mortgage of her separate property 
 for the debt of her husband, and in such mortgage may 
 waive the limitation given by the act of 1705;^ but she 
 cannot enter into a personal obligation for the payment 
 of money, such as a promissory note,^ or a bond and 
 warrant of attorney;* unless such obligation be given 
 for the purchase money of real estate for her separate 
 use.° And by the act of 1848, her separate estate may 
 be made liable for debts contracted for necessaries, either 
 by herself in person or furnished for the support and 
 maintenance of her family. 
 
 § 472. In case of the insanity of a married woman, 
 her husband is aiithorized, by the act of 28th October 
 1851, upon giving good and sufficient security to the 
 commonwealth for the faithful performance of his trust, 
 in the court of common pleas of the proper county, to 
 transact all business relating to the management or dis- 
 po^tion of his or her real and personal estate, in as full 
 and ample a manner as he might or could do if she were 
 sane, and gave her full consent thereto." 
 
 > 4 Bouv. Inst. 275. 
 
 2 Galway v. Black, Pittsburgh Leg. J. 6 May 1854; Ibid. 11 November 1854. 
 
 ' Mahon V. Gormly, Ibid. 10 February 1855. See 3 Am. L. R. 385. 
 
 * Caldwell v. Walters, 6 Harris, 82; Knox v. Flack, 10 Harris, 338. And 
 see Bennet v. Smith, 3 Am. L. J. 138. 
 
 * Patterson v. Robinson, 3 Am. L. R. 240. 
 " Purd. Dig. 511. 
 
 25 
 
378 DISCOVERT. 
 
 CHAPTER XXV- 
 
 DISCOVEKY. 
 
 § 473. There still remains, to be considered the auxi- 
 liary or assistant jurisdiction of courts of equity, the 
 most important of which is that of discovery; whereby 
 the plaintiff seeks a disclosure from the defendant, on 
 oath, of the truth of the circumstances constituting the 
 plaintiff's case, as set forth in his bill.-^ By various sta- 
 tutes, the supreme court, the district court of Philadel- 
 phia, and the courts of common pleas of Beaver, Bedford, 
 Berks, Blair, Butler, Cambria, Centre, Clarion, Clearfield, 
 Clinton, Crawford, Elk, Erie, Fayette, Forest, Hunting- 
 don, Jefferson, Juniata, Lawrence, M'Kean, Mercer, Mif- 
 flin, Montgomery, Philadelphia, Potter, Schuylkill, So- 
 merset, Tioga, Union, Venango, Warren, and "Wayne, 
 are invested with full equity jurisdiction, in all cases of 
 discovery. And the district court of Allegheny, and the 
 courts of common pleas of Lancaster and York, have the 
 jurisdiction of courts of chancery, so far as relates to the 
 discovery of facts material to a just determination of 
 issues, and other questions arising or depending in the 
 said courts.^ The several courts of common pleas have 
 also jurisdiction to compel the discovery of the real or 
 personal estate of any defendant in a judgment in such 
 court, in aid of the plaintiff's execution.^ 
 
 ' 2 Story's Eq. ? 1483. ' Purd. Dig. 305-7, 1070-1, 1125. 
 
 » Ibid. 309-10. 
 
DISCOVERT. 379 
 
 § 474. Every original bill in equity is in reality a 
 bill of discovery; but the species of bill usually distin- 
 guished by that title, is a bill for discovery of facts rest- 
 ing in the knowledge of the defendant, or of deeds or 
 "writings, or other things in his custody or power, and 
 seeking no relief in consequence of the discovery, though 
 it may pray the stay of proceedings at law, until the dis- 
 covery should be made.^ If therefore discovery alone be 
 sought, without equitable relief, courts of general equity 
 jurisdiction have full power to compel the discovery, if the 
 plaintiiF be otherwise entitled to it on general principles.^ 
 
 § 475. A plaintiff in equity is entitled to an answer 
 from the defendant to the allegations upon which his 
 claim to relief is founded, whether that relief be at law 
 or in equity; and whether the plaintiff can prove his case 
 by other evidence, or be destitute of the means of estab- 
 lishing it. It is therefore one of the purposes of every 
 bill in equity to obtain this answer or confession, and 
 thereby to aid the effect of the other evidence, which 
 may be produced, if it do, not render other evidence un- 
 necessary.^ The right to discovery is founded upon one 
 and the same principle, whether the bill be filed for dis- 
 covery only, or also for relief.* 
 
 § 476. Where a bill prays relief, the discovery, if ma- 
 terial to the relief, is incidental to it, and it has been 
 held, that prima facie it must be so intended.* But there 
 is a class of cases, in which relief is sought as consequent 
 upon the discovery ; and where, but for the want of such 
 discovery, the remedy at law would be complete. In 
 such cases, the necessity of obtaining a discovery consti- 
 
 1 Mitf. Eq. PI. 53. 2 2 Story's Eq.- ? 689. 
 
 ' Hare on Discovery, 1. * Wigram on Discovery, J 11. 
 
 ^ Hare on Discovery, .8. 
 
380 DISCOVERT. 
 
 tutes the sole ground of equity jurisdiction.' The bill 
 must contain allegations sufficient to entitle the court to 
 retain it for relief, if the discovery should be effectual ; 
 otherwise it will be demurrable.'* If in such a bill no 
 discovery be obtained, the jurisdiction fails, and the bill 
 must be dismissed. If, on the other hand, the discovery 
 be effectual, then (as we have already seen) that becomes 
 a sufficient foundation upon which the court may pro- 
 ceed to grant full relief. In other words, where the court 
 has legitimately acquired jurisdiction of the cause for the 
 purpose of discovery, it will, to prevent multiplicity of 
 suits, entertain the suit also for relief.^ If the court have 
 acquired cognizance of the suit for discovery, it will 
 retain it for the purpose of relief, in most cases of fraud, 
 account, accident, and mistake.* 
 
 § 477. Where a bill prays relief, the discovery, if ma- 
 terial to the relief, being incidental to it, a plaintiff show- 
 ing a title to relief, also shows a case in which a court of 
 equity will compel a discovery, unless some circumstances 
 in the situation of the defendant render it improper. 
 But where the bill is for discovery merely, it is neces- 
 sary for the plaintiff to set forth a case in which a 
 court of equity will assume jurisdiction for the pur- 
 pose of compelling a discovery. This jurisdiction is ex- 
 ercised to assist the administration of j ustice in the pro- 
 secution or defence of some other suit, either in the court 
 itself or in some other court.^ There are exceptions to 
 
 ' 2 Story's Bq. ? 690. ^ Story's Eq. PI. § 313; Hare on Discovery, S. 
 
 ' Ante, i 124; Story's Eq.'| 456, 690; Bank of United States v. Biddle, 2 
 Pars. 53; M'Gowin v. Remington, 2 Jones, 63; Shollenberger's Appeal, 9 
 Harris, 340; Baker v. Biddle, 1 Bald. 409; 1 Curtis's Com. | 24 a.' 
 
 * 1 Fonbl. Eq. b. I. ch. i. | 3, note f. p. 12; Baker v. Biddle, 1 Bald. 409; 
 Brooks ». StoUey, 3 M'Lean, 523. 
 
 5 Mitf. Eq. PI. 185-6. 
 
DISCOVERY. 381 
 
 this rule, as where the object of discovery is to ascertain 
 who is the proper party against whom the suit should be 
 brought; but these are of rare occurrence.-^ The allega- 
 tion of the pendency of a civil action, lays a sufficient 
 foundation for a bill of discovery ; ^ an averment, how- 
 ever, that the discovery is sought in aid of some judicial 
 proceeding, commenced or contemplated, is indispensable, 
 for a court of equity does not compel discovery for the 
 mere gratification of curiosity.^ 
 
 § 478. The plaintiff", in a bill of discovery, must in all 
 cases show a title to the discovery which he seeks.* To 
 render an application to chancery for a discovery suc- 
 cessful, it must appear distinctly, why and for what pur- 
 pose the discovery is sought. It is not enough to state 
 that a wrong has been comrliitted, or a right withheld, 
 and then proceed to interrogate the defendant as to the 
 matter in controversy, leaving the connexion between the 
 complaint made and the discovery sought, to conjecture 
 or inference; the complainant must show what end is to 
 be served by the information which he demands.^ It is 
 the right, as a general rule, of a plaintiff" in equity, to 
 exact from the defendant a discovery upon oath as to all 
 matters of fact which, being well pleaded in the bill, are 
 material to the plaintiff"'s case about to come on for trial, 
 and which the defendant does not by his form of pleading 
 admit. But this right of a plaintiff in equity to the 
 benefit of the defendant's oath, is limited to a discovery 
 of such material facts as relate to the plaintiff's case, and 
 
 • 2 Story's Eq. ? 1483. ''' Peebles v. Boggs, 1 T. & H. Pr. 81-2. 
 ' CoUom V. Francis, 1 Pars. 533. 
 
 * "Washington Insurance Co. v. Grant, 4 Penn. L. J. 88; Dull v. Amies, 2 
 Miles, 13C-7. But it seems to be unnecessary to state particularly the pleadings 
 at law, so as to show what precise issues are pending. Hinckle o. Currin, 1 
 Humph. 74. 
 
 ' Waldron v. Bayard, 11 Leg. Int. 79. 
 
382 DISCOVERT. 
 
 does not extend to a discovery of tlie manner in which 
 the defendant's case is to be exclusively established, or 
 to evidence which relates exclusively to it.^ 
 
 § 479. The plaintiff must not only show an interest 
 in the subject matter of the bill, but he must also state 
 such a case as renders the discovery material to support 
 or defend his suit.^ Where it is apparent, upon the face 
 of the bill, that the action or suit which the plaintiff pro- 
 jects or has instituted, cannot be sustained, the defend- 
 ant may demur to the bill. The case is thereby reduced 
 to a mere question of law, to determine which, no dis- 
 covery is needed. The averment of title in the bill, is 
 not of a fact, but of the consequence of facts; and although 
 the plaintiff should allege by his bill that he intends to 
 commence, or has commenced, an action in a court of 
 common law, yet if the court of equity, which must be 
 taken to know the law, be of opinion that the facts stated 
 by the bill are not such as will support an action, a de- 
 murrer will be allowed ; for unless the plaintiff has a title 
 to recover in an action at law, supposing his case to be 
 true, he has no title to the assistance of a court of equity, 
 to obtain from the confession of the defendant evidence 
 of the case.'' So, if the discovery be sought in aid of a 
 defence at law, the bill must show how the discovery is 
 material to the defence ; a mere naked averment is not 
 enough.* It may be observed, however, that if it be 
 I merely doubtful whether an action will lie upon the case 
 stated, it would seem that the plaintiff will not be denied 
 the benefit of a discoverv.* 
 
 ' Wigram on Discovery, § 26-Y; Werue v. Berners, 11 Leg. Int. VS. 
 
 ^ Welford's Bq. PI. 130. 
 
 « Hare on Discovery, 43; Story's Eq. PI. I 5ol-2, 558-9. 
 
 ' Lane v. Stebbins, 9 Paige, C22; Dull r. Amies, 2 Miles, 136-7. 
 
 ' Hare on Discovery, 44. 
 
DISCOVERT. 383 
 
 § 480. It is only in aid of civil proceedings that a court 
 of equity will compel discovery.^ If the answer of the 
 defendant might be evidence tending to subject him to 
 punishment by any judicial or competent authority, or 
 to any penalty or forfeiture, or disability in the nature of 
 a penalty, the defendant will not be compelled to make 
 the discovery.^ If a question involve a criminal charge, 
 the plaintiif is not entitled to an answer to such question, 
 however material to his case. In the application of this 
 principle it has been held, that a married woman will not 
 be compelled to answer a bill which would subject her 
 husband to a charge of felony; and so far has this been 
 carried, that when the facts are such as a defendant will 
 not be compelled to answer, he cannot be required to 
 answer the attendant circumstances, although they have 
 not such an immediate tendency to criminate.^ 
 
 § 481. If a bill seek discovery in aid of the jurisdic- 
 tion of another court, it ought to appear that such aid is 
 required; for if the court, in which the trial is to be had, 
 can itself compel the discovery required, a court of equity, 
 it is said, will not interfere.* On this ground, the court 
 of common pleas of Philadelphia county will not enter- 
 tain jurisdiction of a bill of discovery in aid of an action 
 in the district court, which has the same equitable juris- 
 diction, and is as fully competent to compel the discovery. 
 It is also said, that discovery will not be given in aid of 
 inferior courts, as those of aldermen and justices of the 
 
 ' Wigram on Discovery, ? 127. 
 
 ' Hare on Discovery, 131; 2 Story's Bq. | 1494. 
 
 'Bank of U. S. v. Biddle, 2 Pars. 58; Cartwright v. Green, 8 Ves. 405; 
 Mitf. Eq. PI. 193-4; 1 Dan. Ch. Pr. 626. 
 
 * Gelston V. Hoyt, 1 Johns. Cli. 547; Mitf. Eq. PL 186; Hare on Discovery, 
 119; Wigram on Discovery, § 73 n. This doctrine is denied in March v. 
 Davidson, 9 Paige, 580, as to mere bills of discovery; and the weight of autho- 
 rity is said to be against it. See Hare on Discovery, 120 n. 
 
384 DISCOVERY. 
 
 peace; nor will a court of equity be made, in this man- 
 ner, ancillary to the determination of arbitrators.^ It 
 is a vexed question, whether such a bill lies in aid of a 
 suit, or defence to a suit, in a foreign court : the opinion 
 of Mr. Justice Story appears to be in favour of sustaining 
 the jurisdiction in such cases.^ 
 
 § 482. The situation of a defendant may render it im- 
 proper for a court of equity to compel a discovery. Thus, 
 a married woman cannot be made a party to a suit for 
 the mere purpose of obtaining a discovery from her, to be 
 made use of against her husband.^ And on the same 
 principle, one standing in a relation of professional con- 
 fidence to another, as his counsel or attorney, will not be 
 compelled to disclose the secrets of his client. It is now 
 well settled, that the privilege is not confined to cases 
 where a suit is either pending or expected, but extends to 
 all cases where the counsel is applied to in the line of his 
 profession. If, touching matters that come within the 
 ordinary scope of professional employment, he receive a 
 communication in his professional capacity, either from a 
 client, or on his account and for his benefit, in the transac- 
 tion of his business, he is not only justified in withholding 
 information thus derived, but is bound to do so. And 
 it is not confined to facts communicated verbally or in 
 writing by the client, but extends to such as he has ac- 
 quired by his own personal observation in consequence 
 of such communication. The rule, however, does not ex- 
 tend to facts coming to the knowledge of the attorney, 
 only as a natural or accidental consequence of his occu- 
 pying that situation, and not derived by him, either di- 
 
 ' Hare on Discovery, 120. 
 
 = Story's Eq. PI. 311; 2 Story's Eq. ? 1495; Hare on Discovery, 120. 
 
 » 1 Dan. Ch. Pr. 195; Le Texier v. Anspach, 5 Ves. 222. 
 
DISCOYERT. 385 
 
 rectly or indirectly, in consequence of any confidential 
 communication made to him.^ And it is confined to those 
 cases where a communication has reference to the sub- 
 ject of the dispute, otherwise, the party himself has no 
 general privilege or protection; he is, in other respects, 
 bound to disclose all he knows and thinks respecting his 
 own case; and the authorities therefore are, that he 
 must disclose also the cases he has laid before counsel 
 for their opinion, unconnected with the suit itself.^ 
 
 § 483. As the object of the court, in compelling a dis- 
 covery is, either to enable itself, or some other court, to 
 decide on matters in dispute between the parties, the 
 discovery sought must be material, either to the relief 
 prayed by the bill, or to some other suit instituted, or 
 capable of being instituted. If, therefore, the plaintiff" 
 do not show by his bill such a case as renders the dis- 
 covery which he seeks material ^ to the relief, if he pray 
 relief, or do not show a title to sue the defendant in 
 some other court, or that he is actually involved in liti- 
 gation with the defendant, or liable to be so; and do 
 not also show that the discovery which he praj-s is ma- 
 terial, to enable him to support or defend a suit, he shows 
 no title to the discovery.* It must clearly appear on the 
 face of the bill, especially where the object of the pro- 
 ceeding is to supply the party, asking the discovery, with 
 inaterials for future contemplated litigation, that the 
 plaintiff has a title to the discovery he seeks; in other 
 words, that he has an interest in the subject matter to 
 which the discovery is attached, capable and proper to 
 be vindicated in some judicial tribunal. If he show no 
 
 ' Jeanes v. Pridenberg, 5 Penn. L. J. 68, 70. 
 
 ' 1 Dan. Ch. Pr. 638; 1 Greenl. Ev. ? 240., 
 
 5 Shaflfer v. Kinkelin, 10 Leg. Int. 206; Allen v. Kyle, 1 T. & H. Pr. 83. 
 
 * Mitf. Eq. PI. 191. 
 
386 DISCOVERT. 
 
 right of action in any court, he can have no right to 
 discovery in a court of equity. A mere fishing bill will 
 not be entertained.^ 
 
 § 484. Were it not for these restraints, the purchase of 
 a subpoena in equity would confer an inquisitorial power, 
 which would speedily be exercised for the purposes of 
 malicious curiosity or speculative cupidity, and bills of 
 discovery would be filed, not to aid in the determination 
 of issues already formed, but to find out matter for fu- 
 ture controversy : no man's title would be safe; no man's 
 business secure.^ It has also been determined, that a will 
 of discovery will not lie for matter of which the plain- 
 tiff has the same means of information as the defendant; 
 as from the public records.* But a party is entitled to 
 a discovery of all that is material to his case, without 
 showing that it is necessary.* It is one of the purposes 
 of every bill in equity to obtain a discovery from the de- 
 fendant, and thereby to aid the effect of other evidence 
 which may be produced, if it do not render other evi- 
 dence unnecessary.^ 
 
 § 485. It is clear, that a bill for discovery will not lie 
 against a mere witness. The object, end, and office of 
 a bill of discovery is, to obtain testimony by an appeal 
 to the conscience of the defendant, which the plaintiff 
 could not otherwise procure, and which is material to 
 the establishment of a clear legal right set forth in his 
 complaint. When addrfessed to the party sought to be 
 charged by the proceeding, his answers, being admis- 
 
 ' CoUom V. Francis, 1 Pars. 531-3; Twells v. Costen, Ibid. 373; Wigram on 
 Discovery, i 229; Story's Bq. PI. § 319, 321. 
 ' Waldron v. Bayard, 11 Leg. Int. 19. 
 
 " Baker v. Biddle, 1 Bald. 417; Ross v. Lloyd, 2 Penn. L. J. 323. 
 * Peebles v. Boggs, 1 T. & H. Pr. 79. 
 '■ Hare on Discovery, 1; Story's Eq. PI. § 324 a. 
 
DISCOVERT. 387 
 
 sions against himself, on oath, compose the highest spe- 
 cies of evidence against him. But the answers of a 
 mere witness to a bill of discovery could not be evidence 
 against a third person; because, as to the latter, the 
 whole proceeding would be res inter alios acta, a pro- 
 ceeding to which he is an entire stranger, and by which, 
 according to the elementary principles of justice, he 
 ought not to be affected. The answer of such a defen- 
 dant would not even be evidence against a co-defendant 
 in the same bill.^ So, a bill of discovery will not lie for 
 the purpose of impeaching the defendant's witnesses;^ 
 or for the purpose of discovering the names of his wit- 
 nesses, or the nature of his evidence.^ 
 
 § 486. To this rule as to witnesses, there is one estab- 
 lished exception, viz., cases against corporations, where 
 their chief officers may be made parties to a discovery, 
 although no decree be sought or could be had against 
 them. The reason of this exception, which has been 
 considered as a stretch of the authority of the court, to 
 prevent a failure of justice, seems to have sprung from 
 the fact, that a corporation could only answer under its 
 common seal, and therefore could not be indicted for per- 
 jury, however falsely it might answer; and from the 
 idea that, though the answers of the officers could not 
 be read in evidence, they might be of use in directing 
 the plaintiff how to draw his interrogatories to obtain a 
 better answer. But whatever the reasons, the rule itself 
 is well established.* 
 
 § 487. There is another class of cases, in which arbi- 
 
 ^ Twells V. Costen, 1 Pars. 378; Collom v. Francis, Ibid. 533. 
 ' Allen V. Kyle, 1 T. & H. Pr. 83. 
 ^ Sha£Fer v. Kinkelin, 10 Leg. Int. 206. 
 
 * Twells V. Costen, 1 Pars. 379; Bevans v. The Dingman's Choice Turnpike, 
 10 Barr, 176. 
 
388 DISCOVERT. 
 
 trators, attorneys, auctioneers, &c., have been made par- 
 ties to bills, although they might also have been wit- 
 nesses, and so far seem to form exceptions to the general 
 rule. "These," says Judge Story, "are all founded upon 
 special circumstances, and in general do not seem appli- 
 cable to mere bills of discovery, but to bills for discovery 
 and relief." J The learned commentator might have 
 even gone further and said, that all the decided cases, in 
 which such bills have been entertained, were cases for 
 relief, and in which this class of defendants were liable 
 at least to a decree for costs, arising from their interest 
 in, or fraudulently intermeddling with, the matter in 
 contestation. There can, of consequence, be no objec- 
 tion to a decree against a party so circumstanced, arising 
 from the fact that he might have been used as a witness, 
 instead of being charged as a defendant. It is for the 
 plaintiff to elect, whether he will use him as the one, or 
 charge him as the other, and it does not lie in his mouth 
 to complain, if the plaintiff have made the latter election. 
 A party so circumstanced is not the less a party, because 
 in another form of the controversy he might have been 
 made a witness.^ 
 
 § 488. Another party, against whom a discovery will 
 not be enforced, is a bond fide purchaser of the property 
 in controversy for a valuable consideration, without no- 
 tice of the plaintiff's title. It is an axiom of chancery, 
 that equity gives no assistance against a bond fide pur- 
 chaser without notice. If a court can have a favourite 
 suitor, such an one is an honest purchaser, without no- 
 tice, in a tribunal administering equity. The rule of 
 caveat emptor, applies only to purchasers of defective le- 
 gal titles. A purchaser of the legal title is not affected 
 
 ' 2 Story's Eq. § 1500. ' Twells v. Costen, 1 Pars. 3T9-80. 
 
DISCOVERT. 389 
 
 by any latent equity, whether founded on trust, fraud, or 
 otherwise, of which he has not actual notice, or which 
 does not appear on some deed necessary in the deduction 
 of title, so as to amount to constructive notice.^ What 
 will amount to notice to a purchaser we have already 
 considered.^ 
 
 § 489. In Pennsylvania the hond fide purchaser of an 
 equitable title, with notice, is entitled to the same pro- 
 tection as the purchaser of the legal title ;^ because an 
 equitable title comes within the language and design of 
 the recording acts, as fully as the legal estate. But in 
 either case, to entitle himself to this protection, the pur- 
 chase must not only be hond fide, and for a valuable con- 
 sideration, but he must have paid the purchase money.* 
 According to the English rule, there must be execution 
 and payment of the entire purchase money, for there is 
 no protection for partial payment; but this rule has been 
 modified in our state, and the doctrine is here firmly estab- 
 lished, that where a man has purchased without notice, 
 and another has an equity, and sues on that equity, he 
 must indemnify the purchaser by refunding what he has 
 been paid by him.^ If therefore the defendant have paid 
 the whole of the purchase money, before notice, he will 
 be protected for the whole; if he have paid a part only, 
 he will be protected to the extent of his payments.** How 
 
 ^ Scott V. Burton, 2 Ash. 329; Reed v. Dickey, 2 Watts, 466; Kramer d. 
 Arthurs, 7 Barr, lYO; Sergeant v. IngersoU, Ibid. 345. And see Gibblehouse 
 V. Stong, 3 Rawle, 456-7; Juvenal v. Patterson, 10 Barr, 283. 
 
 ^ Ante, § 113-117, 322. 
 
 ' Bellas V. M'Carty, 10 Watts, 13, 29; Beck v. Uhrich, 1 Harris, 636-9. 
 
 * Bellas V. M'Carty, 10 Watts, 29. 
 
 ^ Youst V. Martin, 3 S. & E. 429; Bellas v. M'Carty, 10 Watts, 29; Lewis 
 V. Bradford, Ibid. 82. 
 
 ^ Juvenal v. Jackson, 2 Harris, 524. And see Jaokaon v. Summerville, 1 
 Harris, 360, 371; Beck u. Uhrich, Ibid. 639; Bolton w. Johns, 5 Barr, 149- 
 Wolbert v. Lucas, 10 Barr, 73. 
 
390 DISCOVERT. 
 
 far a partial payment will protect a bond fide purchaser, 
 without notice, from making a discovery, does not appear 
 to have been considered or decided. 
 
 § 490. If the bill, however, as it usually does, state 
 facts from which notice of an adverse claim may be in- 
 ferred, it is not sufficient to plead a purchase without no- 
 tice, actual or constructive; but the defendant must, by 
 a full, clear, and substantial answer, (not merely as to 
 knowledge and belief) as well as by averment in his plea, 
 deny the facts from which notice is inferred — though he 
 need not 'go beyond what is alleged, and rip up his whole 
 title — and must plead that the vendor was in possession 
 by himself or tenant; and that he had no notice before 
 the conveyance, and before the purchase money actually 
 paid, not merely secured to be paid. It is still left open 
 to the other party to contradict the denial. This often 
 occurs on a bill for discovery, or for an injunction ; when 
 adverse possession is alleged as notice.^ 
 
 § 491. This principle is not confined in its application 
 to a purchaser from a trustee without notice; for if a 
 stranger, without notice, should purchase for a valuable 
 consideration from one who had taken from a trustee with 
 notice ; or if he himself, unless he were the original trus- 
 tee, having notice, should purchase from one who had 
 taken for a valuable consideration without notice, he 
 would be allowed to hold the estate discharged from the 
 trusts ; ^ the rule being, that if the first purchaser had no 
 notice, a second purchaser from him holds the land dis- 
 charged of a trust, although such second purchaser had 
 notice of it;^ for other-Wisey an innocent purchaser with- 
 
 1 Lewis V. Bradford, 10 Watts, 80; Beck t. Uhrich, 1 Harris, 639. 
 
 = Jeremy's Bq. 93. 
 
 ' Bracken v. Miller, 4 W. & S. 113. 
 
DISCOVERT. 391 
 
 out notice might be forced to keep the estate, and could 
 not sell it.^ 
 
 § 492. It is well settled by reason and authority, that 
 a judgment creditor is not entitled to the protection of a 
 purchaser of the legal title against an equitable owner, or 
 his creditors ; and the reason given for it, that lien is an 
 incident, but not the object of judgment, is practically as 
 well as theoretically true.^ A judgment creditor has 
 neither jvs in re, nor ad rem; and therefore, though he 
 release all his right to the land, he may afterwards take 
 it in execution. All that he has by the judgment is a 
 lien on the land, but non constat that he will ever make 
 use of it, for he may recover the debt out of the defend- 
 ant's goods hy fieri facias ; besides, the judgment creditor 
 does not lend his money on the immediate security of the 
 lands, as a mortgagee does ; but a person is as often trusted 
 on the security of his person and effects, as of his lands ; 
 nor is the creditor deceived or defrauded though the cog- 
 nizor of the judgment had before made twenty mort- 
 gages of his real estate.^ 
 
 § 493. So assignees in trust for the benefit of credi- 
 tors, being mere volunteers, are regarded but as the 
 agents of the assignor, standing in his place, and conse- 
 quently, as a general rule, take only such rights and in- 
 terests as he himself had and could claim at the time of 
 the assignment. Such a voluntary assignment by a 
 debtor is, in this respect, like th| assignment of a bank- 
 rupt or insolvent, which passes nothing more than they 
 possessed or enjoyed, and under which the assignee takes 
 their rights, precisely in the same plight and condition 
 
 ' Harrison v. Forth, Preo. Ch. 51. 
 
 » Reed's Appeal, 1 Harris, 478; Cadbury v. Duval, 1 Am. L. R. 109. 
 ' Coven V. Black, 1 Barr, 493-5; Rodgera v. Gibson, 4 Yeates, 112; Heister 
 ». Fortner, 2 Binn. 46. 
 
392 DISCOVERY. 
 
 as they themselves respectively had them. Nor will an 
 agreement to execute a release constitute the parties to 
 such an assignment, purchasers for a valuable considera- 
 tion, or entitle them to the protection extended by courts 
 of equity to such purchasers.^ 
 
 § 494. The bill of discovery, in aid of an execution at 
 law, given by the act of 1836,^ lies only in the court of 
 common pleas of the proper county ; neither the supreme 
 court ^ nor the district courts have jurisdiction in such 
 cases.* It must be borne in mind, however, that since 
 this point was decided, those courts (with the exception 
 of the district court of Allegheny) have been invested 
 by statute with all the jurisdiction for the discovery of 
 facts that is possessed by courts of chanceiy j* and it may 
 be questioned, whether this jurisdiction has not been 
 thereby conferred. Such discovery may be compelled as 
 well against a corporation, as an individual defendant ; ® 
 but a sequestrator is the only person who can have such 
 remedy against a corporation; a judgment creditor is con- 
 fined to his sequestration.' And such a bill is maintain- 
 able to discover the money and choses in action of the 
 defendant, as well as his real and personal estate.^ 
 
 § 495. Such bill may be filed against the defendant in 
 the judgment, and against any person having possession 
 of his real or personal estate, or who may owe, or be ac- 
 countable for the same, or may have knowledge of the 
 same, and must be filed in the court of common pleas of 
 the county in which the judgment may be; or if the 
 
 1 Ludwig V. Higtley, 5 Ban, 132, 137; Pierce v. MTveelian, 3 W. & S. 283-4; 
 Luckenbach v. Brickenatein, 5 W. & S. 149; In re Wilson, 4 Barr, 430. 
 
 2 Purd. Dig. 309. * Davis v. Gerhard, 5 Wh. 466. 
 ' Gouldy V. Gillespie, 4 Penn. L. J. 91. ^ Purd. Dig. SOY, 1055. 
 
 " Large v. Bristol Transportation Co., 2 Ash. 394. 
 ' Bevans v. The Turnpike, 10 Barr, 174. ' Ibid. 
 
DISCOYERT. 393 
 
 person of whom discovery is sought, reside out of such 
 county, the bill may be filed in the court of common 
 pleas of the county where such person resides. The 
 bill must set forth : 1. The recovery of a judgment, and 
 the amount actually due thereon; 2. That there is 
 reason to believe that the defendant in the judgment 
 has real or personal estate, wherewith the same may be 
 satisfied: 3. That such real estate has been conveyed, 
 transferred, or incumbered ; or that such personal estMe 
 has been removed, transferred, or concealed; or that by 
 reason of concealment, or fraudulent transfer, or incum- 
 brance thereof, the complainant is prevented from having 
 execution of his judgment: 4. If the bill be filed 
 against any person other than the defendant in the 
 judgment, it must set forth also, that such person has 
 possession or knowledge of such real or personal estate, 
 or that he can make discovery of such facts as will 
 enable the plaintiff to have satisfaction of his judgment.^ 
 § 496. Such bill must be accompanied by an affidavit 
 made by the complainant, or by his agent, or attorney, 
 or some disinterested person on his behalf, that he verily 
 believes the facts set forth therein to be true. And the 
 complainant may, either in the bill, or by interrogato- 
 ries to be filed therewith, propound to the defendants 
 such questions touching the subject matter thereof, as 
 may be necessary and proper according to the rules and 
 practices of courts of equity.^ No person is excused from 
 answering a bill of discovery in relation to the fraudulent 
 concealment of the property of the defendant in a judg- 
 ment; but the answer cannot be used in evidence in any 
 other suit or prosecution.^ 
 
 ^ Purd. Dig. 310. See Large v. Bristol Transportation Co., 2 Ash. 394. 
 ^ Purd. Dig. 310. ' Ibid. 396. 
 
 26 
 
394 DISCOVERY. 
 
 § 497. The act of 26th April 1855, makes it the duty 
 of the auditor-general, whenever he shall have reason to 
 believe that any property is defeasibly held; and is liable, 
 upon office found, to accrue to the state treasury, in 
 consequence of an alienation in mortmain, or otherwise, 
 contrary to the provisions of the laws regulating the 
 holding of property by corporations, charities, ecclesias- 
 tical persons, and others; or that the income of any cor- 
 poration or unincorporated association exceeds the limits 
 allowed by law; to call upon all officers and trustees 
 thereof, to make, within thirty days, i true return and 
 exhibit of all their property, and the annual income 
 thereof; and if no return be made within such time, or 
 the same be unsatisfactory to him, he is required to cause 
 a bill of discovery to be filed in the supreme court, or in 
 any court of the proper county having equity jurisdiction, 
 against the officers or trustees of any such corporation or 
 association, which the defendants therein must answer 
 under the compulsion usual in such cases; and their 
 answers may be used in any proceeding to assert the 
 rights of the commonwealth.^ 
 
 1 Purd. Dig. 1120. 
 
PERPETUATION OF TESTIMONY. 395 
 
 CHAPTER XXVI. 
 
 PERPETUATION OF TESTIMONY. 
 
 § 498. The supreme court and the several courts of 
 common pleas, are directly invested, by the constitution 
 of Pennsylvania, with the powers of a court of chancery, 
 so far as relates to the perpetuation of testimony, and the 
 obtaining of evidence from places not within the state ;^ 
 and the same powers are conferred, by statute, on the 
 several district courts.^ Courts of equity are ever anxious 
 to avoid litigation where it may be entered upon for op- 
 pressive purposes, and therefore, of course, are willing to 
 lend their aid in obtaining and recording evidence, in 
 maintenance of the legal right of a party out of posses- 
 sion, which it may be desirable to establish, but respect- 
 ing which a right of action has not hitherto accrued; 
 and more so where the party is in possession, and he 
 anticipates proceedings at law against him upon a present 
 apparent right, but the power of commencing them lies 
 in his adversary, who postpones the attempt for the very 
 purpose of delaying the investigation, until the party in 
 possession shall have lost the means of defence, in conse- 
 quence of the death of his witnesses.^ 
 
 § 499. The jurisdiction, in suits to perpetuate testi- 
 mony, arises where the fact, to which the testimony re- 
 
 ' Purd. Dig. 13, 305. ^ Ibid. 306, 1055. 
 
 » Jeremy's Eq. 273. 
 
396 PKRPETUATION OF TESTIMONY. 
 
 lates, cannot be immediately investigated at law; and 
 therefore courts of equity do not, in general, entertain 
 bills to perpetuate testimony, for the purpose of being 
 used upon a future occasion, unless where it is absolutely 
 necessary to prevent a failure of justice.^ A bill to per- 
 petuate the testimony of witnesses, must state the matter 
 touching which the plaintiff is desirous of giving evi- 
 dence, and must show that he has some interest in the 
 subject, and pray leave to examine witnesses touching 
 the matter so stated, to the end that their testimony may 
 be preserved and perpetuated. It ought also to show 
 that the facts to which the testimony of the witnesses, 
 proposed to be examined, is conceived to relate, cannot be 
 immediately investigated in a court of law, as in the case 
 of a person in possession without disturbance.^ 
 
 § 500. The interest of the plaintiff in the subject mat- 
 ter, must be more than a mere expectation, for such, in 
 point of fact, is no interest in contemplation of law ; and 
 therefore, that of the future heir or next of kin of a per- 
 son living, although the latter should be a lunatic, will 
 not be sufficient. But upon a present actual interest, 
 however small in value, and however distant the possi- 
 bility of possession, and .whether it be vested or contin- 
 gent, the court will interfere.^ And it seems another 
 requisite to a bill of this kind, that it should state that 
 the defendant has, or that he pretends to have, or that 
 he claims, an interest to contest the title of the plaintiff 
 in the subject of the proposed testimony.* 
 
 § 501. If it be possible that the matter in question 
 can, by the party who files the bill, be made the subject 
 of immediate judicial investigation, no such suit will be 
 
 1 2 Story's Eq. § 1507. -' Mitf. Eq. PI. 51-2. 
 
 ' Jeremy's Eq. 274. ■* Mitf. Eq. PI. 53. 
 
PERPETUATION OF TESTIMONY. 397 
 
 entertained. But if the party who files the bill, can by 
 no means bring the matter in question into present ju- 
 dicial investigation, (which may happen, when his title 
 is in remainder, or when he is himself in possession) 
 then courts of equity will entertain such a suit; for 
 otherwise, the only testimony which could support the 
 plaintiff's title might be lost by the death of his wit- 
 nesses. Where he is himself in possession, the adverse 
 party might purposely delay his claim, with a view to 
 that event. It is therefore generally ground of demur- 
 rer to a bill to perpetuate testimony, that it is not al- 
 leged by the plaintiff, that the matter in question cannot 
 be made by him the subject of present judicial investi- 
 gation.^ 
 
 § 602. It is to be observed, that the rule which exists 
 with respect to discovery, where it might subject the de- 
 fendant to pains, penalties, or forfeitures, does not pre- 
 vail on this subject, for it seems this assistance will be 
 granted even in cases of a felonious nature, as upon a 
 forged deed.^ Nor is it any objection to the action of 
 the court, that the defendant is a hond fide purchaser 
 for a valuable consideration, without notice; since no 
 discovery is sought from him, and the plaintiff might 
 otherwise lose his rights from mere defect of testimony ; ' 
 in such cases it is said, that the court merely records the 
 fact, and that the consequence thereof is another consi- 
 deration.* 
 
 § 503. On a bill to perpetuate testimony, the cause 
 proceeds, as in other cases, by ruling the defendant to 
 answer, and filing a replication thereto;'' and the wit- 
 
 1 Angell V. Angell, 1 S. & S. 83; Blaine v. Chambers, cited 1 Wh. 278. 
 
 2 Jeremy's Eq. 277. ^ 2 Story's Eq. | 1510. 
 * Jeremy's Bq. 277. 
 
 '■ 2 Dau. Ch. Pr. 948. After the bill is filed, the court, on affidavit of the 
 
398 PERPETUATION OF TESTIMONY. 
 
 nesses may then be examined either before the examiner, 
 or by commission in the country, according to the parti- 
 cular circumstances, as in any other suit/ But the cause 
 does not proceed beyond the examination of the witr 
 nesses ; when that has been completed, it is considered at 
 an end, and the only remaining step is the publication of 
 the evidence ; ^ which is followed, in our practice, by a de- 
 cretal order, that the depositions, together with all pro- 
 ceedings relative thereto, be entered of record, and that 
 the same be confirmed in perpetuam rei memoriam. In 
 case of the loss or destruction of the records qf any of 
 the courts of record in this commonwealth, a bill to per- 
 petuate the testimony of such record may be filed, with 
 the same effect as in other cases. ^ 
 
 § 504. Where a bill is filed to perpetuate the evidence 
 of title to lands, tenements, and hereditaments, in which 
 bill the commonwealth is a necessary party, it is pro- 
 vided by statute, that the process may and shall be 
 served on the attorney-general, or his deputy, for the 
 proper county, whose duty it shall be to attend to the 
 interests of the commonwealth in the premises.'* All 
 
 facts stated in the bill, and that the witnesses are material, will, on motion or 
 petition, order the witnesses to be examined de bene esse. Eq. Draftsman, 361. 
 
 1 Gresley's Eq. Ev. 132. 
 
 ^ Adams' Eq. 24. Where a bill is filed against a, married woman, to per- 
 petuate evidence against a title that she might set up, and her husband is not 
 made a party, because he is supposed, and alleged in the bill, to be dead ; and at 
 the taking of the evidence, counsel appears for the defendant, and the husband 
 also ia present and examined as a witness, and the decree of perpetuation is 
 made without any objection having been stated, on account of the husband not 
 being a party with his wife ; it is too late to raise the objection, when the con- 
 troversy has arisen, and the testimony is offered to be read ; for married women 
 are bound by the judgment of courts, in adversary proceedings, in which they 
 are entitled to appear, just as other people are. Couch v. Sutton, Sup. Court, 
 3 Pittsburgh Leg. J. 60-1. 
 
 3 Purd. Dig. 305. * Ibid. 308. 
 
PERPETUATION OF TESTIMONY. 399 
 
 the duties of the deputies of the attorney-general, are 
 now directed to be performed by the district attorneys.^ 
 
 § 505. The act of 28th March 1786/ as we have al- 
 ready seen/ provides for the perpetuation of the evidence 
 of deeds lost or destroyed before its passage.* Under 
 that act and its supplements, the plaintiff may apply by 
 bill or petition to the supreme court, or to the court of 
 common pleas of the proper county, setting forth the 
 facts of the case; whereupon the court, upon afl&davit 
 being made of the material facts, is empowered to issue 
 a subpoena to the persons appearing to be interested in 
 the matters contained in the bill or petition, if residing 
 within the state ; and if residing without the state, the 
 court may direct an advertisement to be published for 
 three weeks, or more, in some public newspaper, giving 
 notice of the application, and requiring all persons whom 
 it may concern, to appear and answer the bill or peti- 
 tion : when the answer is filed, or in default of an an- 
 swer, the court or the judges in vacation, may examine 
 the witnesses or cause their depositions to be taken, and 
 have such other proceedings in a summary way to es- 
 tablish the facts, and make such order and decree in the 
 premises as to justice and equity shall appertain. 
 
 § 506. The statute further provides, that the record of 
 such proceedings, or a copy thereof duly certified, may 
 be read in evidence, upon any trial or controversy respect- 
 ing the premises mentioned in the bill or petition; and 
 that all the costs of such proceedings shall be at the ex- 
 pense of the parties exhibiting the bill or petition. 
 
 § 507. Bills to take testimony de bene esse, and bills to 
 take the testimony of witnesses resident abroad, consti- 
 
 ' Purd. Dig. 240. ' Ibid. 230. 
 
 ' Ante, I 36-7. * Smith i: Bonsall, 5 Bawle, i 
 
400 PERPETUATION OF TESTIMONY. 
 
 tute another important branch of the assistant jurisdic- 
 tion of courts of equity. But under our system, these 
 powers are vested in all the courts of common law, and 
 are exercised by them by means of commissions to take 
 testimony, and rules for the examination of witnesses, 
 without any resort to chancery forms of proceeding, ex- 
 cept the filing of interrogatories. They do not, there- 
 fore, fall within the design of this work; and the stu- 
 dent is referred, for a knowledge of the learning involved 
 in such cases, to Troubat and Haly's Practice in the 
 Courts of Pennsylvania, where the whole subject is dis- 
 cussed by the learned editor with his accustomed ability. 
 
PARTIES. 401 
 
 BOOK II. 
 
 EQUITY PLEADING AND PRACTICE. 
 
 CHAPTER I. 
 
 PARTIES. 
 
 § 508. We will now proceed to the consideration of 
 the second division of our subject, namely, the pleadings 
 and practice in a suit in equity. And here it is proper 
 to premise, that in all cases, where the rules adopted by 
 our courts do not apply, their practice is regulated by 
 that of the supreme court of the United States, or of the 
 high court of chancery in England, so far as it may 
 reasonably be applied, consistently with the local cir- 
 cumstances and local convenience of the district in 
 which the court is held ; not as positive rules, but as fur- 
 nishing just analogies to regulate the practice.'- 
 
 § 509. A suit in equity is commenced by preferring a 
 bill, in the nature of a petition, to the judges of the 
 court, containing a statement of the plaintiff's case, and 
 praying the relief which he considers himself entitled 
 
 ' Equity Rules, Ixxxiv. p. 145. This is the rule adopted by the supreme 
 court of the United States; and our statute provides, that our courts shall 
 exercise their equity powers, according to the practice prescribed or adopted 
 by the supreme court of the United States, unless it be otherwise provided by 
 act of assembly, or the same shall be altered by the supreme court of this 
 commonwealth, by general rules and regulations. Purd. Dig. 307. 
 
402 PARTIES. 
 
 I 
 
 to receive. This is termed an original bill, to distinguish 
 it from other bills, filed in the course of a suit to remedy 
 defects and errors. Before presenting such a bill, it is 
 obviously of the greatest importance to consider who 
 ought to be made parties to it, whether as plaintiffs or 
 defendants. And we may observe, that it is a general 
 rule, subject to very few exceptions, that all persons sui 
 juris can sue and be sued in chancery, unless they are 
 subject to some absolute or temporary disqualification, 
 which will presently be considered.^ 
 
 § 510. Thus, the commonwealth has the same right 
 which a citizen has, to institute proceedings in its own 
 courts, for the assertion of any right which it claims, 
 either on behalf of itself or others; and the same prin- 
 ciples which entitle a citizen to the assistance of a court 
 of equity, to enable him to assert his legal rights, are 
 .equally applicable to the commonwealth.^ If the suit 
 immediately concern the rights of the commonwealth, 
 it is instituted by the attorney-general; and as this offi- 
 cer acts officially, the bill he exhibits is by way, not of 
 petition or complaint, but of information to the court, of 
 the rights which the commonwealth claims on behalf of 
 itself or others, and of the invasion or detention of those 
 rights for which the suit is instituted. If the suit do 
 not immediately concern the rights of the commonwealth, 
 its ojfficers depend on the relation of some person, whose 
 name is inserted in the information, and who is termed 
 the relator; and as the suit is carried on under his di- 
 rection, he is considered as answerable to the court and 
 to the parties for the propriety of the suit and the con- 
 duct of it.^ The state cannot, however, be made a party 
 
 ' 4 Bouv. Int. 289. ' 1 Dan. Ch. Pr. 3. 
 
 ' Jlitf. Eq. PL 22. A foreign government may maintain a suit in equity, 
 
PARTIES. 403 
 
 to a suit, without its consent expressed by a law or re- 
 solution, and no judicial proceeding or process, by or 
 against the attorney-general, unless by the authority of 
 the state, can prejudice its rights/ 
 
 § 511. The right to sue is not confined to persons in 
 their natural capacities ; the power to sue and be sued is a 
 power inseparably incident to every corporation, whether 
 sole or aggregate.^ So also, by the comity of nations, 
 foreign corporations are permitted to make contracts with- 
 in their jurisdictions, when they are not contrary to the 
 known policy of the state or injurious to its interests;^ and 
 such foreign corporations may sue in a court of equity in 
 their corporate name and capacity. In pleading, it is not 
 necessary that they should set forth the proper names of 
 the persons who form such foreign corporation, or show 
 how it was incorporated; though if it be denied, they must 
 prove that by the law of the foreign country they were _ 
 eflfectually incorporated.* 
 
 § 512. The rule that all persons, not lying under the 
 disabilities after pointed out, are entitled to maintain a 
 suit as plaintiffs in a court of equity, is not affected by 
 the circumstance of their being resident out of the juris- 
 diction of the court, unless they be alien enemies. In 
 order, however, to prevent the defendant from being de- 
 feated of his right to costs, it is a rule, that if the plain- 
 tiff in a suit be resident abroad, the court will, on appli- 
 
 but the jurisdiction in such oases is conferred upon the federal courts, by the 
 Constitution of the United States. Purd. Dig. 5. 
 
 ' Magill V. Brown, Bright. R. 404. 
 
 ^ 1 Dan. Ch. Pr. 25; 1 Bh Com. ill. 
 
 ^ Bank of Kentucky v. Schuylkill Bank, 1 Pars. 225. 
 
 * 1 Dan. Ch. Pr. 29; Stewart v. United States Ins. Co., 9 Watts, 126; Zion 
 Church V. St. Peters' Church, 5 W. & S. 215; Lehigh Bridge Co. v. Lehigh 
 Coal and Navigation Co., 4 Rawle, 24; Grubb v. Mahoning Navigation Co., 2 
 Harris, 304. 
 
404 PARTIES. 
 
 cation of the defendant, order him to- give security for 
 the costs of the suit, and in the mean time direct all pro- 
 ceedings to be stayed. But a plaintiff" cannot be com- 
 pelled to give security for costs, unless he himself state 
 upon his bill that he is resident out of the jurisdiction, 
 or unless the fact be established by affidavit; and it seems, 
 that the mere circumstance of his having gone abroad, 
 will not be sufficient ground on which to compel him to 
 give security, unless it be stated, either by the plaintiff" 
 himself or upon affidavit, that he is gone abroad for the 
 purpose of residing there.^ 
 
 § 513. If the plaintiff", after filing a bill, leave the juris- 
 diction for the purpose of settling, and do actually take 
 up his residence in foreign parts, it is, in every stage of 
 the cause, ground for an order that he shall give security 
 for costs. But in order to entitle a defendant to require 
 security for costs from a plaintiff", he must make his ap- 
 plication at the earliest possible time after the fact has 
 come to his knowledge, and before he takes any further 
 step in the cause. Should the plaintiff's non-residence 
 appear from the face of the bill, the defendant must 
 make his motion before he puts in his answer, or applies 
 for time; either of which acts will be considered as a 
 waiver of his right to security. Even filing an answer, 
 after notice of the fact of the plaintiff's residence abroad, 
 though sworn to before, has been held a waiver of secu- 
 rity for costs. And equal vigilance and promptness of 
 application is required, where the plaintiff" removes after 
 filing his bill.^ 
 
 § 514. According to our practice, the amount of secu- 
 rity required, is fixed by the court at the time of making 
 the order ; and the security is taken by the prothonotary 
 
 1 1 Dan. Ch. Pr. 35-6. ' M'Garry v. Crispin, 4 Penn. L. J. 354-5. 
 
PARTIES. 405 
 
 upon notice to the defendant's solicitor. The following 
 is the form of the bond : — 
 
 "Know all men by these presents, that we, A. B. of 
 the city of Philadelphia, merchant, and C. D. of the same 
 place, merchant, are held and firmly bound, unto E. F. 
 (the defendant) in the sum of one hundred dollars, lawful 
 money of Pennsylvania; to which payment well and 
 truly to be made, we do bind ourselves and each of us, 
 our and each of our heirs, executors, and administrators, 
 firmly by these presents. Sealed with our seals, &c. 
 Whereas G. H. of the city of New York, plaintiff, has 
 lately exhibited his bill of complaint, in the court of 
 common pleas of Philadelphia county, sitting in equity, 
 touching the matters therein contained. Now the con- 
 dition of this obligation is such, that if the above bounden 
 A, B. and C. D. or either of them, their heirs, executors, 
 or administrators, do, and shall well and truly pay or 
 cause to be paid, all such costs as the said court shall 
 think fit to award to the defendant, on the hearing of the 
 said cause or otherwise, then this obligation to be void, 
 or else to remain in full force and virtue." 
 
 § 515. The disabilities, by which a person may be pre- 
 vented from suing, may be divided into two sorts ; namely, 
 such as are absolute, and during the time they last effec- 
 tually deprive the party of the right to assert his claim ; 
 and such as are qualified, and merely deprive him of the 
 power of saing without the assistance of some other party 
 to maintain the suit in his behalf. Of the first sort are 
 the disabilities which arise from alienage, outlawry, at- 
 tainder, bankruptcy, and insolvency; of the second sort 
 are those which arise from infancy, coverture, and lunacy.^ 
 With respect to aliens, in general, it is to be observed, that 
 
 1 1 Dan. Ch. Pr. 62. 
 
406 PARTIES. 
 
 although by the old law no alien, whether friend or enemy, 
 could maintain a suit, yet the necessity of trade has dis- 
 couraged and gradually done away with the too rigorous 
 restraints and discouragements which formerly existed; 
 and it is now clear, that an alien born, provided he be 
 not an alien enemy, may sue in the courts of this state ; 
 provided the subject matter of the suit be such as will 
 entitle him, as an alien friend, to maintain it.-^ 
 
 § 516. The disability to maintain a suit on account of 
 alienage, outlawry, and attainder, arises partly from the 
 plaintiff being personally disqualified, and partly from 
 his not being capable of holding the property which is 
 the object of the suit. That which accrues from bank- 
 ruptcy or insolvency arises from the latter cause only, or 
 rather from the fact, that by the bankruptcy or insolvency, 
 all the bankrupt's or insolvent's property, whether in pos- 
 session or action, is vested in his assignees. They are 
 not, however, personally disqualified from suing ; and in 
 many cases sustain suits either at law or in equity.^ If 
 a plaintiff become a bankrupt or insolvent after the in- 
 stitution of the suit, this does not strictly cause an abate- 
 ment, but renders the suit defective ; and the defendant, 
 if he wish to get rid of the bill entirely, must move 
 that the assignees may, within a certain time after notice 
 of the order, make themselves parties to the suit by filing 
 an original bill, in the nature of a supplemental bill, or 
 in default thereof, that the plaintiff's bill may stand dis- 
 missed.^ 
 
 § 517. We come now to the consideration of those 
 disqualifications, which only incapacitate a person from 
 maintaining a suit alone, but do not prevent his suing in 
 
 1 Ibid. 53; Story's Eq. PL § 54. M Dan. Ch. Pr. 69-TO. 
 
 'Ibid, n; Story's Eq. PI. ? 349. 
 
PARTIES. 
 
 407 
 
 equity, provided his suit be supported by another person.^ 
 Such disqualifications arise from infancy, coverture, lu- 
 nacy, and habitual drunkenness. Although an infant is, 
 in general, capable of maintaining a suit, yet on account 
 of his supposed want of discretion, and his inability to bind 
 himself and make himself liable to the costs, he is inca- 
 pable of doing so without the assistance of some other 
 person, who may be responsible to the court for the pro- 
 priety of the suit in its institution and progress. Such 
 a person is called the next friend of the infant, and if a 
 bill be filed on behalf of an infant without a next friend, 
 the defendant may move to have it dismissed with costs, 
 to be paid by the soHcitor.^ An infant may sue by his 
 next friend, appointed at the common law, by the court 
 in which the action is pending, and by our practice, with- 
 out any appointment at all, in order to supply the want 
 of capacity in the infant to afford, in his own person, a 
 party responsible on the record for the costs ; and as the 
 execution of the trust is under the supervision and control 
 of the court, there is no reason why our practice of con- 
 stituting a prochein ami, without the express sanction of 
 the court, should be disturbed. Such a next friend is in 
 the nature of a guardian ad litem, the chief difference 
 being, that the former is the curator of an infant plain- 
 tiff, and the latter of an infant defendant.' 
 
 § 518. Guardians ad litem to defend a suit, may be ap- 
 pointed by the court, or by any judge thereof, for infants, 
 or other persons who are under guardianship, or other- 
 wise incapable to sue for themselves ; and all infants and 
 other persons so incapable, may sue by their guardian, 
 if any, or by their prochein ami; subject, however, to 
 
 ' 1 Dan. Ch. Pr. 88. ' Ibid. 90. 
 
 ' Turner v. Patridge, 3 Penn. R. 173; Heftu. M'GiU, 3 Ban, 264. 
 
408 PARTIES. 
 
 such orders as the court may direct for the protection of 
 infants and other persons.^ 
 
 § 519. Although it is not necessary, that in bringing 
 a bill against infants, the plaintiff should join any other 
 person with them ; yet they are not permitted, on ac- 
 count of their supposed want of capacity, to defend them- 
 selves; and therefore, where a defendant to a suit is an 
 infant, the court will appoint a proper person to put in his 
 defence for him, and generally to act on his behalf in the 
 conduct and management of the case. The person so 
 appointed is called "the guardian of the infant," and in 
 the books is generally styled "the guardian ad litem," to 
 distinguish him from the ordinary guardian. The duty 
 of such guardian is, to put in the proper defence for the 
 infant; and it seems, that he is responsible for the pro- 
 priety and conduct of such defence; and if the answer 
 put in by him for the infant, should be reported scanda- 
 lous or impertinent, he would be liable to the costs of it.^ 
 
 § 520. So anxious are courts of equity to protect in- 
 fants, that a decree cannot safely be obtained against an 
 infant, upon the mere fact of taking the bill j9ro confesso, 
 or upon an answer in form by the guardian ad litem. 
 The answer in such cases generally is, that the infant 
 knows nothing of the matter, and therefore neither ad- 
 mits nor denies the charges, but leaves the plaintiff to 
 prove them as he shall be advised, and throws himself 
 upon the protection of the court. A decree upon such 
 an answer will not bind the infant, and he can open 
 it or set it aside when he comes of age. No laches can be 
 imputed to an infant, and no valid decree can be awarded 
 against him merely by default. The plaintiff in every 
 such case ought to prove his demand either in court or 
 
 1 Equity Rules, Ixxxi. p. 144. ' 1 Dan. Ch. Pr. 204. 
 
PARTIES. 409 
 
 before a master, and the infant is usually entitled to a 
 day, to show cause, when he comes of age.-^ 
 
 § 521. With respect to married women, it may be ob- 
 served, that as in Pennsylvania, all property of a married 
 woman is to be held and enjoyed by her as her separate 
 property; so all suits in equity concerning the property 
 of a married woman, should be instituted by her, as sole 
 plaintiff, by her next friend;^ and it is well settled, that 
 a wife may, in a suit concerning her separate property, 
 be the plaintiff against her husband.^ And as a wife 
 may sue her husband in respect of her separate property, 
 so may a husband in a similar case sue his wife. Such 
 suit, however, can only be in respect of his wife's sepa- 
 rate estate; for a husband cannot have a discovery of his 
 own estate against his wife.* 
 
 § 522. As a general rule, where a suit is instituted 
 against a married woman, her husband must also be a 
 party. But although she cannot institute a suit by her- 
 self, and must seek the protection of some other person 
 as her next friend ; she may yet, by leave of the court, 
 defend a suit separately from her husband without the 
 protection of another. Thus, if she claim in opposition 
 to any claims of her husband, or if she live separate 
 from him, or disappi'ove the defence he wishes to make, 
 she may obtain an order to defend the suit separately, 
 and her answer may be read against her. If a husband 
 be plaintiff in a suit, and make his wife a defendant, he 
 treats her as a feme sole, and she may answer separately 
 without an order of the court for the purpose. If a mar- 
 ried woman obstinately refuse to join in defence with 
 her husband, she may also be compelled to make a 
 
 ^ Rogers v. Smith, 4 Barr, 100. '' Story's Eq. PI. § 63. 
 
 ^ 1 Dan. Ch. Pr. 142. * Ibid. 143. 
 
 27 
 
410 PARTIES. 
 
 separate defence ; and for that purpose an order may be 
 obtained, that process may issue against her separately. 
 Except under such circumstances, a married woman can 
 only defend jointly with her husband.-' 
 
 § 523. Bills on behalf of a lunatic are usually insti- 
 tuted in the name of the lunatic; but as he is a person 
 incapable in law of taking any step on his own account, 
 he sues by the committee of his estate, who is responsi- 
 ble for the conduct of the suit.^ All suits by or on be- 
 half of a lunatic, placed by law in the care of a commit- 
 tee, must be in the names of the lunatic and the com- 
 mittee. The latter must join to manage the interests of 
 one who is disabled to protect himself, and the lunatic 
 must be joined because he may recover his understand- 
 ing, and then he is to have the management and dispo- 
 sal of his estate. He resembles, as to this, an infant, 
 who always appears by guardian or next friend.^ A lu- 
 natic, however, is not a necessary party plaintiff with 
 his committee, on a bill to set aside an act done by the 
 lunatic under mental imbecility.* Habitual drunkards 
 are placed, by statute, upon the same footing, in this re- 
 spect, as lunatics.^ 
 
 § 524. In like manner, if a person be in the condition 
 of an idiot or lunatic, though not found so by inquisi- 
 tion, or if, by reason of age or infirmities, he be reduced 
 to a second infancy, he may be permitted to sue by next 
 friend ; or the court will, upon information, appoint a 
 guardian ad litem, to defend a suit against him.*' Where 
 one, who was a necessary party plaintiff, had religious 
 
 1 Mitf. Eq. PI. 104-5. ' 1 Dan. Ch. Pr. lOG. 
 
 ' Boale V. Com. 2 Watts, 184; Warden i\ Eichbaum, 2 Harris, 127; Harrison 
 t). Eowan, 4 W. C. C. 207. 
 
 ^ Ortley v. Messere, 7 Johns. Ch. 139. ^ Purd. Dig. 550. 
 
 « 1 Dan. Ch. Pr. Ill, 224; Story's Eq. PI. I 66, 70; Mitf. Eq. PI. 30. 
 
PARTIES. 411 
 
 scruples against becoming a party to any suit, Chancel- 
 lor Kent said, — " If J. W. have religious scruples which 
 cannot be surmounted, and this shall be made to appear, 
 either by affidavit or the report of a master, perhaps she 
 may be permitted to become plaintiff by her prochein ami, 
 A person incompetent to protect himself from age or 
 weakness of mind, or from some religious delusion or 
 fanaticism, quem urget fariaticus error, vel inacunda Di- 
 ana, ought to come under the protection of the court." ^ 
 
 § 525. It is the constant aim of a court of equity to do 
 complete justice, by deciding upon and settling the rights 
 of all persons interested in the subject of the suit, to 
 make the performance of the order of the court perfectly 
 safe to those who are compelled to obey it, and to prevent 
 future litigation. For this purpose, all persons materially 
 interested in the subject ought generally to be made par- 
 ties to the suit, plaintiffs or defendants, however numerous 
 they may be; so that the court may be enabled to do 
 complete justice, by deciding upon and settling the rights 
 of all persons interested, and that the orders of the court 
 may be safely executed by those who are compelled to 
 obey them, and future litigation may be prevented.^ This 
 general rule, however, admits of many qualifications, 
 which will presently be considered; and it has been well 
 observed, that it is not all persons who have an interest 
 in the subject matter of the suit, but in general, those 
 only who have an interest in the object of the suit, who 
 are ordinarily required to be made parties.^ 
 
 § 526. One exception to this rule, arises from the im- 
 
 1 Malin V. Malin, 2 Johns. Ch. 238. 
 
 2 Mitf. Eq. PL 163-4; 1 Dan. Ch. Pr. 240; Story's Eq. PI. § 72; Mathews 
 V. Stephenson, 6 Barr, 498; Joy v. Wirtz, 1 W. C. C. 519; Wisner v. Barnet, 
 4 W. C. C. 642; Bogardus v. Rosendale Man. Co., 3 Seld. 151-2. 
 
 3 Calvert on Parties, 5, 6, 10, 11; Story's Eq. PI. J 72. 
 
412 PARTIES. 
 
 practicability of making all the persons interested parties 
 to the suit. Thus, it is a rule of the court, that in all 
 cases where it shall appear that persons, who might 
 otherwise be deemed necessary or proper parties to the 
 suit, cannot be made parties by reason of their being out 
 of the jurisdiction, or otherwise incapable of being made 
 parties; or if their joinder would oust the jurisdiction as 
 to the parties before the court; in all such cases, the 
 court may, in its discretion, proceed in the cause without 
 making such persons parties; and the decree shall be 
 without prejudice to the rights of the absent parties.^ 
 "Where any person is out of the jurisdiction of the court, 
 who should be made a party, and that is stated in the 
 bill, the court will, in most cases, proceed without him; 
 and if the possession or power over the property be in the 
 other party, the court will act upon the bill.^ 
 
 § 527. If any persons, other than those named as de- 
 fendants in the bill, shall appear to be necessary or pro- 
 per parties, the bill must aver the reason why they are 
 not made parties, by showing them to be without the 
 jurisdiction of the court, or that they cannot be joined 
 without ousting the jurisdiction of the court, as to the 
 other parties. And as to persons who are without the 
 jurisdiction, and may properly be made parties, the bill 
 should pray that process may issue to make them parties 
 to the bill, if they should come within the jurisdiction.^ 
 If however, a person so out of the power of the court is 
 required to be an active party in the execution of its 
 decree, as by the execution of a conveyance, the proceed- 
 ings will be unavoidably, to this extent, defective.* Thus, 
 
 I Equity Eules, xlv, p. 127; Joy v. Wirtz, 1 W. C. C. 518-19. 
 
 ^ Mathew3 v, Stephenson, 6 Barr, 499. 
 
 5 Equity Rules, xxi. p. 119. See Milligan i: Milledge, 3 Cranch, 220. 
 
 * Joy V. Wirtz, 1 W. C. C. 519. 
 
PARTIES. 413 
 
 against a foreign corporation, a court of equity in Penn- 
 sylvania can exercise no jurisdiction to compel stock- 
 holders residing here to pay the stock subscribed to such 
 corporation, on the application of a creditor of the 
 company.-' 
 
 § 528. Another exception to the rule is, where the 
 personal representative of a deceased person is a neces- 
 sary party, but it is charged in the bill, that there is no 
 such representative; as, where the representation is in 
 litigation in the register's court, or other proper tribunal.^ 
 It is the practice, however, in such cases, in Pennsylva- 
 nia, to grant letters of administration pendente lite.^ So, 
 if the bill seek a discovery of the parties interested in 
 the matter in question, for the purpose of making them 
 parties, and charge that they are unknown to the plain- 
 tiff, an objection of want of the necessary parties will 
 not prevail.'' Such discovery, however, cannot be had. 
 against one who is otherwise examinable as a witness, 
 unless he have so acted in the cause as to subject himself 
 to a decree, at least, for the costs; and in such case, the 
 bill must show that the plaintiff is entitled to effective 
 relief, in equity, against the unknown persons who are 
 persons really interested in the question in dispute. Such 
 discovery of parties cannot be had for the mere purpose 
 of proceeding against them at law.*^ 
 
 ' Bank of Virginia v. Adams, 1 Pars. 534. 
 
 ' Mitf. Eq. PI. 180; Story's Eq. PI. ^1. 
 
 ' See Com. v. Mateer, 16 S. & R. 416; EUmaker's Estate, 4 Watts, 36. 
 
 *Mitf. Eq. PI. 180; Story's Eq. PI. ? 92; Bogardus v. Rosendale Manu- 
 facturing Co., 3 Seld. 14Y, 150-1. 
 
 ^ Twells V. Costen, 1 Pars. 382. It is provided by statute, that a bill of dis- 
 covery in aid of an execution at law, may be filed against the defendant in the 
 judgment, and against any person having possession of his real or personal 
 estate, or who may owe, or be accountable for the same, or may have knowledge 
 of the same; and the costs in such cases are within the discretion of the court. 
 Purd. Dig. 310. 
 
414 PARTIES. 
 
 § 529. Another exception is, where the parties on 
 either side are very numerous, and cannot, without mani- 
 fest inconvenience and oppressive delays in the suit, be 
 all brought before the court; in such cases, the court may, 
 in its discretion, dispense with making all of them par- 
 ties, and may proceed in the suit, having sufficient 
 parties, to represent all the adverse interests of the 
 plaintiffs and defendants in the suit, properly before it. 
 But in such cases, the decree will be without prejudice 
 to the rights and claims of the absent parties.-^ In all 
 cases, within this exception, it is proper to allege in the 
 bill, unless it be apparent upon its face, that the parties 
 are too numerous to make it practicable, even if known, 
 to prosecute the suit, if all of them were made parties.^ 
 
 § 530. The general rule, being established for the con- 
 venient administration of justice, ought not to be adhered 
 to in cases, in which, consistently with practical conve- 
 nience, it is incapable of application; for then it would 
 destroy the very purpose for which it was established.^ 
 The result of adhering to it, in cases in which the parties 
 are very numerous, would be, that the door of the court 
 would be shut in all cases in which partners or share- 
 holders are too numerous to be made parties, which in 
 the present state of the transactions of mankind, would 
 be an absolute denial of justice to a large portion of the 
 citizens of the commonwealth, in some of the most im- 
 portant of their affairs. It is the duty of the court to 
 adapt its practice and course of proceeding to the existing 
 state of society, and not by too strict an adherence to 
 forms and rules, established under different circumstances, 
 to decline to administer justice, and to enforce rights for 
 
 1 Equity Rules, xlvi. p. 128; Langolf v. Seiberlitch, 2 Pars. 77. 
 
 2 Story's Eq. PI. J 95. » Ibid. J 96. 
 
PARTIES. 415 
 
 whicli there is no other remedy. This is the ground upon 
 which courts of equity have, in many cases, dispensed 
 with the presence of those who would, according to the 
 general practice, have been necessary parties.^ 
 
 § 531. Where the parties interested are numerous, 
 and the suit is for an object common to them all, it is 
 established, that some of the body may maintain a bill in 
 behalf of themselves and of the others; and such a bill 
 must be distinctly stated to be on behalf of the plaintiff 
 and of the other persons interested, so that they come in 
 under the decree, and take the benefit of it, or show it 
 to be erroneous, or entitle themselves to a rehearing; 
 and the court will entertain a bill or petition to bring the 
 rights of the absent parties more distinctly before the 
 court.^ But this is not to be considered as a general prin- 
 ciple; it is only in certain cases that it can be done. In 
 order to enable a plaintiff to sue on behalf of himself and 
 others, who stand in the same relation with him to the 
 subject of the suit, it must appear that the relief sought 
 by him is, in its nature, beneficial to all those whom he 
 undertakes to represent ; where that does not clearly ap- 
 pear, the bill will not be entertained.^ 
 
 § 532. The cases falling under this exception are di- 
 vided by Judge Story into three classes: 1. Where the 
 question is one of a common or general interest, and one 
 or more may sue or defend for the benefit of the whole : 
 2. Where the parties form a voluntary association for 
 public or private purposes, and those who sue or defend, 
 may fairly be presumed to represent the rights and inte- 
 
 1 Wallworth v. Holt, 4 M. & C. 635; 1 Dan. Ch. Pr. 290; Story's Eq. PI. 
 § 96; Langolf v. Seiberlitch, 2 Para. 78. 
 
 = Welford's Bq. PL 56; Story's Eq. PI. I 96; Joy v. Wirtz, 1 W. C. C. 418; 
 Wisner v. Barnet, 4 W. C. C. 642; Langolf v. Seiberlitch, 2 Pars. 77. 
 
 ■' Hill V. Commissioners of Kensington, 1 Pars. 513-14. 
 
416 PARTIES. 
 
 rests of the whole : 3. Where the parties are very nume- 
 rous, and although they have, or may have separate dis- 
 tinct interests, yet it is impracticable to bring them all 
 before the court.-' 
 
 § 533. The first class includes suits by part of the crew 
 of a privateer, on behalf of themselves and the remain- 
 der of the crew, against prize agents, for an account and 
 distribution of the prizes made by the ship;^ bills by cre- 
 ditors under a deed of trust for the payment of debts on 
 behalf of themselves and others named in the deed, to 
 enforce the execution of the trust ;^ and some others, 
 which, however, are of rare occurrence in Pennsylvania, 
 such cases being generally within the statutory remedies 
 provided in cases of trust ; or cognizable in the orphans' 
 court, as the distribution of a decedent's estate; or at 
 common law, as by action for recovery of a legacy, which 
 is not charged upon the realty. 
 
 § 534. In the second class is included bills by members 
 of a corporation, against the corporation and its officers, 
 where the act complained of is a violation of law, by a 
 disregard of chartered rights, or a breach of public trust, 
 in the waste or mismanagement of public moneys.* It 
 is certainly not a matter of course for individual mem- 
 bers of a corporation to assume to themselves the right 
 of suing in the name of the corporation ; generally, where 
 there has been a waste or misapplication of corporate funds 
 by the officers and agents of the company, a suit to com- 
 pel them to account for such waste or misapplication 
 should be in the name of the corporation. But if it ap- 
 pear that the directors of the corporation refuse to pro- 
 
 1 Story'a Eq. PL ? 97. M Pan. Ch. Pr. 287. » Story's Bq. PI. ? 102. 
 
 * Hill V. Commissioners of Kensington, 1 Pars. 514; Bogardus v. Rosendale 
 Manufacturing Co., .t Seld. 151. 
 
PARTIES. 417 
 
 secute, by collusion with those who have made themselves 
 amenable by their negligence or fraud; or if the corpora- 
 tion be still under the control of those who must be made 
 the defendants in the suit; the stockholders, who are the 
 real parties in interest, will be permitted to file a bill in 
 their own names, making the corporation a party defend- 
 ant. And if the stockholders be so numerous as to 
 render it impossible or very inconvenient to bring them 
 all before the court, a part may file a bill on behalf of 
 themselves and all others standing in the same situation.'^ 
 
 § 535. The general rule, requiring the presence of all 
 parties interested in resisting the plaintiff's demand, has 
 also been dispensed with in a variety of cases where the 
 parties were numerous, and the ends of justice could be 
 sufficiently answered by a sufficient number being before 
 the court to represent the rights of all, and this, gene- 
 rally, upon the ground, that if the plaintiff succeeded in 
 his demands against the individuals sued, they would 
 not be injured, as they had a remedy over against the 
 others for a contribution, which, under their own regu- 
 lations, they might enforce ; although the enforcement of 
 it, on the part of the plaintiff, against so numerous a 
 hodj, would be nearly impossible.^ Thus it is a rule, 
 that in all cases where the plaintiff has a joint and se- 
 veral demand against several persons, either as princi- 
 pals or sureties, it shall not be necessary to bring before 
 the court, as parties to a suit concerning such demand, 
 all the persons liable thereto ; but the plaintiff may pro- 
 ceed against one or more of the persons severally liable.^ 
 
 § 536. The third class of cases within this exception. 
 
 ' Langolf V. Seiberlitch, 2 Pars. 77; Krebs v. Directors of the Carlisle Bank, 
 2 Wall. Jr. 33. 
 
 2 1 Dan. Ch. Pr. 319, 321. ' Equity Rules, xlix. p. 129. 
 
418 PARTIES. 
 
 includes those in which the parties may have distinct in- 
 terests, and yet are so numerous as to render it imprac- 
 ticable to bring them all before the court; as a bill 
 brought by the lord of a manor against some of the te- 
 nants, or by some of the tenants against the lord, on a 
 question of common; or by a parson for tithes against 
 some of the parishioners, or by some of the parishioners 
 against the parson, to establish a general parochial 
 modus.^ These are the illustrations of the doctrine ge- 
 nerally found in the books, but cafes within the same 
 principle may easily be imagined, which are likely to 
 arise under our system of equity jurisprudence. 
 
 § 537. We will now proceed to consider, who are 
 deemed necessary parties, whose joinder in the suit can- 
 not be dispensed with. And here it may be observed, 
 that it is unimportant whether the persons whose inte- 
 rests are to be affected, have a legal or an equitable in- 
 terest in the subject matter of the suit; or, with certain 
 exceptions, whether such interest be present and imme- 
 diate, or future and remote, so that it is a fixed interest : 
 in either case, they must be brought before the court, in 
 order to obtain a decree, by which those interests will be 
 affected.^ And if the parties actually before the court 
 may be subjected to undue inconvenience, or to danger 
 of loss, or to future litigation, or to a liability under the 
 decree, more extensive and direct than if the absent par- 
 ties were before the court, that of itself will, in many 
 cases, be a sufficient ground for making such absent per- 
 sons parties to the suit.^ 
 
 § 538. There are cases, however, in which certain 
 parties before the court are entitled to be deemed the full 
 representatives of all other persons, at least so far as to 
 
 1 Mitf. Eq. PI. 170. ^ Story's Eq. PI. ? 137. » Ibid. ? 138. 
 
PARTIES. 419 
 
 bind their interests under the decree, although they are 
 not, and cannot be, made parties.^ Thus, the executor 
 or administrator of a deceased person, is the person con- 
 stituted by law to represent the personal property of that 
 person, and to answer all demands upon it; and there- 
 fore, where the object of a suit is to charge such perso- 
 nal estate with a demand, it is sufficient to bring the 
 executor or administrator before the court.^ The as- 
 signees of a bankrupt or insolvent debtor are also the 
 proper persons to represent the estates vested in them, 
 under the bankruptcy or insolvency; and therefore, in 
 all cases where claims are sought to be established 
 against the estates of a bankrupt or an insolvent debtor, 
 it is necessary to bring only the assignees before the 
 court, and the bankrupts or insolvents themselves, or 
 their creditors, are unnecessary j^arties.^ 
 
 § 539. So also it is a rule, that in all suits concern- 
 ing real estate, which is vested in trustees by devise, if 
 
 1 Story's Eq. PI. § 142. 
 
 ' 1 Dan.Ch. Pr. 301. A creditor of a deceased person, whether by judgment or 
 simple contract, cannot, in general — ^there being an executor or administrator 
 appointed — maintain a suit against a party in possession of, or claiming title 
 to the assets of the debtor, to try the right to such assets. The executor or 
 administrator is the person designated by the law, to vindicate all such rights ; 
 and it would be incongruous to allow the creditor to pass him by, and bring a 
 suit directly against a party whom he conceives to be accountable to the exe- 
 cutor. In equity, however, the creditor may make a debtor of the deceased, 
 or other party against whom the executor has a claim, a party defendant, 
 where the executor is insolvent, or is acting in collusion with the debtor, and 
 in some other special cases. Bate v. Graham, 1 Kern. 239-40; Hogan v. 
 Walker, 14 How. 29. "The rule, that an executor is the only proper person to 
 sue a debtor to the testator's estate, is liable to some exceptions: one is, that 
 if the executor decline or refuse to call the debtor to an account, then any 
 residuary legatee may file a bill for the purpose ; another is, that if such a 
 relationship exist between the debtor and the executor, as to render an account 
 difficult to be taken in the usual form, then a like bill may also be filed." 
 Saunders v. Druce, 25 Law Times R. 123. 
 
 3 1 Dan. Ch. Pr. 302. 
 
420 PARTIES. 
 
 such trustees are competent to sell and give discliarge.s 
 for the proceeds of the sale, and for the rents and profits 
 of the estate; such trustees shall represent the persons 
 beneficially interested in the estate or the proceeds, or 
 the rents and profits, in the same manner, and to the 
 same extent, as the executors or administrators in suits 
 concerning personal estate represent the persons benefi- 
 cially interested in such personal estate ; and in such 
 cases, it is not necessary to make the persons beneficially 
 interested in such real estate, or rents and profits, par- 
 ties to the suit; but the court may, upon consideration 
 of the matter, on the hearing, if it shall so think fit, 
 order such persons to be made parties.^ 
 
 § 540. In suits to execute the trusts of a will, it is 
 likewise unnecessary to make the heir at law a part}-- ; 
 but the plaintiff is, nevertheless, at liberty to make the 
 heirs at law parties to the suit, where he desires to have 
 the will established against them.^ These general ob- 
 servations in regard to the nature and character of the 
 interests of persons which entitle them to be deemed 
 proper parties to a suit in equity, may suffice to convey 
 an idea of the rules by which this important branch of 
 equity pleading is governed. For a review of the princi- 
 pal classes of cases, to which they have been applied, the 
 learned reader is referred to Mr. Justice Story's elabo- 
 rate work on equity pleading, in which the subject is 
 most lucidly and systematically treated.^ 
 
 § 541. If the want of proper parties appear on the 
 face of the bill, it constitutes a good cause of demurrer.* 
 If the defect be not apparent on the bill, it may be taken 
 advantage of by plea, or answer; and, in many cases, 
 
 ' Equity Rules, xlvii. p. 128. ' Ibid, xh-lii. p. 129. 
 
 ' See Story's Eq. PI. i 153 et seq. ■" Ibid. J 541. 
 
PARTIES. 421 
 
 may also be insisted on at the hearing; and if the court 
 shall proceed to a decree, it may be reversed on appeal, 
 for defect of parties.'^ But when the parties, who are 
 omitted, are mere formal parties, if the objection be not 
 taken by demurrer, or by plea, the court will be indis- 
 posed to listen to the objection at the hearing; and if it 
 can properly do so, will dispose of the cause upon the 
 merits, without requiring such formal parties to be 
 added.^ The mere non-joinder of a person, who might 
 be a proper party, but whose absence produces no pre- 
 judice to the rights of the parties before the court, will 
 constitute no fatal objection at the hearing, or rehear- 
 ing, or upon a bill of review." 
 
 § 542. If the defendant shall, by his answer, suggest 
 that the bill is defective for want of parties, the plaintiff 
 is at liberty, within fourteen days after answer filed, to 
 set down the cause for argument, upon that objection 
 only; and the purpose for which the same is so set down 
 must be notified by an entry to be made in the equity 
 docket, in the form, or to the effect following, that is to 
 say : — " Set down upon the defendant's objection for want 
 of parties." And where the plaintiff shall not set down 
 his cause, but shall proceed therewith to a hearing, not- 
 withstanding an objection for want of parties taken by 
 the answer, he will not, at the hearing of the cause, if 
 the defendant's objection shall then be allowed, be en- 
 titled, as of course, to an order for Hberty to amend his 
 bill by adding parties ; but the court, if it think fit, may 
 dismiss the bill.* 
 
 1 Story's Eq. PI. ? 242; Mathews v. Stephenson, 6 Barr, 499. 
 
 2 Story's Eq. PI. ? 542. ' Ibid. § 74 a. 
 
 * Equity Rules, 1. p. 129. If an objection of want of parties be made at 
 the hearing, the usual practice is, not to dismiss the bill, but to allow it to 
 stand over, with liberty to amend, or file a supplemental bill, on payment of 
 the costs of the hearing. Mathews v. Stephenson, 6 Barr, 499. 
 
422 PAETIES. 
 
 § 543. And if a defendant, at the hearing of a cause, 
 object that the suit is defective for want of parties, not 
 having by plea or answer taken the objection, and therein 
 specified by name or description the parties to whom the 
 objection applies, the court, in its discretion, may make 
 a decree, saving the rights of the absent parties.-^ It is, 
 however, the ordinary and common practice of a court 
 of chancery, to continue to add, on motion, parties to a 
 proceeding in that court, until every person interested, 
 or that may be in any way affected by the decree, be 
 brought upon the record. Indeed, as we have seen, a 
 court of equity will, in general, refuse to proceed to a 
 final disposition of the cause, until all persons interested 
 are made parties to the bill.^ 
 
 § 544. The rule in respect to mere nominal joarties is, 
 that where no account, payment, conveyance, or other 
 direct relief, is sought against a party to a suit, not being 
 an infant, the party, upon service of the subpoena upon 
 him, need not appear and answer the bill, unless the 
 plaintiff" specially require him so to do by the prayer of 
 his bill; but he may appear and answer, at his option; 
 and if he do not appear and answer, he will be bound 
 by all the proceedings in the cause. If the plaintiff 
 shall require him to appear and answer, he will be en- 
 titled to the costs of all the proceedings against him, un- 
 less the court shall otherwise direct.^ 
 
 ' Equity Rules, li. p. 130. - Seitz v. Buffum, 2 Harris, 70. 
 
 ' Equity Rules, lii. p. 130. 
 
BILLS. 423 
 
 CHAPTER II. 
 
 BILLS IN EQUITY. 
 
 § 545. The first step to be taken by a party who pro- 
 poses to institute a suit in equity, is the proper prepa- 
 ration of his bilL This is done by his sohcitor in the 
 cause.^ And every bill must contain the signature of 
 counsel annexed to it, which is considered as an aflSrma- 
 tion on his part, that upon the instructions given to him, 
 and the case laid before him, there is good ground for the 
 suit, in the manner in which it is framed.^ The several 
 kinds of bills have been usually considered as capable of 
 being arranged under three general heads: 1. Original 
 bills, which relate to some matter not before litigated in 
 the court by the same persons standing in the same in- 
 terests: 2. Bills not original, which are either an addi- 
 tion to, or a continuance of, an original bill, or both: 
 3. Bills, which though occasioned by or seeking the be- 
 nefit of a former bill, or of a decision made upon it, or 
 attempting to obtain a reversal of a decision made upon 
 it, are not considered as a continuance of the former bill, 
 but in the nature of original bills.^ 
 
 1 When a solicitor files a bill, the onus lies upon him to show that he had the 
 plaintiffs authority for so doing; and if he fail to show such authority, or 
 a subsequent acquiescence on the part of the plaintiff, the plaintiff is entitled 
 to have his name removed from the record, with costs to be paid by the solicitor. 
 Maries v. Maries, 23 Eng. L. & Eq. 221. 
 
 ' Equity Rules, xxiii. p. 120. ' Mitf. Eq. PI. 33. 
 
424 BILLS. 
 
 § 546. And besides the different divisions of bills here 
 enumerated, original bills are usually divided into those 
 praying relief; and those not praying relief. Original 
 bills praying relief are again subdivided into three heads : 
 1. Original bills, praying the decree of the court touch- 
 ing some right claimed by the person exhibiting the bill, 
 in opposition to rights claimed by the person against 
 whom the bill is exhibited: 2. Bills of interpleader: 
 3. Certiorari bills, which, however, are unknown in our 
 practice. Original bills not praying relief, are of two 
 kinds: 1. Bills of discovery: 2. Bills to perpetuate tes- 
 timony.-^ 
 
 § 547. As original bills of the first kind are those 
 most usually exhibited, the reader's attention will, in the 
 present chapter, be principally directed to them ; the 
 other descriptions of bills, may be more properly con- 
 sidered in connexion with the practice of the court ap- 
 plicable to the particular suits of which they are the 
 foundation. Bills which are not original, or which are 
 merely in the nature of original bills, will also be sepa- 
 rately considered. 
 
 § 548. Where a bill prays the decree of the court 
 touching rights claimed by the person exhibiting it, in 
 opposition to rights claimed by the person against whom 
 it is exhibited, it must contain a statement showing with 
 reasonable certainty, the rights of the plaintiff or person 
 exhibiting the bill; by whom and in what manner he is 
 injured, or in what he wants the assistance of the court; 
 and a prayer for relief suitable to his case; and for that 
 purpose, that the process of the court may issue, to bring 
 before it the parties complained of; ^ the facts should be 
 
 1 1 Dan. Ch. Pr. 351-2. « Ibid. 3j9-G0. 
 
BILLS. 425 
 
 stated with sufficient precision to enable the court to 
 make a specific decree, abd not in such general terms as to 
 enable the court merely to decide an abstract principle.^ 
 Thus, where a bill sets forth such leading facts as do not, 
 when analyzed, show a case of fraud or mistake, allega- 
 tions or averments in the bill that there was fraud or 
 mistake, and the expressions "fraudulently," "deceit- 
 fully," "by mistake," &c., interspersed through it, will 
 not bring the case within equitable jurisdiction, even on 
 a demurrer to the bill.^ 
 
 § 549. The same precision in showing an interest, 
 which is required in setting out the case of a plaintiff, is 
 not requisite in stating that of the defendant against 
 Avhom'the relief is sought, because a plaintiff cannot 
 always be supposed to be cognizant of the nature of a de- 
 fendant's interests, and the bill must frequently proceed 
 with a view to obtain a discovery of it. In all cases, how- 
 ever, a bill must show that the defendant is in some way 
 liable to the plaintiff's demand, or that he has some in- 
 terest in the subject of the suit, otherwise it will be liable 
 to demurrer; and it must also show that there is such a 
 privity between him and the plaintiff as gives the plain- 
 tiff a right to sue him.^ 
 
 § 550. A bill must also pray the court to grant the 
 proper relief suited to the case; and if, for any reason 
 founded on the substance of the case as stated in the bill, 
 the plaintiff be not entitled to the relief he prays, either 
 in the whole or in part, the defendant may demur. The 
 prayer of the bill must ask the special relief, to which the 
 plaintiff supposes himself entitled, and must also contain 
 
 ^ Delaware and Hudson Canal Co. v. Pennsylvania Coal Co., 9 Harris, 146 ; 
 CoUom V. Francis, 1 Pars. 531-2. 
 
 ' Magniac v. Thomson, 2 Wall. Jr. 209. 
 » 1 Dan. Ch. Pr. 372-3; Mitf. Eq. PI. 189. 
 
 28 
 
426 BILLS. 
 
 a prayer for general relief; and if an injunction, or a writ 
 of ne exeat, or any other special order pending the suit, 
 be required, it must also be specially asked for.-^ The rule 
 on the subject is, that although, where the prayer does 
 not extend to embrace all the relief to which the plaintiff 
 ma}', at the hearing, show a right, the deficient relief may 
 be supplied under the general prayer; yet such relief 
 must be consistent with that specifically prayed, as well 
 as with the case made by the bill ; for the court will not 
 suffer a defendant to be taken by surprise, and permit a 
 plaintiff to pass over the prayer he has made and take 
 another decree, even though it be according to the case 
 made out by his bill.^ The relief to be granted under 
 the general prayer, must not only be consistent with the 
 specific relief demanded, but must be sustained by the 
 case made by the bill; and the allegations relied upon, 
 must not only be such as to afford a ground for the relief 
 sought, but they must appear to have been introduced 
 into the bill for that purpose, and not for the purpose of 
 corroborating the plaintiff's right to the special relief 
 prayed.* 
 
 § 551. Care must also be taken in framing the bill, 
 that everj^ thing which is intended to be proved be stated 
 upon the face of it, otherwise evidence cannot be admit- 
 
 ' Equity Rules, xx. p. 119. 
 
 ^ Thomas v. Ellmaker, 1 Pars. 114-5. If the plaintiff should mistake the 
 relief to which he is entitled, in his special prayer, the court may yet afford him 
 the relief to which he has a right, under the prayer of general relief, provided it 
 be such relief as is agreeable to the case made by the bill; but if there be no 
 prayer of general relief, then, if the plaintiff should mistake the prayer to which 
 he is entitled, no other relief can be granted him, and his suit must fail, at 
 least, unless an amendment of the prayer be allowed. Grav v. Sutton, Diat. 
 Court, Philadelphia, ?,\ March 1855. MS. 
 
 ' Delaware and Hudson Canal Co. v. Pennsylv.ania Coal Co., 9 Harris. 146. 
 And see Pollock v. National Bank, S Seld. 281. 
 
BILLS. 427 
 
 ted to prove it. This is required, in order that the de- 
 fendant may be advised of the nature of the case to be 
 made against him.^ No facts are properly in issue, 
 unless charged in the bill; and, of course, no proof can 
 be generally offered of facts not in the bill; nor can any 
 relief be granted for matters not charged, although they 
 may be apparent from other parts of the pleadings, and 
 evidence; for the court pronounces its decree secundum 
 allegata et probata? But the plaintiff need not, and in- 
 deed should not, state in the bill any matters of which 
 the court is bound judicially to take notice, or is sup- 
 posed to possess full knowledge.^ 
 
 § 552. The plaintiff must, however, in framing his bill, 
 be careful that it do not contain statements or charges 
 which are scandalous or impertinent, for, if it do, it 
 may be objected to by the defendant.* The rule on this 
 subject is, that every bill must be expressed in as brief 
 and succinct terms as it reasonably can be, and must con- 
 tain no unnecessary recitals of deeds, documents, con- 
 tracts, or other instruments, in hax verba, or any other 
 impertinent matter, or any scandalous matter not re- 
 levant to the suit. If it do, it may, on exceptions, be 
 referred to a master, by any judge of the court, for im- 
 pertinence or scandal; and if so found by him, the mat- 
 ter will be expunged at the expense of the plaintiff, and 
 he must pay to the defendant all his costs in the suit up 
 to that time, unless the court, or a judge thereof, shall 
 otherwise direct. But if the master report that the bill 
 is not scandalous or impertinent, the plaintiff will be en- 
 titled to all the costs occasioned by the reference.^ 
 
 1 1 Dan. Ch. Pr. 377. 
 
 2 Story's Eq. PL I 257; Kelsey v. AVestern, 2 Comst. 50G. 
 
 ' See 1 Greenl. Ev. I 4-6. ' 1 Dan. Ch. Pr. 397. 
 
 ^ Equity Rules, xxiv. p. 120. 
 
428 BILLS, 
 
 § 553. Impertinence is the introduction of any mat- 
 ters into a bill, answer, or other pleading, or proceeding, 
 which are not properly before the court for decision, at 
 any particular stage of the suit.^ Scandal consists in 
 the allegation of any matter which is unbecoming the 
 dignity of the court to hear, or is contrary to good man- 
 ners, or which charges some person with a crime not ne- 
 cessary to be shown in the cause ; to which may be added, 
 that any unnecessary allegation bearing cruelly upon the 
 moral character of an individual is scandalous. There 
 are many cases, however, in which, though the words on 
 the record are very scandalous, and highly reflecting upon 
 the party, yet, if they be material to the matter in dis- 
 pute, and tend to a discovery of the point in question, 
 they will not be considered scandalous.^ 
 
 § 554. No order can be made by a judge for referring 
 any bill, answer, or pleading, or other matter, or pro- 
 ceeding depending before the court, for scandal or im- 
 pertinence, unless exceptions be taken in writing, and 
 signed by counsel, describing the particular passages 
 which are considered to be scandalous or impertinent; 
 nor unless the exceptions be filed on or before the next 
 rule day after the process on the bill is returnable, or 
 after the answer, or pleading, is filed. And such order, 
 when obtained, will be considered as abandoned, unless 
 the party obtaining it shall, without any unnecessary 
 delay, procure the master to examine and report for the 
 same, on or before the next succeeding rule day; or the 
 master shall certify that further time is necessary for 
 him to complete the examination.^ 
 
 § 555. Another vice to be avoided in framing a bill in 
 
 ' Story's Eq. P). 2 266. ■" 1 Dan. Cli. Pr. 397-8. 
 
 ' Equity Rules, xxv. p. 121. 
 
BILLS. 429 
 
 equity, is what is termed multifariousness. The court 
 will not permit a plaintiff to demand, by one bill, seve- 
 ral matters of different natures against several defend- 
 ants; for this would tend to load each defendant with 
 an unnecessary burden of costs, by swelling the pleadings 
 with the state of the several claims of the other defend- 
 ants, with whom he has no connexion.^ Neither can a 
 plaintiff join in one bill several distinct and independent 
 demands against one defendant.^ But to support such 
 an objection, the different grounds of suit must be wholly 
 distinct, and each ground must be sufficient, as stated, to 
 sustain a bill; if the grounds be not entirely distinct and 
 unconnected, if they arise out of one and the same trans- 
 action, or series of transactions, forming one course of 
 dealing, and all tending to one end, the objection does 
 not apply .^ 
 
 § 556. Let us now proceed to consider the form of a 
 bill in equity. This, according to the analysis of Lord 
 Eedesdale,* consists of nine parts, some of which how- 
 ever are not essential, and may be used or not at the 
 discretion of the person who prepares it. The first part is 
 the direction or address of the bill to the court from which 
 it seeks relief. In Pennsylvania, the address is, " To the 
 Honourable the Justices of the Supreme Court of Pennsyl- 
 vania, sitting in Equity;" or, "To the Honourable the 
 
 Judges of the Court of Common Pleas of County, 
 
 sitting in Equity;" or otherwise, as the case may be. 
 
 § 557. The second part is the introduction, which con- 
 tains the names of all the parties, plaintiffs and defen- 
 dants, by and against whom the bill is brought.'' And 
 
 1 Mitf. Eq. PI. 181; United States v. Alexander, 4 Or. C. C. 311. 
 
 2 Story's Bq. PI. i 271; Brady v. M'Cosker, 1 Comst. 221. 
 
 3 Story's Bq. PI. ? 271 a; Cahoon v. Bank of Utiea, .3 Seld. 486. 
 
 ■* Mitf. Eq. PI. 43. = Equity Rules, xix. p. 118. 
 
430 BILLS. 
 
 it is not only necessary that the names of the several 
 complainants in a bill should be correctly stated, but the 
 description and place of abode of each plaintiff must be 
 set out, in order that the court and the defendants may 
 know where to resort, to compel obedience to any order 
 or process of the court, and particularly for the payment 
 of any costs which may be awarded against the plaintiffs, 
 or to punish any improper conduct in the course of the 
 suit.^ A demurrer will lie to a bill which does not state 
 the plaintiff's place of abode ; and if the bill describe the 
 plaintiff" as residing at a wrong place, the fact may be 
 taken advantage of by plea.^ The following is the form 
 of the introductory part of a bill : — "A. B. of the city of 
 Philadelphia, merchant, and C. D. of Pittsburgh, in the 
 county of Allegheny, gentleman, bring this their bill 
 against E. F. of the said city of Philadelphia, and there- 
 upon your orators complain and say." 
 
 § 558. The third part of a bill contains a narrative or 
 statement of the plaintiff's case. Every averment neces- 
 sary to entitle the plaintiff to the relief prayed for must 
 be contained in the stating part of the bill. And every 
 material fact to which the plaintiff means to offer evidence, 
 ought here to be distinctly stated, otherwise he will not 
 be permitted to offer or require any evidence of that fact. 
 A general statement of charge of the matter of fact, 
 is however sufficient; for it is not necessary to state 
 minutely all the circumstances which may conduce to 
 prove the general charge, which are properly matters of 
 evidence.^ 
 
 § 559. Although the rules of pleading in courts of 
 equity, especially in the case of bills, are not so strict as 
 
 1 1 Dan. Ch. Pr. 408-0; Ex parte Heritage, 23 Eng. L. & Eq. 352. 
 
 ' Smith V. Smith, 23 Eng. L. & Eq. 2G6. ' Welford's Eq. PI. 101. 
 
BILLS. 431 
 
 those adopted in courts of law, yet in framing pleadings 
 in equity, the draftsman will do well to adhere as closely 
 as he can to the general rules laid down in the books 
 which treat of common law pleadings, whenever such 
 rules are applicable to the case which he is called upon 
 to present to the court; "for there can be no doubt that 
 the stated forms of description and allegation which are 
 adopted in pleadings at law, have all been duly debated 
 under every possible consideration, and settled upon 
 solemn deliberation ; and that having been established by 
 long usage, experience has shown them to be preferable 
 to all others, for conveying distinct and clear notions of 
 the subject to be submitted to the court:" and if this be 
 so at law, there appears to be no reason why they should 
 not be considered as equally applicable to pleadings in 
 courts of equity, in cases where the object of the pleader 
 is, to convey the same meaning as that affixed to the same 
 terms in the ordinary courts.^ 
 
 § 560. The fourth part states the general charge of 
 confederacy against the defendant and persons unknown, 
 whom it prays, when discovered, may be made parties 
 defendant. This charge, although generally introduced 
 in a bill, is wholly unnecessary, and may be treated as 
 mere surplusage. Indeed, it is provided by rule of court, 
 that " the plaintiff, in his bill, shall be at liberty to omit, 
 at his option, the part which is usually called the com- 
 mon confederacy clause of the bill, averring a confederacy 
 between the defendants to injure and defraud the plain- 
 tiff." ^ It would seem, therefore, to be not only unneces- 
 sary but improper to insert such a charge; for it is mere 
 impertinence. 
 
 1 1 Dan. Ch. Pr. 412-13; Bank of U. S. v. Biddle, 2 Pars. 60. See ante, 
 ? 496, for the contents of a bill of discovery in aid of an execution at law. 
 ^ Equity Ptules, xx. p. 118. 
 
432 BILLS. 
 
 § 561. The fifth part is what is termed the charging 
 part of the bill; by which the plaintiff anticipates what 
 is supposed will be the defence insisted on by the defend- 
 ant, and then charges other matters which disprove or 
 avoid it. This part of the bill may also be omitted by 
 the plaintiff, at his option, and in our practice the 
 plaintiff may, in the narrative or stating part of his bill, 
 state and avoid, by counter-averment, any matter or 
 thing which he supposes will be insisted upon by the 
 defendant, by way of defence or excuse, to the case made 
 by the plaintiff for relief^ 
 
 § 562. In many cases, however, the introduction of 
 the charging part, is highly beneficial, not only for the 
 purpose of introducing matter which would formerly 
 have been the subject of a special repHcation, but as a 
 foundation, for interrogatories which may lead to a dis- 
 covery of the defendant's case, and likewise afford 
 grounds for collateral inquiries and directions in the de- 
 cree which may not necessarily arise out of the case as 
 mainly insisted upon in the bill, but which, in the event 
 of partial success, either on the part of the plaintiff or 
 defendant, may become necessary; but which, without 
 some allegation or charge to warrant them in the plead- 
 ings, could not be introduced.^ If the plaintiff wish 
 to obtain a discovery of facts to anticipate and rebut the 
 defence which may be set up by the defendant, he should, 
 in the charging part of the bill, state the anticipated de- 
 fence as a pretence of the defendant, and then charge 
 the real facts, to lay a foundation for the discovery which 
 is sought.^ It is in the discretion of the person -who 
 prepares the bill, to allege any pretence of the defen- 
 
 1 Equity Rules, xx. p. 118. ^ j j)^^_ qj^^ p,.^ 4or,^ 
 
 ' Stafford v. Brown, 4 Paige, 8S. 
 
BILLS. 433 
 
 dants in opposition to the plaintiff's claim; but it must 
 he founded upon an equitable case, fully averred in the 
 stating part of the bill.^ 
 
 § 563. The sixth part of the bill is termed the juris- 
 diction clause, and is intended to give jurisdiction over 
 the suit to the court, by a general averment, that the 
 acts complained of are contrary to equity, and tend to 
 the injury of the plaintiffs; and that they have no re- 
 medy, or not a complete remedy, without the assistance 
 of a court of equity. It is to be observed, however, that 
 this averment alone will not give the court jurisdiction, 
 unless a case be shown in the bill, from which it is ap- 
 parent that the jurisdiction properly belongs to it. The 
 omission of this clause, therefore, will not render the 
 bill defective.^ 
 
 § 564. The bill, in the seventh place, prays that the 
 parties against whom the complaint is made may answer 
 all the matters contained in it, according to their know- 
 ledge, remembrance, information, and belief. This is 
 called the interrogating part. It is a repetition, by way 
 of interrogatory, of the matters most essential to be an- 
 swered, adding to the inquiry after each fact, an inquiry 
 of the several circumstances which may be attendant 
 upon it, and the variations to which it may be subject, 
 with a view to prevent evasion, and compel a full an- 
 swer. The interrogating part must therefore be formed 
 on the prior stating part of the bill. If there be nothing 
 in the prior allegations to warrant an interrogatory, it 
 may be disregarded by the defendant as irrelevant.^ If 
 an amended bill state, by way of pretence, a quotation 
 
 ' Welford's Eq. PI. 103. 
 
 ' 1 Dan. Ch. Pr. 430; Equity Rules, xx. p. 118-19. 
 
 ' Welford's Eq. PI. 104. 
 
434 BILLS. 
 
 from the answer, and then negative it, and make inqui- 
 ries respecting it, it is not impertinent.'^ 
 
 § 565. Interrogatories are not indispensable to a bill 
 in equity ; ^ and where no discovery is required from the 
 defendant, as in a bill to perpetuate the testimony of 
 witnesses, it is usual to omit them.^ But when they 
 are inserted, and are founded on any matter contained 
 in the stating part of the bill, the defendant is compelled 
 to answer.* A defendant, however, is not bound to an- 
 swer any interrogatories, except those which such de- 
 fendant is specially required to answer.^ They are to 
 be divided as conveniently as may be from each other, 
 and numbered consecutively 1, 2, 3, &c. ; and the inter- 
 rogatories, which each defendant is required to answer, 
 must be specified in a note at the foot of the bill, in the 
 form or to the effect following : " The defendant, A. B., 
 is required to answer the interrogatories numbered re- 
 spectively, 1, 2, 3, &C."'' This note is considered and 
 treated as part of the bill; and the addition of any such 
 note to the bill, or any alteration in, or addition to such 
 note, after the bill is filed, is considered and treated as 
 an amendment to it.'' 
 
 § 566. It is not, however, necessary to number every 
 question in any case; and as the only object of the rule 
 is to limit a defendant's answer to that portion of the 
 interrogatories which applies to him, it does not seem, in 
 a case where there is only one defendant, to be absolutely 
 necessary to prefix any number.^ The following is the 
 form of the interrogating clause, as prescribed by rule of 
 court : — " To the end, therefore, that the said defendants 
 
 1 Welford's Eq. PI. 105. ^ Eberly v. Groff, 9 Harris, 256. 
 
 ^ Eq. Draftsman, 363 n. * Eberly v. GrofF, 9 Harris, 2o6. 
 
 '' Equity Rules, xxxviil. p. 125. ' Ibid, xxxix. p. 125. 
 
 ' Ibid. xl. p. 126. * 1 Dan. Ch. Pr. 431. 
 
BILLS. 435 
 
 may, if they can, show why your orator should not have 
 the relief hereby prayed; and may upon their several 
 and respective corporal oaths, and according to the best 
 and utmost of their several and respective knowledge, 
 remembrance, information, and belief; full, true, direct, 
 and perfect answer make to such of the several interro- 
 gatories, hereinafter numbered and set forth, as by the 
 note hereunder written, they are respectively i-equired 
 to answer, that is to say: 1. Whether, &c. : 2. Whe- 
 ther, &c." 1 
 
 § 567. The eighth part is the prayer for relief, which 
 is craved according to the circumstances of the case. It 
 is generally divided into two parts, viz., the prayer for 
 specific rehef, and the prayer for general relief. "The 
 latter can never be properly and safely omitted ; because, 
 if the plaintiff should mistake the relief to which he is 
 entitled in his special prayer, the court may yet afford 
 him the relief to which he has a right, under the prayer 
 of general relief, provided it be such relief as is agreeable 
 to the case made by the bill." ^ Indeed the rule of court 
 requires that the bill should not only ask the special re- 
 lief to which the plaintiff supposes himself entitled, but 
 also contain a prayer for general relief; and that if an 
 injunction, or writ of ne exeat, or any other special order 
 pending the suit be required, it should be specially asked 
 for.^ 
 
 § 568. Although the court will not, under the general 
 prayer, grant a different relief from that prayed by the 
 bill, yet when it appears that the plaintiff is entitled to 
 relief, although it be different from that which he has 
 specifically prayed, it will sometimes allow the cause to 
 
 1 Equity Rules, xli. p. 126. ^ Story's Eq. PI. HO ; 1 Dan. Ch. Pr. 434. 
 
 ^ Equity Rules, xx. p. 119. See Briuker v. Brinker, 7 Barr, 56. 
 
436 BILLS. 
 
 stand over, with liberty to the plaintiff to amend his 
 bill. The instances, hoAvever, in which this will be 
 done, are confined to those where it appears, from the 
 case made by the bill, that the plaintiff is entitled to re- 
 lief, although different from that sought by the specific 
 prayer: where the object of the proposed amendment is 
 to make a new case, it will not be permitted. Where a 
 party has mistaken his case, and brings the cause to a 
 hearing under such mistake, the ordinary practice is, to 
 dismiss the bill, without prejudice to a new bill.^ 
 
 § 569. It sometimes happens that the plaintiff, or 
 those who advise him, are not certain of his title to the 
 specific relief he wishes to pray for; it is, therefore, not 
 unusual so to frame the prayer that if one sjDCcies of re- 
 lief sought be denied, another may be granted. Bills, 
 with a prayer of this description, framed in the alterna- 
 tive, are called bills with a double aspect. A proper 
 case for a bill with a double aspect is, where the com- 
 plainant is in doubt whether he be entitled to one kind 
 of relief or another, upon the facts of his case as stated 
 in his bill. He may then frame his bill in the alterna- 
 tive ; so that if the court decide that one kind of relief 
 is not proper, he may still be entitled to obtain any 
 other relief, to which he is entitled under the other part 
 of the alternative prayer; but his praj^er concluding for 
 general relief should, in such case, be in the disjunctive. 
 So, Avhere the complainant is entitled to some kind of 
 relief, on the general facts stated in his bill, if the na- 
 ture of the relief he is entitled to, depend upon the ex- 
 istence or non-existence of a particular fact or circum- 
 stance, which is not within his knowledge, he may al- 
 lege his ignorance of such fact, and call for a discovery 
 
 ' 1 Dan. Ch. Pr. 439-40. 
 
BILLS. 437 
 
 thereof; and, in such case, he, may also frame his prayer 
 in the alternative, so as to obtain the proper relief, ac- 
 cording as the fact may appear at the hearing of the 
 cause. ^ 
 
 § 570. The ninth part of the bill consists of the prayer 
 for process. The prayer for process of subpoena, must 
 contain the names of all the defendants named in the in- 
 troductory part of the bill ; and if any of them are known 
 to be infants, under age, or otherwise under guardianship, 
 must state the fact, so that the court may take order 
 thereon, as justice may require, upon the return of the 
 process. If an injunction, or a writ of ne exeat, or any 
 other special order pending the suit, be asked for in the 
 prayer for relief, that will be sufficient without repeating 
 the same in the prayer for process.^ The following is 
 the usual form of the prayer for process : — " May it please 
 your honours to grant unto your orator, the common- 
 wealth's writ of subpoena to be directed to the said A. B. 
 and C. D. the defendants, thereby commanding them, 
 and every of them, at a certain day, and under a cer- 
 tain pain, to be therein limited, personally to be and 
 appear before your honourable court, and then and there, 
 full, true, direct and perfect answer make to all and sin- 
 gular the premises ; and further, to stand to, perform, 
 and abide, such further order, direction, and decree there- 
 in, as to your honours shall seem meet : and your orator 
 shall ever pray, &c." No person is a party defendant, 
 although named in the bill, against whom process is not 
 prayed.^ In bills for discovery merely the latter clause 
 in the prayer must be omitted. 
 
 § 571. We have seen, that every bill must contain the 
 
 ^ Lloyd V. Brewster, 4 Paige, 537. ^ Equity Rules, xxii. p. 119-20. 
 
 ' Welford's Eq. PI. 108. 
 
43g 
 
 BILLS. 
 
 signature of counsel annexed to it, which is considered as 
 an affirmation, on his part, that upon the instructions 
 given to him, and the case laid before him, there is good 
 ground for the suit, in the manner in which it is framed.'- 
 And in bills for an account, the counsel must also annex 
 a certificate, that in his opinion the case is of such a na- 
 ture that no adequate remedy can be obtained at law, or 
 that the remedy at law will be attended with great ad- 
 ditional trouble, inconvenience, and delay.^ The acts of 
 assembly, however, conferring on the courts chancery ju- 
 risdiction in certain cases, do not, it must be remembered, 
 oust the jurisdiction of the common law courts, exercising 
 equity powers under the common law forms; they are 
 concurrent remedies, and the plaintiff may elect either.'' 
 § 572. There are certain cases in which it is necessary 
 that the bill should be accompanied by an affidavit, to 
 be filed with it, and in which the omission of such accom- 
 paniment will render the bill liable to demurrer. Thus, 
 when a bill is filed to obtain the benefit of an instru- 
 ment, upon which an action at law would lie, upon the 
 ground that it is lost, and that the defendant cannot 
 therefore have any relief at law, the court requires that 
 the bill should be accompanied by an affidavit of the 
 loss of the instrument. So, in suits for the discovery of 
 deeds and writings, and for relief founded upon such in- 
 struments; if the relief pr^ayed be such as might be ob- 
 tained at law, on the production of the deeds or writings, 
 the plaintiff must annex to his bill an affidavit that 
 they are not in his custody or power, and that he knows 
 not where they are, unless they are in the hands of the 
 defendant; but a bill for discovery merely,* or which only 
 
 1 Equity Rules, xxili. p. 120. ' Purd. Dij,'. 306. 
 
 ' Biddle v. Moore, 3 Barr, 176; Ayciueua v. Peries, 6 W. & S. 2JG. 
 
 * A bill of discovery, (except in aid of an execution, by statute,) never re- 
 
BILLS. 439 
 
 prays the delivery of deeds or ^yritings, or equitable re- 
 lief grounded on them, does not require such an affida- 
 vit.-^ So also a bill of discovery in aid of an execution 
 at law must be accompanied by an affidavit of the plain- 
 tiff, his agent or attorney, or of some disinterested per- 
 son on his behalf, that he verily believes the facts set 
 forth therein to be true.^ In bills of interpleader, also, 
 an affidavit is always required of the plaintiff, that he 
 does not collude with either of the defendants; and if 
 the bill be filed by an officer of a company on behalf of 
 the company, he must annex a like affidavit, and add, 
 that, to the best of his knowledge and belief, the com- 
 pany do not collude with the defendants.^ And if there 
 be any money due, he must bring it into court, or at 
 least offer to do so by his bill.* The omission of the re- 
 quisite affidavit, however, can only be taken advantage 
 of by demurrer.^ 
 
 quires an affidavit; for although during the pendency of a bill of discovery 
 unanswered, it is the practice to continue the cause, tlie defendant himself can, 
 at any moment, remove the impediment by filing his answer. M'Canles v. 
 Coolbaugh, 1 T. & H. Pr. 83-4. 
 
 * 1 Dan. Ch. Pr. 449. 
 2 Purd. Dig. 310. 
 
 « Story's Eq. PI. ? 297; Eden on Injunctions, 401. 
 
 * Story's Eq. PI. ? 291. 
 5 1 Dan. Ch. Pr. 452-3. 
 
440 PROCESS AND APPEAEANCi). 
 
 CHAPTER III. 
 
 PROCESS AND APPEARANCE. 
 
 § 573. After the bill has been prepared and signed by 
 counsel, it is in the next place requisite that it should be 
 filed ; for no process of subpoena can issue from the protho- 
 notary's office in any suit in equity, until the bill be 
 actually filed.^ The equity side of the courts is deemed to 
 be always open for the purpose of filing bills, answers, 
 and other pleadings ; for issuing and returning mesne and 
 final process and commissions ; and for making and di- 
 recting all interlocutory motions, orders, rules, and other 
 proceedings, preparatory to the hearing of causes upon 
 their merits.^ The prothonotary, on receiving a bill, 
 dates it the day it is brought into the office, numbers it, 
 and, upon a praecipe left with him by the plaintiff's so- 
 licitor, and which is usually endorsed on the bill, issues 
 a subpoena against the defendant, and thereupon enters 
 the suit upon his docket as pending in the court: he also 
 states upon the docket the time of the entry, and upon 
 the return of the process, he enters the return.'^ Upon 
 this docket are also entered all motions, rules, orders, and 
 other proceedings, made and directed at chambers,, or, on 
 rule days, at the prothonotary's office, whether special or 
 of course; and it is open, at all office hours, to the free 
 inspection of the parties and their solicitors.^ 
 
 1 Equity Rules, xi. p. 115. ^ Ibid. i. p. 111. 
 
 ^ Ibid. XV. p. 116. ' Ibid. iv. p. 112. 
 
PROCESS AND APPEARANCE. 441 
 
 § 574. The process of subpoena constitutes the proper 
 mesne process in all suits in equity, in the first instance, 
 to require the defendant to appear and answer the exi- 
 gency of the bill. The following is the form of the sub- 
 poena in use in the county of Philadelphia : 
 
 " State of Pennsylvania, City and County of Philadel- 
 phia, ss : The Commonwealth of Pennsylvania; to A. B. 
 and C. D., greeting : We command you that you person- 
 ally be and appear before the judges of our court of com- 
 mon pleas for the city and county of Philadelphia, at a court 
 to be holden at Philadelphia, in and for the said city and 
 
 county, on the first Monday of next, to ansvrer to 
 
 a bill of complaint exhibited against you in our said court 
 by E. F., and to do further and to receive what our said 
 court shall have considered in this behalf. And this you 
 are not to omit under the penalty of four hundred dollars. 
 Witness the honourable Oswald Thompson, president of 
 
 our said court, at Philadelphia, the day of in 
 
 the year of our Lord one thousand eight hundred, &c." 
 
 § 575. At the bottom of the subpoena must be placed 
 a memorandum, that the defendant is to enter his ap- 
 pearance in the suit in the prothonotary's office, on or 
 before the day at which the writ is returnable ; otherwise 
 the bill may be taken pro confesso} The following is the 
 form adopted : " Memorandum. — The defendants are to 
 enter their appearance in the suit, in the prothonotary's 
 office, on or before the day at which the writ is return- 
 able ; otherwise the bill may be taken pro confesso." 
 
 § 576. Whenever a bill is filed, the prothonotary issues 
 the process of subpoena thereon, as of course, upon the ap- 
 plication of the plaintiff"; which must be made returnable 
 into the prothonotary's office the next rule day, or the next 
 
 ' Equity Rules, xii. p. 115. 
 
 29 
 
442 PROCESS AND APPEAEANCE. 
 
 rule day but one, at the election of the plaintiff, occurring 
 after twenty days from the time of the issuing.-^ The first 
 Monday of every month is a rule day.^ When there are 
 more defendants than one, a writ of subpoena may, at the 
 election of the plaintiff, be sued out separately for each de- 
 fendant, except in the case of husband and wife defen- 
 dants, or a joint subpoena against all the defendants.^ 
 
 § 577. The service of all subpoenas is to be in the same 
 manner as writs of summons are directed by law to be 
 made. In cases where husband and wife are defendants, 
 service on the husband is deemed sufficient service upon 
 both.* It is not necessary that the subpoena be served 
 by the sheriff; the service may be made by the complain- 
 ant or his agent ; * but in such case, the person serving 
 the process must make affidavit thereof The act of as- 
 sembly prescribing the manner of serving a summons, 
 authorizes either of two modes of personal service : the 
 one, "by reading the writ in the hearing of the defen- 
 dant;" and the other, "by giving the defendant notice 
 of the contents of the writ, and by giving him a true and 
 attested copy thereof" It also authorizes, if the defen- 
 dant cannot conveniently be found, either of two modes 
 of executing the writ by leaving a copy : the one, " by 
 leaving a true and attested copy at the defendant's dwell- 
 ing-house, in the presence of one of the adult members of 
 his family ;" and the other, if the defendant reside in the 
 family of another, " by leaving a true and attested copy 
 at the house in which the defendant resides, with one of 
 the adult members of the family in which he resides."- ' 
 
 ' Equity Rules, xii. p. 115. ' Ibid. ii. p. 111. ' Ibid. xii. p. 115. 
 
 * Ibid. xiii. p. 116. " Megarge v. Bate, 1 T. & H. Pr. 82. 
 
 ^ Rules of the Supreme Court of the United States, xv. p. 157. 
 ' Purd. Dig. 23; Weaver v. Springer, 2 Miles, 43. And see Wilson v. Hayes, 
 6 Harris, 354. 
 
PROCESS AND APPEARANCE. 443 
 
 § 578. A return of service on the defendant, "by 
 leaving a copy at his boarding-house, in the presence of 
 one of the adult members of the family, and by leaving 
 a copy at the store of the defendant in the presence of 
 his clerk, p,nd by leaving a copy at the dwelling-house of 
 the defendant's father, in the presence of adult members 
 of the family;" was held sufficient, although it appeared 
 that the defendant, a few days before the service of the 
 writ, had left the country, and gone on a temporary visit 
 to Europe.-^ When service is effected by copy, it must ap- 
 pear that the copy was " attested," by the person serving it.^ 
 
 § 579. In case of a corporation defendant, service may 
 be made upon the president or other principal officer, or 
 on the cashier, treasurer, secretary, or chief clerk of such 
 corporation ; or, if the defendant be an incorporated rail- 
 road or canal company, whose property is situated, in 
 whole or in part, in the county in which the suit is 
 brought, and the president, secretary, or chief clerk, can- 
 not be found in such county, service may be made upon 
 any manager or director of such company, being within 
 the county; and in case no director or manager can be 
 there found, the person charged with the service of the* 
 writ, may go into an adjoining county to effect a service. 
 Where any corporation has an agency, or transacts busi- 
 ness, in any county, service may be made upon the pre- 
 sident, cashier, agent, chief or any other clerk, or upon 
 any director or agent of such corporation within the 
 county. And where any corporation, incorporated by this 
 commonwealth, shall have their principal office for the 
 transaction of business located out of the state, or where 
 the president, treasurer, cashier, or other principal officer 
 of such company shall reside without the state, such 
 
 1 Farnum v. Walton, 1 T. & H. Pr. 233. And see Bujao v. Morgan, 3 
 Yeates, 258. ^ Bank v. Perdriaux, Bright. R. 67. 
 
444 PROCESS AND APPEARANCE. 
 
 company may be sued in any county where their works 
 shall be located, or adjoining thereto, or where any direc- 
 tor, manager, or other officer shall reside, and service of 
 process may be made upon any such director, manager, 
 or other officer. In case of a foreign corporation, process 
 may be served upon any officer, agent, or engineer of 
 such corporation, either personally, or by copy, or by 
 leaving a certified copy at the office, depot, or usual 
 place of business of such corporation.^ 
 
 § 580. Independently of any statute, a court of equity 
 has no power to order service of its process to be effected 
 out of the jurisdiction. The courts of common pleas and 
 district courts cannot issue process into another county: 
 but the original jurisdiction of the supreme court extends 
 throughout the state, and their process runs into every 
 county in the commonwealth.^ Its equity jurisdiction in 
 the city of Philadelphia is exercised by one of the judges 
 in the court of nisi prius, subject to an appeal to the 
 court in banc.^ 
 
 § 581. Whenever a subpoena is returned not executed 
 3S to any defendant, the plaintiff is entitled to another 
 subpoena, toties quoties, against such defendant, if he shall 
 require it, until due service be made.* If service cannot 
 be effected on the defendant, the court has no power to 
 order that service of the subpoena in equity on his 
 attorney at law, shall be a good service, except in in- 
 junction cases, to stay proceedings at law, and in cross- 
 suits; where the plaintiff at law in the first, and the 
 plaintiff in equity in the second case, resides beyond the 
 jurisdiction of the court.^ The practice of the court, 
 directing service of the subpoena on the attorney of the 
 
 '■ Purd. Dig. 168-9. ^ Ibid. 307-8. ' Ibid. 308. 
 
 * Equity Rules, xiv. p. 11 G. 
 
 5 Eckert v. Bauert, 4 W. C. C. 370; Ward v. Sebring, Ibid. 426, 472. See act 
 
PROCESS AND APPEARANCE. 445 
 
 plaintiff at law in cases of injunctions, and on the solicitor 
 of the plaintiff in the original suit where a cross-bill is 
 filed, is founded on the necessity of the case ; there being 
 no remedy for the party unless it be afforded by enter- 
 taining these suits, and countenancing a service of the 
 subpoena on the law agent of the non-resident party. 
 But in all cases of original bills, relief may be obtained in 
 the courts of the defendant's domicil, and consequently, 
 there is no necessity for applying to these cases the 
 practice which is adopted in injunction and cross-bills.-' 
 
 § 582. On a bill of discovery in aid of an execution at 
 law, the act of 1836 provides, that instead of a subpoena, 
 a writ of scire facias shall issue to the sheriff, requiring 
 him to make known to the defendants therein named, that 
 they be and appear, at a certain time to be appointed by 
 the court, to answer the said bill, and all such interroga- 
 tories as shall be propounded to them, or show cause 
 why they should not, and abide the judgment of the 
 court in the premises. But no defendant shall be com- 
 pelled to answer such bill or interrogatories, at the time 
 appointed, unless a copy of the bill and interrogatories 
 shall have been served upon him, at least ten days pre- 
 viously thereto.^ The copy of the bill and interrogatories 
 may be served in the same manner as a summons.^ And 
 the defendant is bound to answer, although ten days did 
 not intervene between the service and return of the 
 scire facias; but not until ten days from the service of a 
 copy of the bill and interrogatories.* 
 
 § 583. The statute further provides, that from the 
 time of the service of the scire facias, in such case, upon 
 
 27th March 1854, as to the service of process on non-resident executors, admi- 
 nistrators, assignees, and other trustees; and on mortgagees and judgment cre- 
 ditors. Purd. Dig. 1101. 1 Ward v. Sebring, 4 W. C. C. 474. 
 
 2 Purd. Dig. 310. ' Gouldey v. Gillespie, 4 Penn. L. J. 51 
 
 * Large v. Bristol Transportation Co., 2 Ash. 394. 
 
446 PROCESS AND APPEARANCE. 
 
 any person other than the defendant in the judgment, 
 the personal property of the defendant in the hands of 
 such person shall be bound thereby, and shall be liable 
 to be taken in execution, at the instance of the plaintiff, 
 in like manner as goods or effects in the hands of a gar- 
 nishee in a foreign attachment; and that if such person 
 shall transfer the same to any other person, after service 
 of the writ, he shall be liable to pay the value thereof to 
 the complainant, out of his own proper goods and chat- 
 tels.^ The purposes of this act are not confined to a mere 
 discovery of the defendant's property; the proceedings 
 on the scire facias are substantially the same as in foreign 
 attachment ; and therefore, where the defendant and gar- 
 nishee have waived their privilege of trial by jury, by 
 omitting to plead to the scire facias, and have submitted 
 the case upon answers to the interrogatories, the court 
 may render a joint judgment against them for the amount 
 of the plaintiff's debt.^ The service of the scire facias 
 binds the person of the garnishee, but does not create a 
 lien on the goods in preference to a subsequent execution.® 
 
 § 584. A difference of practice exists, in reference to 
 the process upon a bill of discovery in aid of the deter- 
 mination of an issue, pending in the common law side of 
 the same court. The district court of Philadelphia has 
 decided, that the proper practice on filing a bill of dis- 
 covery is, in all cases, to issue upon it a subpoena;* but 
 Mr. Justice Lowrie, sitting in the district court of Alle- 
 gheny, has determined that the party, in such case, 
 should be called to answer by rule, and not by subpoena.'' 
 
 § 585. The appearance day of the defendant is the 
 rule day to which the subpoena is made returnable; pro- 
 
 1 Purd. Dig. 310. 2 Shaffer v. Watkins, 1 W. & S. 219. 
 
 ' Bennett's Appeal, 10 Harris, 476. 
 
 * Tilden v. Franklin, 1 T. & H. Pr. 10. ^ Peebles l: Bangs, Ibid. 79. 
 
PROCESS AND APPEARANCE. 447 
 
 vided he have been served with the process twenty days 
 before that day; otherwise, his appearance day is the 
 rule day succeeding the rule day when the process is re- 
 turnable. The appearance of the defendant, either per- 
 sonally or by his solicitor, must be entered in the margin 
 of the equity docket, by writing his name opposite the 
 name of the defendant for whom he appears.^ If the de- 
 fendant do not appear, after due service of process, the 
 bill may be taken pro confesso against him.^ 
 
 § 586. If, however, the plaintiff do not choose to 
 take the bill pro confesso, he is at liberty to proceed to 
 compel an appearance by attachment.^ This must be 
 directed to the sheriff, and is returnable immediately. 
 According to the English practice, the writ must be en- 
 dorsed, " For not appearing at the suit of A. B. complain- 
 ant;"'' but by our practice, this is usually inserted in the 
 body of the writ. The oflScer to whom it is directed and 
 delivered ought, with all speed and secrecy, to execute 
 the same according as it commands him, and he is bound 
 to pursue the effect of his writ.^ And if the defendant 
 be taken, he must either go to prison for safe custody, or 
 put in bail to the sheriff; for the intent of the arrest 
 being ' only to compel an appearance in court at the re- 
 turn of the writ, that purpose is equally answered 
 whether the sheriff detain his person or take sufficient 
 security for his appearance.'' The sheriff, however, can- 
 not take bail on an attachment for a contempt which is 
 not of a bailable nature; as for not answering, or not 
 obeying the decree of the court.^ 
 
 § 587. When the sheriff has been ordered to take a 
 defendant into custody for a contempt upon mesne pro- 
 
 ' Equity Rules, xvi. p. 116. ^ Ibid. xii. p. 115. ' Ibid. vii. p. 113. 
 
 '- 1 Dan. Ch. Pr. 520. ' Ibid. 524. " Ibid, 526, 
 
 ' Equity Rules, viii,, xvii., p. 114, 117, 
 
448 PROCESS AND APPEARANCE. 
 
 cess, and is unable to effect a service of the writ; the 
 next process which issues, in our practice, to compel the 
 obedience of the party, is a sequestration; which is a writ 
 or commission, sometimes directed to the sheriff, or 
 which is most usual, to certain persons appointed by the 
 court, empowering him or them to enter upon and se- 
 quester the real and personal estate and effects of the 
 defendant, (or some particular part or parcel of his lands) 
 and to take, receive, and sequester the rents, issues, and 
 profits thereof; and keep the same in their hands, or pay 
 the same in such manner and to such persons as the 
 court shall in its discretion appoint, until the parties 
 shall have appeared to, or answered the plaintiff's bill; 
 (or performed some other matter which has been ordered 
 and enjoined by the court, in the process specifically 
 mentioned,) and for not doing whereof he is in contempt.^ 
 § 588. The sequestrators, under a sequestration on 
 mesne process, may take possession of all the defendant's 
 goods and chattels. But in general, a chose in action is 
 not the subject of sequestration. They may also enter 
 into possession of such parts of the defendant's real estate 
 as are in his own occupation, or in the occupation of his 
 tenants. So, where the defendant conveys to a stranger, 
 pending the suit, such a possession will not be regarded; 
 but where there is a possession under an adverse title, 
 it will be protected in chancery upon an examination 
 pro interesso suo. In this commonwealth, where the ad- 
 verse possession is held in good faith, and has not been 
 acquired pending the suit, no court would disturb it by 
 any summary process. The right of trial by jury would 
 stand in the way of such a proceeding. It is not reason- 
 able to suppose that the legislature intended to involve 
 
 ' Ibid. See form of sequestration in the orphans' court; Purd. Dig. 623. 
 
PROCESS AND APPEARANCE. 449 
 
 sequestrators in the endless litigation which might flow 
 from the sequestration of mere rights in action.^ 
 
 § 589. It is obvious, from the nature of the process 
 of contempt, that if a defendant abscond so as to avoid 
 its operation; or if, when arrested under it, he perversely 
 refuse to submit; and the process of sequestration be- 
 comes ineffectual to compel obedience, the plaintiff is 
 without further remedy, except that of taking the bill 
 pro confesso. The court will, therefore, in cases where 
 the process has been ineffectually employed against the 
 defendant, make an order that the facts of the bill shall 
 be considered as true, and decree against the defendant 
 according to the equity arising upon the case stated by 
 the plaintiff's bill.^ This may be done either upon a de- 
 fault of appearance, or of an answer; and thereupon, it 
 is provided, that the cause shall be proceeded in, ex parte, 
 and the case may be put upon the next argument Ust, 
 and the matter of the bill may be decreed by the court, 
 when there reached in its order, if the same can be done 
 without an answer, and is proper to be decreed.^ 
 
 § 590. When a bill is taken pro confesso, and the court 
 has proceeded to a decree, such decree, so rendered, will 
 be deemed absolute, unless the court, within three months 
 after the service of notice of such decree upon the de- 
 fendant, set aside the same, and give the defendant time 
 for filing his answer, upon cause shown; and no such 
 motion will be granted, unless the defendant will under- 
 take to file his answer within such time as the court 
 shall direct, and submit to such other terms as the court 
 shall impose, for the purpose of speeding the cause."* 
 
 ' Gordon v. Ingraham, Sup. Court, Pittsburgh Leg. J. 2 December 1854. 
 2 1 Dan. Ch. Pr. 569. ^ Eq. Rules, xvii. p. 117. ' Ibid, xviii. p. 118. 
 
450 
 
 DEFENCE. 
 
 CHAPTEE IV. 
 
 OF THE DEFENCE. 
 
 § 591. Supposing the defendant to have appeared to 
 the suit, we have now to consider the various defences 
 which may be put in to the plaintiff's bilL The grounds 
 of defence in equity may be divided into six classes, viz.: 
 1. Want of jurisdiction in the court: 2. Disability in 
 the plaintiff to sue, or in the defendant to be sued : 3. A 
 decision already made, or still pending, on the same mat- 
 ter, in the court itself, or in some other court of compe- 
 tent jurisdiction: 4. Want of equity, where no case is 
 established on the merits; and this includes not only 
 cases where there is no right in the plaintiff, but also 
 those where his right, though in fact existing, is not al- 
 leged with sufficient certainty in his bill, or where it is 
 a right at law and not in equity; and also cases where 
 the affidavit required for transferring the jurisdiction 
 into equity, has not been annexed to the bill: 5. Mul- 
 tifariousness, and unduly splitting up a cause of suit : 
 6. Want of parties.^ 
 
 § 592. The forms of defence are four in number, viz. : 
 disclaimer, demurrer, plea, and answer. A disclaimer 
 denies that the defendant has any interest in the matter. 
 A demurrer submits that on the plaintiff's own showing 
 his claim is bad. A plea avers some matter of avoid- 
 
 1 Adams' Equity, 331. 
 
DEFENCE. 451 
 
 ance, or denies some one allegation in the bill, and rests 
 the defence on that issue. An answer puts on the re- 
 cord the whole case of the defendant, whether by way 
 of demurrer, of avoidance, or of denial, and whether 
 raising one or more issues.^ 
 
 § 593. A defendant, however, is not necessarily con- 
 fined to one of these forms of defence, but may use two 
 or more of them against the same bill, provided he ap- 
 ply them to different parts, and distinctly point out 
 the application. Thus a defendant may demur to one 
 part of the bill, plead to another, answer to another, and 
 disclaim as to another. He may also put in separate 
 and distinct demurrers to separate and distinct parts of 
 the same bill; and he may also plead different matters 
 to separate parts of the same bill.^ Lord Redesdale 
 laj-s it down, that "all these defences must clearly refer 
 to separate and distinct parts of the bill; for a defendant 
 cannot plead to that part to which he has already de- 
 murred, neither can he answer to any part to which he 
 has either demurred or pleaded; the demurrer demand- 
 ing the judgment of the court whether he shall make 
 any answer, and the plea whether he shall make any 
 other answer than what is contained in the plea; nor 
 can the defendant, by answer, claim what, by disclaimer, 
 he has declared he has no right to. A plea or answer 
 will therefore overrule a demurrer, and an answer a plea; 
 and if a disclaimer and answer be inconsistent, the mat- 
 ter will be taken most strongly against the defendant 
 upon the disclaimer."^ 
 
 § 594. The strictness of this doctrine has been in 
 some respects modified by our rules of court, which di- 
 
 Ibid. 332. » 2 Dan. Ch. Pr. 923; Equity Rules, xxx. p. 122. 
 
 ' Mitf. Eq. PL, 319. 
 
452 DEFENCE. 
 
 rect that no demurrer or plea shall be held bad and over- 
 ruled on argument, only because such demurrer or plea 
 shall not cover so much of the bill as it might by law 
 have extended to ; or merely because the answer of the 
 defendant may extend to some part of the same matter, 
 as may be covered by such demurrer or plea.^ In all 
 cases not coming strictly within the terms of these rules, 
 the principles above quoted from Lord Redesdale stUl 
 apply, and in addition thereto, it is to be remarked, that 
 it is a general rule, where a defendant adopts this 
 mode of defence, not only that each defence should in 
 words be applicable to the distinct part of the bill to 
 which it professes to apply, but it should also, in sub- 
 stance, relate pecuharly to that part of the bill which it 
 professes to cover; so that a defence, in words apphca- 
 ble to part of a bill only, but in reality applicable to 
 the whole bill, is not good, and cannot stand in con- 
 junction with another distinct defence applicable and ap- 
 plied to another distinct part of the bill.^ 
 
 § 595. The plaintiff is entitled, immediately after the 
 defendant's appearance is entered, to a rule on the de- 
 fendant, to be entered of course in the prothonotary's 
 office, to file his demurrer, plea, or answer to the bill, on 
 the rule day next succeeding that on which he entered 
 his appearance; proAT-ded twenty days intervene be- 
 tween the service of notice of such rule and the rule 
 day.^ The first Monday of every month is a rule day,^ 
 and if a rule to answer, plead, or demur, be entered at 
 any intervening period, it is considered as entered to the 
 succeeding rule day.^ Notice of the rule may be given 
 
 • Equity Rules, xxxiv., xxxv., p. 124. ' 2 Dan. Cli. Pr. 92-1. 
 ' Equity Rules, xvii. p. 117. * Ibid. ii. p. 111. 
 
 * This has beea determined by the district court of Philadelphia. 
 
DEFENCE. 453 
 
 to the solicitor of the defendant ; ^ and in default of an- 
 swer, at the time appointed, the plaintiff may, at his 
 election, enter an order, as of course, in the equity 
 docket, that the bill be taken 'pro confesso;"^ or the 
 plaintiff, if he require any discovery or answer to ena- 
 ble him to obtain a proper decree, will be entitled to 
 process of contempt against the defendant to compel an 
 answer; and the defendant, if arrested upon such pro- 
 cess, will not be discharged therefrom, unless upon filing 
 his answer, or otherwise complying with such order as 
 the court or a judge thereof may direct, as to pleading 
 to, or fully answering the bill, within a period to be 
 fixed by the court or judge, and undertaking to speed 
 the cause. In the latter case, however, the rule must 
 be served personally upon the defendant.^ 
 
 § 596. Before considering the other modes of defence 
 to a bill in equity, we will briefly notice that by a dis- 
 claimer. That is, where a defendant, upon oath, denies 
 that he has or claims any right to the thing in demand 
 by the plaintiff's bill, and disclaims, i. e., renounces all 
 claim thereto. A disclaimer, however, cannot often be 
 put in alone ; for although if a plaintiff, from a mistake, 
 make a person a party to a suit who is in no way inte- 
 rested in or liable to be sued, touching the matters in 
 question, a simple disclaimer by such person might be 
 good; yet, as it is possible that the defendant may have 
 had an interest which he may have parted with, the 
 plaintiff has a right 'to require an answer sufficient to 
 ascertain whether that be the fact or not; and if a de- 
 fendant have had an interest which he has parted with, 
 an answer may also be necessary to enable the plaintiff 
 
 1 Equity Bules, iv. p. 112. ^ Ibid. xvii. p. 117. See ante, § 589-90. 
 
 ' Equity Rules, xvii. p. 117. 
 
454 DEFENCE. 
 
 to make the proper person a party instead of the de- 
 fendant.^ 
 
 § 597. Though a disclaimer is, in substance, distinct 
 from an answer, yet it is, in point of form, an answer, 
 and is preceded by the same formal words ; and it is put 
 in and filed in the same way. It contains simply an as- 
 sertion that the defendant disclaims all right and title to 
 the matter in demand. Lord Redesdale observes, that 
 in some instances, from the nature of the case, this may 
 perhaps be sufficient, but that the forms given in the 
 books of practice, are all of an answer and disclaimer.^ 
 
 § 598. If one be made a defendant in a bill, among 
 other material defendants, who in nowise pretends to 
 any right to the matter in question, and he thereupon 
 disclaim, he may, after such disclaimer, upon motion 
 for that purpose, be examined as a witness in the cause 
 on behalf of the other defendants; for it shall be pre- 
 sumed his name was inserted in the bill, without other 
 cause than to take away his testimony from the other 
 defendants. If however the plaintiff wish the evidence 
 of the party disclaiming, he must amend his bill by 
 striking out his name as a defendant, or move to dis- 
 miss it as against such defendant.^ 
 
 • 2 Dan. Ch. Pr. 807. = Ibid. 808; Mitf. Eq. PI. 319. 
 
 ^ 2 Dan. Ch. Pr. SIO. 
 
DEMURRERS. 455 
 
 CHAPTER V. 
 
 DEMURRERS. 
 
 § 599. Wherever any ground of defence is apparent 
 upon the bill itself, either from the matter contained in 
 it, or from defect in its frame, or ia the case made by it, 
 the proper mode of defence is by demurrer. It demands 
 the judgment of the court, whether the defendant shall 
 be compelled to answer the complainant's bill, or that 
 particular part of it to which the demurrer applies.^ A 
 defendant may demur to the whole bill or to part of it, 
 or he may demur to part, plead to part, and answer as 
 to the residue.^ But each of these modes of defence must, 
 as a general rule, be actually applied to different and dis- 
 tinct parts of the bill, and must be consistent with each 
 other.'* It is however provided, by rule of court, that 
 no demurrer shall be overruled, merely because it does 
 not cover so much of the bill as it might by law have ex- 
 tended to; or solely because the answer may extend to 
 some part of the same matter, that may be covered by 
 such demurrer.* 
 
 § 600. The rules of pleading in courts of law, general- 
 ly, are regarded in courts of equity; and no principle is 
 better established, than if there be a general demurrer to 
 a declaration, or to a plea, and any part be good, the de- 
 
 1 1 Dan. Ch. Pr. 598-9. ^ Equity Rules, xxx. p. 122. 
 
 ' Story's Eq. PI. ? 442. * Equity Rules, xxxiv., xxxv., p. 124. 
 
456 DEMURRERS. 
 
 murrer must be overruled. So, in a court of equity, "if 
 a demurrer be too general, that is, if it cover, or be ap- 
 plied to the whole bill, when it is good to a part only; 
 or, if it be a demurrer to a part of a bill only ; but yet is 
 not good to the full extent which it covers, but is so to a 
 part only, it will be overruled ; for it is a general rule, 
 that a demurrer cannot be good as to a part, which it 
 covers, and bad as to the rest; and therefore it must 
 stand or fall altogether." ^ Therefore, to avoid the hazard 
 of one general demurrer to all parts of the bill, a defen- 
 dant should put in a separate demurrer to distinct parts 
 of the bill, for separate and distinct causes. If separate 
 demurrers are put in to different and distinct parts of a 
 bill, one demurrer may be overruled upon argument, 
 and another allowed.^ 
 
 § 601. No demurrer will be allowed to be filed to any 
 bill, unless upon a certificate of counsel, that in his opinion 
 it is well founded in point of law, and supported by the 
 affidavit of the defendant that it is not interposed for de- 
 lay.* And if, upon the argument of the demurrer, the 
 court shall deem it to have been for vexation or delay, 
 and to have been frivolous or unfounded, the bill may 
 be ordered to be taken against the defendant, -pro con- 
 fesso, and the matter thereof proceeded in and decreed 
 accordingly.* 
 
 § 602. It is not compulsory on a defendant to demur. 
 The principal motives for so doing are, to avoid a prejudi- 
 cial discovery, and to prevent unnecessary expense. If 
 these do not exist, it is generally an inexpedient and 
 often an objectionable course, as involving a premature 
 discussion of the case, of which the plaintiff will probably 
 
 1 Story's Bq. PI. § 443. ' Bank of United States v. Biddle, 2 Pars. 60-1. 
 
 ' Equity Rules, xxix. p. 122. * Ibid, xxxii. p. 123. 
 
DEMURRERS. 457 
 
 take advantage.^ The former of these motives has, to a 
 considerable extent, been removed by the rule of court 
 which provides, that a defendant shall be at liberty, by 
 answer, to decline answering any interrogatory, or part 
 of an interrogatory, from answering which he might have 
 protected himself by demurrer ; and he shall be at liberty 
 so to decline, notwithstanding he shall answer other parts 
 of the bill from which he might have protected himself 
 by demurrer.^ 
 
 § 603. A demurrer necessarily admits the truth of the 
 facts stated in the bill, so far as they are relevant, and 
 are well pleaded; bat it does not admit the conclusions 
 of law drawn therefrom, although they are also alleged in 
 the bill.^ Thus, where a bill sets forth such leading facts 
 as do not, when analyzed, show a case of fraud or mis- 
 take, allegations or averments in the bill that there was 
 fi-aud or mistake, and the expressions "fraudulently," 
 "deceitfully," "by mistake," &c., interspersed through- 
 out it, will not bring the case within equitable jurisdic- 
 tion, even on a demurrer.* 
 
 § 604. It is a general principle applicable to pleadings 
 in equity, that a defendant should, in assigning the causes 
 of a demurrer, clearly point out the nature of the objec- 
 tion which he takes: no causes of demurrer not assigned 
 will be regarded by the court.^ When no particular cause 
 is assigned, except the usual formulary that there is no 
 equity in the bill, it is termed a general demurrer, and 
 this will be sufficient when the bill is defective in sub- 
 
 1 Adams' Eq. 33G. ^ Equity Rules, xlii. p. 126. 
 
 5 Story's Bq. PI. § 452. 
 
 * Maguiao v. Thomson, 2 Wall. Jr. 209. Fraud is, of all others, a, charge 
 most requiring distinct averments; it is not to be raised by mere inference. 
 Kelly V. Rogers, 25 Law Times E. 140. 
 
 * Bogardus v. Bosendale Manufacturing Co., 3 Seld. 149. 
 
 30 
 
458 DEMUEEEES. 
 
 stance : defects of form must, however, be specially as- 
 signed as causes of demurrer.^ 
 
 § 605. A demurrer can only be for objections apparent 
 upon the face of the bill itself, either from the matter in- 
 serted or omitted therein, or from defects in the frame 
 or form thereof. It cannot, therefore, state what does 
 not appear upon the face of the bill, otherwise it would 
 be, what has been emphatically called, a speaking demur- 
 rer; that is, a demurrer wherein a new fact is introduced 
 to support it.^ The same result, however, may be ob- 
 tained under our practice, at least so far as a discovery 
 is concerned, by an answer setting up the particular fact 
 upon which the defendant relies to protect him from dis- 
 covery, and declining to answer the particular interroga- 
 tories to which the matter thus set forth is applicable.^ 
 
 § 606. A defendant may also, at the hearing of his 
 demurrer, orally assign another cause of demurrer, dif- 
 ferent or in addition to those assigned upon the record; 
 which, if valid, will support the demurrer, although the 
 causes stated in the demurrer itself, be held to be 
 invalid. This oral statement of a cause of demurrer 
 at the bar, is called demurring ore tenus. Such de- 
 murrer ore tenus must, however, be co-extensive with 
 the demurrer upon the record.* And in such case, if 
 the defendant succeed in his demurrer, ore tenus, he 
 gets no'costs.^ 
 
 § 607. A demurrer may be either to the relief prayed, 
 or it may be to the discovery only, or to both. We will 
 first consider demurrers to the relief; for according to 
 the English practice, if the demurrer be good to the re- 
 
 ' Ibid.; Story's Eq. PI. | 455. « Story's Eq. PI. I 448. 
 
 ' Perry v. Kinley, 3 Am. L. R. 183. * 1 Dau. Ch. Pr. G5T-8. 
 
 ' BoTardus v. Rosendale Manuftoturing Co., 3 Seld. 149. 
 
DEMUEEEES. 459 
 
 lief, it will be so to the discovery; if therefore a plain- 
 tiff be entitled to the discovery alone, and go on to 
 pray relief, a general demurrer to the whole bill will be 
 allowed.^ This is not, however, the practice in the Ame- 
 rican courts, where it is held, that if the plaintiff be en- 
 titled to a discovery, and not to relief, the defendant 
 must answer the former, and may demur to the latter; 
 but a general demurrer will be overruled, if the plaintiff 
 be entitled to an answer to either the discovery or relief^ 
 The grounds of demurrer to original bills for relief, may 
 be divided into three classes, viz. : 1. To the jurisdiction : 
 2. To the person of the plaintiff: 3. To the matter of 
 the bill, either as to its substaiace, or to its form or 
 frame." 
 
 § 608. Demurrers to the jurisdiction may be further 
 divided into three heads. First, that the subject is not 
 cognizable by any municipal court of justice. There 
 are some matters of a political nature which are so en- 
 tirely fit for negotiation or treaty by the executive de- 
 partment of the government, that courts of justice can- 
 not undertake to redress wrongs which have been com- 
 mitted in relation to them. A political treaty made 
 between two independent nations, relating to national 
 affairs, cannot be enforced in the courts of law or equity. 
 But a distinction must be made between a treaty of this 
 nature and one which provides for the assertion of pri- 
 vate rights, or for objects which may properly be re- 
 dressed in courts of justice, and which have no connexion 
 with, nor involve the rights of sovereignty.* 
 
 § 609. The second cause of demurrer to the jurisdic- 
 
 ' 1 Dan. Ch. Pr. 603. 
 
 2 Baker v. Biddle, 1 Bald. 409; Brownell v. Curtis, 10 Paige, 210; Story's 
 Eq. PI. ? 312, 441, 545. 
 s Cooper's Eq. PI. 118; Story's Bq. PI. ? 466. ' 4 Bouv. Inst. 397. 
 
460 DEMUREEKS. , 
 
 tion is, that the subject of the suit is not within the ju- 
 risdiction of a court of equity. In general, when the 
 plaintiff can have a remedy at law, as effectual as the 
 one he seeks in equity, and that remedy is direct, cer- 
 tain, and adequate, a court of equity has no jurisdiction; 
 and therefore a demurrer to the jurisdiction will be 
 sustained.^ But to induce equity to refuse its aid to a 
 suitor, it is not sufficient that he may have some remedy 
 at law. An existing remedy at law, to induce equity to 
 decline the exercise of its jurisdiction in favour of a 
 suitor, must be an adequate and complete one. And 
 where, from the nature and complications of a given case, 
 its justice can best be reached by means of the flexible 
 machinery of a court of equity, in short, where a full, 
 perfect, and complete remedy cannot be afforded at law, 
 equity extends its jurisdiction in furtherance of justice.^ 
 § 610. An objection to the jurisdiction of the court, 
 because the plaintiff has an adequate remedy at law, 
 cannot regularly be taken after the defendant has an- 
 swered on the merits. After a defendant has put in an 
 answer in chancery, submitting himself to the jurisdic- 
 tion of the court without objection, it is too late to in- 
 sist that the complainant has a perfect remedy at law, 
 unless the court be wholly incompetent to grant the re- 
 lief sought by the bill.^ Such an objection, in those 
 courts which have jurisdiction, both at common law 
 and in equity, is considered as going rather to the form 
 of the proceeding than to the jurisdiction of the court 
 
 ' Harrison v. Rowan, 4 W. C. C. 205. 
 
 ^ Bank of Virginia v. Adams, 1 Pars. 541 ; Bank of Kentucky v. Schuylkill 
 Bank, 1 Pars. 220; Kirkpatrick j'. M'Donald, 1 Jones, 393; Skilton v. Webster, 
 Bright. R. 203; 1 Curtis's Com. § 21; 1 Pars, on Cont. 412-13. 
 
 3 Bank of Kentucky v. Schuylkill Bank, 1 Pars. 222. See Baker v. Biddle, 
 1 Bald. 412, contra. 
 
DEMUERERS. 461 
 
 over the subject matter; and it can only be taken ad- 
 vantage of by demurrer.^ 
 
 § 611. A demurrer lies, not only in cases where the 
 plaintiff in the bill has a complete remedy at law, but 
 also in cases where there is no remedy at law or in 
 equity ; or where there is no remedy in equity, though 
 there may be one at law.^ Thus, if a bill in equity show 
 upon its face that the plaintiff's title is barred by the 
 statute of limitations, the defendant may avail himself 
 of this defence by demurrer;^ and the rule is the same 
 where the defence arises from presumptions analogous to 
 the statutory limitation. In such cases, the plaintiff is 
 bound in the first instance to state the circumstances 
 which take his case out of the rule.* 
 
 § 612. A third ground of demurrer to the jurisdiction 
 of a court of equity is, that some other court is invested 
 with the proper jurisdiction. Thus, if a suit in equity 
 should be brought in a state court to restrain the in- 
 fringement of a patent right or of a copyright, the ex- 
 clusive jurisdiction over which subjects is invested in the 
 federal courts, a demurrer would be sustained. And so 
 also, if it appear on the face of the bill that some other 
 court, as a court of admiralty, or a register's court, has 
 exclusive jurisdiction over the subject matter, a court of 
 equity will not entertain jurisdiction. 
 
 § 613. The objections arising from the personal dis- 
 ability of the plaintiff to sue, have already been con- 
 sidered;* all, therefore, that need now be said on the 
 subject is, that if any of these incapacities appear upon 
 
 1 Adams v. Beach, Y Leg. Int. 178; Neel v. Neel, 1 T. & H. Pr. 63; Fiuley 
 V. Aiken, 3 Pittsburgh Leg. J. 1. 
 
 2 4 Bouv. Inst. 398. ^ Wisner v. Barnet, 4 W. C. C. 631. 
 ' Lislo V. Croasdell, Nisi Prius, 25 November 1854, Lewis, J. MS, 
 
 * Ante, I 515, et seq. 
 
462 DEMURRERS. 
 
 the face of the bill, the defendant may demur. So also 
 he may, if the incapacity be such only as prevents the 
 party from suing alone, as in the case of an infant or a 
 married woman, an idiot or a lunatic; in which case, if 
 no next friend or committee be named in the bill, a de- 
 murrer will lie. And it is to be observed, that this ob- 
 jection extends, and advantage maybe taken of it, as well 
 in the case of a bill for discovery merely, as in the case 
 of a bill for relief; for the defendant in a bill for dis- 
 covery merely, being always entitled to costs after a full 
 answer, as a matter of course, would be materially injured 
 by being compelled to answer a bill exhibited by persons 
 whose property is not at their own disposal, and who are 
 therefore incapable of paying the costs.^ 
 
 § 614. We come now to the consideration of demurrers 
 arising upon objections applying more specifically to the 
 matter of the bill ; either as to its substance, or as to its 
 form. The nature of these objections has been already 
 discussed in our examination of the form and structure 
 of bills. Demurrers to the substance of the bill may be, 
 either that the plaintiff has no interest in the subject; or 
 that, although the plaintiff has an interest, yet the defen- 
 dant is not answerable to him, but to some other person ; 
 or that the defendant has no interest ; or that the plain- 
 tiff is not entitled to the relief which he has prayed ; or 
 that the value of the subject matter is beneath the dig- 
 nity of the court; or that the bill does not embrace the 
 whole matter; or that there is a want of proper parties; 
 or that the bill is multifarious, and improperly confounds 
 distinct demands; or that the plaintiff 's^remedy is barred 
 by lapse of time; or that it appears by the bill, that 
 there is another suit depending for the same matter.^ 
 
 > 1 Dan. Ch. Pr. 616; Mitf. Eq. PI. 153. ' TDan. Ch. Pr. 616. 
 
DEMUERERS. 463 
 
 § 615. With respect to demurrers by reason of the 
 deficiency of the bill, in matters of form, the grounds 
 upon which they may be put have also been so amply 
 stated before, that all which is necessary, is summarily to 
 recall them to the reader's attention. They are, either 
 because the plaintiff's place of abode is not stated; or 
 because the facts essential to the plaintiff's right, and 
 within his own knowledge, are not alleged positively ; or 
 because the bill is deficient in certainty; or because the 
 plaintiff does not by his bill offer to do equity where the 
 rules of the court require that he should do so ; or to waive 
 penalties or forfeitures where the plaintiff is in a situation 
 to make such waiver; and to these may be added, the 
 w^ant of counsel's signature to the bill, and the absence 
 of the proper affidavit, in those cases in which the rules 
 of the court require that the plaintiff's bill should be ac- 
 companied by such an instrument.^ 
 
 § 616. Where a bill is for discovery and relief, the de- 
 fendant may demur to the relief and answer to the dis- 
 covery ; but he cannot demur to the discovery alone, and 
 not to the relief, when the discovery is merely incidental 
 to the relief; for that would be to demur, not to the thing 
 required, but to the means by which it was to be ob- 
 tained.^ The grounds of demurrer to bills for discovery 
 merely, have been sufficiently indicated in the chapter on 
 discovery, to which the reader's attention is directed. 
 And the same objections may be urged by way of de- 
 murrer to particular interrogatories in the plaintiff's bill, 
 though not applicable to all the discovery. Under our 
 practice, a defendant may by answer decline answering 
 any interrogatory, or part of an interrogatory, from 
 
 1 1 Dan. Ch. Pr. 625. 
 
 ^ Story's Bq. PI. J 312, 546. 
 
464 DEMURRERS. 
 
 answering which he might have protected himself by a 
 demurrer.^ 
 
 § 617. If an irregularity arise in any alteration of a 
 bill by way of amendment, it may also be taken advan- 
 tage of by demurrer; as if a plaintiff amend his bill and 
 state a matter, arisen subsequently to the filing of the 
 bill, which consequently ought to be the subject of a sup- 
 plemental bill, the defendant may demur .^ If, however, 
 a matter which has arisen subsequently to the filing of 
 the original bill, and is properly the subject of a supple- 
 mental bill, be stated by amendment, and the defendant 
 answer the amended bill, it is too late to object to the 
 irregularity at the healing; unless the defendant has 
 claimed the same benefit by his answer which he would 
 have been entitled to, had he demurred to the amended 
 bill, in which case he will be entitled to the benefit of 
 the objection at the hearing.^ 
 
 § 618. An amended bill is liable to have the same 
 objections taken to it, by demurrer, as an original bill; 
 and even where a demurrer to the original bill has been 
 overruled, a demurrer to an amended bill has been 
 allowed. The rule is also the same where the defence 
 first put in is a plea, and the bill is afterwards amended; 
 the amended bill may still be demurred to. A defendant 
 however cannot, after he has answered the original bill, 
 if the plaintiff amend it, put in a general demurrer to the 
 whole bill ; because the answer to the original bill, being 
 still on the record, will in fact overrule the demurrer. 
 The defendant must, in such cases, confine his demurrer 
 to the matter introduced by amendment.* 
 
 ^ Equity Rules, xlii. p. 126. 
 
 ' Bank of Kentucky r. Schuylkill Bank, 1 Pars. 214. 
 
 s 1 Dan. Ch. Pr. 649-50. " Ibid. 650. 
 
DEMURRERS. 465 
 
 § 619. A demurrer may also be filed to a supple- 
 mental bill, wherever it appears upon its face that the 
 plaintiiF had no right to that species of bill either from 
 want of title, or from mistake in pleading. As it is a 
 general rule, that the court will not permit a supplemen- 
 tal bill to be filed but upon new matter, because the same 
 end can generally be answered by amendment of the 
 original bill; if a supplemental bill be brought upon mat- 
 ter arising before the filing of thfe original bill, where the 
 suit is in that stage of the proceedings in which an amend- 
 ment will be allowed, the defendant may demur.^ And 
 to enable a complainant in equity to file a supplemental 
 bill, introducing matters which have arisen since the 
 filing of the original bill, the original must be one on 
 which some valid decree could be made by the court. If 
 wdiolly defective, it cannot be made the basis of a supple- 
 mental bill ; for if the complainant had no good ground 
 for proceeding originally, he should file a new bill, show- 
 ing a cause entitling him to relief.^ 
 
 § 620. The frame of a demurrer is very simple, and, 
 after the formal commencement, runs thus : " This de- 
 fendant doth demur in law to the said bill, and for cause 
 of demurrer showeth, that it appears by the said bill that, 
 &c.," stating in the regular form, on what class of ob- 
 jection the defendant relies, or if there be more than one 
 ground of objection, stating each ground successively 
 with the prefatory words, "and for further cause of de- 
 murrer, this defendant showeth, &c.," and concluding 
 with the words, "wherefore, and for divers other good 
 causes of demurrer appearing in the said bill, this defend- 
 ant doth demur to the said bill, and prays judgment of 
 this honourable court, whether he shall be compelled to 
 
 1 4 Bouv. Inst. 419. ' Bank of Kentucky v. Schuylkill Bank, 1 Pars. 214. 
 
466 DEMURRERS. 
 
 make any other answer thereto; and he humbly prays to 
 be hence dismissed, with his reasonable costs in this be- 
 half sustained." ^ If a demurrer be accompanied by a plea, 
 or by an answer, it should be entitled, " The demurrer of 
 A. B., &c., to part of the bill of C. D., and the answer, &c., 
 of the said A. B., to the remainder of the said bill of com- 
 plaint." Where it is to an amended bill, it need not be 
 expressed in the title to be a demurrer to the original and 
 amended bill ; but a demurrer to the amended bill will be 
 sufiBcient.^ 
 
 § 621. A demurrer, where it is not to the whole bill, 
 proceeds to point out the parts of the bill to which it is 
 intended to apply. Where a defendant demurs to part 
 and answers to part of a bill, the court is not to be put 
 to the trouble of looking into the bill or answer, to see 
 what is covered by the demurrer; but it ought to be ex- 
 pressed in clear and precise terms, what it is that the 
 party refuses to answer, so that the judge, upon a hear- 
 ing of exceptions to the answer, should be able to ascer- 
 tain, precisely, how far the demurrer goes, and what is 
 to be answered. It is not a proper way of demurring to 
 say, that the defendant answers to a particular fact and 
 demurs to all the rest of the bill; for this would put the 
 judge to great difficulty in saying what was demurred to, 
 and whether the answer were sufficient or otherwise. The 
 defendant ought to demur to a particular part of the bill, 
 specifying it precisely.^ A demurrer, however, to all the 
 bill, except as to a particular specified part, would not be 
 open to the same objection; and where the exception ap- 
 plies to a very small part only of the bill, it has been 
 held to be the best way of demurring. But in framing 
 
 ' Adams' Bq. 333. ' 1 Dan. Cli. Pr. 652-3; 2 Ibid. 924. 
 
 ' 1 Dan. Ch. Pr. 653; Devonsher v. Newenham, 2 Sell. & Lef. 199, 205. 
 
DEMURRERS. 467 
 
 sucli a demurrer, care most be taken that it should ap- 
 pear distinctly by the demurrer itself, what part of the 
 bill is to be included in the exception; for if it should be 
 necessary to refer to the answer, for the purpose of as- 
 certaining it, the demurrer will be bad.^ 
 
 § 622. "We have seen, that by the rule of court, a de- 
 fendant may tile a demurrer at any time before the bill 
 is taken for confessed, or afterwards with the leave of 
 the court.^ In general, a demurrer is set down for argu- 
 ment by the plaintiff; ^ but if the plaintiff neglect to do 
 so, on the rule day on which the same is filed, or on the 
 next succeeding rule day, the defendant may set it down 
 himself, if the plaintiff shall fail to do so after ten days' 
 notice.* In the court of common pleas of Philadelphia, 
 no case in equity can be put on the argument list, unless 
 the party desiring it shall in writing require the protho- 
 notary to do so, three days before the calling of the list ; 
 and to be entitled to have such case argued, it is also the 
 duty of the party desiring it, to give three days' notice 
 in writing to the opposite party, that the case is set down 
 for argument.* 
 
 § 623. On the hearing of the demurrer, the solicitors of 
 the respective parties must each deliver a paper book, 
 setting forth the substance of the case and the points to 
 be discussed, to each of the judges, previously to the argu- 
 ment." And if, on the hearing, the demurrer be allowed, 
 the court may in its discretion, upon motion of the plain- 
 tiff, allow him to amend his bill upon such terms as it 
 may deem reasonable.' 
 
 1 1 Dan. Ck Pr. 653. ' Equity Rules, xxx. p. 122. 
 
 ' Ibid. xxxi. p. 123. * Ibid, xxxvi. p. 124. 
 
 ^ Rules of the Common Pleas, xvii. p. 47. « Rules of Court, 17, 33, 80. 
 ' Equity Rules, xxxiii. p. 124. 
 
468 DEMURRERS. 
 
 § 624. If the demurrer be overruled, unless the court 
 is satisfied that it was intended for vexation and delay, 
 the defendant will be assigned to answer the bill, or so 
 much thereof as is covered by the demurrer, on the next 
 succeeding rule day, or at such other period as, consis- 
 tently with justice and the rights of the defendant, the 
 same can, in the judgment of the court, reasonably be 
 done ; in default whereof, the bill may be taken against 
 him, pro confesso, and the matter thereof proceeded in 
 and decreed accordingly; and such decree will also be 
 made if the court deem the demurrer to have been put 
 in for vexation or delay, or to have been frivolous and 
 unfounded.^ 
 
 § 625. Where a demurrer is not to the whole bill, but 
 is accompanied by an answer, the plaintiff, if he con- 
 ceive that the defendant has not sufficiently answered 
 that portion of the bill which is not demurred to, may 
 except to the answer, but he must not do so before the 
 demurrer has been argued, otherwise he will admit the 
 demurrer to be good. It is said, however, that if the de- 
 murrer be to relief only, and not to any part of the dis- 
 covery, the plaintiff may take exceptions to the answer 
 before the demurrer is argued.^ And according to the 
 English practice, where the demurrer is accompanied by 
 answer, and the demurrer is overruled, if the complain- 
 ant want a further answer, he must except to the an- 
 swer already put in for insufficiency;^ but this would ap- 
 pear to be unnecessary under our rule of court."* 
 
 ' Equity Rules, xxxii. p. 123. 
 
 2 1 Dan. Ch. Pr. 660; Mitf. Eq. PI. 317. 
 
 * Many v. Beekmau Iron Co., 9 Paige, 188, 196; 1 Dan. Ch. Pr. 675. 
 
 * Ante, i 624. 
 
PLEAS. 469 
 
 CHAPTER VI. 
 
 PLEAS. 
 
 § 626. A DEMURRER has been shown to be the proper 
 mode of defence, where an objection is apparent upon the 
 bill itself, either from matter contained in it, or from de- 
 fect in its frame, or in the case made by it. Where an ob- 
 jection to the bill is not apparent on the bill itself, if the 
 defendant mean to take advantage of it, he must show 
 to the court the matter which creates the objection, either 
 by answer, or by plea, which has been described as "a 
 special answer, showing or relying upon one or more 
 things as a cause why the suit should be either dismissed, 
 delayed, or barred."^ 
 
 § 627. The principle of a defence by plea is, that the 
 defendant avers some one matter of avoidance, or denies 
 some one allegation in the bill, and contends that, as- 
 suming the truth of all the allegations in the bill, or of 
 all except that which is the subject of denial, there is 
 sufficient to defeat the plaintiff's claim. It is applicable, 
 like a demurrer, to any class of objections; but the most 
 usual grounds of pleas are: 1. Want of jurisdiction: 2. 
 Personal disability in the plaintiff: 3. A decision already 
 made by a court of competent jurisdiction, or a suit al- 
 
 ' Mitf. Eq. PL 219; 2 Dan. Ch. Pr. 677. The proper office of a plea in 
 chancery, is to bring forward some fact, not distinctly appearing in the bill, 
 which displaces the equity. Union Branch Railroad Co. !'. E. Tennessee and 
 Georgia Railroad Co., 2 Am. L. R. 309. 
 
470 
 
 PLEAS. 
 
 ready pending in a court of equity respecting the same 
 subject; if there be a pending action at law, the proper 
 course is to put the plaintiff to his election, by motion, 
 which court he will proceed in : 5. Want of equity 
 where the equity depends on a single point/ 
 
 § 628. The defence proper for a plea is, such as reduces 
 the cause, or some part of it, to a single point, and from 
 thence creates a bar to the suit, or to the part of it to 
 which the plea applies. The matter pleaded must re- 
 duce the issue between the plaintiff and defendant to a 
 single point; if it be double, that is, tender more than 
 one defence as the result of the facts stated, it will be 
 bad. It is not, however, necessary that it should consist 
 of a single fact, for though a defence offered by way of 
 plea, consists of a great variety of circumstances, yet, if 
 they all tend to one point, it will be good.^ But although 
 the ordinary practice in courts of equity does not admit 
 of several pleas, yet where great inconvenience might 
 otherwise be sustained in a particular case, the court will 
 sometimes, in its discretion, allow several pleas.^ 
 
 § 629. The rule, that a defendant cannot plead several 
 matters, must not be understood as precluding a defen- 
 dant from putting in several pleas to different parts of 
 the same bill; it merely prohibits his pleading, without 
 previous leave, a double defence to the whole bill, or to 
 the same portion of it. A defendant may plead different 
 matters to separate parts of the same bill, in the same 
 manner that (as we have seen) a defendant may put in 
 different demurrers to the same bill. A defendant may, 
 in like manner, plead and demur, or plead and answer. 
 
 1 Adams' Eq. 336. 
 
 = 2 Dan. Ch. Pr. 677; Saunders v. Druce, 25 Law Times R. 124. 
 
 ' Story's Eq. PI. J 657; Saunders v. Druce, ut supra. 
 
PLEAS. 471 
 
 to the different parts of the same bill, provided he point 
 out distinctly the different portions of the bill which are 
 intended to be covered by the plea, the demurrer, and 
 the answer: he must likewise, where he puts in several 
 pleas to the same bill, point out to what particular part 
 of the bill each plea is applicable.^ 
 
 § 630. The same rule, however, which is applicable to 
 demurrers, is applied also to pleas ; namely, that no plea 
 shall be held bad and overruled, upon argument, merely 
 because such plea shall not cover so much of the bill as 
 it might by law have extended to ; or solely because the 
 answer of the defendant may extend to some part of the 
 same matter as may be covered by the plea.^ And al- 
 though the general rule is, that in the case of a partial 
 plea, the defendant must specify distinctly what part of 
 the bill he pleads to, the rule which has been stated as 
 applicable to a demurrer, viz., that it cannot be good in 
 part and bad in part, is not applicable with the same 
 strictness to a plea; for it has been repeatedly decided, 
 that a plea in equity may be bad in part and not in the 
 whole, and the court will allow it to so much of the bill 
 as it is properly applicable to.^ This, however, is to be 
 understood only with reference to its extent, that is, to 
 the quantity of the bill covered by it, and not to the 
 ground of defence offered by it; for if any part of the 
 defence made by the plea be bad, the whole must be 
 overruled.* 
 
 § 631. "Where a plea merely states matter not apparent 
 upon the bill, and relies upon the effect of such matter as 
 a bar to the plaintiff's claim, it is called an affirmative or 
 
 1 2 Dan. Ch. Pr. 685. 
 
 ' Equity Rules, xxxiv., xxxv., p. 124; Saunders v. Druce, ut supra. 
 
 ' Kirkpatrick v. White, 4 W. C. C. 595, 600. • 2 Dan. Ch. Pr. 685-7. 
 
472 PLEAS. 
 
 pure plea. Such pleas usually proceed upon the ground 
 that, admitting the case stated by the bill to be true, the 
 matter suggested by the plea affords a sufficient reason 
 why the plaintiff should not have the relief he prays, or 
 the discovery which he seeks j and where they are put 
 in, the court, in order to save expense to the parties, or 
 to protect the defendant from a discovery which he ought 
 not to make, instantly decides upon the validity of the 
 defence, taking the plea and the bill, so far as it is not 
 contradicted by the plea, to be true.^ 
 
 § 632. A pure plea, in general, must be founded on 
 new matter not ajpparent on the bill; it must not only 
 reduce the cause to a single point, but to such a point 
 that the plaintiff may, if he choose, take issue upon it ; 
 and it must be direct and positive, and not state matters 
 by way of argument, inference, and conclusion, which 
 have a tendency to create unnecessary prolixity and 
 expense.^ 
 
 § 633. Although pleas generally consist of the aver- 
 ment of some new fact or chain of facts, not apparent 
 upon the face of the bill, the effect of which is not to 
 deny the facts of the bill, but admitting them, pro Jiac 
 vice, to be true, to destroy their effect; there are cases 
 in which the plea, instead of introducing new facts, 
 merely reUes upon a denial of the truth of some matter 
 stated in the bill upon which the plaintiff's right de- 
 pends; or which re-asserts some facts stated in the bill, 
 and which the bill seeks to impeach, and denies all the 
 circumstances which the plaintiff reUes upon as the 
 ground upon which he seeks to impeach the fact so set 
 up. These are called negative pleas; and sometimes 
 
 ' 2 Dan. Ch. Pr. 6V.S; Mltf. Eq. PI. § 295. 
 ^ Story's Eq. PI. § 660-5. 
 
PLEAS. 473 ' 
 
 pleas not pure, or anomalous pleas.^ This class of pleas 
 has two peculiarities : in the first place, it relies wholly 
 upon matters stated in the bill, negativing such facts as ' 
 are material to the plaintiflf; and in the next place, it 
 requires an answer to be filed, which is subsidiary to the 
 purposes of the plea: a pure plea never requires any 
 such answer.^ 
 
 § 634. An answer is required in such cases, because 
 the plaintifi" has a clear right in equity to a discover'y as 
 to all matters within the knowledge of a defendant, 
 which would enable him to support his case; and it 
 would be against that principle, if a defendant could, 
 by merely denying the existence of the claim, deprive 
 the plaintiff of the means of proving its validity. The 
 cases in which it is necessary that a plea should be sup- 
 ported by an answer, have been very conveniently divided 
 into: 1. Those where the plaintifi" admits the existence 
 of a legal bar, and charges some equitable circumstances 
 to avoid its efiect: 2. Those where the plaintiff does not 
 admit the existence of any legal bar, but states some cir- 
 cumstances which may be true, and to which there may 
 be a valid ground of plea, together with other circum- 
 stances which are inconsistent with the substantial va- 
 lidity of the plea.^ 
 
 § 635. With respect to the first class of cases, the 
 limits to which the plea and answer respectively extend, 
 are plainly marked, and create no difficulty. The most 
 simple cases of this class, are those in which pleas are 
 put in to bills to impeach a decree, on the ground of fraud 
 used in obtaining it; to avoid the efiect of a judgment 
 
 1 2 Danl. Ch. Pr. 678. Story's Eq. PI. | 667. ' Story's Eq. PI. ? 670. 
 
 3 2 Dan. Ch. Pr. 692; Hare on Discovery, 30; Story's Eq. PI. g 674; Fe^ 
 guson V. O'Harra, 1 P. C. C. 494; Sims v. Lyle, 4 W. C. C. 304. 
 
 31 
 
474 PLEAS. 
 
 by a court of ordinary jurisdiction; to set aside a release 
 or an award; or to open a stated account. In all these 
 cases, and others which fall under a similar principle, 
 the bill, having admitted the existence of a fact which, 
 taken alone, would be conclusive against the plaintiff, 
 and then having proceeded to state specific grounds upon 
 which that fact, though formally and ostensibly in ex- 
 istence, yet ought not to have the effect of concluding the 
 plaintiff, which ordinarily it would have, the defendant 
 can readily decide to what he may plead, and to what he 
 must answer. The bill is an exjjress guide ; the plaintiff 
 has pointed out the particular circumstances upon which 
 he relies to overcome the anticipated bar : with regard 
 to these the principles of equity require a discovery.-^ 
 
 § 636. In the second class of cases, it is not so easy 
 to define the limits to which the plea and answer are to 
 extend; it may, however, be laid down as a general 
 rule, that where no ostensible bar is in the bill admitted 
 to exist, and yet the defendant would plead in bar to the 
 bill, he must distinguish those facts which, if true, 
 would not invalidate or disprove his plea, and plead to 
 the relief and discovery sought as to them; and then 
 answer to the facts which, if true, would disprove or 
 invalidate his plea; and also to those matters which are 
 specially alleged as evidence of such facts.^ 
 
 § 637. The great difficulties which, in these cases, 
 foi-merly resulted from the circumstance, that the bill 
 usually contained statements which, although covered 
 by the plea, were in part also such as the defendant was 
 bound to answer, have been removed by the orders of 
 the court, which direct that the plea is not to be over- 
 ruled, because the defendant has submitted to answer 
 
 1 2 Dan. Ch. Pr. 693. ' Hare on Discovery, 34. 
 
PLEAS. 475 
 
 the part of the bill covered by the plea. This order, 
 however, leaves untouched the rules which compel the 
 defendant to answer all such parts of the bill as contain 
 statements of facts which, if true, would be evidence to 
 disprove the fact pleaded.-^ For where the bill alleges 
 facts which, if true, would contradict the plea or be 
 evidence to discredit the plea, the plea must be supported 
 by an answer, if not denying, at least, giving the plain- 
 tiff discovery as to those facts ; and there is no distinction 
 between the greater or less degree of materiality of those 
 facts, assuming them to be to some extent material.^ 
 
 § 638. In regard to the form of a plea and answer in 
 support of it, it is well settled, that the plea itself as 
 well as the answer, must contain averments negativing 
 the facts and circumstances so set up in the bill, in 
 avoidance of the bar or defence. For otherwise the 
 plea will not amount to a complete defence to the bill ; 
 since the denial of those facts and circumstances is, in 
 truth, the only point in controversy.^ But as the aver- 
 ments, negativing the facts charged in the bill, are used 
 merely to put those facts, as alleged by the bill, in issue 
 in the plea; they may be expressed in the most general 
 terms, provided they be sufficient to put the charges 
 contained in the bill fully in issue.* 
 
 1 Young V. White, 23 Eng. L. & Eq. 520. ^ Hunt v. Penrice, Ibid. 328. 
 
 ^ Story's Eq. PL § 680. The object of an averment in a plea is this: in 
 some pleas, to meet statements made by the bill, in order to negative the in- 
 tendment which might otherwise be made against the plea ; as, for example, 
 in a plea of a stated account, where the bill contains no positive charge of 
 fraud, then the plea should be supported by an averment that the account de- 
 livered was a just and true account: again, if a bill contain statements, but no 
 distinct charges going to support an answer to the defendant's case, then those 
 statements should be met by averment as well as by plea. Saunders v. Druce, 
 25 Law Times B. 124. 
 
 * Story's Eq. PI. § 691. 
 
476 PLEAS. 
 
 § 639. The answer in support of a plea is no part of 
 the defence; the defence is the matter set up by the 
 plea: the answer is that evidence which the plaintiff 
 has a right to require and use, to invalidate the defence 
 made by the plea; and therefore, it must be full and 
 clear, otherwise it will not support the plea; for the 
 court will intend all matters charged in the bill, to which 
 the plaintiff is entitled to an answer, to be against the 
 pleader, unless they be fully and clearly denied. If 
 the answer should not be full in all material points, the 
 court will presume, that the facts and circumstances 
 charged in the bill may be capable of proof in the point 
 not fully answered, and will not, therefore, deem the 
 answer sufficient to support the plea; and upon that 
 ground will overrule the plea.^ 
 
 § 640. A plea, like a demurrer, may be either to the 
 relief, or to the discovery, or to both. Pleas in equity 
 to the relief, prayed by the bill, are usually ranged under 
 four heads: 1. To the jurisdiction : 2. To the person of 
 the plaintiff or defendant : 3. To the frame of the bill : 
 4. In bar of the suit.^ 
 
 § 641. Those pleas, which are commonly called pleas 
 to the jurisdiction, do not proceed the length of disputing 
 the right of the plaintiff to the subject of the suit, or 
 allege any disability on the part of the plaintiff to pro- 
 secute the suit; but simply assert, that the court in 
 which the suit is brought, is not the proper court to take 
 cognizance of those rights. Pleas to the person also, do 
 not dispute the validity of the rights which are the sub- 
 ject of the suit, or deny that the court has jurisdiction 
 over them; but they assert that the plauitiff is incapa- 
 
 1 2 Dan. Ch. Pr. 710-11. ^ i^^^^_ ^13. 
 
PLEAS. 477 
 
 citated to sue, or that the defendant is not the person 
 who ought to be sued.-"^ 
 
 § 642. Pleas to the frame of the bill do not dispute 
 the validity of the right made the subject of the suit, 
 or contend that the court has not generally jurisdiction 
 over it, nor do they allege that the plaintiff is under any 
 disability to sue, or that the defendant ought not to be 
 sued; but they assert that the suit, as it appears on the 
 record, is defective to answer the purpose of complete 
 justice, or ought not, for some other reason, to proceed.^ 
 Thus, where a bill seeks relief, a defendant may plead 
 that there is another suit already depending in the same, 
 or in another court of equity for the same matter. For 
 it is impossible to administer justice, and it never has 
 been done in any civilized country, without adopting the 
 rule, that a party who brings one suit in a court of com- 
 petent jurisdiction, must finish it before he can be allowed 
 to prosecute another.^ 
 
 § 643. To a suit for relief, brought in the supreme 
 court, the defendant may plead a former suit pending 
 for the same matter, on the equity side of a court of com- 
 mon pleas or district court, within this state. For pur- 
 poses of original jurisdiction in equity, the powers of the 
 supreme court are not greater than those of the common 
 pleas, except in reference to locality. Their jurisdiction 
 is co-extensive with the boundaries of the commonwealth; 
 that of the common pleas is limited to the county, in 
 which the court is situate ; but within the limits of the 
 county, the remedy is as ample, the jurisdiction as com- 
 plete, and the decree as conclusive, in the common pleas 
 
 ' Ibid. 714; Beames on Pleas, 55. 
 2 2 Dan. Ch. Pr. 715; Beames on Pleas, 59, 60. 
 
 ^ Cleveland, Palnesville and Ashtabula Railroad Co. v. City of Erie, Sup. 
 Court, 29 January 1855. MS. 
 
478 PLEAS. 
 
 as in the supreme court, except that the latter court may 
 review the action of the former on appeal/ 
 
 § 644. Where such a plea is put in, the plaintiff, in- 
 stead of setting it down for argument, may procure an 
 order to refer it to a master, to certify the truth thereof; 
 and if the two bills appear to be brought for the same 
 matter, all proceedings on the last one are immediately 
 stopped. This is done on the principle that the party 
 has no right to be heard, or to have anything done for 
 him on a second bill, while a previous one is undisposed 
 of The court may, it is true, under certain circum- 
 stances, dismiss the first bill and proceed upon the 
 second; but this, of course, can only be when both suits 
 are in the same court ; and to induce the court to exer- 
 cise this discretion, the second bill must embrace the 
 whole subject in dispute more fully than the first.^ 
 
 § 645. A plea which offers any matter tending to show 
 that the bill, as framed, is insufficient to answer the pur- 
 poses of complete justice, must, it is evident, be ranked 
 amongst this class of pleas; for it does not, in general, 
 dispute the right of the plaintiff, as stated in the record, 
 but merely ofiers a reason why the suit should not pro- 
 ceed as framed.^ These objections are, generally, the 
 want of sufiicient parties to the bill ; or that the bill is 
 multifarious, joining and confounding distinct matters in 
 one suit;* both of these subjects have already been 
 sufficiently discussed. 
 
 § 646. We now come to the consideration of pleas in 
 bar, which may be distinguished from all other pleas, as 
 they admit the jurisdiction of the court, and do not dis- 
 pute the ability of the plaintiff to sue, and the liability 
 
 ' Ibid. " Ibid. 
 
 » 2 Dan. Ch. Pr. 727. * Ibid.; Story's Eq. PI. § 735. 
 
PLEAS. 479 
 
 of the defendant to be sued, and tacitly concede that 
 there are none of those objections to the suit which con- 
 stitute the grounds of pleas to the bill ; but yet they al- 
 lege matter, which, if true, destroys the claim made' by 
 the suit, and by showing that the right made the sub- 
 ject of the suit has no existence, or that it is vested 
 in the defendant, they put an end to all litigation re- 
 specting it.^ Such pleas are usually divided into: 1. 
 Pleas, founded on some bar created by statute : 2. Pleas, 
 founded on matter of record, or as of record, in some 
 court: 3. Pleas of matter purely in pais; that is, upon 
 matter of fact, which is not of record.^ 
 
 § 647. Any statute, public or private, which may be 
 a bar to the demands of the plaintiff, may be pleaded, 
 with the averments necessary to bring the case of the 
 defendant within the statute, and to avoid any equity 
 which may be set up against the bar created by the 
 statute. And first, as to the statute of limitations. A 
 chancellor applies the statute of limitations with the 
 same substantial effect that it receives in a court of law.^ 
 Indeed, when the objection appears on the face of the 
 bill, it may, as we have seen, be taken advantage of by 
 demurrer.* If it does not so appear, the statute must be 
 pleaded, and it will, in general, bar both the relief sought 
 by the bill, and also the discovery when the debt be- 
 came due/ 
 
 § 648. An opinion was formerly pretty generally en- 
 tertained, that trust estates were not within the statute 
 of limitations. But the rule in court of equity, that the 
 statute of limitations does not bar a trust estate, holds 
 
 ' Beamea on Pleas, 62, 65. ^^ Story's Bq. PI. § 749; 2 Dan. Ch. Pr. 728. 
 
 ' Hamilton v. Hamilton's Executors, 6 Harris, 22; Smilie v. BifSe, 2 Barr, 
 53-4. 
 
 * Ante, § 611; Ferris v. Henderson, 2 Jones, 49-50. " Mitf. Eq. PI. 269. 
 
480 PLEAS. 
 
 only as between cestui que trust and trustee, not between 
 cestid que trust and trustee on the one side, and a stran- 
 ger on the other; for that would be to make the statute 
 of no force at all. Therefore, where cestui que trust and 
 trustee are both out of possession, for the time limited, 
 the party in possession has a good bar against both. A 
 party obtains an inceptive title by an adverse holding, 
 subject to be defeated only by the entry of the owner of 
 the legal estate, at any time within twenty-one years. 
 And the trustee may be compelled by the cestui que trust 
 to enter, so as to avoid the adverse possession; and the 
 cestui que trust may himself enter as a defeasor. It would 
 seem to be an anomaly, that the owner of the legal es- 
 tate should be barred, and that the owner of the equitable 
 title, whether his interest be an interest in possession 
 or by way of remainder, should nevertheless be entitled 
 to enter.^ 
 
 § 649. It is to be observed, however, that against a 
 right of action dependent on the existence of a secret 
 fraud, the statute of limitations runs but from the period 
 of its discovery ; ^ because the laches of the plaintiff com- 
 mences from that date, on his acquaintance with all the 
 circumstances. If the aggrieved party knew of the fraud 
 when committed, or had full possession of the means of 
 detecting it, which is the same thing as knowledge, it will 
 deprive him of his remedy.^ A court of equity cannot 
 impeach a transaction on the ground of fraud in obtain- 
 - ing the possession, if the fact of the alleged fraud were 
 within the knowledge of the party twenty-one years 
 before, during all which time it was open to him to prose- 
 
 ' Smille V. BifBe, 2 Barr, 52-3. ^ Pennock v. Freeman, 1 Watts, 410. 
 
 " Ferris r. Henderson, 2 Jones, 53-4; Jones c. Conoivay, 4 Yeates, 111. 
 See Harrisburg Bank v. Forster, 8 Watts, 12. 
 
PLEAS. 481 
 
 cute his claim. After the discovery of the fraud, a man 
 has a right to avail himself of the statute ; but so long 
 as the fraud is unknown, pending the concealment of the 
 fraud, the statute ought not to run. The discovery of 
 the fraud gives a new right of action.^ 
 
 § 650. A plea of the statute of limitations must con- 
 tain sufficient affirmative averments to bring the case 
 within the statute pleaded. And whenever any, matters 
 are stated in tlie bill, which are calculated to take the 
 case out of the statute, these must be met by negative 
 averments. Thus, if the bill charge fraud, the plea 
 must deny the fraud, or aver that the fraud, if any, was 
 discovered above six years before the filing of the bill. 
 And moreover, if there be any statements in the bill 
 which allege matters ancillary to, or afford evidence of 
 facts directly negatived by the plea, such statements 
 ought to be met by an answer in support of the plea.^ 
 
 § 651. The statute for the prevention of frauds and 
 perjuries,^ may also be pleaded in bar to a suit to which 
 the provisions of that act apply. Thus, to a bill for the 
 specific performance of a contract or agreement respect- 
 ing lands, the defendant may plead the statute, and by 
 negative averments insist, that there has been no contract 
 or agreement in writing signed by the parties.* As, how- 
 ever, it is now well settled, that the benefit of the statute 
 may be had, if insisted on, by answer, although a jparol 
 agreement be admitted, there can be little use in pleading 
 it in bar, at least in bills seeking the specific performance 
 of a contract.^ 
 
 § 652. The statute of limitations, and the statute for 
 
 1 Thompson v. Smith, 7 S. & R. 214; Riddle v. Murphy, Ibid. 235. 
 
 2 2 Dan. Ch. Pr. 746. => Purd. Dig. 627. 
 
 * Story's Eq. Ph § 761; 2 Dan. Ch. Pr. 747. ^ 2 Dan. Ch. Pr. 751. 
 
482 PLEAS. 
 
 the prevention of frauds and perjuries, are those which 
 are most frequently pleaded ; but any other public or 
 private statute, which may be a bar to the demand of the 
 plaintiff, may be taken advantage of, by a plea containing 
 the averments necessary to bring the case of the defendant 
 within the statute, and to avoid any equity which may 
 be set up against the bar which the statute creates.-^ 
 
 § 653. "We now come to the consideration of those 
 pleas in bar, which consist of matters recorded, or as of 
 record, in the court itself, or some other court of equity; 
 or in some other court not a court of equity. After a 
 judgment or decree by a tribunal of competent jurisdic- 
 tion, another complaint, grounded on the same facts, will 
 not be listened to, either by the same tribunal or by a 
 different one.^ And therefore, a decree or order of the 
 court, by which the rights of the parties have been de- 
 termined, or another bill for the same matter dismissed, 
 may be pleaded to a new bill for the same matter; and 
 this, even if the party bringing the new bill were an in- 
 fant at the time of the former decree : for a decree en- 
 rolled can only be altered by a bill of review.^ A decree 
 cannot, however, be pleaded in bar of a new bill, unless 
 it be for the same matter as the bill to which it is pleaded ; 
 and the decree must also be in its nature final, or after- 
 wards made so by order, or it will not be a bar.'* 
 
 § 654. The judgment of a court of ordinary jurisdic- 
 tion, is also a matter of record, which may, in - general, 
 be pleaded in bar to a suit in chancery, provided such 
 judgment have finally determined upon the rights of the 
 parties. But it must appear that such court had full 
 
 1 2 Dan. Ch. Pr. 752. 
 
 ^ Cleveland, Painesville and Ashtabula Railroad Co. v. City of Erie, Sup. 
 Court, 29 January 1855. MS. Burhans r. Van Zandt, 3 Seld. 524. 
 ' 2 Dan. Ch. Pr. 753. •* Ibid. 754. 
 
PLEAS. 483 
 
 jurisdiction to determine the rights of the parties, and 
 also that the judgment or sentence is a final one, and 
 not an interlocutory proceeding. 
 
 § 655. Pleas of matters purely in pais, have still to be 
 considered. The principal of these are a release; a 
 stated account; a settled account ; an award; a purchase 
 for a valuable consideration ; and a plea of title in the 
 defendant.^ And there are likewise other pleas and de- 
 fences which may be pleaded in bar in equity ; such, for 
 example, as a plea of accord and satisfaction, and others 
 of a kindred nature.^ 
 
 § 656. If the plaintiff, or a person under whom he 
 claims, have released the subject of his demand, the de- 
 fendant may plead the release in bar of the bill; and 
 this will apply to a bill praying that the release may be 
 set aside. A release, however, to be an effectual bar to 
 an account, must be under seal, otherwise it must be 
 pleaded as a stated account only. In a plea of release, 
 the defendant must set out the consideration upon which 
 it was made; for every release must be founded upon 
 some consideration, otherwise fraud must be presumed. 
 A plea of I'elease, therefore, cannot extend to a discovery 
 of the consideration ; for if that be impeached by the bill, 
 the plea must be assisted by averments covering the 
 ground upon which the consideration is so impeached, 
 and must be supported by an answer denying the impu- 
 tations charged in the bill.^ 
 
 § 657. A plea of a stated account, or of a settled ac- 
 count, is also a good bar to a bill for an account. A 
 stated account properly exists, only where accounts have 
 been examined and the balance admitted as the true 
 
 ' Story's Eq. PL § 795. ' Brown v. Perkins, 1 Hare, 564, 570. 
 
 ' 2 Dan. Ch. Pr. 766. 
 
484 
 
 PLEAS. 
 
 balance between the parties, without having been paid. 
 When the balance thus admitted is paid, the account is 
 deemed a settled account.^ A defendant pleading a 
 stated account must, whether error or fraud be charged 
 or not, aver that the stated account is just and true to 
 the best of his knowledge and belief; and if specific errors 
 or fraud be charged in the bill for the purpose of im- 
 peaching the account, they must be denied by averments 
 in the plea, as well as by answer in support of the plea.^ 
 
 § 658. It may be observed here, that when fraud is 
 proved to have taken place in the settlement of an ac- 
 count, it will be a suificient ground to open the whole 
 account. The case, however, is different where errors or 
 mistakes only are shown to exist ia the account; for 
 there the account will not be opened, but the party will 
 be permitted merely to surcharge and falsify it. And 
 this is an important distinction, because where an account 
 is opened, the whole of it may be unravelled, and the 
 parties will not be bound by deductions agreed upon be- 
 tween them on taking the former account; but where a 
 party has liberty to surcharge and falsify, the onus pro- 
 bandi is always on the party having the liberty ; for the 
 court takes it as a stated account and establishes it; but 
 if the party can show an omission for which there ought 
 to be credit, it will be added, which is a surcharge; or if 
 any wrong charge be inserted, it will be deducted, which 
 is a falsification. This, however, must be done by proof 
 on his side.^ 
 
 § 659. An award may be pleaded in bar to a bill which 
 seeks to disturb the matter submitted to arbitration. It 
 may likewise be pleaded to a bill to set aside the award 
 and open the account; and it is not only a good defence 
 
 1 Story's Eq. PI. § 798. ' 2 Dan. Ch. Pr. 763-4. ^ Ibid. 764-5. 
 
PLEAS. 485 
 
 to the merits of the case, but also to the discovery sought 
 by the bill. If, however, the bill impeach the award 
 upon grounds of fraud, corruption, or mistake, those 
 charges must be denied, both by averments in the plea 
 and by answer in support of it; and every other matter 
 stated in the bill, as a ground for impeaching the award, 
 must be denied in the same manner.^ 
 
 § 660. A defendant may also plead in bar, that he is a 
 hondfide purchaser of the property in dispute, for a valu- 
 able consideration, without notice of the plaintiff's title ; ^ 
 for a court of equity will give no assistance against a de- 
 fendant occupying such a position.^ If the bill, how- 
 ever, as it usually does, state facts from which notice of 
 an adverse claim may be inferred; it is not sufficient, as 
 we have seen,* to plead a purchase without notice, actual 
 or constructive; but the defendant must, by a full, clear, 
 and substantial answer, (not merely as to knowledge and 
 belief) as well as by averment in his plea, deny the facts 
 from which notice is inferred; and must plead that the 
 vendor was in possession by himself or tenant, and that 
 he had no notice before the conveyance, and before the 
 purchase money actually paid, not merely secured to be 
 paid.^ 
 
 § 661. If the defendant's title be paramount to that of 
 the plaintiff, he may plead it in bar of the suit. This 
 plea of title in the defendant, is generally founded either 
 on a long peaceable possession by the defendant, and 
 those under whom he claims ; or on a will, or a convey- 
 ance. In all pleas of title, whether derived under a will 
 or a deed, if the defendant be not the person taking im- 
 
 1 Ibid. Y67-8; Story's Bq. PI. I 803. ' See ante, | 488, et seq. 
 
 ^ Scott V. Burton, 2 Ash. 329. * Ante, I 490. 
 
 " Lewis V. Bradford, 10 Watts, 80. 
 
486 PLEAS. 
 
 mediately under the will or deed, but derive bis title 
 through others, the title of the defendant must be de- 
 duced from the person immediately taking, by proper 
 averments in the plea. And in all cases, it is necessary, 
 whether the title be derived from adverse possession, or 
 from a will or conveyance, to show that it had a com- 
 mencement antei-ior to that of the plaintiff's title as 
 shown by the bill : a title posterior to that of the plain- 
 tiff will not avail as a plea, unless it be in some way con- 
 nected with the plaintiff's title/ 
 
 § 662. Pleas to amended bills may be put in upon 
 the same grounds as pleas to original bills. But it is to 
 be observed, that if a defendant have answered the ori- 
 ginal bill, his answer may be read to counterplead his 
 plea to the amended bill; and if upon reading it, it 
 should appear that the facts stated upon the answer to 
 the original bill would operate to avoid the defence 
 made by the plea to the amended bill, the plea will be 
 overruled.^ 
 
 § 663. Every plea must be accompanied by the cer- 
 tificate of counsel, that in his opinion it is well founded 
 in point of law; and must be supported by the aflSdavit 
 of the defendant, that it is not interposed for delay, and 
 that it is true in point of fact.^ If a plea be not verified 
 by the oath of the defendant, the plaintiff may apply 
 for an order to set it aside, or to have it taken off the 
 files of the court; but he cannot make the objection 
 upon the argument of the plea;* the irregularity is one 
 which can be waived by the plaintiff's taking any pro- 
 ceeding upon it.^ 
 
 § 664. Upon a plea being filed, the plaintiff may either 
 
 1 2 Dan. Ch. Pr. YG9, 772. ^ Ibid. 780. 
 
 ' Equity Rules, xxix. p. 122. ' Heartt v. Corning, 3 Paige, 566, 
 
 li 2 Dan. Ch. Pr. 790. 
 
PLEAS. 487 
 
 set it down to be argued, or he may take issue upon it.^ 
 And if the plaintiff do not reply to the plea, or set it 
 down for argument, on the next rule day, when the 
 same is filed, the defendant may set it down for argu- 
 ment, if the plaintiff shall fail or neglect so to do, 
 after ten days' notice.^ And care should be taken by 
 the plaintiff, not to except to the answer in support of a 
 plea, if there be any doubt as to the sufficiency of the 
 plea; for the taking of exceptions to the answer will, 
 under such circumstances, have the effect of allowing 
 the plea, in the same manner as a replication to the plea 
 would do. The true course in such a case is, first to set 
 down the plea for argument; and if it should be held good, 
 the answer may then be excepted to for insufficiency.^ 
 
 § 665. If, upon the hearing, the plea be allowed, the 
 court may, in its discretion, upon motion of the plaintiff, 
 allow him to amend his bill upon such terms as it may 
 deem reasonable.* If, on the contrary, the plea be over- 
 ruled, unless the court be satisfied that it was intended 
 for vexation and delay, the defendant will be assigned 
 to answer the bill, or so much of it as is covered by the 
 plea, on the next succeeding rule day, or at such other 
 period as, consistently with justice and the rights of the 
 defendant, the same can, in the judgment of the court, 
 reasonably be done ; in default of which the bill will be 
 taken against him, 'pro confesso, and the matter thereof 
 proceeded in and decreed accordingly; and such decree 
 will also be made, if the court deem the plea to have 
 been for vexation or delay, and to have been frivolous 
 and unfounded.^ 
 
 ' Equity Rules, xxxi. p. 123. ^ Ibid, xxxvi. p. 124. 
 
 5 Story's Bq. PI. | 689. ' Equity Rules, xxxiii. p. 124. 
 
 » Ibid, xxxii. p. 123. 
 
488 PLEAS. ■ 
 
 § 666. If the plaintiff reply, he thereby makes as full 
 an admission of the validity of the plea, as if it had been 
 allowed upon argument; so that if the defendant, at the 
 hearing, prove his plea to be true, the bill must be dis- 
 missed.-' As the replication denies all the matter of the 
 plea, the latter must be supported by evidence. In this 
 it differs from an answer, which, if responsive to the bill, 
 must be overcome by evidence on the part of the plain- 
 tiff; but a plea is always in avoidance of the bill, and 
 never responsive to it; and, of course, it stands for 
 nothing, as evidence of the facts pleaded.^ 
 
 § 667. If a plea be allowed simply, it is thereby deter- 
 mined to be a full bar to so much of the bill as it covers, 
 if the matter pleaded, with the averments necessary to 
 support it, be true; and the plaintiff, in such case must 
 take issue upon it, and proceed to disprove the facts upon 
 which it is endeavoured to be supported.^ It sometimes 
 happens, however, that upon the argument of a plea, the 
 court considers that although, so far as then appears, it 
 may be a good defence, yet there may be matter disclosed 
 in evidence, which, supposing the matter pleaded to be 
 strictly true, would avoid it; in such case the court, in 
 order that it may not preclude the question by allowing 
 the plea, directs that the benefit of it shall be saved to 
 the defendant at the hearing. The effect of such an 
 order is, to give the plaintiff an opportunity of replying 
 and going into evidence without overruling the plea.^ 
 
 § 668. If, upon argument, the court consider that the 
 matter offered by way of plea may be a defence, or part 
 of a defence, but that it has been informally pleaded, or 
 is not properly supported by the answer, so that the truth 
 
 1 2 Dan. Ch. Pr. 795. '' Gernon r. Bocaline, 2 W. C. C. 199. 
 
 2 2 Dan. Ch. Pr. 797. * Ibid. V'J'J-SOO. 
 
PLEAS. 489 
 
 is doubtful, it will, in such case, instead of overruling the 
 plea, direct it to stand for an answer. If a plea be ordered 
 to stand for an answer, it is allowed to be a sufficient 
 answer to so much of the bill as it covers, unless by the 
 order liberty be given to the plaintiff to except. The or- 
 der for the plea to stand for an answer is, however, fre- 
 quently accompanied with a direction that the plaintiff 
 shall be at liberty to except ; but the liberty is sometimes 
 qualified so as to protect the defendant from any par- 
 ticular discovery, which he ought not to be called upon 
 to make.^ If the court, upon argument, be of opinion 
 that the plea cannot, under any circumstances, be made 
 use of as a defence, it is simply overruled; and the de- 
 fendant, as we have seen, must put in his answer to the 
 bill; or the court may if it deem the plea to have 
 been vexatious and frivolous, direct the bill to be taken 
 pro corifesso} 
 
 1 2 Dan. Ch. Pr. 801. ^ Ante, § 665. 
 
 32 
 
490 ANSWERS. 
 
 CHAPTER VII. 
 
 ANSWERS. 
 
 § 669. If a defendant can neither protect himself, by 
 demurrer nor plea, from answering the plaintiff's bill, nor 
 disclaim all right and interest in the subject of the suit, 
 he must put in an answer, either to the whole bill, or to 
 such parts of it as are not covered by his demurrer or 
 plea.'^ The defence by answer is the most usual, and 
 generally the most advisable course. It puts on the 
 record the whole case of the defendant, enabling him to 
 use all or any of his grounds of defence, subject only to 
 the necessity of verifying them on oath; and an objection, 
 which might have been made by demurrer or plea, will 
 in most cases be equally a bar to relief when insisted on 
 by answer, although it will not excuse the defendant 
 from giving the discovery required by the bill.^ 
 
 § 670. There is no principle more clearly established in 
 courts of chancery than this, that when a party answers 
 he is bound to answer fully; and for this, amongst other 
 reasons, that if the defence which a party sets up by the 
 answer should be decided against him, it is of the utmost 
 importance that all consequential matters, which are 
 material for the purpose of the suit, should receive an 
 answer.^ The nature of the answer, which a plaintiff 
 
 ' 2 Dan. Ch. Pr. 813. ^ Adams' Bq. 342. 
 
 ' 2 Dan. Ch. Pr. 825-6. 
 
ANSWERS. 491 
 
 has a right to require from each defendant upon the 
 record, is sufficiently shown by the form of words made 
 use of in the bill requiring an answer, namely, that the 
 defendants " may, upon their several and respective cor- 
 porate oaths, and according to the best and utmost of 
 their several and respective knowledge, remembrance, 
 information, and belief, full, true, direct, and perfect 
 answer make to such of the several interrogatories here- 
 inafter numbered and set forth, as by the note hereunder 
 written, they are respectfully required to answer." '^ 
 
 § 671. This rule, that if a defendant submit to answer, 
 he shall answer fully to all the matters of the bill, does 
 not, however, now apply in cases where he might, by 
 plea, protect himself from such answer and discovery. 
 And the defendant is entitled in all cases, by answer, to 
 insist upon all matters of defence (not being matters of 
 abatement, as to the character of the parties, or to matters 
 of form) in law, of or to the merits of the bill, of which 
 he might be entitled to avail himself by a plea in bar; 
 and in such answer he is not compellable to answer any 
 other matters than he would be compellable to answer 
 and discover, upon filing a plea in bar, and an answer 
 in support of such plea, touching the matters set forth in 
 the bill to avoid or repel the bar or defence. Thus for 
 example, a hond fide purchaser for a valuable consider- 
 ation, without notice, may set up the defence by way of 
 answer, instead of plea, and is entitled to the same pro- 
 tection, and will not be compelled to make any further 
 answer or discovery of his title, than he would be in any 
 answer in support of such plea.^ 
 
 § 672. A defendant is also at liberty, by answer, to 
 decline answering any interrogatory, or part of an inter- 
 
 ' Equity Rules, xli. p. 126. == Ibid, xxxvii. p. 124. 
 
492 ANSWERS. 
 
 rogatory, from answering which he might have protected 
 himself by demurrer : and he is at liberty so to decline, 
 notwithstanding he may answer other parts of the bill,^ 
 from which he might have protected himself by demur- 
 rer.^ A defendant may, therefore, by his answer, deny 
 the principal fact upon which the equity of the plaintiff's 
 bill is founded, and decline making any discovery con- 
 sequent upon the equity so denied. Wherever a plea 
 will protect him from discovery his answer will have the 
 same effect.^ 
 
 § 673. There are some other exceptions to the general 
 rule, that a defendant who submits to answer must answer 
 fully. Thus, he is not bound to answer to matters which 
 are purely scandalous, or impertinent, or immaterial, or 
 irrelevant.^ A complainant who calls upon a defendant 
 to answer in chancery, makes him, in effect, a witness in 
 his own cause. K he have any reason, either of fact or 
 law, why he should not comply with this requisition, he 
 must, in general, set it forth by plea or demurrer; and if 
 he do not, and submit to answer, he will be affected with 
 all the obligations of a witness, one of which is that of 
 telling the whole truth, and not merely that part of it 
 which may suit his own interest. But though a witness 
 is bound to tell the whole truth, he is only bound to tell 
 it so far as it relates to the matter in controversy, and 
 will not be compelled, or even permitted, to tell anything 
 more. The rule, that a defendant who answers, must 
 answer fully, only means therefore, that he must answer 
 the statements in the plaintiff's bill, and the interroga- 
 tories, so far as they are founded on those statements, 
 
 ' Equity Rules, xlii. p. 126. 
 
 2 Perry v. Kinley, 3 Am. L. R. 183; 11 Leg. Int. 107. 
 
 » Story's Eq. PI. ^ 846. 
 
ANSWERS. 493 
 
 and not that he will be compelled to answer questions 
 which are either impertinent or irrelevant.^ 
 
 § 674. A defendant is likewise not bound to answer 
 to anything which may subject him to any penalty, for- 
 feiture, or punishment. If a question involve a crimi- 
 nal charge, the plaintiff is not entitled to an answer to 
 such question, however material it may be to his case. 
 And so far has this rule been carried, that when the 
 facts are such, as a defendant will not be compelled to 
 answer, he cannot be required to answer the attendant 
 circumstances, although they have not such an imme- 
 diate tendency to criminate; the I'ule in these cases 
 being, that a defendant is at liberty to protect himself 
 against answering, not only the direct question, whether 
 he did what was illegal, but also every question fairly 
 appearing to be put with the view of drawing from him 
 an answer, containing nothing to affect him, except as 
 it is one link in a chain of proof that is to affect him.^ 
 
 § 675. Thus also we have seen, that a defendant is 
 not bound to answer what would involve a breach of 
 professional confidence.^ Nor is he bound to discover 
 facts respecting his own title; but merely those which 
 respect the title of the plaintiff.* In all these cases, al- 
 though the defendant may protect himself from disco- 
 very by plea or demurrer, yet he has also always been 
 permitted to decline by his answer giving the objection- 
 able discovery, and to state in that form the grounds 
 upon which he claims protection.^ 
 
 § 676. An answer, in cases where relief is sought, 
 properly consists of two parts; and, in fact, performs a 
 
 ' Waldron v. Bayard, 11 Leg. Int. 79. 
 
 2 Bank of United States v. Biddle, 2 Pars. 68-9. ' Ante, 2 482. 
 
 ^ Werne v. Berners, 11 Leg. Int. 78. ' 2 Dan. Ch. Pr. 821-2. 
 
494 ANSWERS. 
 
 double office. It consists, first, of the defence of the de- 
 fendant to the case made by the billj and secondly, of 
 the examination of the defendant on oath, as to the 
 facts charged in the bill of which a discovery is sought, 
 and to which interrogatories are usually addressed.-^ But 
 although an answer has, in general, this twofold property, 
 it is seldom possible, in framing one, to keep the parts 
 separate from each other, though when it is practicable 
 to do so, such a course is generally desirable. It is, how- 
 ever, of great importance to the pleader, in preparing an 
 answer, to bear in mind, that besides answering the 
 plaintiff's case as made by the bill, he has to state to 
 the court, upon the answer, all the circumstances of 
 which the defendant intends to avail himself by way of 
 defence; for it is a rule, that a defendant is bound to 
 a]3prize a plaintiff, by his answer, of the nature of the 
 case he intends to set up, (and that, too, in a clear un- 
 ambiguous manner) and that he cannot avail himself of 
 any matter in defence which is not stated in his answer, 
 even though it should appear in his evidence.^ 
 
 § 677. An answer must be full and perfect to all the 
 material allegations in the bill; it must confess, avoid, 
 deny, or traverse, all the material parts of it; it 
 must state facts, and not arguments : it is not sufficient 
 that it contains a general denial of the matters charged ; 
 but there must be an answer to the sifting inquiries 
 upon the general subject: it should also be certain in 
 its allegations, as far as practicable. To so much of the 
 bill, as it is necessary and material for the defendant to 
 
 1 Story's Eq. PI. ? 850. 
 
 '' 2 Dan. Ch. Pr. 814; Robinson !>. Cathcart, 3 Cr. C. C. 385; Kelsey v. 
 Western, 2 Corngt. 50G. 
 
ANSWERS. 495 
 
 answer, he must speak directly and without evasion; 
 and he must not merely answer the sevejal charges lite- 
 rally; but he must confess or traverse the substance of 
 each charge.-^ A defendant, however, is not bound to 
 answer any interrogatory, except those which he is spe- 
 cially required to answer by the note at the foot of the 
 bill.^ 
 
 § 678. A defendant must answer "as to his know- 
 ledge, remembrance, information, and belief." And in 
 general, if a fact be charged which is in the defendant's 
 own knowledge, as if done by himself, he must answer 
 positively and not to his remembrance or beUef only, if 
 it be stated to have happened within seven years before : 
 it seems, however, that where a special cause is shown, 
 so positive an answer may be dispensed with. As to 
 facts which have not happened within his bwn know- 
 ledge, the defendant must answer as to his information 
 and belief, and not as to his information merely, without 
 stating any belief either one way or the other. But 
 it is not necessary to make use of the precise words 
 "as to his information and belief;" the defendant may 
 make use of any expressions which are tantamount 
 to them : thus, to say that the defendant cannot answer 
 to facts inquired after, as to his belief or otherwise, is ge- 
 nerally considered a sufiicient denial; for although the 
 word "information" is not used, the expression "belief 
 or otherwise," is held to include it.' 
 
 § 679. If, from an examination of the answer, it suf- 
 ficiently appear what facts must be taken to be stated 
 under the positive form, by some of the defendants, and 
 
 ' Story's Bq. PI. ? 852. ^ Equity Rules, xxxviii. p. 125. 
 
 ' 2 Dan. Ch. Pr. 8.31; Bradford v. Geiss, 4 W. C. C. 513; Dinsmoor v. 
 Hazelton, 2 Poster, (N. H.) 535. 
 
496 ANSWERS. 
 
 what, by some of them on the information of others, it 
 will be suflBcient. Where the answer is a simple admis- 
 sion of facts, it is totally unimportant on what grounds 
 the defendants have seen fit to make the admissions. And 
 when two of the defendants are charged with having 
 done a particular act, with a particular intention, and all 
 the defendants unite in saying that the act was not done, 
 or was not done with that intention, reddens singula sin- 
 gulis, it must be taken as the positive denial of those 
 directly charged, supported by the belief of the others. 
 A man who swears that he believes a thing to be true, 
 which he knows to be false, is guilty of perjury, legal as 
 well as moral.^ It may be observed here, that where de- 
 fendants have in their power the means of acquiring the 
 information necessary to enable them to give the dis- 
 covery called for, they are bound to make use of such 
 means, whatever pains or trouble it may cost them.^ 
 
 § 680. With respect to the discovery and production 
 of documents and papers called for by the bill, the rule 
 is thus clearly stated by Mr. Justice Story, " The plain- 
 tiff is not entitled, as a matter of right, to the discovery 
 and production of any documents or papers called for by 
 the bill, except those which appertain to his own case, 
 or the title made by his bill; documents and papers 
 which wholly and solely respect the defendant's title or 
 defence, he is not compellable by his answer to discover, 
 or to produce."^ 
 
 § 681. When, however, the defendant does answer, and 
 refers to documents in his answer, the rule as to the pro- 
 duction of them for the inspection of the plaintiff, upon 
 motion, is thus stated by the same learned commentator. 
 
 ' Gray v. Sutton, District Court, Phila., 31 Maroli 1855. MS. 
 
 ' 2 Dan. Ch. Pr. 832. » Story's Eq. PI. ? 858. 
 
ANSWERS. 497 
 
 " The question may arise under three different aspects of 
 the answer: 1. The documents and papers may not be 
 referred to in the answer; but they may be admitted to 
 be in the defendant's possession : 2 . They may be referred 
 to in the answer, and not admitted to be in the defend- 
 ant's possession: 3. They may be in part set forth, or 
 shortly stated in the answer, as in the defendant's pos- 
 session, and referred to in the answer for greater faer- 
 tainty, when produced; or according to the common form, 
 'as will appear by the said documents and papers to 
 which, for greater certainty, the defendant craves leave 
 to refer.' In the first case, the question, whether the 
 defendant shall produce the documents and papers, or 
 not, is determined by considering whether they do, or do 
 not relate to the plaintiff's title. In the second case, the 
 court cannot order their production, unless they respect 
 the plaintiff's title ; and although not in the possession of 
 the defendant, are evidently under his control. In the 
 third case, it seems, that although the documents and 
 papers solely respect the defendant's title, yet the court 
 will require their production ; for the defendant has, by 
 his mode of referring to them, made them a part of his 
 answer." ^ 
 
 § 682. Where a bill is amended after answer filed, the 
 defendant must put in a new or supplemental answer 
 within twenty days after the amendment or amended bill 
 is filed, and notice thereof given to him, unless the time 
 therefor be enlarged or otherwise ordered by a judge of 
 the court; and upon his default, the like proceedings may 
 be had as in cases of omission to put in an answer to an 
 original bill.^ In answering an amended bill, the defend- 
 ant, if he have answered the original bill, should answer 
 
 1 Story's Eq. PI. ^ 859. ^ Equity Rules, xliv. p. 127. 
 
498 ANSWERS. 
 
 those matters which have been introduced by the amend- 
 ments only. In fact, the answer to an amended bill 
 constitutes, together with the answer to the original bill, 
 but one record; and therefore it is impertinent to repeat 
 in the answer to the amended bill what appears upon the 
 answer to the original bill, unless by the repetition the 
 defence be materially varied.^ 
 
 § 683. Two or more persons may join in the same 
 answer, and where their interests are the same, and they 
 appear by the same solicitor, they ought to do so, unless 
 some good reason exist for their answering separately.^ 
 Where two defendants answer jointly, and one speaks 
 positively for himself, the other may, in cases where he 
 is not charged with anything upon his own knowledge, 
 say, that he has perused the answer and believes it to be 
 true; but it is otherwise where the defendants answer 
 separately.^ 
 
 § 684. An answer is headed by a title, "The answer 
 of A. B. the defendant to the bill of complaint of C. D. 
 complainant." If two or more defendants join in the 
 same answer, it is intituled "the joint and several 
 answer," &c., unless it be the answer of a man and his 
 wife, in which case it is called "the joint answer." The 
 answer of an infant, or other person answering by guar- 
 dian, or of an idiot or lunatic by his committee, is so in- 
 tituled.* And when there is a plea or demurrer to a part 
 of the bill, which is accompanied by an answer to the 
 remainder, it should be intituled, " the demurrer (or plea) 
 of A. B., &c., to part of the bill of complaint of C. D. and 
 the answer of the said A. B. to the remainder of the said 
 bill of complaint." Where, however, the answer is 
 
 ' 2 Dan. Ch. Pr. 839-40. ' Ibid. 840. 
 
 ' Ibid. 841. * Ibid. 841. 
 
ANSWERS. 499 
 
 merely in support of the plea, they form but one defence, 
 and the title is properly a "plea and answer." -"^ 
 
 § 685. An answer usually begins by a reservation to 
 the defendant of all advantage which may be taken by 
 exception to the bill, a form which is conjectured to have 
 been intended to prevent a conclusion, that the defendant 
 having submitted to answer the bill, admitted every thing 
 which by his answer he did not expressly controvert, 
 especially such matters as he might have objected to by 
 demurrer or plea. The answer to the several matters 
 contained in the bill, together with such additional matter 
 as may be necessary for the defendant to show to the 
 court, either to qualify or add to the case made by the 
 bill, or to state a new case on his own behalf, next follow. 
 And it is the universal practice to add by way of conclu- 
 sion a general traverse or denial of all the matters in the 
 bill. This is said to have obtained when the practice was 
 for the defendant merely to set forth his case, without 
 answering every clause in the bill. Though, perhaps, 
 rather impertinent if the bill be otherwise fully answered, 
 and it has been determined to be in that case unneces- 
 sary, it is still continued in practice.^ 
 
 § 686. An answer must be signed by counsel; and also 
 by the defendant or defendants putting it in, unless an 
 order has been obtained to take it without signature. 
 And all answers, except those of corporations, which are 
 put in under their common seal, must be upon the oath 
 or aflSrmation of the parties; unless the plaintiff choose 
 to dispense with it.^ The form of the affidavit, annexed 
 
 1 2 Dan. Ch. Pr. 924^5. ' Mitf. Eq. PI. 313-14. 
 
 ' 2 Dan. Ch. Pr. 843-4; Story's Eq. PI. ? 874. An answer, not on oath, is 
 not evidence in favour of the defendant. Brown v. Blydenburgh, 3 Seld. 146. 
 But it is the right of a defendant to make his answer under oath, although an 
 
500 ANSWERS. 
 
 by the defendant to the answer is — "that what is con- 
 tained in his answer, as far as concerns his own act and 
 deed, is true to his own knowledge, and that what re- 
 lates to the act and deed of any other person, he believes 
 to be true." 
 
 § 687, A defendant may swear to his answer before 
 any justice or judge of the courts of the United States, 
 or before any commissioner appointed by any court to 
 take testimony or depositions, or before any master in 
 chancery appointed by any court, or before any j udge of 
 any court of a state or territory, or before any justice of 
 the peace or alderman within this commonwealth.^ And 
 the party may, in all cases, if conscientiously scrupulous 
 of taking an oath, in lieu thereof, make solemn aflBrmation 
 to the truth of the facts stated by him.^ 
 
 § 688. If an answer admit the facts stated in the bill, 
 or such as are material to the plaintiff's case, and state 
 no new facts, or such only as the plaintiff is willing to 
 admit, no further pleading is necessary,^ and the plaintiff 
 may set the cause down for hearing upon bill and answer. 
 Under such circumstances, the plaintiff admits the answer 
 to be true in all points, and no other evidence is admit- 
 ted, unless it be matters of record to which the answer 
 refers. All the averments in the answer are to be taken 
 as true; and even where the defendant states, he hopes 
 to be able to prove such and such matters, they must be 
 considered as proved, as the plaintiff, by not replying, 
 has precluded the defendant from the opportunity of 
 proving his averments. The effect of a plaintiff setting 
 down a cause for hearing on bill and answer, would seem 
 
 answer under oath be livaived by the bill. Holbrook v. Black, 8 Boston Law 
 Eep. (N. S.) 89. ' Equity Rules, Ivii. p. 132. 
 
 " Ibid. Ixxxv. p. 146. ' Mitf. Eq. PI. 15. 
 
ANSWERS. 501 
 
 to be analogous to a common law demurrer to evidence ; 
 where the party tendering the demurrer not only con- 
 cedes the correctness of the testimony as given, but ad- 
 mits every reasonable conclusion, a jury might fairly 
 draw from such testimony.-^ If, however, the answer 
 do not admit all the facts in the bill material to the 
 plaintiff's case, or state any fact which the plaintiff is 
 not disposed to admit, the truth of the answer, or any 
 part of it, may be denied, and the sufficiency of the bill 
 to ground the plaintiff's title to the relief he prays may 
 be asserted by a replication, which in this case also con- 
 cludes the pleading according to the present practice of 
 the court.^ 
 
 ^ Lanning v. Smith, 1 Pars. 17; Peirce v. West's Executors, 1 P. C. C. 351; 
 Robinson r. Cathcart, 4 Cr. C. C. 600. 
 ' Mitf. Eq. PL 15-16. 
 
502 EXCEPTIONS TO ANSWERS. 
 
 CHAPTER VIII. 
 
 EXCEPTIONS TO ANSWERS. 
 
 § 689. After the answer is put in, if the plaintiff 
 find that it contains scandalous or impertinent matter, 
 or that it does not suflficiently answer the allegations and 
 charges in the bill, he must file exceptions to it. Ex- 
 ceptions are allegations in writing, stating the particular 
 points or matters with respect to which the plaintiff con- 
 siders the answer scandalous or impertinent, or those 
 parts of the bill to which he thinks there is not suffi- 
 cient answer given.^ The nature of scandal and imper- 
 tinence in pleading has been already considered,^ and it 
 is only necessary here to add, that the same rules which 
 are laid down for distinguishing scandal or impertinence, 
 when comprised in a bill, apply to pleadings in general, 
 and consequently to answers. The practice of the court, 
 also, with regard to exceptions to answers on account of 
 scandal or impertinence, is the same, mutatis mutandis, 
 as that already described with respect to exceptions to 
 bills on the same grounds.^ 
 
 § 690. If a plaintiff wish to refer an answer for in- 
 sufficiency, as well as for impertinence, he must procure 
 the reference for impertinence first; for it has been de- 
 cided, that a reference for impertinence can never be 
 
 ' 2 Dan. Cli. Pr. V 2. ^ Ante, § 553. 
 
 3 Ante, i 554. 
 
EXCEPTIONS TO ANSWERS. 503 
 
 contemporaneous with exceptions for insufficiency; and 
 that after a reference for insufficiency, or any other step 
 taken in the cause, an answer cannot be referred for im- 
 pertinence. And the plaintiff must not only procure the 
 refewance for impertinence, but he must obtain the mas- 
 ter's report upon it before he obtains an order to refer 
 the answer for insufficiency: if he do otherwise, the 
 reference for insufficiency will be considered a waiver of 
 the reference for impertinence.-^ This is the English 
 practice : in New York, the practice is otherwise, and 
 there, exceptions for scandal or impertinence, and ex- 
 ceptions for insufficiency, are to be taken at the same 
 time.^ The question does not appear to have arisen in 
 this state, but the English practice seems to accord best 
 with our equity rules, which require exceptions for scan- 
 dal or impertinence to be referred to a master, whilst 
 exceptions for insufficiency are to be set down for hear- 
 ing before a judge.^ 
 
 § 691. If a plaintiff conceive an answer to be insuffi- 
 cient, he may take exceptions to it, stating such parts of 
 the bill as he conceives are not answered, and praying 
 that the defendant may, in such respect, put in a full an- 
 swer to the bill. If, however, the answer be one which 
 accompanies a plea or demurrer to part of the bill, he 
 must, unless he intend to admit the validity of the 
 plea or demurrer, wait till it has been argued; for his 
 exceptions would operate as an admission of its validity. 
 But this rule will not apply to cases where the defend- 
 ant demurs or pleads to the relief only, and not to the 
 discovery.* 
 
 ' 2 Dan. Ch. Pr. 873. 
 
 ^ Livingston v. Livingston, 4 Pai^e, 111 ; Woods v. Morrell, 1 Johns. Ch. 103. 
 
 ^ Equity Rules, xxv. p. 121; Ibid. Ix. p. 133. 
 
 * 2 Dan. Ch. Pr. 877-8. 
 
504 EXCEPTIONS TO ANSWERS. 
 
 § 692. Exceptions will lie to answers to amended bills, 
 as well as to those put in to original bills ; but a plaintiff 
 cannot, in excepting to an answer to an amended bill, 
 object that the defendant has not answered matters 
 which are stated in the original bill; and where a plain- 
 tiff takes no exception to the answer to the original 
 bill, he cannot except to the answer to the amended bill 
 upon a ground which would have applied equally to the 
 original bill.^ The reason of the rule is, that, by amend- 
 ing his bill, the plaintiff has admitted the answer to be 
 sufficient. And upon the same ground it has been held, 
 that where a plaintiff, after excepting to an answer, 
 amends his bill without waiting for the master's report, 
 he will be considered as having waived his exceptions : 
 the principle, however, will not be applied to cases in 
 which the amendment of the bill extends only to the 
 addition of another party, requiring no answer from the 
 other defendants.^ 
 
 § 693. After an answer is filed on any rule day, the 
 plaintiff is allowed until the next succeeding rule day to 
 file, in the prothonotary's ofiice, his exceptions thereto 
 for insufficiency, and no longer, unless a longer time be 
 allowed for that purpose, upon cause shown to the court 
 or a judge thereof; and if no exceptions be filed within 
 that period, the answer will be deemed and taken to be 
 sufficient.^ Exceptions to an answer for insufficiency 
 
 1 2 Dan. Ch. Pr. 879. 
 
 ^ Ibid. 880-1. Whether such technicalities would be aUo-vred to prevail in 
 our practice may well be doubted. In Kirkpatrick i\ M'Donald, 2 Jones, 393, 
 Mr. Justice Bell observes, that, whilst our tribunals should lean to a liberal 
 exercise of the chancery powers, which the legislature, after a long hesitation, has 
 conferred; they ought not to encourage these "technical niceties in the modes 
 of procedure, and forms of pleading, which have tended rather to retard than 
 to facilitate the object of the jurisdiction." 
 
 ' Equity Rules, lix. p. 133. 
 
EXCEPTIONS TO ANSWERS. 505 
 
 must be in writing, and care must be taken in framing 
 them that they be properly intituled, otherwise they will 
 be suppressed, or taken off the file for irregularity; thus, 
 where exceptions having been allowed to an answer, the 
 plaintiff obtained the usual order "that he might be at 
 liberty to amend his bill, and that the defendant might 
 answer the amendments and exceptions at the same 
 time," and amended his bill; whereupon the defendant 
 put in a second answer, upon which the plaintiff took 
 exceptions to the second answer, and intituled them " ex- 
 ceptions to the further answer to the original bill, and to 
 the answer to the amended bill; " the exceptions were held 
 to be irregularly intituled, and ordered to be taken off the 
 file ; because new exceptions cannot be taken to a further 
 answer to an original bill/ 
 
 § 694. On exceptions for insufficiency, the particular 
 points or matters in the bill which remain unanswered, 
 or which are imperfectly answered, should be stated in 
 the exceptions.^ They are headed with the name of the 
 cause, and intituled " Exceptions taken by the said com- 
 plainant to the insufficient answer of the said defendant 
 to the said complainant's bill of complaint." They then 
 go on successively, "First, for that the said defendant 
 hath not, to the best and utmost of his knowledge, re- 
 membrance, information, and belief, answered and set 
 forth whether, &c.," following the words of the interroga- 
 tory which has been insufficiently answered ; " Secondly, 
 for that the said defendant hath not, in manner aforesaid, 
 answered and set forth whether, &c.," following the words 
 of the next interrogatory which has been insufficiently 
 answered, and so on throughout; and they then con- 
 
 ' Williams v. Davies, 1 S. & S. 426; 2 Dan. Cb. Pr. 881. 
 2 Stafford v. Brown, 4 Paige, 88. 
 
 33 
 
506 EXCEPTIONS TO ANSWERS. 
 
 elude: "In all -which particulars the said complainant 
 excepts to the answer of the said defendant, as evasive, 
 imperfect, and insufficient, and humbly prays that the 
 said defendant may be compelled to put in a full and 
 sufficient answer thereto." 
 
 § 695. Where exceptions are filed to an answer for in- 
 sufficiency, within the period prescribed, if the defendant 
 do not submit to answer the same and file an amended 
 answer on the next succeeding rule day, the plaintiff 
 must forthwith order the prothonotary to set them down 
 for a hearing on the next succeeding rule day thereafter, 
 before a judge of the court; and must give notice of such 
 order to the opposite party or his solicitor. And if he 
 do not so set the same down for a hearing, the excep- 
 tions will be deemed abandoned, and the answer held to 
 be sufficient; the court, however, or any judge thereof, 
 may, for good cause shown, enlarge the time for filing 
 exceptions, or for filing an amended answer, in his dis- 
 cretion, upon such terms as he may deem reasonable.'- 
 
 § 696. In c-ases of exceptions for impertinence, one ex- 
 ception cannot be partially allowed; and therefore, if 
 part of an exception be good and the rest bad, the whole 
 exception must be overruled. This, however, is not the 
 case with regard to exceptions for insufficiency, which 
 may be allowed in part and overruled as to part." If, 
 at the hearing, the exceptions be allowed, the defendant 
 is bound to put in a full and complete answer thereto, on 
 the next succeeding rule day, unless the time be enlarged 
 by order of the court; otherwise, the plaintiff will, as of 
 course, be entitled to take the bill, so far as the matter 
 of such exceptions is concerned, as confessed ; or, at his 
 election, he may have a writ of attachment to compel the 
 
 > Bquitj Rules, Ix. p. 133. ^ 2 Dan. Ch. Pr. 8S2. 
 
EXCEPTIONS TO ANSWERS. 507 
 
 defendant to make a better answer to the matter of the 
 exceptions; and the defendant, when in custody upon 
 such writ, cannot be discharged therefrom, but by an or- 
 der of the court, or of a judge thereof, upon his putting 
 in such answer and complying with such other terms as 
 the court or judge may direct.^ 
 
 § 697. Exceptions for insufficiency, as well as those 
 for impertinence, must have the signature of counsel.^ 
 If defendants answer separately, exceptions must be 
 taken to each answer; and if a joint answer be put in, 
 and one die, exceptions may be taken to the answer as 
 to the survivor only. A plaintiff must take care to de- 
 liver his exceptions before he files his replication ; for by 
 replying, he admits the answer to be sufficient. In some 
 cases, however, the court will permit a replication to be 
 withdrawn and exceptions to be taken .'^ If the defendant, 
 after exceptions allowed or submitted to, put in a fur- 
 ther answer, which the plaintiff considers insufficient, the 
 answer may be again heard upon the old exceptions. 
 And if a third answer be adjudged insufficient, the defen- 
 dant may be examined upon interrogatories as to the 
 points reported insufficient. Although a further answer 
 can only be referred upon the old exceptions, the plaintiff 
 may, if the bill have been amended, deliver new exceptions 
 applying to any part of the amendments which he does 
 not think sufficiently answered; such new exceptions, 
 however, must not extend to any matter in the bill as 
 originally filed.* 
 
 1 Equity Rules, Ixi. p. 134. ^ 2 Dan. Ch. Pr. 883. 
 
 ' Ibid. 883-4. ■' Ibid. 892-4. 
 
&08 AMENDMENTS. 
 
 CHAPTER IX. 
 
 AMENDMENTS. 
 
 § 698. The next step in the cause, after the sufficiency 
 of the answer is determined, is the amendment of the 
 plaintiff's bill. When a plaintiff has preferred his bill, 
 and is advised that the same does not contain such ma- 
 terial facts, or make all such persons parties as are neces- 
 sary to enable the court to do complete justice, he may 
 alter it, by inserting new matter subsisting at the time of 
 exhibiting his bill,, of which he was not then apprized, or 
 which he did not think necessary to be stated, and may 
 add such persons as shall be deemed necessary parties ; 
 or in case the bill shall be found to contain matter not 
 relevant, or no longer necessary to plaintiff's case, or 
 parties that may be dispensed with, the same may be 
 struck out ; and the original bill, thus added to or altered, 
 is termed an amended bill. The amendment, however, 
 is in fact esteemed but a continuation of the original bill, 
 and as forming a part of it; for both the original and 
 amended bill constitute but one record.^ 
 
 § 699. A plaintiff cannot introduce facts, by amend- 
 ment, which have occurred since the filing of the original 
 bill, because as the amendments are held to constitute a 
 part of the same record as the original bill, which can 
 only relate to facts which had occurred at the time 
 
 1 1 Dan. Ch. Pr. 454. 
 
AMENDMENTS. 509 
 
 when it was preferred, the introduction of matters of a 
 posterior date would render the record incongruous. If 
 such matter be introduced by amendment, it is demur- 
 rable. When new events, or new matters have occurred 
 since the filing of the original bill, a supplemental bill is 
 the proper mode of bringing them before the court ; for, 
 generally, such facts cannot be introduced by way of 
 amendment.'^ 
 
 § 700. The plaintiff is at liberty, as a matter of course, 
 to amend his bill in any matters whatsoever, before 
 answer, plea, or demurrer to the bill; but he must, with- 
 out delay, give the defendant notice of such amendment, 
 and all rules taken by him are suspended until such no- 
 tice be given.^ Before the answer is filed, the plaintiff 
 may amend as often as he sees fit; but after an answer, 
 he is precluded from so doing, until its sufficiency or insuf- 
 ficiency be admitted or determined. If the answer be in- 
 sufficient, he is remitted to his former right of amending 
 at discretion.^ If any matter alleged in the answer make 
 it necessary for the plaintiff to amend his bill, he may 
 have leave to amend the same, upon motion to the court, 
 or to a judge thereof in vacation.* 
 
 § 701. After an answer, or plea, or demurrer, is put 
 in, and before replication, the defendant may, upon mo- 
 tion or petition, obtain an order from any judge of the 
 court, to amend his bill on or before the next succeeding 
 rule day. But after replication filed, the plaintiff will 
 not be permitted to withdraw it and to amend his bill, 
 except upon an order of a judge of the court, upon motion 
 or petition, after due notice to the other party, and upon 
 
 ' Bank of Kentucky v. Schuylkill Bank, 1 Pars. 214; 1 Dan. Ch. Pr. 459-60. 
 2 Equity Bules, xxvi. p. 121. ' Adams' Eq. 346. 
 
 * Equity Rules, xliii. p. 127. 
 
510 AMENDMENTS. 
 
 proof, by affidavit, that the same is not made for the pur- 
 pose of vexation or delay, or that the matter of the pro- 
 posed amendment is material, and could not with reason- 
 able diligence have been introduced into the bill ; and 
 upon the plaintiff's submitting to such other terms as may 
 be imposed by the judge, for speeding the cause.^ 
 
 § 702. Great latitude is allowed to a plaintiff in making 
 amendments; thus, where he has set up one contract 
 in his bill, and another contract of a different character 
 is admitted by the answer, or proved by the evidence, 
 the court may grant leave to amend the bill, so as 
 to conform to the case proved; and this, even after a 
 hearing on the bill, answer, and evidence.^ But the court 
 will not carry its liberality further, and permit a plain- 
 tiff to amend his bill, so that he may continue to insist 
 upon the agreement originally stated, and if he fail in 
 that, to get the benefit of the one admitted by the de- 
 fendant.'^ And it seems, a plaintiff will not be permitted 
 to amend a bill filed for the mere purpose of discovery, 
 by the addition of a prayer for relief; nor to strike out a 
 prayer for relief, so as to convert it into a bill for dis- 
 covery only.* 
 
 § 703. Any amendment of a bill, however trivial and 
 unimportant, authorizes a defendant, though not required 
 to answer, to put in an answer, making entirely a new 
 defence and contradicting his former answer.^ And where 
 an answer or plea has been filed, and the character of 
 the amendment is such as to justify a defence of a totally 
 different character, the plaintiff must pay to the defend- 
 ant the cost of his answer as between party and party." 
 
 ■■ Equity Rules, xxvii. p. 121. ' Bellowes v. Stone, 14 N. Hamp. 175. 
 ' 1 Dan. Ch. Pr. 463. * Ibid. 463, 466; Hare on Discovery, 23^. 
 
 » 1 Dan. Ch. Pr. 468; Porter v. English, 7 Leg. Int. 150. 
 " Porter v. English, ut supra. 
 
AMENBMENTS. 611 
 
 § 704. Wherever leave to amend the bill is granted, 
 it is more proper to file an amended bill than to interline 
 the original bill; particularly if some of the defendants 
 have answered. The amended bill should state no more 
 of the original bill than may he necessary to introduce, 
 and to make intelligible, the new matter which should 
 alone constitute the chief subject of the bill. The reasons 
 for this rule are obvious. Not only is the incorporation 
 of the old bill into the amended bill unnecessary, but it 
 increases the costs, and exposes the defendants, particu- 
 larly those who have answered the original bill, to the 
 trouble of searching out, and separating the old from the 
 new matter, at the peril of having their answer excepted 
 to, if any mistake should happen, and all the matter of 
 the amended bill should not be answered.^ 
 
 § 705. If the plaintiff, who obtains an order to amend 
 his bill, after answer, plea, or demurrer, or after replica/- 
 tion, do not file his amendments, or amended bill, as 
 the case may require, in the prothonofary's office, on or 
 before the next succeeding rule day, he will be consi- 
 dered to have abandoned the same, and the cause will 
 proceed as if no application for an amendment had been 
 made.^ 
 
 § 706. The right of thus amending, by introducing 
 altered or additional statements, is not absolutely con- 
 fined to the plaintiff. The defendant may also, under 
 special circumstances, obtain a similar indulgence ; but as 
 an answer is put in on oath, the court, for obvious rea- 
 sons, will not readily suffer alterations to be made.' After 
 an answer is put in, it may be amended, as of course, in 
 any matter of form, or by filling up a blank, or correct- 
 
 1 Peiree v. West's Executor, 3 W. C. C. 354. 
 
 = Ecjuity Rules, xxviii. p. 122. ' Adams' Eq. 346. 
 
512 AMENDMENTS. 
 
 ing a date, or reference to a document, or other small 
 matter, and be re-sworn, at any time before a replication 
 be put in, or the cause be set down for a hearing upon 
 bill and answer. But after replication, or such setting 
 down for a hearing, it cannot be amended in any mate- 
 rial matters, as by adding new facts or defences, or qua- 
 lifying or altering the original statements, except by 
 special leave of the court, or a judge thereof, upon mo- 
 tion, and cause shown, after due notice to the adverse 
 party, supported, if required by affidavit; and in every 
 case where leave is so granted, the court, or the judge 
 granting the same, may, in his discretion, require that 
 the same be separately engrossed and added as a distinct 
 amendment to the original answer, so as to be distin- 
 guishable therefrom.-^ 
 
 § 707. Although the court will, in cases of mistake or 
 other causes of that description, permit a defendant to 
 correct his answer by a supplemental answer, it always 
 does so with great difficulty, where an addition is to be 
 put upon the record prejudicial to the plaintiff; though 
 it will be inclined to yield to the application, if the ob- 
 ject be to remove out of the plaintiff's way the effect of 
 a denial, or to give him the benefit of a material admis- 
 sion. The court also requires, that, in making the ap- 
 plication, the defendant should state specifically what he 
 wishes to put upon record, in order that it may judge 
 how far his application is reasonable.^ 
 
 ' Equity Rules, Iviii. p. 132. 
 
 2 2 Dan. Ch. Pr. 914-15; Caster v. Wood, 1 Bald. 289. "To allow a de- 
 fendant, as a general practice, to change his answer, after ha^dng discoTered 
 precisely, from the opinion of the court, and the testimony in the cause, in 
 what manner it may be modified so as to effect his purpose, would certainly be 
 a dangerous mode of proceeding." Calloway v. Dobson, 1 Brock. 122. 
 
EEPLICATION-S. 
 
 513 
 
 CHAPTER X. 
 
 REPLICATIONS. 
 
 § 708. After the defendant has fully answered, the 
 plaintiff may either amend his bill or file a replication; 
 or he may set the cause down for hearing upon hill 
 and answer; or else he may, if, upon due consideration, 
 he conceive that he shall not be able effectually to pro- 
 secute the cause, apply to the court by motion to dis- 
 miss his own bill, with costs, either as against all the de- 
 fendants, or as against such of them as he thinks he 
 can dispense with. This he may do as a matter of 
 course.-' It is important to the plaintiff, in deciding 
 whether to set down the cause upon bill and answer 
 against a particular defendant, or to reply to his an- 
 swer, to bear in mind, that in a hearing upon bill and 
 answer, the answer will be taken to be true in every 
 point, because the defendant has been precluded , from 
 substantiating it by evidence.^ 
 
 § 709. A replication is the plaintiff's answer or reply 
 to the defendant's plea or answer. In chancery, the ge- 
 neral replication only is allowed.^ No special replica- 
 tion to any answer will be permitted; but if any matter 
 alleged in the answer make it necessary for the plain- 
 tiff to amend his bill, he may obtain leave to do so upon 
 
 1 2 Dan. Ch. Pr. 927. ' Ibid. 9G6. 
 
 ' Candee v. Lord, 2 Comst. 277; Duponti v. Mussy, 4 W. C. C. 128. 
 
514 REPLICATIONS. 
 
 motion.'^ Whenever the answer of the defendant is not 
 excepted to, or is adjudged or deemed sufficient, and the 
 plaintiff does not apply for leave to amend his bill, he 
 must file the general replication thereto, on or before the 
 next succeeding rule day thereafter, unless he set the 
 cause down for hearing on bill and answer; and in all 
 cases where the general replication is filed, the cause is 
 deemed, to all intents and purposes, at issue, without any 
 rejoinder, or other pleading, on either side.^ 
 
 § 710. If the plaintiff omit or refuse to file his repli- 
 cation within the prescribed period, the defendant will 
 be entitled to a rule upon him to reply at the next rule 
 day, under the penalty of having his bill dismissed; and 
 if at the expiration of such rule, the plaintiff shall not 
 have filed his replication, and shall have had ten days' 
 notice, the defendant is entitled to an order, as of course, 
 for a dismissal of the suit; and the suit will thereupon 
 stand dismissed, unless the court, or a judge thereof, 
 shall upon motion, for cause shown, allow a replication 
 to be filed, nunc pro tunc, the plaintiff submitting to 
 speed the cause, and to such other terms as may be di- 
 rected.^ 
 
 § 711. The replication is a denial of the defence and 
 a maintenance of the bill. But it does not put in issue 
 immaterial facts stated in the answer. The defendant 
 cannot, by stuffing his answer with irrelevant matter, 
 compel the complainant to except, or lose the benefit of 
 material facts averred by him and admitted by the an- 
 swer. This would be to enable a party to take advan- 
 tage of his own bad pleading. In courts of equity, mis- 
 pleading in matters of form is never allowed to preju- 
 dice any party.* 
 
 ' Equity Rules, xliil. p. 127. " Ibid. Ixii. p. 134. 
 
 ■" Ibid. * Candee v. Lord, 2 Comst. 277. 
 
EVIDENCE. 515 
 
 CHAPTER XI. 
 
 EVIDENCE. 
 
 § 712. The cause being at issue, by the filing of the 
 replication, the next step to be taken by the plaintiff is, 
 to prepare his proof. The defendant also, if he have any 
 case to establish in opposition to that made by the plain- 
 tiff, must in like manner prepare to substantiate it by 
 evidence. In order to this, the first consideration with 
 both parties must be the question, What is necessary to 
 be proved? and, having decided upon that, they must 
 then ascertain the manner in which the proof is to be 
 effected.^ 
 
 § 713. The rules of evidence are the same in equity 
 as at law. The maxim cequitas sequiiur legem, applies em- 
 phatically to this branch of the law; that is, to the law 
 of evidence in courts of equity, which is generally iden- 
 tical with the law of evidence in courts of common law ; 
 and generally speaking, that is proof or sufficient evi- 
 dence in one, which would be in the other. In fact, 
 the whole system of evidence .in the courts of equity is 
 an engrafting of the rules established amongst English 
 lawyers vipon the forms used by the civilians. Accord- 
 ingly, we find that on several points it had formerly a 
 greater similarity, in substance as well as form, to the 
 civil law, and that the practice has arrived by degrees 
 
 1 2 Dan. Ch. Pr. 973. 
 
516 
 
 EVIDENCE. 
 
 at its present state, in wliich, in general, every common 
 law decision is considered as a binding authority.^ 
 
 § 714. Eachlitigant must prove, by legitimate evidence, 
 so many of the facts alleged in his pleadings as are ma- 
 terial to the decree asked or resisted, and are not admit- 
 ted in his suit by his opponent.^ And first, we will con- 
 sider what admissions by the parties will preclude the 
 necessity of proofs. 
 
 § 715. The facts alleged in the bill, where they are 
 alleged positively, and not by way of pretence, are con- 
 structive admissions, in favour of the defendant, of the 
 facts so alleged, and therefore need not be proved by other 
 evidence; for whether they be true or not, the plaintiff, 
 by introducing them into his bill, and making them part 
 of the record, precludes himself from afterwards disputing 
 their truth. Sometimes facts are hypothetically intro- 
 duced into a bill, for the purpose of raising an answer to an 
 anticipated defence, with a species of protest against their 
 being considered as admitted; as "whereas your orator 
 charges, that in case such or such a thing be true, which 
 your orator by no means admits;" in such cases, the 
 matter alleged is not, of course, to be considered as ad- 
 mitted by the bill, hut must be the subject of proofs 
 
 § 716. The plaintiff, of course, cannot read any part 
 of his own bill as evidence in support of his case, unless 
 where it is corroborated by the answer; as where the 
 bill states a deed or will,-and the defendant, in his answer, 
 admits the deed or will to have been properly executed, 
 and to be to the tenor and effect set forth in the bill; in 
 such case, the plaintiff, having read the admission from 
 the answer, may read his bill, to show the extent of the 
 
 ' Gresley'a Eq. Evidence, 3. ^ Adams' Eq. 362. 
 
 ' 2 Dan. Ch. Pr. 974. 
 
EVIDENCE. 517 
 
 admission made by the defendant. Where a defendant 
 refers to the document /or greater certainty, &c.. he has a 
 right to insist upon the document itself being read. 
 Where, however, a defendant, by his answer, admits a 
 document set out in the bill to be to that purport or 
 effect set out, &c., but craves leave to refer to it, the plain- 
 tiff need not, on that ground, reply to the answer, but 
 may set the cause down for hearing on bill and answer, 
 and obtain an order to prove the document viva voce at 
 the hearing; provided it be a document that can be read 
 in that manner.-"- 
 
 § 717. With respect to admissions made by the answer 
 of the defendant, it is to be observed, that although a 
 plaintiff by his replication denies the truth of the whole 
 of the defendant's answer, he does not thereby preclude 
 himself from reading whatever portion of it he thinks 
 will support his case; except the answer be that of an 
 infant, which can never be read to establish a fact which 
 it is against the infant's interest to admit.^ In permit- 
 ting an answer to a bill praying relief, to be partially 
 read by a plaintiff in support of his case, the practice of 
 courts of equity differs materially from that of courts of 
 law, in which, if the answer of a defendant be offered as 
 evidence against him, the defendant has a right to insist 
 upon the whole being read, in order that, by comparing 
 the several parts with each other, the true meaning and 
 extent of the admissions may be more clearly understood.* 
 
 § 718. It must not, however, be supposed, that in per- 
 mitting a plaintiff to read a portion only of the defen- 
 dant's answer in support of his case, a court of equity will 
 allow a plaintiff to read a passage from a defendant's 
 answer, for the purpose of fixing him with an admission, 
 
 1 Ibid. 975. 2 Ibid. 977. ' Parkhurst v. Devine, 11 Leg. Int. 83. 
 
518 EYIDENCE. 
 
 without reading the explanations and qualifications by 
 which the admission may be accompanied, even though 
 such explanations and qualifications be contained in a 
 distinct passage from that offered to be read. The rule 
 is, that where a plaintiff chooses to read a passage from 
 a defendant's answer, he reads all the circumstances 
 stated in the passage. If the passage so read, contain 
 a reference to any other passage, that other passage must 
 be read also.-^ 
 
 § 719. "With respect to what will be considered such 
 an admission by an answer, as will dispense with the ne- 
 cessity of other proof, it may be stated, that besides those 
 expressions which in words admit the fact alleged to be 
 true, a statement by the defendant that "he believes," 
 or that he has been "informed and believes," that such 
 a fact is true, &c., will be sufficient, unless such statement 
 be coupled by some clause to prevent its being considered 
 as an admission. The rule in equity being, that " what 
 the defendant believes the court will believe."^ It may 
 be stated, as a general and almost universal rule, that the 
 answer of one defendant cannot be read for the purpose of 
 affording evidence against another; because there is no 
 issue between the parties, and no opportunity for cross- 
 examination.^ 
 
 § 720. Where an answer has been replied to generally, 
 it can in no case be read as evidence on the part of the 
 defendant himself. But although a defendant cannot 
 read his own answer as evidence for himself, he is en- 
 titled to benefit by his answer, so far as it amounts to a 
 denial of the plaintiff's case, unless the denial by the 
 answer be contradicted by the evidence of more than one 
 witness ; the rule of courts of equity being, that where 
 
 1 Parriah v. Koons, 1 Para. 97. ^ 2 Dan. Ch. Pr. 980. 
 
 ' Morris v. Nixon, 1 How. U. S. 119. 
 
EVIDENCE. 519 
 
 the defendant, in express terms, negatives the allega- 
 tions in the bill, and the evidence of one person only 
 affirms what has been so negatived, then the court will 
 neither make a decree nor send it to a trial at law.^ A 
 chancellor will make no decree where the respondent 
 swears directly in answer, and in opposition to its alle- 
 gations. In such cases, there must be another witness, 
 or else corroborating circumstances, to overbear the defen- 
 dant's answer. Where it is oath against oath they stand 
 in equilibrium.^ 
 
 § 721. Where, however, the answer contains facts not 
 responsive to any allegations in the bill, it is not evidence 
 for the defendant; but the facts must be established by 
 him, if material, by independent proof.^ The only reason 
 why the answer of the defendant is considered as evidence 
 in his favour is, that the plaintiff has called upon him to 
 answer as a witness, and is therefore" bound to admit his 
 answer, so far as he has called for it, to be prima facie 
 true, and as worthy of credit as the testimony of any 
 other witness. But when the defendant, in his answer, 
 avers a fact respecting which the plaintiff has not required 
 his answer, there is nothing to make that averment evi- 
 dence for the defendant; and it stands on the same ground 
 as the averments of a defendant at law in the ordinary 
 course of pleading, and must be sustained by evidence 
 aliunde} 
 
 1 2 Dan. Cli. Pr. 983. 
 
 ^ Horton's Appeal, 1 Harris, 71; Brawdy v. Brawdy, 7 Barr, 159; Greenlee 
 V. Greenlee, 10 Harris, 236; Bberly v. GrofP, 9 Harris, 256. 
 
 ' Eberly v. Groff, 9 Harris, 256; Robinson v. Cathcart, 3 Cr. C. C. 379; 
 Vint V. King, 2 Am. L. R. 747-8; Commonwealth v. CuUen, 1 Harris, 143. 
 
 * Robinson v. Cathcart, 2 Cr. C. C. 600. As to the effect of an answer, 
 where it is not required to be put in under oath, see Story's Eq. PL § 875 a; 
 Curling V. Townshend, 19 Ves. 628; Union Bank v. Geary, 5 Peters, 110-12; 
 
520 
 
 EVIDENCE. 
 
 § 722. Where the answer is precise, clear, and positive, 
 to the main facts alleged in the bill, the defendant is to 
 be considered as any other witness, and the rule as above 
 stated must prevail. But a preponderance may be given 
 to the testimony of a single witness, in support of the 
 plaintiff's case, by other circumstances detailed in the 
 answer, or by its unreasonable or evasive statements.'^ 
 Small and slight circumstances will turn the scale, so 
 small and slight, that it is impossible not to perceive 
 that equity considers and appreciates the anomalous con- 
 dition of the respondent. If an answer be contradictory 
 in itself, be "contrary to the known and well-established 
 analogies of social life, or, for the purpose of evidence, 
 demand a departure from moral axioms of belief, it 
 would be unreasonable to give to it the character of such 
 high and imposing verity. Coming from an interested 
 party, it ought to be clear and distinct, consistent 
 with itself, and not at war with well-established facts 
 in the cause." ^ 
 
 § 723. It is a fundamental maxim both at law and in 
 equity, that no proof can be admitted of any matter 
 which is not noticed in the pleadings. In certain cases, 
 however, evidence of particular facts may be given under 
 general allegations, and ih such cases it is not necessary 
 that the particular facts intended to be proved should be 
 stated in the pleadings. The cases in which this excep- 
 tion to the general rule is principally applicable, are those 
 
 Smith V. Clarke, 4 Paige, 504; Tomlinson v. Lindley, 2 Carter, 569; 2 Dan. 
 Ch. Pr. 848. The better opinion would seena to be, that an answer, not under 
 oath, is not evidence for the defendant; Brown v. Blydenburgh, 3 Seld. 146; 
 especially, since it has been decided, that a defendant cannot be deprived of 
 his right to pvit in his answer under oath, and thereby make it evidence in his 
 favour, by the plaintiff waiving a sworn answer in his bill. Holbrook v. Black, 
 8 Boston Law Rep. (N. S.) 89. 
 
 1 Jacks V. Nichols, 1 Seld. 178. * Baker v. Williamson, 4 Barr, 463, 468. 
 
EVIDENCE. 521 
 
 where the character of an individual, or his general be- 
 haviour, or quality of mind, comes in question ; as where, 
 for example, it is alleged that a man is non compos, it 
 is the experience of every day to give particular acts of 
 madness in evidence, and not general evidence only that 
 he is insane.^ The same thing raay be done, where 
 the question of notice is raised in the pleadings by a 
 general allegation or charge ; for the question whether 
 the party had notice or not, is &fact; and the fact of the 
 defendant having had notice having been put in issue, 
 the mode in which that fact is to be proved is not im- 
 portant to be put upon the record.^ 
 
 § 724. It is upon this principle, that documentary evi- 
 dence, or letters themselves, are not specifically put in 
 issue. In fact, a party may prove his case, by written or 
 parol evidence indifferently, and is under no more restric- 
 tions in one case than in another. It is not necessary to 
 put every written document in issue. But according to 
 the English practice, if a letter or document amount to 
 a confession or an admission, it must be put in issue, in 
 order that the party against whom it is to be read should 
 have an opportunity to meet it by evidence or explana- 
 tion. And this rule is not confined to writings, but ap- 
 plies to every case where the admission or confession of 
 a party is to be made use of against him.^ But Mr. Jus- 
 tice Story has decided, that this rule does not prevail in 
 the American courts. The admissibility of such evidence 
 may be properly subject, under particular circumstances, 
 to the qualification, that if one party should keep back 
 evidence, which the other might explain, and thereby 
 take him by surprise, the court will give no effect to such 
 evidence, without first giving the party to be affected by 
 
 I 2 Dan. Ch. Pr. 992-3. ^ Ibid. 994-5. = Ibid. 995-6. 
 
 34 
 
522 EVIDENCE. 
 
 it, an opportunity of controverting it. This course may- 
 be a fit one in cases, where otherwise gross injustice may 
 be done : but it is a matter resting in the sound discre- 
 tion of the court, and not strictly a rule of evidence. And 
 whatever may be the rule of evidence in England on this 
 point, our practice in equity causes, where the evidence 
 is generally open to both parties, rarely can justify, if, 
 indeed, it ever should require the introduction of such a 
 rule.^ 
 
 § 725. Another rule of evidence is, that the substance 
 of the case made by the pleadings must be proved; that 
 is, all the facts alleged upon the pleadings, which are ne- 
 cessary to the case of the party alleging them, and which 
 are not the subject of admissions either in the pleadings 
 or by agreement, must be established by evidence. In 
 the case of a plaintiff, however, it is sufficient to prove so 
 much only of the allegations in the bill as is necessary to 
 entitle him to a decree. Thus, where the suit is for an 
 account, all the evidence necessary to be read at the 
 hearing is, that which proves the defendant to be an ac- 
 counting party, and then the decree to account follows of 
 course; and any evidence as to the particular items of an 
 account, however useful they may be in a subsequent 
 stage of the cause, would be irrelevant at the original 
 hearing.^ 
 
 § 726. The rules which govern the introduction of 
 documentary evidence in courts of equity are, with few 
 exceptions, the same which are applicable to the same 
 subject in courts of law, and may be found by referring 
 to any of the many excellent treatises on the law of evi- 
 
 ' Jenkins v. Eldridge, 3 Story, C. C. 284; Smith i: Burnham, 2 Sumner, 612; 
 Story's Eq. PI. ^ 265 a. 
 
 ^ 2 Dan. Ch. Pr. 996-7; Porter v. English, V Leg. Int. 150. 
 
EVIDENCE. 523 
 
 dence whicli have been published. It is only necessary 
 here to observe, that an examination viva voce, at the 
 hearing, is admitted in certain cases where written in- 
 struments, essential to the justice of the cause, have been 
 neglected to be proved before the examiner, or where the 
 plaintiff finding sufficient matter confessed in the defend- 
 ant's answer to ground a decree upon, proceeds to a hear- 
 ing of the cause upon bill and answer only. But no ex- 
 hibit can thus be proved, that requires more than the 
 proof of the execution, or of handwriting, to substantiate 
 it; if it be anything that admits of cross-examination, or 
 that requires any evidence besides that of handwriting, it 
 cannot be received.^ 
 
 § 727. All persons are competent to be witnesses in 
 equity, who are capable of being witnesses in trials at law. 
 Witnesses in chancery are examined either by an exa- 
 miner, or by commissioners specially appointed for that 
 purpose by commission under the seal of the court. After 
 the cause is at issue the court will appoint an examiner, 
 at the request of either party who may first make appli- 
 cation. This examiner will cause such witnesses as either 
 j)arty may name, to come before him, on a reasonable 
 day or days, to be appointed by him, of which he must 
 give notice to the parties ; for the enforcing the attend- 
 ance of which witnesses, either party may have a subpoena 
 or subpoenas, returnable before the examiner, to be en- 
 forced by the usual process of contempt.^ 
 
 § 728. The examination is conducted by the counsel 
 of the parties, viva voce, and the answers of the witnesses 
 must be reduced to writing by the examiner, and the 
 questions also, if necessary to the understanding of the 
 answer, or if it be required by either party. The testi- 
 
 ' 2 Dan. Ch. Pr. 1025-6. ^ Equity Rules, Lxiv. p. 136. 
 
524 EVIDENCE. 
 
 mony of both parties is to be taken before the same ex- 
 aminer, and the defendant will not be compelled to pro- 
 ceed with the taking of his testimony, until the plaintiff 
 has finished, or declared he has none to take ; nor will 
 the plaintiff be compelled to proceed with the rebutting 
 testimony, until the defendant have completed the testi- 
 mony on his part. But the court may, upon special ap- 
 plication of either party, upon cause shown, appoint an 
 additional examiner, before whom the p^rty making such 
 application may proceed to take his testimony, notwith- 
 standing the pendency of the proceeding of his adversary 
 before the examiner first named.^ 
 
 § 729. Either party may, on application to the court, 
 obtain an order on his adversary to close the taking of 
 his testimony within three months after notice of such 
 order ; and testimony taken after three months' notice of 
 such order will not be allowed to be read in evidence at 
 the hearing of the cause. But the court may, in its dis- 
 cretion, enlarge the time on the application of the party 
 against whom such order may have been granted. And 
 no such order will be granted against a party, whilst by 
 the provisions of the foregoing rule, such party is not 
 bound to begin until his adversary has closed.^ 
 
 § 730. An order to take the testimony of ancient, in- 
 firm, and going witnesses de bene esse, before any alder- 
 man or justice of the peace of the respective county, may 
 be entered by either party in the prothonotary's office, of 
 course, at any time after the service of the subpoena, sti- 
 pulating a reasonable notice to the adverse party. And 
 so of an order for a commission to any place within the 
 state of Pennsylvania, more than forty miles distant from 
 the county seat of the respective county, or to any other 
 
 ' Equity Rules, Ixiv. p. 136. ^ Ibid. Ixv. p. 137. 
 
EYIDENCE. 525 
 
 state or territory, or to foreign parts. But in case of a 
 commission, the interrogatories must be filed in the pro- 
 thonotary's office at the time, and written notice of this 
 last order, and of the names of the commissioners, must 
 be served on the adverse party, at least fifteen days be- 
 fore the commission issues, in order that he may file cross- 
 interrogatories, or nominate commissioners on his part, 
 if he shall deem it eligible.-"- 
 
 § 731. Depositions taken before magistrates in the 
 method above prescribed, will only be allowed to be read 
 in evidence, on the hearing of the cause, in case the same 
 facts shall appear before the examiner appointed to take 
 testimony in the cause after it is at issue, and be certified 
 by him, to excuse the production of such witnesses before 
 him, as are necessary for the introduction of depositions 
 taken de hene esse on trials by jury in the same courts ; or 
 if taken by commission, before the cause is at issue, it 
 must appear, by affidavit, at the hearing, that the wit- 
 nesses so examined were aged, infirm, or going out of the 
 country, or that any of them was a single witness to a 
 material fact.^ 
 
 § 732. Where witnesses are examined under a com- 
 mission, the form of the last interrogatory is directed to be 
 in substance as follows : " Do you know, or can you set 
 forth any other matter or thing, which may be a benefit 
 or advantage to the parties at issue in this cause, or 
 either of them, or that may be material to the subject of 
 this your examination, or the matters in question in this 
 cause? If yea, set forth the same fully and at large in 
 your answer."^ It is optional with the party to insert 
 such a general interrogatory or not; but where one is 
 used, it must be in the form prescribed.* 
 
 1 Ibid. kiii. p. 135. ' Ibid. ^ jbid. Ixvli. p. 138. 
 
 * 2 Dan. Ch. Pr. 1051. 
 
526 EVIDENCE. 
 
 § 733. The proper mode of authenticating a written 
 instrument, is by making the following endorsement on 
 the document proved by the witness: "In the supreme 
 court of Pennsylvania, in equity; between J. K. plaintiff, 
 and L. M. defendant. At the execution of a commission 
 for the examination of witnesses in this cause, this paper 
 writing was produced and shown to N. M., a witness 
 sworn and examined, and by him deposed unto, at the 
 time of the examination, on the complainant's (or de- 
 fendant's) behalf, before us." (Signed by the commis- 
 sioners.) ^ When a deposition refers to books of account, 
 copies of them at least should be produced, properly au- 
 thenticated, to entitle the whole deposition to be read.^ 
 And to guard against deception, it has ever been held, 
 that although exhibits come in the same envelope with 
 the commission, if they be not identified by marks or 
 references, they ought not to be received.'' 
 
 § 734. Upon the return of a commission executed, the 
 same may, at the application of either party, be opened 
 by any one or more of the judges of the court, in term 
 time 6r vacation, or by the prothonotary ; and the pro- 
 thonotary must give notice to the parties of the return of 
 any commission, and of the filing of depositions taken 
 before any alderman, justice of the peace, or examiner; 
 and the parties must, within ten days after service of 
 such notice upon them respectively, enter exceptions in 
 writing, if they have any, to the form of the interroga- 
 tories, or the manner of the execution of the commission, 
 and the taking of the depositions, or be forever precluded 
 from the benefit of such exceptions; which exceptions. 
 
 1 Petriken v. Collier, 7 W. & S. 393-4. 
 
 ' Christie v. Woods, 2 Yeates, 213. 
 
 ^ Dodge V. Israel, 4 W. C. C. 323; Petriken v. Collier, 7 W. & S. 394. 
 
EVIDENCE. 527 
 
 when so taken, may be put down for hearing, by either 
 party, at the next rule day, giving notice to his adver- 
 sary thereof.^ 
 
 § 735. If any of the interrogatories be such as the wit- 
 ness is not bound to answer; if, for example, they tend 
 to expose him to a penalty or forfeiture, or involve a 
 breach of professional confidence, he may decline to an- 
 swer them, stating at the same time, on oath, his reasons 
 for so doing; a proceeding which is somewhat inaccu- 
 rately termed a demurrer to interrogatories. The ex- 
 aminer or commissioner takes down the statement in 
 writing, and the objection is heard and decided by the 
 court. If the witness himself do not object to the ques- 
 tion, and its impropriety depend on general grounds, and 
 not on such as are personal to himself, as where it in- 
 volves a breach of professional confidence, or where the 
 interrogatories are leading, or the depositions scandalous, 
 or where any serious irregularity has occurred in taking 
 them, the court, on hearing of the exceptions, will sup- 
 press the depositions.^ 
 
 1 Equity Rules, Ixvl. p. 138. ^ Adams' Eq. 370. 
 
528 HEARING AND DECREE. 
 
 CHAPTEK XII. 
 
 HEARING AND DECREE. 
 
 § 736. The evidence having been taken and filed, the 
 next step in the cause is, to set it down for a hearing. 
 This may be done by either party, by giving to the pro- 
 thonotary an order in vrriting to place it on the argument 
 list. In Philadelphia, no case in equity can be put on 
 the argument list, unless the party desiring it shall in 
 writing require the prothonotary to do so, three days 
 before the calling of the list; and to be entitled to have 
 such case argued, it is also the duty of the party desiring 
 it to give three days' notice in writing to the opposite 
 party that the cause is set down for argument.'- 
 
 § 737. We have already seen, that where the plaintiff 
 sets down a cause for hearing on bill and answer, without 
 a replication, which he always has a right to do, the 
 answer must be taken to be true in all its allegations, 
 whether they be or be not responsive to the allegations 
 in the bill; and the reason is, because the plaintiff, by 
 setting the cause down for hearing on bill and answer, 
 has deprived the defendant of the power of proving them 
 by evidence aliunde. The setting down of the cause for 
 hearing on bill and answer is the plaintiff's own voluntary 
 act, and the defendant has no right to ask for a commis- 
 sion to examine witnesses, nor to produce any evidence 
 
 1 Rules of Court, 47. 
 
HEARING AND DECREE. 529 
 
 whatever, other than his own answer. He cannot object 
 to the trial of his cause upon his own representation of it.^ 
 
 § 738. When a cause is reached in its order on the ar- 
 gument list, whether on bill, answer, and proofs, or on 
 bill and answer only, the solicitors of the respective par- 
 ties must deliver to each of the judges, previous to the 
 argument, a paper book, setting forth the substance of 
 the case, an abstract of the pleadings, and the points to 
 be discussed; and after argument by counsel the court 
 will proceed to a decree. A decree is said to be the 
 sentence, or order of the court, pronounced on hearing 
 and understanding all the points in issue, and deter- 
 mining the right of all the parties to the suit, according 
 to equity and good conscience.^ 
 
 § 739. A decree is either interlocutory or final: an in- 
 terlocutory decree is where the consideration of the par- 
 ticular question to be determined, or of further directions 
 generally, is reserved till a further hearing; and the 
 further hearing is termed a hearing upon further direc- 
 tions, or upon the equity reserved. It very seldom hap- 
 pens that a first decree can be final, or conclude the 
 cause. Thus, if any matter of fact be strongly contro- 
 verted, the court is so sensible of the deficiency of trial 
 by written evidence, that it will not bind the parties 
 thereby, but will direct the matter to be tried by a jury. 
 This is effected by means of a feigned issue; or by di- 
 recting an action at law, to be determined in the ordinary 
 course.^ So also, there are some cases in which it is a 
 rule of the court not to make any decree whatever, till 
 certain preliminary inquiries have been made by one of 
 the masters of the court. A reference to the master is 
 
 ^ Robinson v. Cathcart, 2 Cr. C. C. 600-1. ^ 2 Dan. Ch. Pr. 1192. 
 
 3 Ibid.; Adams' Eq. 375. 
 
530 HEARING AND DECREE. 
 
 generally made for one of the three following purposes, 
 namely, the protection of absent parties against the pos- 
 sible neglect or malfeasance of the litigants; the more 
 eflfectual working out of details which the judges sitting 
 in court are unable to investigate ; and the supplying 
 defects or failures in evidence.^ 
 
 § 740. When a decree does not reserve the considera- 
 tion of the points of equity, arising upon the determina- 
 tion of the legal rights of the parties, or of the further 
 directions consequent upon the master's report, or the 
 costs of the suit, it is said to be a final decree, and may 
 be pleaded in bar to any new bill for the same matter. 
 Of this nature is a decree dismissing the plaintiff's bill, 
 which, as we have seen, may be pleaded in bar to a new 
 suit, unless accompanied with a direction that the dis- 
 missal is to be without prejudice to the plaintifi"'s right 
 to file another bill.^ There are, however, many cases 
 of decrees which, although final in their nature, require 
 the confirmation of a further order of the court, before 
 they can be acted upon : of this nature are decrees in 
 suits against infants, in which a day is given to the 
 infant to show cause against it, after he attains twenty- 
 one; and of the same description are decrees i^ro con- 
 fesso.^ 
 
 § 741. A decree pro confesso will be deemed absolute, 
 unless the court shall, within three months after the ser- 
 vice of notice of such decree on the defendant, set aside 
 the same, and give the defendant time for filing an answer, 
 upon cause shown. And no such motion will be granted, 
 unless the defendant will undertake to file his answer 
 within such time as the court shall direct; and submit 
 
 1 Adams' Eq. 370. ^ 2 Dan. Ch. Pr. 1199. 
 
 » Ibid. 1203; Rogers i\ Smith, 4 Barr, 100-1. 
 
HEARING AND DECREE. 531 
 
 to such other terms as shall be imposed on him for the 
 purpose of speeding the cause.^ 
 
 § 742. The court having given its decision in the cause, 
 the decree is to be drawn up by the solicitor of the party 
 in whose favour it is, who must serve a copy thereof upon 
 the solicitor of the adverse party, with notice of the time, 
 which shall not be less than three days thereafter, when 
 the same will be submitted to the court. If the opposite 
 party shall not deem such draft of decree in conformity 
 with the intentions of the court, he may file exceptions 
 before the day of hearing designated in the notice, which 
 must be submitted with the draft of the decree on the 
 day so fixed; and thereupon, the court approving of the 
 draft, or correcting the same, the prothonotary will enter 
 it in his equity docket, and thenceforth it becomes the 
 act and decree of the court.^ 
 
 § 743. In drawing up decrees and orders, neither the 
 bill, nor answer, nor other pleadings, nor any part thereof, 
 nor the report of the master, nor any other prior pro- 
 ceeding, are to be recited or stated in the decree or order ; 
 but the decree or order must begin, in substance, as fol- 
 lows : " This cause came on to be heard, (or to be further 
 heard, as the case may be) at this term, and was argued 
 by counsel; and therefore, upon consideration thereof, 
 it was ordered, adjudged, and decreed, as follows, viz. :" 
 (here insert the decree or order.) ^ Clerical mistakes 
 in decrees, or decretal orders, or errors arising from any 
 accidental slip or omission, may be corrected by order of 
 the court, or of a judge thereof, upon petition, without 
 the form or expense of a rehearing.* 
 
 § 744. If the decree be merely for the payment of 
 
 Equity Rules, xviii. p. 118. ^ Ibid. Ixxix. p. 144. 
 
 ' Ibid. Ixxviii. p. 143. ' * Ibid. Ixxyii. p. 143. 
 
532 HEARING AND DECREE. 
 
 money, the party in whose favour it is made, is entitled 
 to have a minute thereof (without waiting for the draft 
 of a more formal decree) entered into the equity docket, 
 and placed, in the usual form of entering judgments, in 
 the judgment index of the common law side of the court.^ 
 If the decree be for the performance of any specific act, 
 as, for example, the execution of a conveyance of land, 
 or the delivering up of deeds or other documents, the 
 decree must, in all cases, prescribe the time within which 
 the act is to be done, of which the defendant will be 
 bound, without further service, to take notice.^ The 
 courts which are invested with equitable jurisdiction, 
 being by their constitution courts of record, their decrees 
 have the same effect, as to lien, &c., as judgments at 
 common law.^ 
 
 ' Equity Rules, Ixxx. p. 144. * Ibid. viii. p. 114. 
 
 " See Purd. Dig. 461. 
 
EXECUTION. 
 
 633 
 
 CHAPTER XIII. 
 
 EXECUTION. 
 
 § 745. We will now proceed to consider the manner of 
 compelling obedience to a decree. The power of courts 
 of equity for this purpose, like that for compelling ap- 
 pearance on answer, was originally confined to process 
 of contempt. The only difference being that an attach- 
 ment for non-performance of a decree was not, like an 
 attachment on mesne process, a bailable writ.^ But it 
 is now provided, that final process to execute any decree 
 may, if the decree be solely for the payment of money, 
 be by a writ of execution, in the form used in the same 
 court, in suits at common law, in actions of assumpsit.^ 
 
 § 746. In such cases, the plaintiff may issue a writ of 
 fieri facias to levy on the real or personal estate of the 
 defendant ; and if real estate be levied on, a writ of ven- 
 ditioni exponas may be issued to sell the same. Writs of 
 testatum fieri facias and venditioni exponas may likewise 
 be issued, as also writs of attachment in execution, to en- 
 force the decree of a court of equity ; the proceedings on 
 which are the same as on a common law execution, and 
 which will be found at large in Troubat and Haly's 
 Practice of the Courts of Pennsylvania. 
 
 § 747. In the case of a corporation, if the writ of exe- 
 cution be returned unsatisfied, in whole or in part, the 
 
 1 Adams' Bq. 393; 2 Dan.Ch. Pr. 1244. ' Equity Bules, vUi. p. 114. 
 
534 EXECUTION, 
 
 court, upon the bill or jjetition of the plaintiff, may issue 
 a writ of sequestration to sequester the goods, chattels, 
 and credits, rents, issues, and profits, tolls and receipts, 
 from any road, canal, bridge, or other work, property, or 
 estate of such corporation. Or the court, upon the appli- 
 cation of the plaintiff, setting forth that he verily believes 
 that the effects of the corporation are concealed for the 
 purpose of avoiding the payment of its debts, may issue 
 a citation to the president, secretarj^, treasurer, or other 
 officers and members of the corporation, commanding them 
 to appear and answer such interrogatories as may be put 
 to them touching the effects of the corporation ; and the 
 same may be enforced by attachment.^ 
 
 § 748. Although the common law writs of execution 
 may be resorted to for the purpose of compelling obedience 
 to the decree of a court of equity, it is not imperative on 
 the plaintiff to do so, but he may still resort to the process 
 of contempt, in cases in which imprisonment for debt is 
 not forbidden. But it must be borne in mind, that 
 wherever the decree is for the payment of money founded 
 upon a contract, then the body of the defendant cannot 
 be taken in execution, either by process in equitj' or at 
 common law.^ 
 
 § 749. If the decree be for the performance of any 
 specific act, as, for example, for the execution of a con- 
 veyance of land, or the delivering up of deeds, or other 
 documents, the decree, as we have already seen, must, 
 in all cases, prescribe the time Avithin which the act 
 shall be done, of which the defendant is bound, without 
 further service, to take notice ; and upon affidavit of the 
 plain tifi", filed in the prothonotary's office, that the same 
 
 ' Piird. Dig. 170. 
 
 '' Ibid. 2S; Estate of Hiigg and Bell, 2 Penii. L. J. loG. 
 
EXECUTIOK. 535 
 
 has not been complied with, within the prescribed time, 
 the prothonotary will issue a writ of attachment against 
 the delinquent party; from which, if attached thereon, 
 he will not be discharged, unless upon a full compliance 
 with the decree, and the payment of all costs ; or upon 
 a special order of the court, or of a judge thereof, upon 
 motion and aflBdavit, enlarging the time for the perform- 
 ance of the decree. If the delinquent party cannot be 
 found, a writ of sequestration may issue against his 
 estate, upon the return of non est inventus, to compel 
 obedience to the decree/ 
 
 § 750. The proper course to be pursued by any person 
 who claims title to an estate or other property seques- 
 tered, whether by mortgage or judgment, lease or other- 
 wise, or who has a title paramount to the sequestration, 
 is to apply to the court to direct the plaintiif to exhibit 
 interrogatories before one of the masters, in order that 
 the plaintiff may be examined as to his title to the 
 estate. An exammation of this sort is called an exami- 
 nation pro interesse siio, and an order for such an examina- 
 tion may be obtained by a party interested, as well 
 where the property consists of personalty, as where it is 
 real estate. When it appears that a party who has been 
 examined pro interesse suo, has a plain title to the pro- 
 pert}'', and is not affected by the sequestration, then it is 
 to be discharged against him, -with or without costs, as 
 the court shall determine.^ 
 
 § 751. When any decree or order is for the delivery 
 of possession, upon proof being made by affidavit of a 
 demand and refusal to obey the decree or order, the 
 party prosecuting the same will be entitled to a writ of 
 
 ' Equity Bules, ix. p. 114. ^ 2 Dan. Ch. Pr. 1268-9, 1273. 
 
536 EXECUTION. 
 
 assistance from the prothonotary of the court.^ A writ 
 of assistance is, in ordinary cases, the first and only pro- 
 cess for giving possession of land, under the adjudication 
 of the court.^ And it is so much a matter of course that 
 the prothonotary may issue it, in the cases prescribed by 
 the rule, without any application to the court.^ It is an 
 incident to the writs of injunction and sequestration, 
 and is issued, whenever it becomes necessary to aid in 
 enforcing either of them.* 
 
 § 752. Every person, not being a party in any cause, 
 who has obtained an order, or in whose favour an order 
 has been made, may enforce obedience to such order by 
 the same process as if he were a party to the. cause; and 
 so likewise, every person, not being a party in any cause, 
 against whom obedience to any order of the court may 
 be enforced, is liable to the same process for enforcing 
 obedience to such order, as if he were a party .^ 
 
 ' Equity Rules, ix. p. 114. ' Valentine v. Teller, 1 Hopk. 422. 
 
 ' Com, V. Diffenbach, Nisi Prius, Lewis, J. 5 May 1854, Purd. Dig. 1102. 
 *Ibid. ^EquityPi-ules, X. p. 115. 
 
FEIGNED ISSUES. 537 
 
 CHAPTER XIV. 
 
 FEIGNED ISSUES. 
 
 § 753. It has been already stated, that if any matter 
 of fact in question in the cause be strongly controverted, 
 the court will direct it to be tried by a jury; for which 
 purpose it will either direct an action at law to be 
 brought, which is determined in the ordinary course, 
 or it will order a feigned issue to be raised and tried 
 by a jury on the common law side of the court. In 
 the present chapter we will consider the practice in 
 reference to a feigned issue. 
 
 § 754. In chancery, the awarding of a feigned issue is 
 a matter, not of right in the parties, but of discretion in 
 the court, to satisfy its conscience as to doubts concern- 
 ing the facts of the case. It is the practice and the un- 
 deniable jurisdiction of the court to decide on the fact 
 as well as the law, and the awarding of an issue rests 
 in sound discretion. It would be an abuse of that dis- 
 cretion, and the creation of a great and unnecessary ex- 
 pense, to award an issue when the truth of the fact 
 could be sufficiently and satisfactorily ascertained by the 
 court itself^ But, if there be contradictory evidence, be- 
 tween persons who are of equal credit, and have had 
 equal opportunities of information, and the evidence be 
 so equally balanced on both sides, that it becomes doubt- 
 
 ' Baker v. Williamaon, 2 Barr, 119; Johns v. Erb, 5 Barr, 237. 
 
 35 
 
538 FEIGNED ISSUES. 
 
 fi^l which scale preponderates, the court will, in general, 
 direct an issue, in order to relieve and ease its own con- 
 science, and to be satisfied, by the verdict of a jury, of 
 the truth or falsehood of the facts controverted; lest, 
 taking upon itself to pronounce decidedly a matter of 
 such uncertainty, it might do injustice to one of the par- 
 ties by determining against the truth of the fact.^ 
 
 § 755. Being a matter of sound discretion, an issue is 
 under the peculiar control of the chancellor, as appears 
 from all the cases.^ When, however, an issue is or- 
 dered, it should be framed between the real parties in 
 intei-est, and should contain a distinct statement of the 
 contested facts to be tried.' It ought not to be so framed 
 that the evidence of a person who has really no interest, 
 merely because he is a nominal party, should for that 
 reason be excluded; and at the same time, a subse- 
 quent assignment for the mere purpose of making the 
 party a witness, will not render competent one who was 
 really interested at the time the issue wal awarded.* In 
 a proper case, however, the court, in granting the issue, 
 will make an order that the defendant be at liberty, if 
 he think fit, to examine the plaintiff before the jury; 
 or that both plaintiff and defendant be examined upon 
 the trial of the issue. ^ 
 
 § 756. When an issue is foimd by the jury, the judge 
 before whom it is tried can give no judgment on the 
 verdict; he can only certify the finding to the court of 
 equity by which it was awarded." And as the only mo- 
 tive for directing the issue is, to inform the conscience 
 
 1 2 Dan. Ch. Pr. 1285. - Baker r. Williamson, 2 Barr, 119. 
 
 ' Shulze'a Appeal, 1 Barr, 254; Pepper v. Bavington, 9 Leg. Int. 60; Moatz 
 V. Knox, 1 Jones, 2G9. * Pepper v. Bavington, nt supra. 
 
 ^ Baker v, Williamson, ut supra. * Ibid. 
 
FEIGNED ISSUES. 539 
 
 of the chancellor ; unless he be, or ought to be satisfied, 
 by the report made to him of the trial, he very properly 
 sends the issue back to be re-tried ; ^ a motion for a new 
 trial, therefore, must be made in the court directing the 
 issue, and not in the court before which it is tried.^ But 
 as the judges of our courts, who direct the issue, for the 
 purpose of informing their consciences, also superintend 
 the trial of it; they have the same advantage which the 
 law judge has in England, of hearing the viva voce ex- 
 amination of the witnesses; of observing their deport- 
 ment, as well as that of the jury; and of attending to 
 the strictures of the counsel upon the evidence given in 
 their presence. If, under these circumstances, they be 
 satisfied that the verdict is warranted by the evidence, 
 they have no pretext for the exercise of the discretion 
 assumed by an English chancellor, who may grant a new 
 trial, notwithstanding the judge who tried the issue be 
 satisfied with the finding.^ 
 
 § 757. In hearing the motion for a new trial, the court 
 will confine itself to the question, whether the vex^dict 
 of the jury be in conformity with the weight of evi- ' 
 dence and the law, on the particular issue submitted; 
 and will not go into the equities arising on the bill and 
 answer.* If, on the trial of an issue, the judge reject 
 evidence that ought to have been received, or receive 
 evidence that ought to have been refused, although in 
 such case a court of law would grant a new trial, yet if, 
 in a court of equity, the court be satisfied that if the evi- 
 dence improperly received had been rejected, or the evi- 
 dence improperly rejected had been received, the verdict 
 ought not to have been different, it will not grant a new 
 
 1 Harrison v. Rowan, 4 W. C. C. 37. 
 
 2 2 Dan. Ch. Pr. 1306; BuU v. Towson, 4 W. & S. 569. 
 
 3 Harrison v. Rowan, 4 W. C. C. 37. * Colien v. Gratz, 6 Penn. L. J. 333. 
 
540 FEIGNED ISSUES. 
 
 trial merely on such ground. There is this difference 
 between a motion for a new trial' in a court of law and 
 in a court of equity : in a court of law, if the jury find 
 the fact, although the judge may think differently, yet 
 it is permitted to stand, for the finding of the fact is the 
 province of the jury; but in chancery, the verdict is 
 something more than the verdict of the jury : it must 
 be such as to satisfy the court that it can make that its 
 own declaration of the fact which the jury have made 
 theirs.^ A verdict found on such an issue, binds not the 
 conscience of the judge directing it, nor of the appel- 
 lant court. They are at liberty to disregard it, if, upon 
 all the proofs given in the progress of the cause, they 
 are not satisfied of its correctness.^ A chancellor can- 
 not, if he would, surrender his high prerogative and duty 
 of deciding upon facts according to the convictions of 
 his conscience.^ 
 
 § 758. Where a court of equity directs a feigned issue, 
 a writ of error will not lie to the proceedings thereon in 
 the court of law; the only mode of reviewing it is by 
 appeal from the final decree.* Where trial by jury is of 
 right, as it is in the case of a contested will, and in cer- 
 tain money oases, the writ of error is also of right; not 
 so in regard to an issue formed for the information of 
 the chancellor, who may, after all, disregard the verdict. 
 It would be not only useless but inconvenient, to have 
 the regularity of the trial inspected by any one else : 
 useless, because he would not be bound by the event; 
 and inconvenient, because it would produce intermina- 
 ble delay.* Notwithstanding, however, these powerful 
 
 1 Baker v. Williamson, 2 Barr, 120; 4 Barr, 469; Hallowell's Appeal, 8 
 Harris, 218. 
 
 ' Johns V. Erb, 5 Barr, 23T. See Bank v. Donaldson, 6 Barr, 186. 
 
 ^ Baker v. Williamson, 4 Barr, 469. * Baker v. Williamson, 2 Barr, 121. 
 
 ^ Commomi'ealth v. The Judges, 4 Barr, 303. 
 
FEIGNED ISSUES. 541 
 
 reasons to the contrary, the legislature have, by act of 
 assembly, granted a writ of error in a feigned issue 
 directed by the orphans' court.^ This act has not taken 
 away the right to examine the whole proceedings, on ap- 
 peal from the final decree; and is viewed with little fa- 
 vour by the judges.^ It has answered no purpose, said 
 Chief Justice Black, but to make our practice anomar 
 lous ; ' those who desire to vex, harass, and delay their 
 opponents, will probably take both writ of error and ap- 
 peal; whilst those who wish for justice only, will be con- 
 tent to have the whole subject investigated at once on an 
 appeal.* Where both are taken, and the decree is re- 
 versed on the appeal, the only order that can he made 
 on the writ of error is, to set aside the whole proceed- 
 ings in the common pleas.^ 
 
 § 759. After the issue has been tried, and the verdict 
 certified to the court of equity, unless a new trial be 
 granted, the cause must be set down for hearing on fur- 
 ther directions. And if on examining the evidence, 
 which ought regularly to be certified along with the 
 verdict, the court should be dissatisfied with the result, 
 it may, as we have already seen, decree according to its 
 own convictions, without regarding the opinion of the 
 jury.^ Where a feigned issue is directed by a court of 
 law, the costs always abide the event of the verdict, 
 though not mentioned in the rule for the feigned issue ; 
 but it is otherwise, where such an issue is sent by a 
 court of equity to be tried in a court of law; for in the 
 latter case no costs are given on the verdict, but the 
 finding is returned to the court of equity, where the 
 costs are in the discretion of the court.^ 
 
 1 Purd. Dig. 311-12. ^ Hallowell's Appeal, 8 Harris, 218. 
 
 ' Wills V. Haunen, 10 Harris, 334. * Hallowell's Appeal, ut supra. 
 
 ' Wills V. Hannen, ut supra. * Hallowell's Appeal, ut supra. 
 ' Brightly on Costs, 240. 
 
542 
 
 MASTERS. 
 
 CHAPTEE XV. 
 
 master's office. 
 
 § 760. We now proceed to consider the proceedings 
 on a reference to the master. The courts may appoint 
 standing masters in chancery, in their respective juris- 
 dictions, and they may also appoint a master pro liac vice, 
 in any particular case/ to inquire and report as to the 
 matters in the cause which are properly the subject of 
 such a reference. 
 
 § 761. Whenever a reference of any matter is made to 
 a master to examine and report thereon, the party, at 
 whose instance and for whose benefit the reference is 
 made, must cause the same to be presented to the master 
 for a hearing on or before the next rule day succeeding 
 the time when the reference was made; and if he shall 
 omit to do so, the adverse party may forthwith cause 
 proceedings to be had before the master, at the costs of 
 the party procuring the reference.^ 
 
 § 762. Upon every such reference, it is the duty of the 
 master, as soon as he reasonably can, after the same is 
 brought before him, to assign a time and place for pro- 
 ceedings in the same, and to give notice thereof to each 
 of the parties or their solicitors. If either party fail to 
 appear at the time and place appointed, the master may 
 proceed ex parte, or, in his discretion, adjourn the ex- 
 
 ' Equity Rules, Ixxv. p. 141. ^ j)ji^_ ij^;^_ ^ i39_ 
 
MASTERS. 543 
 
 amination and proceedings to a future day, giving notice 
 to the absent party or his solicitor, of such adjournment. 
 It is the duty of the master to proceed with all reason- 
 able diligence in every such reference; and either party 
 may apply to the court, or a judge thereof, for an order 
 to the master to speed the proceedings, and to make his 
 report; and to certify to the court or judge the reasons 
 for any delay .^ 
 
 § 763. The master may regulate all the proceedings 
 in every hearing before him, and has full authority to 
 examine the parties in the cause, upon oath, touching 
 all matters contained in the reference;^ where, however, 
 a party calls and examines his adversary, on oath, the 
 oath must be taken for true, unless it be clearly dis- 
 proved.® The master may also require the production 
 of all books, papers, writings, vouchers, and other do- 
 cuments applicable to the matter referred to him, where, 
 by the principles of courts of chancery, the production 
 of them may be compelled. He may examine, on oath, 
 viva voce, all witnesses produced by the parties before 
 him ; and order the examination of other witnesses to be 
 taken, under a commission to be issued, upon his certi- 
 ficate, by the prothonotary. He may also direct the 
 mode in which the matters requiring evidence shall be 
 proved before him; and, generally, do all other acts and 
 direct all other inquiries and proceedings in the matters 
 before him, which he may deem necessary and proper 
 to the justice and merits thereof, and the rights of the 
 parties.* ,» 
 
 § 764. All parties accounting before a master must 
 
 1 Equity Rules, Ixx. p. 139. ^ Ibid. Ixxi. p. 140. 
 
 ' Light's Appeal, Supreme Court, 18 December 1854. MS. 
 * Equity Rules, Ixxi. p. 140. 
 
544 MASTERS. 
 
 bring in their respective accounts, in the form of debtor 
 and creditor ; and any of the other parties who shall not 
 be satisfied with the account so brought in, may examine 
 the accounting party, viva voce, or upon interrogatories, 
 before the master, or by deposition, as the master shall 
 direct.^ The account is generally annexed by way of 
 schedule to an affidavit verifying its contents, and if the 
 accounting party do not bring it in within a time to be 
 fixed by the master, a certificate of such default must be 
 obtained, and an application made to the court for an 
 order that the party may bring in his account within four 
 days, or in default, that an attachment may issue against 
 him to answer for the contempt.^ 
 
 § 765. On the account being left with the master, 
 the party calling for it, if not satisfied, may examine 
 the accounting party on oath, under the direction of the 
 master. The account having been thus taken, and the 
 party, if necessary, examined, a charge must then be car- 
 ried in by the party conducting the inquiry. This charge 
 is usually a transcript of so much of the debtor and cre- 
 ditor account as sets forth the receipts, to which may be 
 added any additional items with which it is intended to 
 charge the accounting party. If the charge include 
 sums not admitted in the account to have been received, 
 they must be substantiated, either by evidence, or by ad- 
 missions, in the examination of the party charged, or in 
 his answer, or the schedules thereto. The charge being 
 established, is allowed by the master. The party con- 
 ducting an account before the master is not limited to 
 one charge. If, after his charge is allowed, he discover 
 other items, with which the accounting party is charge- 
 able, he may either amend his charge, or carry in a fur- 
 
 1 Equity Rules, Ixxii. p. 141. ^ 2 Dan. Ch. Pr. 1363, 1372, 1419. 
 
MASTERS. 
 
 545 
 
 ther charge, and this he may do as often as may be ne- 
 cessary.-^ 
 
 § 766. When the charge has been allowed, the ac- 
 counting party must carry in his discharge. This dis- 
 charge is usually a transcript from the payments he has 
 made, as stated either in his debtor and creditor account, 
 or in his answer or examination, or the schedules attached 
 to them. And if a plaintiff carry in a further charge; 
 or an amended charge, the defendant must have an op- 
 portunity of carrying a further discharge, and of ex- 
 plaining his case by evidence. The account is vouched, 
 by the production of the proper vouchers, such as re- 
 ceipts, &c.;^ but the accounting party may discharge 
 himself, by his own oath, of small sums under forty 
 shillings, provided they do not in the aggregate exceed 
 a hundred pounds.^ 
 
 § 767. All affidavits, depositions, and documents, 
 which have been previoTisly made, read, or used in the 
 court, upon any proceeding in any cause or matter, may 
 be used before the master.* He is also at liberty to exa- 
 mine any creditor or other person coming in to claim be- 
 fore him, either upon written interrogatories, or viva voce, 
 or in both modes, as the nature of the case may appear 
 to him to require. The evidence upon such examination 
 must be taken down by the master, or by some other 
 person by his order, and in his presence, if either party 
 require it, in order that the same may be used by the 
 court, if necessary.^ Parties having charges on an estate 
 or fund, are, if the estate or fund be sufficient, entitled 
 only to attend on the proceedings brought in by them- 
 
 1 2 Dan. Ch. Pr. 1420-1. ^ Ibid. 1422-3. 
 
 ^ Baker v. Williamson, 4 Barr, 469; Sclienck's Account, 5 Watts, 86. 
 
 * Equity Rules, Ixxiii. p. 141. ^ Ibid. Ixxiv. p. 141. 
 
546 MASTERS. 
 
 selves ; but if there be a deficient fund, each incumbrancer 
 is entitled to attend on the charges of those incumbran- 
 cers who claim a priority over him. The same rule ap- 
 plies to creditors coming in to prove their debts under a 
 decree : ^ each may interpose the bar of the statute of 
 limitation against the claim of another.^ 
 
 § 768. The compensation to be allowed to a master in 
 chancery, for his services in any particular cause, will be 
 fixed by the court in its discretion, having regard to all 
 the circumstances of the case ; and such compensation 
 must be charged upon and borne by the respective par- 
 ties in the cause, as the court shall direct. A master 
 will not be allowed to retain his report as secuiity for 
 his compensation; but on its allowance by the court, he 
 will be entitled to an attachment for the amount against 
 the party who is ordered to pay the same, if, upon no- 
 tice thereof, he do not pay it within the time pre- 
 scribed by the court.^ 
 
 § 769. The master, having concluded his labour, is to 
 make a report thereon to the court; which may be ex- 
 cepted to by any party in interest. But no exception 
 will be received to the report of a master, unless the party 
 excepting have filed the same with the master by whom 
 the report has been made, whose duty it is, on such ex- 
 ception being filed, to re-examine the subject and amend 
 his report, if, in his opinion, such exceptions be, in 
 whole or in part, well founded. In order to give all 
 parties in interest an opportunity of entering such ex- 
 ceptions, no master is allowed to file his report until ten 
 days after he has notified to the parties his intention so 
 
 2 Dan. Ch. Pr. 1356-7. 
 
 Hoch's Appeal, 9 Harris, 282; Drysdale's Appeal, 2 Harris, 531. 
 
 Equity Rules, Ixv. p. 142. 
 
MASTERS. 547 
 
 to do, on a day designated, and given them an oppor- 
 tunity of having access to his report. On the hearing 
 of the question of confirming or setting aside the mas- 
 ter's report, the party excepting thereto will be confined 
 to the exception made by him before the master ; reserv- 
 ing to the court, however, the power of committing the 
 report again, should justice require it. On the return 
 of the master's final report, on the next succeeding rule 
 day, either party may set down the cause for hearing on 
 the next equity argument list.^ 
 
 § 770. In the court of common pleas of Philadelphia 
 county, it is provided by rule of court, that all reports 
 of masters shall be confirmed on the third Saturday 
 next succeeding the day on which they shall have been 
 respectively filed, unless exceptions be duly taken as 
 above provided.^ 
 
 ' Equity Rules, Ixxvi. p. 142. See Mengas's Appeal, 7 Harris, 223. 
 ■' Ibid. 
 
548 
 
 COSTS. 
 
 CHAPTER XVI. 
 
 COSTS. 
 
 § 771. As it is the usual practice of the court, where 
 upon the hearing it directs either an issue or a reference 
 to a master, not to give any directions upon the subject 
 of costs till after the issue has been determined, or till 
 the master has made his report, it generally happens that 
 the costs of the suit are taken into consideration at the 
 time when the cau'se comes on for hearing on further 
 directions, and that on such occasions, as soon as the 
 further directions are disposed of, the court makes such 
 order with regard to the costs as it thinks the justice of 
 the case requires. The giving of costs in equity is, how- 
 ever, entirely discretionary, as well with respect to the 
 period at which the court decides upon them, as with re- 
 spect to the parties to whom they are given.^ 
 
 § 772. When it is said, that the giving of costs in 
 courts of equity is entirely discretionary, it must not be 
 supposed that these courts are not governed by definite 
 principles in their decisions relative to the costs of pro- 
 ceedings before them: all that is meant by the dictum is, 
 that these courts are not, like the ordinary courts, held 
 inflexibly to the rule of giving the costs of the suit to the 
 successful party; but that they will, in awarding costs, 
 take into their consideration the circumstances of the 
 
 1 3 Dan. Ch. Pr. 1515. 
 
COSTS. 549 
 
 particular case before them, or the situation or conduct 
 of the parties, and exercise their discretion with reference 
 to those points. In exercising this discretion, however, 
 courts of equity are generally governed by certain fixed 
 principles which they have adopted upon the subject of 
 costs, and do not, as is frequently supposed, act upon the 
 mere caprice of the judge before whom the cause happens 
 to be tried.'- 
 
 § 773. The authority to tax costs, according to the 
 exigency of each case, or to a general rule, has always 
 been an element of chancery jurisdiction, and it is not 
 withheld from our courts, in chancery cases. Until the 
 establishment of a fee-bill, costs are necessarily a matter 
 of discretion, and to be taxed with the aid of the analogies 
 of our costs at common law.^ The acts of assembly au- 
 thorizing the use of chancery forms of remedy, pive to 
 our courts all the power and jurisdiction of courts of 
 chancery in the appropriate cases : part of that power is 
 to fix the costs which shall be paid by the parties at any 
 stage of the proceeding. Originally, all costs were fixed 
 for each case as it arose ; but in the course of time, it was 
 found more just and convenient to have them regulated 
 as far as possible by fixed standards; and hence arose 
 fee-bills, established by the courts; and with us, more 
 properly by the legislature. But no fee-bill ever at- 
 tempted to fix every item of costs to which one party 
 should be entitled, as against another: their principal 
 object is to fix the amount of fees which officers of the 
 court may demand of the parties.^ 
 
 § 774. That it was not intended that the costs in chan- 
 cery proceedings should be restricted by the common law 
 
 ' Ibid. 1516. ' Neel v. Neel, Sup. Court, 12 December 1854. MS. 
 
 = Porter v. English, 7 Leg. Int. 150. 
 
550 COSTS. 
 
 fee-bill, is apparent from three different acts of assembly ; 
 one relating to a bill of discovery in aid of an execution, 
 wherein the costs are declared to be in the discretion of 
 the court; ^ and the others requiring the court of nisi 
 prius and the district court of Allegheny county, to fix a 
 standard of fees for chancery cases.^ These last acts are 
 evidently not acts conferring a power as to costs; but re- 
 quiring that power to be exercised according to a fixed 
 rule to be adopted by the courts: an antecedent power 
 is recognised, and the duty of exercising it in a particular 
 mode enjoined. It is therefore beyond doubt, that in 
 awarding costs as between party and party, in chancery 
 proceedings, the courts are not restricted by the items 
 specified in the common law fee-bill.^ 
 
 § 775. We here purpose to consider only such costs as 
 are technically termed "costs in the cause," and not those 
 which merely regard interlocutory proceedings. It may 
 be observed, however, that with respect to the costs of 
 interlocutory proceedings, certain rules exist with regard 
 to their being or not being costs in the cause, and that 
 those costs which do not come within the definition of 
 "costs in the cause," under these rules, cannot be ob- 
 tained as such without the special direction of the court. 
 These rules are as follows: 1. That the party making 
 a successful motion is entitled to his costs as "costs in the 
 cause ; " but the party opposing it is not entitled to his 
 costs as "costs in the cause:" 2. That the party making 
 a motion which fails, is not entitled to his costs as " costs 
 in the cause;" but the party opposing it is entitled to his 
 costs as "costs in the cause:" 3. That where a motion 
 is made by one party and not opposed by the other, the 
 costs of both parties are "costs in the cause."* 
 
 1 Purd. Dig. 310. 2 iijy, 308_ loYO. 
 
 " Porter v. English, 1 Leg. Int. 150. * 3 Dan. Ch. Pr. 1517-18. 
 
COSTS. 551 
 
 § 776. It was the rule of the civil law, that victus vic- 
 iori in expensis condemnatus est, and this is the general 
 rule adopted in courts of equity, as well as in courts of 
 law, at least to the extent of throwing it upon the failing 
 party to show the existence of circumstances to displace 
 the prima facie claim to costs given by success to the 
 party who prevails. If, however, the failing party can 
 show to the court any circumstances which may satisfy 
 it, that it would be against the ordinary principles of jus- 
 tice that he should pay the costs of the proceeding, he 
 will be permitted to do so ; and the court will even, under 
 certain circumstances, not only excuse the unsuccessful 
 party from the payment of costs to his opponent, but 
 will actually thi'ow his costs upon the party succeeding : 
 cases of the latter kind, however, are very limited.^ 
 
 § 777. The general rule, which gives the costs of the 
 suit to the victorious party, and throws them upon the 
 unsuccessful party, applies equally to cases in which the 
 parties are suing or defending in auU'e droit, and to those 
 in which they are sui juris. Therefore executors, ad- 
 ministrators, or trustees, instituting or defending suits 
 against strangers to their trusts in those capacities, are 
 subject to the same rules, as to costs, as they would be if 
 they were suing or defending in their own rights. The 
 question, whether a party who sues or defends in autre 
 droit and is unsuccessful, shall be reimbursed his costs 
 out of the estate which he represents, or in respect of 
 which he is a trustee, is a totally distinct one, and will 
 be hereafter considered.^ 
 
 § 778. In coming to a decision upon the subject of 
 costs, the court is frequently governed by its wish to dis- 
 courage unnecessary litigation. Thus, where it appeared 
 
 1 Ibid. 1520-1 ; Snyder v. Wolfley, 8 S. & R. 332. ^ 3 Dan. Ch. Pr. 1521. 
 
552 COSTS. 
 
 that the defendants had written to the plaintiffs a letter, 
 offering terms which would have rendered the suit un- 
 necessary, the court, although the plaintiffs were entitled 
 to part at least of the relief prayed, refused to give them 
 the costs of the cause; holding, that it was incumbent on 
 them, before going on with their suit, to put it to the 
 test whether the defendants were sincere in their offer.^ 
 But unless the offer of the defendants extend to every 
 thing which the plaintifi' has a right to demand, whether 
 in the nature of relief or of costs, the court will not punish 
 the plaintiff for declining the offer, by refusing him his 
 costs.^ 
 
 § 779. A tender to be effective must be of the whole 
 sum due, and of the costs, if any have been incurred; 
 and if a tender be refused, and it afterwards appear that 
 the sum actually due exceeds the amount tendered, the 
 defendant will not be exempted from costs. A tender 
 must also be specific, and although it may be of a larger 
 sum than is actually due, yet if such tender be coupled 
 with a direction to the plaintiff to take out of it such a 
 sum as is actually due to him, it will not be good. So 
 also, if the tender be clogged with conditions, which the 
 party has no right to impose, it will not be effective to 
 excuse the party making it from the costs.^ 
 
 § 780. The court regards, in some respects, the grant- 
 ing of costs to a party, somewhat in the light of a testi- 
 monial of good conduct; and will generally withhold 
 such testimonial from a party who has been guilty of any 
 misconduct with reference to the subject of the suit. So, 
 where a plaintiff has slept upon his rights for a great 
 number of years, and has allowed the defendant to sup- 
 
 1 Millington v. Fox, 3 M. & C. 352. " 3 Dan. Ch. Pr. 1534. 
 
 ' Ibid. 1535. 
 
COSTS. 553 
 
 pose that lie would not enforce them, he will frequently, 
 though successful, be deprived of his costs. In cases also 
 where one party, upon the construction of a doubtful 
 ■point of law, has obtained a great advantage over the 
 other, the court will not give him his costs. ^ So also 
 where the plaintiff ought to tender to the defendant an 
 indemnity before bringing suit, a court of equity, having 
 a discretionary power over the costs, even so far as to fix 
 them on the successful party, may dispense with a ten- 
 der before bill filed, because complete justice may be done 
 by prescribing it at any time, as the terms of relief.^ And 
 although a court of equity allows a bill to be filed by a 
 vendor before he is in a situation to convey, holding it 
 sufficient if he can make himself so by the time of the 
 decree ; yet, by its absolute control over the costs, and 
 by its power to impose terms and enforce orders adapted 
 to every variety of aspect the case may assume, it may 
 do complete justice between the parties.^ 
 
 § 781. We have seen, that where the unsuccessful 
 party has done all in his power to prevent litigation, 
 either by making a tender, or taking some other step of 
 that nature, the court will not compel him to pay the costs 
 of a suit which he has endeavoured to avoid; still the 
 court is not so unreasonable as to expect him, for the 
 purpose of avoiding litigation, to relinquish any right he 
 may fairly be supposed to have; and it will, therefore, if 
 it appear that a party, in resisting or asserting a claim, 
 had prohabilem causam litigandi, excuse such party from 
 payment of costs, although the ultimate decision of the 
 court may be against him.* It is upon this principle, that 
 where an executor or administrator commences a suit in 
 
 1 Ibid. 1537, 1539, 1540. ^ Snyder v. Wolfley, 8 S. & R. 332. 
 
 8 Magaw V. Lothrop, 4 W. & S. 321. * 3 Dan. Ch. Pr. 1541. 
 
 36 
 
554 COSTS. 
 
 chancery, in good faith, upon probable grounds of right, 
 and to enforce a supposed claim of the testator or intes- 
 tate, he will not be charged with costs.^ 
 
 § 782. In deciding the question of costs, the court 
 will frequently apportion them, so as to cause the costs 
 of one part of the suit to fall upon one party, and those 
 relating to another part upon the other party; thus, 
 where a plaintiff claims several matters by his bill, and 
 succeeds in establishing his right to a portion only of 
 what he so claims, the court will sometimes grant him a 
 decree for that part of his case in which he is successful, 
 with costs to be paid by the defendant, and dismiss the 
 remainder of his bill, with costs to be paid by himself. 
 So also, where there are several issues, and some are 
 found for the plaintiff and others for the defendant, the 
 parties will be allowed costs on issues found in their fa- 
 vour, and must pay on those against them. Sometimes, 
 where no part of the bill is dismissed, but a decree is 
 made upon the whole of it, the court will order the costs 
 of the suit, up to a certain period, to be borne by one 
 party, and the remainder by another; thus, in suits for 
 a specific performance, where a vendor does not make 
 out his title until after the bUl is filed, he will be liable 
 to pay the costs of the suit, up to the time when he 
 showed a good title.^ 
 
 § 783. Where the costs are apportioned between the 
 plaintiffs and the defendants, the court will generally so 
 arrange them, that they may be set off one against the 
 other, and that the balance only shall be paid by the 
 party from whom, upon setting off such costs, it shall 
 appear to be due. The court will also, where there are 
 
 ' Murray v. Philips, 1 Paige, 472; Furnis i\ Ewing, 5 Penn. L. J. 507. 
 2 3 Dan. Ch. Pr. 1549-50. 
 
COSTS. 555 
 
 sums of money to be paid as well as costs, arrange the 
 demands of eacli so as to do justice to all/ An appli- 
 cation for a set-ojff under such circumstances, does not 
 come within the provisions of the defalcation act, but 
 depends on the general jurisdiction of the court over its 
 suitors; and courts of equity, accordingly, exercised ju- 
 risdiction for the purpose of effecting this end in cases 
 of cross-demands, before any statutory provision was 
 made authorizing the courts of common law to interpose 
 their authority for a like purpose.^ Such right, how- 
 ever, is only permitted where it will infringe on no other 
 right of equal grade.^ 
 
 § 784. "We will now proceed to the consideration of 
 those cases, in which an estate, whether real or personal, 
 being the subject of litigation, the court will order the 
 costs of the suit, or those of some of the parties to it, 
 to be defrayed out of the fund or estate. It is a rule, 
 that trustees, agents, and receivers, accounting fairly, 
 and paying their money into court, are entitled to their 
 costs out of the estate, as a matter of course; and the 
 same rule extends to personal representatives,* who ai'e 
 not chargeable with the expenses of legal proceedings, 
 if they have been carried on hond fide, in the perform- 
 ance of their duties.^ Their right to costs out of the 
 fund depends, however, altogether upon whether the li- 
 tigation be for the benefit of the estate, or in the promo- 
 tion of the interests of those eventually found entitled 
 to the fund.'' 
 
 § 785. Where an executor or administrator carries on 
 a vexatious litigation for his own exclusive benefit, he is 
 
 1 Ibid. 1550-1. '' Coates's Appeal, 7 W. & S. 102. 
 
 ^ Ramsey's Appeal, 2 Watts, 230. * 3 Dan. Ch. Pr. 1554. 
 
 5 Oakford's Estate, 1 Wh. Dig. 1092, pi. 418. 
 
 « Royer's Appeal, 1 Harris, 572; Scott's Estate, 9 W. & S. 98. 
 
556 
 
 COSTS. 
 
 not entitled to charge the estate with the costs of it;'^ 
 nor where he has made an unjust and vexatious defence 
 to the claim of the next of kin ; ^ nor where, with assets 
 in his hands, he has, without reason, resisted the pay- 
 ment of a just debt.^ In all cases in which executors 
 and others acting in a representative capacity, have 
 been guilty of fraud or misconduct, the costs will be put 
 upon them, and not upon the trust fund.* 
 
 § 786. The defendant in a bill for discovery merely is 
 entitled to his costs, as soon as he answers, and the time 
 for excepting has expired.* It is the general practice, 
 that a plaintiff who comes into equity for discovery and 
 obtains it, shall pay the costs. But a defendant who has 
 been previously applied to for the information sought by 
 the bill, and has improperly refused to give it, is not en- 
 titled to costs, though he make the discovery when 
 sought by the bill." Where the defendant in a bill of 
 discovery is entitled to costs, he may move for them as 
 soon as the answer is perfected.'^ And in the case of a 
 bill to perpetuate testimony, the defendant may move, 
 as of course, for his costs, as soon as the witnesses have 
 been examined, or the commission executed, upon the 
 allegation that he did not examine any witnesses.* 
 
 ' Witlier's Appeal, 1 Harris, 582; Hartzell v. Brown's Heirs, 5 Binn. 138. 
 
 ^ Gossner's Estate, 6 Wli. 401. 
 
 " Armstrong's Estate, 6 Watts, 236. 
 
 ^ Harlan's Estate, 3 Peun. L. J. 116; Show v. Conway, 7 Barr, 136-7. 
 
 5 3 Dan. Ch. Pr. 1600; Peebles v. Baggs, 1 T. & H. Pr. 81. 
 
 « King V. Clark, 3 Paige, 76. ' Ibid. 
 
 »3 Dan. Ch. Pr. 1601. 
 
REHEARINGS. 557 
 
 / 
 
 CHAPTER XVII. 
 
 EEHEAEINGS. 
 
 § 787. "Where a party feels himself aggrieved by a de- 
 cree of the court, there are three modes by which he may 
 have it either reversed or altered: 1. By a rehearing 
 before the same court: 2. By an appeal to a superior 
 tribunal: 3. By a bill of review. In the present chap- 
 ter the subject of rehearings will be briefly considered. 
 And here it may be observed, that there is no branch of 
 equity practice in which our courts have more widely 
 departed from the rules adopted by the English court of 
 chancery, than that involving questions of rehearing 
 and appeal; partly in consequence of our statutory re- 
 gulations, and partly from the almost infinite delays and 
 inconveniences which are the acknowledged results of the 
 English practice. Their decisions, therefore, on these 
 subjects, can be of but little weight in determining an 
 analogous case arising in our own jurisdiction. 
 
 § 788. In England, a rehearing by the Lord Chancel- 
 lor of a decree made by the master of the rolls, or by 
 a vice-chancellor, is in fact an appeal ; and yet, being in 
 point of form but a new hearing before another judge of 
 the same court, it is considered as a rehearing; and in 
 consequence, certain rules have been there adopted on 
 the subject of rehearings, which can have no place 
 where, as with us, a rehearing is strictly speaking, a 
 new hearing of the case before the same court. Thus, 
 
558 REHEAKJNGS. 
 
 according to their practice, a rehearing, where the appli- 
 cation is sanctioned by the a-pphcation of two counsel, is 
 a matter of course, although a second rehearing will not 
 be permitted unless specially allowed.'^ 
 
 § 789. The doctrine of the American courts on this 
 subject is very different; it was fully and ably consi- 
 dered by Mr. Justice Story in Jenkins v. Eldridge,^ in 
 which he made the following observations : — " But I de- 
 sire to say a few words on this occasion, as to rehearings 
 of equity causes in this court, upon the original evi- 
 dence. They have been exceedingly rare in this court, 
 I admit; as, in my judgment, they ought to be, unless 
 some plain and obvious, and palpable error, or omission, 
 or mistake, in something material to the decree, is 
 brought to the notice of the court, which had before 
 escaped its attention. But if a rehearing were to be 
 granted upon the mere certificate of counsel, who had 
 argued the cause, that, in their judgment, the decree 
 was erroneous, (a certificate which, with great sincerity 
 and readiness, would almost always be given by the 
 counsel,) it is obvious, that in the great mass of equity 
 causes of a difficult and important nature, in this court, 
 depending upon conflicting views of law, and also upon 
 conflicting, and often irreconcilable evidence, a rehear- 
 ing would be almost a matter of course ; and considering 
 the vast time occupied in hearing such causes, there 
 would be little time left for the court to devote itself to 
 any other business, and the other suitors in the court 
 would suffer the most oppressive delays, and often the 
 most irremediable injustice. 
 
 § 790. "Besides, it is no small recommendation of our 
 practice, that it thereby requires, in the first instance, 
 
 1 3 Dan. Ch. Pr. 1919. ^ 3 Stovj, C. C. 299. 
 
EEHEARINGS. 559 
 
 on the part of counsel, a thorough examination and pre- 
 paration for the hearing; and on the part of the court, 
 a most solicitous and exact study of the whole cause, 
 before the judgment is pronounced. The other course 
 would encourage inattention or indifference, and induce 
 counsel, as well as the parties, to speculate upon contin- 
 gencies, and to argue the cause at large, only when the 
 court had delivered the result of its opinion. On all 
 these accounts, it has been the constant habit of the su- 
 preme court of the United States to refuse rehearings of 
 any cause, after it has once pronounced its own judg- 
 ment, whatever might be the conflicts in the evidence, 
 or the differences among the judges themselves, as to the 
 merits of the controversy. 
 
 § 791. "I am aware of the English practice on this 
 subject. It has guards, which do not, and cannot exist 
 here, where the counsel and the client are brought into 
 immediate and constant contact with each other. But 
 such as is the practice in England, it is a source of al- 
 most infinite delays and inconveniences; and under a 
 chancellor like Lord Eldon, whose mental constitution 
 led him to cherish interminable doubts, and to court re- 
 hearings, it must be a source of irreparable mischief, 
 and sometimes of unmitigated ruin. I have no desire to 
 introduce such a practice into this court. When a cause 
 has been once fully argued in this court, and an appeal 
 lies from its decree, there is, ordinarily, no reason for a 
 rehearing here upon the original evidence ; and if such a 
 practice is to be introduced, it must be by the will and 
 judgment of some one who shall succeed me. If re- 
 hearings are to be had, until the counsel on both sides 
 are entirely satisfied, I fear that suits would become im- 
 mortal, and the decision be postponed indefinitely."^ 
 
 ^ See also, Emerson v. Davies, 1 Wodd. & Min. 21. 
 
560 REHEARINGS. 
 
 § 792. The grounds upon which a party may apply 
 for a rehearing are as numerous and various as the cases 
 themselves, and any attempt at pointing them out would 
 be hopeless. An application for a rehearing must usually 
 state some reason which would constitute a good ground 
 for a new trial at common law.^ It is not sufficient to 
 show that injustice has been done; but it must appear 
 that it occurred under circumstances authorizing the 
 court to interfere; it must appear that the petitioner has 
 not been guilty of laches, and that the matter on which 
 he relies could not have been obtained by reasonable 
 diligence at the former hearing.^ A petition for a re- 
 hearing may be granted at any time, within the discre- 
 tion of the court; but where the decree has been exe- 
 cuted, parties who have acted on the faith of it will not 
 be permitted to be injured by such decree being reversed 
 or varied.^ 
 
 § 793. A petition for a rehearing need not state the 
 proceedings in the cause anterior to the decree sought 
 to be reheard ; * but it must contain the special matter or 
 cause upon which such rehearing is applied for : ^ it con- 
 cludes with a prayer that the cause may be reheard, and 
 either that the decree may be reversed, or that it may 
 be altered in such points as are objected to.^ It must 
 be signed by counsel ; and the facts therein stated, if not 
 apparent on the record, must be verified by the oath of 
 the party, or of some other person.^ 
 f § 794. Upon a rehearing, no evidence can be gone into 
 
 1 Hunter v. Marlboro, 2 Wood. & Min. 168. 
 
 2 Walah V. Smith, 3 Bland, 9; Prevost v. Gratz, 1 P. C. C. 379. 
 
 » Equity Rules, Ixxxii. p. 145. * 3 Dan. Cli. Pr. 1622. 
 
 5 Equity Rules, Ixxxii. p. 145. « 3 Dan. Ch. Pr. 1623. 
 
 ' Equity Rules, Ixxxii. p. 145. 
 
EEHEAEINGS. 561 
 
 but what was heard, or ought to have been heard, upon 
 the original hearing.'^ But where evidence in the case 
 was omitted to be read at the original hearing, such, for 
 example, as a document, or where the proof of an exhibit 
 in the original cause was omitted, the court will make 
 an order allowing them to be read or proved, saving just 
 exceptions.^ 
 
 1 Jenkins v. Eldredge, 3 Story, C. C. 299. 
 ^ Scales v. Nichols, 2 Yerger, 140. 
 
562 
 
 APPEALS. 
 
 CHAPTER XVIII. 
 
 APPEALS. 
 
 § 795. In treating upon the subject of appeals, it must 
 constantly be borne in mind, that no appeal lies from an 
 interlocutory order or decree, (as it does in England to 
 the House of Lords) but only from the final decree ; ^ 
 and that our courts are directed by statute to exercise 
 their equity powers, according to the practice in equity, 
 prescribed or adopted by the supreme court of the United 
 States, unless it be otherwise provided by act of assembly, 
 or the same be altered by the supreme court of this com- 
 monwealth by general rules and regulations.^ It is to 
 the practice in that high court that we must, therefore, 
 look for a guide, in reference to our own appellant juris- 
 diction, in cases not provided for by our own rules in 
 equity. And where that is silent, then we may have 
 recourse to the practice of the English court of chancery, 
 not as a positive rule, but as furnishing just analogies to 
 regulate the practice.^ 
 
 § 796. Let us in the first place consider, what is a final 
 decree from which an appeal lies to the supreme court. 
 A decree which finally decides and disposes of the whole 
 merits of the cause, and reserves no questions or directions 
 for the future judgment of the court, so that it will not 
 be necessary to bring the cause again before the court for 
 
 1 Purd. Dig. 308-9. ' Jbii. 307. 
 
 ' Equity Rules, Ixxxiv. p. 145. 
 
APPEALS. 563 
 
 its further decision, is a final decree.^ Therefore, no ap- 
 peal lies from a decree for an account ; ^ or for the ap- 
 pointment of a receiver and the issuing of an injunction;* 
 or from a decree dissolving an injunction;* or from one 
 making an injunction perpetual, and leaving some mat- 
 ters of account open for further consideration, upon which 
 the parties are to take further proof;* or an order dis- 
 missing the committee of a lunatic and appointing another 
 in his place.^ 
 
 § 797. A decree awarding a ne\% trial at law, in an 
 action which the suit in equity is brought to restrain, is 
 an interlocutory decree ; ^ and so is a decree that money 
 shall be paid into court, or that property shall be deli- 
 vered to a receiver, or be held in trust to be delivered to 
 a new trustee.^ And where the court below decreed, that 
 the complainants were entitled to two-sevenths of cer- 
 tain property, and referred it to a master to take and re- 
 port an account of the property, and reserved all other 
 matters in controversy until the coming in of the report, 
 it Avas held to be an interlocutory decree.** So, no appeal 
 lies from a decision upon a question of practice addressed 
 to the discretion of the court; as upon a refusal to open 
 a decree pro confesso, and permit the defendant to file an 
 answer ; ^° or to grant a rehearing." 
 
 ^ Holden's Administrators v. M'Makin, 1 Pars. 289; Wills v. Hoag, Y Paige, 
 18. See Senseman's Appeal, 9 Harris, 334; Hess's Appeal, 1 Watts, 255. 
 
 ^ Eckfeldt's Appeal, 1 Harris, 171. 
 
 ■' Holden's Administrators v. M'Makin, 1 Pars. 289. 
 
 * Young V. Grundy, 6 Crancli, 51; Hiriart v. Ballon, 9 Pet. 156; Selden v. 
 Vermilya, 1 Comst. 534. 
 
 ^ Brown v. Swann, 9 Pet. 1. " Black's Case, 6 Harris, 434-9. 
 
 ' Lea V. Kelly, 15 Pet. 213. » Forgay v. Conrad, 6 How. U. S. 201. 
 
 ' Perkins v. Pourniquet, 6 How. U. S. 206. And see 1 Curtis's Com. ? 187-8. 
 '" Fort V. Bard, 1 Comst. 43; Schermerhorn v. Mohawk Bank, 1 Comst. 125. 
 " Mayor of New York v. Schermerhorn, 1 Comst. 423; Marvin v. Seymour, 
 1 Comst. 535. 
 
564 APPEALS. 
 
 § 798. It is provided by act of assembly, that any per- 
 son or body corporate aggrieved by any final order or 
 decree in equity, under the general or special equity 
 powers conferred upon the several district courts and 
 courts of common pleas of this commonwealth, other 
 than those of certain excepted counties, shall be entitled 
 to an appeal to the supreme court, in the same manner, 
 and upon the same terms, as appeals are allowed from the 
 orphans' courts.-' On an appeal from the orphans' court, 
 it is provided, that the party appealing] shall give se- 
 curity by recognisance, with sufficient surety, in the 
 court below, or before one of the judges thereof, condi- 
 tioned to prosecute such appeal with effect, and to pay 
 all costs that may be adjudged against him; and shall 
 make oath or affirmation that the appeal is not intended 
 for delay .^ 
 
 § 799. An appeal so entered will stay all proceedings 
 in the court below, until the same be determined in the 
 supreme court, and the record remitted to the court be- 
 low. No appeal, however, will be allowed, unless the 
 same be entered and security given, within three years 
 after the final decree, and no reversal or modification of 
 any decree, or proceedings for the sale of real estate, will 
 have the effect of divesting any estate or interest ac- 
 quired under such decree or proceedings, by any persons 
 not party thereto, where the court below had jurisdiction 
 of the case. The supreme court is required to hear, 
 try, and determine the merits of such cases, and to de- 
 cree according to the justice and equity thereof.^ 
 
 § 800. On appeals from the decrees of the courts of 
 common pleas of Beaver, Berks, Centre, Clarion, Clin- 
 
 I Act 21 April 1846, ? 3, Purd. Dig. 309. ^ Purd. Dig. 623. 
 
 ' Ibid. 625. 
 
APPEALS. 565 
 
 ton, Crawford, Erie, Forest, Jefferson, Lancaster, Law- 
 rence, Mercer, Philadelphia, Schuylkill, Venango, War- 
 ren, Wayne, and York counties, it is necessary for the 
 party appellant, in addition to the foregoing terms and 
 regulations, in order to secure to himself a stay or su- 
 persedeas of execution, to comply with the following fur- 
 ther terms and conditions, namely : ^ 
 
 § 801. I. If an appeal be made from any order or 
 decree of the said courts of common pleas in equity, di- 
 recting the payment of money, such appeal shall not 
 stay the issuing of execution or other process to enforce 
 the decree, or any proceedings thereon, unless a bond be 
 given by or on behalf of the appellant to the adverse 
 party, in a penalty at least double the sum decreed to be 
 paid, with two sufficient sureties to be approved by the 
 said court of common pleas, or one of the judges thereof, 
 conditioned that if the appellant shall fail to prosecute 
 his appeal, or if the same be dismissed or discontinued, 
 or if the decree appealed from, or any part thereof, be 
 affirmed, then that such appellant will pay and satisfy 
 the amount directed to be paid by such decree, or the 
 part of such amount as to which such decree sha^l be af- 
 firmed, if it be afl&rmed only in part, and all damages 
 which shall be awarded against the appellant by the 
 said supreme court upon such appeal.^ 
 
 § 802. II. If the decree appealed from direct the as- 
 signment or dehvery of any securities, evidences of debt, 
 documents, chattels, or things in action, the issuing and 
 execution of process to enforce such decree shall not be 
 stayed by such appeal, unless the articles required to be 
 
 1 Purd. Dig. 309, 306-7, 1070-1, 1125. In Fayette county, an appeal may 
 be taken upon the same conditions and terms as a writ of error is allowed in 
 other cases. Ibid. 307. ^ Purd. Dig. 309. 
 
566 APPEALS. 
 
 assigned or delivered be brought into court, or placed in 
 the custody of such, officers or receivers as the said court 
 of common pleas shall appoint; or unless a bond in a 
 penalty, at least double the value of the articles so di- 
 rected to be delivered or assigned, be given to the ad- 
 verse party, with two sufficient sureties, to be approved 
 as aforesaid, conditioned that the appellant will abide 
 and obey the order of the said supreme court, made 
 upon the subject of such appeal.^ 
 
 § 803. III. If the decree appealed from direct the exe- 
 cution of any conveyance or other instrument by any 
 party, the issuing and execution of any process to enforce 
 such decree shall not be stayed by such appeal, until the 
 appellant shall have executed the conveyance or instru- 
 ment directed, and deposited the same with such officers 
 or receivers as shall be designated by the said court of 
 common pleas.^ 
 
 § 804. IV. Kthe decree or order appealed from direct 
 the sale or delivery of the possession of any real property, 
 the issuing and execution of process to enforce the same 
 shall not be stayed, until a bond be given with sureties as 
 aforesaid, in such penalty as the court of common pleas 
 shall deem sufficient, conditioned that during the posses- 
 sion of such real property by the appellant, he will not 
 commit or suffer any waste to be committed thereon, 
 and in case such appeal be dismissed or discontinued, or 
 such order or decree be affirmed, such appellant will pay 
 the value of the use and occupation of such property, 
 from the time of such appeal, until the delivery of the 
 possession thereof pursuant to such order or decree.^ 
 
 § 805. Whenever in the foregoing cases, an appeal is 
 perfected by bringing into court, or depositing, pursuant 
 
 1 Purd. Dig. 309. ' Ibid. » Ibid. 
 
APPEALS. 567 
 
 to its order, any articles required to be so deposited, or 
 any instruments required to be executed, or by giving a 
 bond as prescribed in the act of assembly, such appeal 
 stays all further proceedings in the court of common 
 pleas upon the order or decree appealed from, and upon 
 the subject matter embraced in such order or decree; but 
 does not prevent the court of common pleas from proceed- 
 ing upon any other matter included in the bill, and not 
 affected by such order or decree. And whenever the 
 order or decree appealed from, directs the sale of perish- 
 able property, notwithstanding any such appeal, and a 
 compliance with the foregoing directions, such property 
 may be sold by final order of the court of common pleas 
 after the taking of such appeal, and the proceeds of such 
 sale will be brought into court to abide the final order 
 and decree of the supreme court.^ 
 
 § 806. At common law, when a levy has been made on 
 a writ oi fieri facias, such an execution is considered exe- 
 cuted, and a writ of error is too late to arrest the sale of 
 the goods levied on ; but such a sale on a writ of fieri 
 facias, issued to enforce a decree in equity, would un- 
 doubtedly be a proceeding upon the decree appealed 
 from. The evident intention of the act is, that if such 
 appeal be perfected within the period allowed for the ap- 
 peal, and before the decree be performed, the decree or 
 order shall not be enforced. The process by which de- 
 crees are usually enforced in equity, whether attachment 
 or sequestration, cannot be proceeded with after the ap- 
 peal; the entire proceeding is arrested. The adoption 
 by the court of the writ of fieri facias as final process to 
 execute decrees for the payment of monej'^, cannot, of 
 course, alter the effect which the law designed to give the 
 
 ' Purd. Dig. 309. 
 
568 APPEALS. 
 
 perfected appeal, and where such writ has not been fully 
 executed, before the appeal is perfected, the court can 
 do no act by which the decree may be enforced. An ap- 
 peal perfected is a supersedeas of such execution.^ 
 
 § 807. The appeal is taken in the court below; the 
 oath and recognisance may be made and taken, either 
 before one of the judges of the court, or before the pro- 
 thonotary or clerk; the party, his agent, or attorney, may 
 enter into the required afiidavit and recognisance ; and 
 in case of an apjjeal by a corporation, the oath or affirma- 
 tion may be made by the president, or other chief officer, 
 or, in his absence, by the cashier, treasurer, or secretary.^ 
 The power of taking bail on the appeal and fixing the 
 amount of security to be given, is vested exclusively in 
 the court below, and is a matter entirely within its 
 judicial discretion.^ 
 
 § 808. The appeal having been duly entered in the 
 court below, the next step in the cause is to remove the 
 appeal to the supreme court to be there heard and de- 
 termined. In the supreme court of the United States, the 
 process for the removal of causes for its revision issues 
 out of the circuit court, and is returnable before the 
 supreme court; but that is not our practice. It would 
 seem, that the English practice would be the more regu- 
 lar, namely, to present in the supreme court a petition 
 of appeal, which is nearly the same in form, mutatis 
 mutandis, as a petition for a rehearing;* upon which a 
 writ of certiorari will issue to the court below to remove 
 the record. Such writ is generally issued upon a jorced-pe 
 signed by the solicitor of the appellant; but, as no original 
 
 ' Chillas V- Brett, 3 Am. L. R. 116-17. ^ Purd. Dig. 313. 
 
 ' Chew's Case, 8 W. & S. 375; Com. v. The Judges of the Orphans' Court, 
 10 Barr, 37. * 3 Dan. Ch. Pr. 1636. 
 
APPEALS. 569 
 
 process issues out of a court of equity without a bill or 
 petition asking for the relief to which the party considers 
 himself entitled, and as the appellant court can have no 
 judicial knowledge of the entry of the appeal in the court 
 below, until it be brought to its attention by a petition, 
 the latter mode of proceeding would seem to be the most 
 proper. The regular mode of bringing up the record is 
 by certiorari;^ and upon this the original record is to be 
 returned to the supreme court, and not a transcript 
 merely.^ 
 
 § 809. The prothonotary is required to endorse on the 
 certiorari, a rule to appear and plead at the return day of 
 the writ; and in default of appearance when the cause 
 is called for argument, and proof of ten days' service of 
 notice on the opposite party or his counsel below, the 
 court will proceed ex farte? An equity suit, where an 
 appeal has been taken to the supreme court but not pro- 
 secuted, will be dismissed upon producing a certificate 
 from the court below, that the appeal has been taken and 
 not prosecuted.* When the record has been returned, it 
 is the duty of the appellant's counsel, on or before the 
 third day of the term, to specify the particular errors 
 which he assigns, and to file them in the prothonotary 's 
 office ; and on failure to do so the court may non-pros the 
 writ.* 
 
 § 810. Before the argument of the appeal, it is the 
 duty of the respective counsel to prepare paper books for 
 the use of the judges. The appellant's paper book must 
 contain: 1. The names of the parties, and the nature 
 
 ' Walker's Appeal, 2 Ball. 190. ' Torr's Appeal, 1 Eawle, 70- 
 
 " Rules of Court, 94. 
 
 * Randolph v. Barbour, 6 Wheat. 128; 1 Curtis's Com. | 415. 
 
 ' Rules of Court, 93. 
 
 37 
 
570 APPEALS. 
 
 of the proceedings : 2. A short abstract of the bill or 
 petition and answer: 3. A history of the case: 4. The 
 report of the auditor or master, if there was one : 5. The 
 exceptions taken to the report in the court below : 6. The 
 opinion of the court on the exceptions, and the decree 
 made : 7. Assignments of error : 8. The argument on 
 the part of the appellant : 9. An appendix containing 
 such documentary or other evidence as may be necessary.^ 
 
 § 811. The history of the case must contain a closely 
 condensed statement of all the facts, of which a knowledge 
 may be necessary; and the want of such a statement can- 
 not be supplied by reference to another part of the paper 
 book. Each error relied on must be specified particularly, 
 and by itself; if any specification embrace more than 
 one point, or raise more than one distinct question, it 
 will be considered a waiver of the errors so alleged. The 
 brief of the argument must contain a clear statement of 
 the points on which the party relies, with such reasons 
 and arguments as he may see proper to add; together 
 with all the authorities which he thinks pertinent. Where 
 an authority is cited, the principle intended to be proved 
 by it must be stated ; a naked reference to the book will 
 not be sufiicient.^ 
 
 § 812. The paper book of the appellee may, if he 
 choose, contain no more than his argument. But he may 
 make it to embrace a counter statement, giving such ver- 
 sion of the facts as he asserts to be the true one. Where 
 the paper book of the appellee does not contain a counter 
 statement, he will be taken as consenting to and concur- 
 ring in the history of the case given by the other party.^ 
 
 § 813. The appellant must serve a copy of his paper 
 book on the opposite party, or his attorney, at least ten 
 
 ' Rules of Court, 104-5. ' Ibid. 105-6. = Ibid. 106-7. 
 
APPEALS. 571 
 
 days before the argument; and when the case is called 
 must furnish one copy to each of the judges, and file two 
 with the prothonotary for the reporter of the court. The 
 appellee must also serve a copy of his paper book on the 
 opposite party, or his attorney, at least three days before 
 the argument, furnish a copy to each judge, and file two 
 with the prothonotary.'- 
 
 § 814. When the appellant is in default according to 
 the foregoing rules, he may be non-suited on motion; 
 and when the appellee is in default, he will not be heai'd 
 by the court, except on the request of his adversary; and 
 not then, if his negligence have been gross. When paper 
 books are furnished which differ in any material respect 
 fi'om those prescribed, the parties furnishing them will be 
 considered in the same default as if none had been fur- 
 nished; and, on a proper occasion, the court will, of its 
 own motion, nonsuit or silence the defaulting party. All 
 paper books must be printed in the shape and size of a 
 common octavo pamphlet, on ordinary printing paper.^ 
 
 § 815. The court will call the cases for argument in 
 the order in which they stand on the printed argument 
 list. Twenty-five cases only will be considered as liable 
 to be called on each day during the term, including the 
 one under argument, if not concluded on the preceding 
 day : there will be no computations for the purpose of 
 having cases inserted with ink, and not numbered on the 
 regular printed series. If the parties, or either of them, 
 be ready when a case is called, it will be heard or finally 
 disposed of. But if neither party be present or ready to 
 proceed with the argument, the cause will be non-prossed, 
 unless reasons for the contrary be shown to the satisfac- 
 tion of the court.'' 
 
 ^ Eules of Court, 107. ' = Ibid. ^ Ibid. 80. 
 
572 APPEALS. 
 
 § 816. No counsel will be permitted to occupy more 
 than one Lour in the argument of any cause in the 
 supi'eme court, unless with the special permission of the 
 court, and in such cases only as may, in its judgment, 
 require a relaxation of the rule. The counsel, if they 
 think proper, may make such arrangement, as that one 
 counsel may occupy more than an hour of the allotted 
 time, it being understood, however, that his colleague, 
 if any he have, be restricted in his argument to the residue 
 of the time. Where there is but one counsel, he will be 
 permitted to occupy two hours in his argument. No 
 counsel is at liberty to read any part of a report, except 
 the syllabus of the case, unless desired by a member of 
 the court.^ 
 
 § 817. The prothonotary is required to keep a separate 
 list for short causes, to which all causes will be transferred, 
 in which the attorney of either party shall certify that it 
 is a short cause. The causes on this list have precedence 
 over all others, on the Wednesday of every week, in 
 which the same causes might be heard, if they had re- 
 mained on the general list and had been reached in their 
 order. Where a cause has been certified to be a short 
 cause by the attorney of one party, and the attorne}'' of 
 the other party will certify that it is not so, and that in- 
 justice may be done to his client by placing it on the list 
 of short causes, it will be put back again on the regular 
 list. On the hearing of short causes, the speeches of 
 counsel are limited to fifteen minutes on each side. It 
 is the duty of the prothonotary to put up in the court 
 room a copy of the short list, and this is deemed notice 
 of the transfer of the causes which are on it. No party 
 will be permitted to certify any cause back to the regular 
 
 'Rules of Court, 100. 
 
APPEALS. -573 
 
 list, after three days from the time it has been placed on 
 the short list.^ 
 
 § 818. Upon an appeal the cause is heard de novo, the 
 appellant court re-examines the evidence, and determines 
 the cause accoi'ding to its own judgment: it may direct 
 the case to stand over for further proofs,^ and refer the 
 case to a master, if in its discretion it may think proper 
 so to do.^ An appeal brings up all the matters which 
 were decided in the court below to the prejudice of the 
 appellant, including a prior decree of that court from 
 which an appeal was taken, but which appeal was dis- 
 missed under the rules of the supreme court.^ 
 
 § 819. The supreme court is required by statute to 
 give its opinion on every point taken in the court be- 
 low, and removed for its decision; and in every case to 
 reduce its opinion to writing, endorsing thereon whether 
 it deems the case of sufficient importance for publica- 
 tion; and immediately to file the same, together with 
 one of the paper books, among the records of the court. 
 And as soon as it has made a final decree in the 
 cause, to order the record thereof, with its decree 
 thereon written and duly certified, to be remitted to the 
 court below; which decree such court shall duly carry 
 into execution and effect; or the supreme court may, if 
 it see cause, order execution thereof to be done by 
 process issued out of the same, and thereupon order the 
 record to be remitted as aforesaid.* And by order of the 
 11th December 1854, it is made the duty of the pro- 
 thonotary, in all cases where a cause goes back to the 
 
 1 Rules of Court, 108. 
 
 ' Wallace's Appeal, 5 Ban-, 107; Pinley c. Aiken, 3 Pittsburgh Leg. J. Z. 
 ' Dyott's Estate, 2 W. & S. 564. 
 
 * Buckingham v. M'Lean, 13 How. U. S. 1.30; Light's Appeal, 10 Harris, 
 445; 1 Curtis's Com. I 414. '- Purd. Dig. T72. 
 
574 APPEALS. 
 
 court below for further proceedings, to certify and send 
 back with the order or decree, a copy of the opinion of 
 the supreme court which shall have been filed ; and the 
 fees paid him therefor are to stand as part of the costs in 
 the cause. 
 
 § 820. Whenever any final decree in equity is made 
 in the court of nisi prius, it is made the duty of the 
 judge to grant an order, to certify the record of such 
 case to the judges of the supreme court in banc for re- 
 vision, upon the party aggrieved, his agent, solicitor, or 
 attorney, making affidavit that such order is not sought 
 by him for the purpose of delay, and upon giving abso- 
 lute security, with two sureties, by recognisance, for the 
 payment of all damages and costs, in case the proceed- 
 ings shall be affirmed in the manner practised and al- 
 lowed in cases of writs of error to the courts of common 
 pleas. Such order to certify the record, will not, how- 
 ever, supersede any attachment or other process to en- 
 force the decree, unless taken and perfected within 
 twenty-one days after such final decree; and the nisi 
 prius judge is empowered, in all cases, to fix the amount 
 of security to be entered by the party aggrieved.^ 
 
 § 821. In certain cases the party aggrieved may have 
 a further appeal to the supreme court of the United 
 States. These are enumerated in the judiciary act of 
 1789, which provides "that a final judgment or decree 
 in any suit, in the highest court of law or equity of a 
 state in which a decision of the suit could be had, where 
 is drawn in question the vahdity of a treaty or statute 
 of, or an authority exercised under, the United States, and 
 the decision is against their validity; or where is drawn 
 in question the validity of a statute of, or an authority 
 
 1 Purd. Dig. 773-4. 
 
APPEALS. 575 
 
 exercised under, any state, on the ground of their being 
 repugnant to the constitution, treaties, or laws of the 
 United States, and the decision is in favour of such their 
 validity; or where is drawn in question the construction 
 of any clause of the constitution, or of a treaty, or sta- 
 tute of, or commission held under, the United States, and 
 the decision is against the title, right, privilege, or ex- 
 emption specially set up or claimed by either party, under 
 such clause of the constitution, treaty, statute, or com- 
 mission; may be re-examined, and reversed or afl&rmed 
 in the supreme court of the United States, upon a writ 
 of error; the citation being signecl by the chief justice, 
 or judge, or chancellor of the court rendering or passing 
 the judgment or decree complained of, or by a justice 
 of the supreme court of the United States, in the same 
 manner and under the same regulations, and the writ 
 shall have the same effect, as if the judgment or de- 
 cree complained of had been rendered or passed in a cir- 
 cuit court; and the proceedings upon the reversal shall 
 also be the same, except that the supreme court, instead 
 of remanding the cause for a final decision, may, at their 
 discretion, if the cause shall have once been remanded 
 before, pi^oceed to a final decision of the same and award 
 execution. But no other error shall be assigned or re- 
 garded as a ground of reversal in any such case as afore- 
 said, than such as appears on the face of the record, and 
 immediately respects the before-mentioned questions of 
 validity or construction of the said constitution, treaties, 
 statutes, commissions, or authorities in dispute."^ 
 
 1 See 1 Curtis's Com. i 208-19. 
 
576 SUPPLEMENTAL BILLS. 
 
 CHAPTER XIX. 
 
 SUPPLEMENTAL BILLS. 
 
 § 822. In the preceding chapters the reader's atten- 
 tion has been directed to the rules and course of pro- 
 ceeding in a suit originally perfect in its frame, and in 
 which no incidental circumstances have occurred to alter 
 the state of the original parties, or the relation in which 
 they stood to each other at the commencement of the 
 proceeding. In a suit in chancery, however, which fre- 
 quently embraces a variety of matters, and affects the 
 interests of many parties, it often happens that the suit, 
 though perfect in its institution, has, by some event sub- 
 sequent to the filing of the original bill, become defective, 
 or has abated, so that no proceedings can be had, either 
 as to the whole or some part of it; or it may happen 
 that there is some imperfection existing in the frame of 
 the original bill, which was not discovered in time to al- 
 low of its being corrected by amendment. "When such 
 is the case, the rules of the court furnish means of sup- 
 plying the defect, by permitting the exhibition of what 
 are termed supplemental bills, and bills of revivor; the 
 former of which are applicable to cases in which the de- 
 fect was either in the original proceeding, or has been 
 occasioned by some event subsequent to the institution 
 of the suit, so that the proceedings, as they stand, cannot 
 have their full effect; the other being applicable, where, 
 by some subsequent event, there is no person by whom 
 
SUPPLEMENTAL BILLS. 577 
 
 or against whom the suit, in the whole or in part, can be 
 prosecuted.^ 
 
 § 823. There are also other bills known in practice, 
 which, though they are not strictly supplemental bills, 
 or bills of revivor, strongly resemble them as well in form 
 as in the practice consequent upon them; bills of this 
 description are generally termed "bills in the nature of 
 supplemental bills," or "bills in the nature of bills of re- 
 vivor." And in some instances, the abatement of the suit 
 gives rise to new matters which it becomes necessary to 
 introduce into the proceedings, in which cases, the proper 
 remedy is by bill of revivor and supplement.^ 
 
 § 824. A supplemental bill may be necessary to remedy 
 defects in a suit, either existing at the time when the 
 original bill was filed, or which have since occurred in 
 consequence of the birth of new parties, or a change in 
 the interests of those originally on the record. Whei-e 
 the imperfection of a suit arises from a defect in the ori- 
 ginal bill, or in some of the proceedings under it, and not 
 from any event subsequent to the institution of the suit, 
 it may be added to by supplemental bill merely. Nothing, 
 however, which occurred prior to the filing of the original 
 bill, ought to be added by way of supplement, unless the 
 state of the cause be such that an amendment can no 
 longer be obtained : but when the original bill cannot 
 properly be amended, as where the parties are at issue 
 upon the points of the original bill, and witnesses have 
 been examined, then any new matter necessary to be put 
 in issue can only be introduced by supplemental bill.'' 
 
 § 826. Matters which have occurred since the original 
 bill was filed, and which are material to perfect the plain- 
 tiff's case, may also be introduced into the record by sup- 
 
 1 3 Dan. Ch. Pr. 1653. ' Ibid. 1653-4. ' Ibid. 1654. 
 
578 SUPPLEMENTAL BILLS. 
 
 plemental bill; for generally such facts cannot be intro- 
 duced by way of amendment. But to enable a com- 
 plainant in equity to file a supplemental bill, introducing 
 matters which have arisen since the filing of the original 
 bill, the original bill must be one on which some valid 
 decree could be made by the court. If wholly defectiv-e, 
 it cannot be made the basis of a supplemental bill ; for 
 if the complainant had no ground for proceeding origi- 
 nally, he should file a new bill, showing a cause entitling 
 him to relief. But if his original bill was sufficient to 
 entitle him to one kind of relief, and facts subsequently 
 occur which entitle him to other or more extensive relief, 
 he may have such relief by setting out such new matter 
 in the form of a supplemental bill.^ 
 
 § 826. A supplemental bill for the mere purpose of 
 bringing parties before the court, who ought to have been 
 parties to the original bill, may be filed at any period of 
 the cause ; and it is not unfrequently the case, that where 
 a cause, at the hearing, has been ordered to stand over, 
 with liberty to add parties, it has been expressly directed, 
 that they should be added by supplemental bill." In 
 such a case, the original defendants need not be made 
 parties to the supplemental bill, unless they have an in- 
 terest in the supplemental matter, or may be afiectedbj- 
 the interest of the new party .^ 
 
 § 827. A supplemental bill may also be filed, as well 
 after as before a decree; and the bill, if after a decree, 
 may be either in aid of the decree, that it may be carried 
 fully into execution, or that proper directions may be 
 given upon some matter omitted in the original bill, or 
 not put in issue by it, or by the defence made to it; or it 
 
 1 Bank of Kentucky r. Schuylkill Bank, 1 Pars. 214. 
 
 2 3 Dan. Ch. Pr. 1658. ' Story's E(i. PI. ? 334. 
 
SUPPLEMENTAL BILLS. 579 
 
 may be used to impeach the decree, which is the peculiar 
 case of a supplemental bill in the jiature of a bill of re- 
 view. But where a supplemental bill is 'brought in aid 
 of a decree, it is merely to carry out and give fuller effect 
 to that decree, and not to obtain relief of a different kind 
 on a different principle; the latter being the province of 
 a supplementary bill in the nature of a bill of review, 
 which cannot be filed without the leave of the court.^ 
 
 § 828. If any event happen which occasions an alte- 
 ration in the interest of any of the parties to a suit, and 
 does not deprive a plaintiff suing in his own right of his 
 whole interest in the subject, as in the case of a mort- 
 gage or other partial charge of interest; or if a plaintiff 
 suing in his own right be entirely deprived of his in- 
 terest, but is not the sole plaintiff, the defect arising 
 from this event may be supplied by a bill of the same 
 kind; which is, in some respects, a supplemental bill 
 merely, though in other respects, and especially against 
 any new party, it has also, in some degree, the effect of 
 an original bill.^ 
 
 § 829. If the interest of a plaintiff, suing in autre 
 droit, entirely determine by death or otherwise, and 
 some other person thereupon become entitled to the 
 same property under the same title, as in the case of 
 new assignees under a commission of bankruptcy, upon 
 the death or removal of former assignees, or in the case 
 of an executor or administrator, upon the determination 
 of an administration durante' minore (Mate, or 'pendente 
 lite, the suit may be likewise added to and continued by 
 supplemental bill. For in these cases, there is no change 
 of interest which can affect the questions between the 
 parties, but only a change of the person, in whose name 
 
 1 Story's Eq. PI. | 338. ' Mitf. Eq. PI. 63. 
 
580 SUPPLEMENTAL BILLS. 
 
 the suit must be prosecuted; and if there have been no 
 decree, the suit may proceed, after the supplemental bill 
 has been filed, in the same manner as if the original 
 plaintiff had continued such, except that the defendants 
 must answer the supplemental bill, and either admit or 
 put in issue the title of the new plaintiff. But if a de- 
 cree have been obtained before the event on which such a 
 supplemental bill becomes necessary, though the decree 
 be only a decree nisi, there must be a decree on the sup- 
 plemental bill, declaring that the plaintiff in that bill is 
 entitled to stand in the place of the plaintiff in the original 
 bill, and to have the benefit of the proceedings upon it, 
 and to prosecute the decree, and take the stej)S necessary 
 to render it effectual.^ 
 
 § 830. If, however, a sole plaintiff suing in his own 
 right be deprived of his whole right in the matters in 
 question, by an event subsequent to the institution of 
 the suit, as in the case of a bankrupt or insolvent debtor, 
 whose whole property is transferred to assignees; or in 
 case such a plaintiff assign his whole interest to another, 
 the plaintiff being no longer able to prosecute for want 
 of interest, and his assignees claiming by a title which 
 may be litigated, the benefit of the proceedings cannot 
 be obtained by means of a supplemental bill, but must 
 be sought by an original bill in the nature of a supple- 
 mental bill.^ 
 
 § 831. This distinction may, at first sight, appear ar- 
 tificial, but it is attended by a considerable difference in 
 its practical results; for in those cases in which a sup- 
 plemental bill only is filed, if there have been no decree, 
 the suit may proceed after the supplemental bill has 
 been filed, in the same manner as if the original plain- 
 
 ' Mitf. Eq. PL 64-5. ^ j^,|^:i_ 55^ 
 
SUPPLEMENTAL BILLS. 581 
 
 tiff had continued such, except that the defendants must 
 answer the original bill, and either admit or put in issue 
 the title of the new plaintiff; but in the case of an ori- 
 ginal bill, in the nature of a supplemental bill, the whole 
 case is open ; a new defence may be made, the pleadings 
 and depositions cannot be made use of in the same man- 
 ner as if filed or taken in the same cause, and the de- 
 cree, if any have been obtained, is no otherwise of ad- 
 vantage than as it may be an inducement to the court to 
 make a similar decree ; whilst in the case of a mere sup- 
 plemental suit, as we have seen, the benefit of the ori- 
 ginal decree, if obtained, is expressly given to the new 
 plaintiff by the supplementary decree, axid he is declared 
 entitled to stand in the place of the plaintiff in the ori- 
 ginal bill, and to have the benefit of the proceedings 
 upon it, and to prosecute the decree, and to take the 
 steps necessary to render it effectual.^ 
 
 § 832. If by any event the whole interest of a defen- 
 dant be entirely determined, and the same interest is be- 
 come vested in another by a title not derived from the 
 former party, as in the case of the determination of an 
 estate tail and the vesting of a subsequent remainder in 
 possession, the benefit of the suit against the person be- 
 coming entitled by the event, must also be obtained by 
 original bill in the nature of a supplemental bill: 
 though, if the defendant whose interest has thus de- 
 termined, be not the sole defendant, the new bill is sup- 
 plemental as to the rest of the suit, and is so termed 
 and considered. But if the interest of a defendant be 
 not determined, and only become vested in another by 
 an event subsequent to the institution of the suit, as in 
 the case of alienation by deed or devise, or by bank- 
 
 ' 3 Dan. Ch. Pr. 1666-7. 
 
582 SUPPLEMENTAL BILLS. 
 
 ruptcy or insolvency, the defect in the suit may be sup- 
 plied by supplemental bill, whether the suit have become 
 defective merely, or abated as well as become defective. 
 For in these cases, the party comes before the court ex- 
 actly in the same plight and condition as the former 
 party, is bound by his acts, and may be subject to all 
 the cdsts of the proceedings from the beginning of the 
 suit.^ 
 
 § 833. In the case of defendants whose interest in the 
 subject matter of the litigation becomes vested in others, 
 pendente lite, without an actual abatement of the suit, a 
 distinction is made between the transfer of that interest 
 by the mere voluntary act of the defendant, as in the 
 case of a sale or assignment in the ordinary course of 
 business, and a transfer of that interest by operation of 
 law, as upon an assignment in bankruptcy, or under our 
 insolvent acts. In the first case, the complainant is not 
 bound to make the assignee a party, though he may do 
 so, if he deem it essential to the relief, to which he may 
 be entitled against such assignee. But in the latter case, 
 the assignee, who has become such by operation of law, 
 has a right to be heard, and must be made a party be- 
 fore the suit can be further proceeded in.^ 
 
 § 834. The reason of this distinction is obvious. In 
 the first case, the assignee who is a mere voluntarj^ pur- 
 chaser, pendente lite, cannot defeat the complainant's 
 rights, or delay his proceedings by such purchase ; for if 
 he could do so, the litigation, by successive assignments, 
 might be rendered interminable. He, therefore, has no 
 right to be heard, unless he bring himself before the 
 court by a supplemental bill, in the nature of a cross- 
 bill; which he may sometimes do to protect his rights 
 
 MItf. Eq. PI. 67-8. ' Sedgwick v. Cleveland, 7 Paige, 290. 
 
SUPPLEMENTAL BILLS. 583 
 
 as such assignee: and the decree in the original suit, 
 to which such assignee was not a party, will bind the 
 assigned property in his hands. Neither can the de- 
 fendant, who has made such voluntary assignment sub- 
 sequent to the commencement of the suit, urge that as a 
 reason why the suit should not proceed against him, in the 
 same manner as if no transfer had been made. In the 
 other case, the assignee, upon whom the interest of the 
 defendant has been cast by operation of law for the be- 
 nefit of others, has a right to be heard for the protection 
 of that interest. And the whole legal and equitable in- 
 terest therein, which formerly belonged to the defendant, 
 being vested in such assignee by the mere operation of 
 law, he "will not be legally or equitably bound by a de- 
 cree to which he is not a party .^ 
 
 § 835. A supplemental bill, when properly before the 
 court, is an addition to the original bill, and becomes part 
 of it, so that the whole bill is to be taken as an amended 
 bill;^ but a bill in the nature of a supplemental bill is not 
 an addition to the original bill, but another original bill, 
 which, in its consequence, may draw to itself the advan- 
 tage of the proceedings on the former bill.^ The most 
 prominent distinction between the two classes of bills 
 seems to be, that a supplemental bill is properly appli- 
 cable to those cases only, where the same parties, or the 
 same interests, remain before the court; whereas an 
 original bill in the nature of a supplemental bill, is pro- 
 perly applicable, when new parties with neW' interests, 
 arising fi-om events since the institution of the suit, are 
 brought before the court.* 
 
 § 836. With respect to the form of a supplemental 
 
 1 Ibid. ^ Gillett v. Hall, 13 Conn. 426; Hill v. Hill, 10 Ala. 527. 
 
 » Mitf. Bq. PI. 99. * Story's Eq. PI. | 345. 
 
584 SUPPLEMENTAL BILLS. 
 
 bill, tlie rule of court directs that "it shall not be ne- 
 cessary, in any supplemental bill, to set forth any of the 
 statements in the original suit, unless the special circum- 
 stances of the case may require it." ^ The rule does not 
 extend in terms to original bills in the nature of bills of 
 supplement, nor is it very material to inquire whether 
 they are intended to be included in it, since in either 
 view of the case, the extent to which it will be neces- 
 sary in bills of this description to re-state the pleadings 
 in the original suit, will have to be determined by the 
 special circumstances of the case.^ 
 
 § 837. With respect to a simple bill of supplement, 
 filed against the parties to the original suit for the purpose 
 of putting in issue new matter, it does not seem that it 
 ever was the practice to introduce statements from the 
 pleadings in the original suit. Where, however, the ob- 
 ject of the supplemental bill is not to continue the suit 
 against the person in whom the interest of a party, ori- 
 ginally before the court, has become vested, but to bring 
 before the court an entirely new party, who either was 
 interested at the time the original bill was filed, or has 
 become so under a new title, but derived from a former 
 party; as in the case of a necessary party omitted, and 
 subsequently brought before the court by supplemental 
 bill ; or of a new party coming into esse after the original 
 bill is filed; there the supplemental bill is, in fact, an 
 original bill against the new defendant, and must state 
 enough of the case to put the title of the plaintiff to re- 
 lief against such new defendant, in issue. For as a de- 
 fendant, who was not a party to the original bill, coming 
 in upon a new title, cannot be called upon to answer the 
 original bill, there is no other method by which the plain- 
 
 ' Equity Rules, Ivi. p. \?>2. ' i Dan. Ch. Pr. 1675. 
 
SUPPLEMENTAL BILLS. 585 
 
 tiff's title to maintain the suit, as against him, can be put 
 in issue, than by a statement of it in the supplemental 
 bill. For this purpose, however, the mere statement of 
 the former proceedings has been held sufficient to put the 
 facts of the case in issue, with regard to this sort of de- 
 fendant, that is, you may in the supplemental bill state, 
 that you made such a representation in the former bill, 
 instead of representing the facts in the second bill.^ 
 
 § 838. If the supplemental bill be occasioned by an 
 event subsequent to the original bill, it must state that 
 event, and the consequent alteration of parties thereon ; 
 and it must pray, that the defendants may appear and 
 answer i^ the charges it contains; for if the supplemental 
 bill be not for a discovery merely, the cause must be heard 
 upon the supplemental bill, at the same time that it is 
 heard upon the original bill, if it have not been before 
 heard; and if the cause have been before heard, it must be 
 further heard upon the supplemental matter.^ A sup- 
 plemental bill generally calls upon the defendant to 
 answer the supplemental matter only: if, however, it be 
 occasioned by the transmission of the interest of a de- 
 fendant who has not answered the original bill, and it be 
 necessary to have a discovery from the new defendants, 
 of the matters in the original bill, it may pray that the 
 defendants may answer the original bill.^ 
 
 § 839. An original bill in the nature of a supplemental 
 bill, must state the original bill, the proceedings upon it, 
 the event which has determined the interest of the party 
 by or against whom the former bill was exhibited, and 
 the manner in which the property has vested in the 
 person become entitled. It must then show the ground 
 upon which the court ought to grant the benefit of the 
 former suit, to or against the person so become entitled, 
 
 ' 3 Dan. Ch. Pr. 1675-6. ^ Ibid. 1677. » Ibid. 1679 
 
 38 
 
586 SUPPLEMENTAL BILLS. 
 
 and pray the decree of the court adapted to the case of 
 the plaintiflf in the new bill.^ 
 
 § 840. It is provided by rule of court, that whenever 
 any suit in equity shall become defective from any event 
 happening after the filing of the bill, (as, for example, by 
 a change of interest in the parties) or for any other reason, 
 a supplemental bill, or a bill in the nature of a supple- 
 mental bill, may be necessary to be filed in the cause, 
 leave to file the same may be granted by any j udge of 
 the court, upon proper cause shown, and due notice to 
 the other party. And if leave be granted to file such 
 supplemental bill, the defendant shall demur, plead, or 
 answer thereto, on the next succeeding rule day, after 
 the supplemental bill is filed in the prothonotary 's office, 
 unless some other time shall be assigned by a judge of 
 the court.^ "Where new parties are brought before the 
 court by a supplemental bill, it is proper to issue a sub- 
 poena to appear and answer the supplemental bill;^ a 
 practice which does not seem to be dispensed with by the 
 foregoing rule of court. 
 
 § 841. In order to obtain leave to file a supplemental 
 bill in the nature of a bill of review, a petition must be 
 presented, supported by an affidavit, to show that the 
 "new matter could not be produced or used by the party 
 claiming the benefit of it at the time when the decree 
 was made." If the court be satisfied that the new matter 
 is relevant and material, and such as might probably 
 have occasioned a different determination, it will permit 
 a bill of review to be filed. The bill prays "that the 
 cause may be heard with respect to the new matter made 
 the subject of the supplemental bill, at the same time 
 that it is reheard upon the original bill, and that the 
 
 ' 3 Dan. Ch. Pr. 1688. ' Equity Rulea,lv.p. 131. ' Dan. Ch.Pr. 1680. 
 
SUPPLEMENTAL BILLS. 587 
 
 plaintiflf may have such relief as the nature of the case 
 made by the supplemental bill requires."^ 
 
 § 842. Another description of bill in the nature of a 
 supplemental bill, is what is termed "a bill to carry a 
 decree into execution." Such a bill is proper where, 
 after a decree has been pronounced, it has happened, that 
 owing to some neglect of the parties to proceed upon the 
 decree, their rights have become so embarrassed by sub- 
 sequent events, that no ordinary process of the court 
 upon the first decree will serve, and it is therefore neces- 
 sary to have another decree of the court to ascertain and 
 enforce them.^ A bill for this purpose, is generally partly 
 an original bill and partly a bill in the nature of an ori- 
 ginal bill, although not strictly original; and sometimes 
 it is likewise a bill of revivor, or a supplemental bill, or 
 both; and the frame of the bill and the course of pro- 
 ceedings upon it vary accordingly.^ A bill to suspend or 
 avoid the operation of a decree, is likewise supplemental 
 in its nature; but such bills are of rare occurrence, and 
 not Ukely to arise in our practice. 
 
 ' Mitf. Eq. PI. 9L ' 3 Dan. Ch. Pr. 1689. ' Mitf. Eq. PI. 9T. 
 
588 
 
 BILLS OF REVIVOR. 
 
 CHAPTER XX, 
 
 BILLS OP REVIVOR. 
 
 § 843. Where a suit is perfect in its original forma- 
 tion, but afterwards becomes discontinued or imperfect 
 by abatement, the general method of continuing it, or of 
 remedying the defect, is by bill of revivor.^ With respect 
 to the species of abatement which may be remedied by 
 bill of revivor, it is laid down, that whenever a suit 
 abates by death, and the interest of the person whose 
 death has caused the abatement, is transmitted to that 
 representative which the law gives or ascertains, as an 
 heir at law, executor, or administrator, so that the title 
 cannot be disputed, at least in the court of chancery, but 
 the person in whom the title is vested is alone to be as- 
 certained, the suit may be continued by bill of revivor 
 merely; so also, if a suit abate by the marriage of a 
 female plaintiff, as no act is done to affect the rights of 
 the party but the marriage, no title can be disputed : the 
 person of the husband is the sole fact to be ascertained, 
 and therefore the suit may be continued in this case 
 likewise, by bill of revivor merely.^ 
 
 1 3 Dan. Ch. Pr. 1693. 
 
 * Ibid. 1696-Y. The act of 12 Api-il 1845, provides, that no suit, or other 
 legal proceeding, in any court of this commonwealth, brought by a feme sole, 
 shall abate by the marriage of the plaintiif or petitioner, contracted after the 
 commencement of the same; but the husband of such plaintifif or petitioner 
 shall have power to become a party thereto, and prosecute the same to final 
 
BILLS OF REVIVOR. 589 
 
 § 844. It. is generally necessary, in order to entitle a 
 party to revive, that there should be a privity between 
 him and the individual whose death has caused the abate- 
 ment : it is upon this ground held, that where the inte- 
 rest of a plaintiff suing in autre droit determines, the 
 suit must be continued by supplemental bill, and not by 
 bill of revivor. It seems, however, that the rule will not 
 hold, where a man files a bill as administrator and dies; 
 in such case, the administrator de honis non may sustain 
 a bill of revivor, although there is no actual privity be- 
 tween him and the original plaintiff.^ 
 
 § 845. If, however, upon the abatement happening, 
 the interest of the party do not vest in any representa- 
 tive which the law gives or ascertains, as in the case of 
 bankruptcy or insolvency, or of a devise of real estate, the 
 suit cannot be continued by bill of revivor ; but must, where 
 the abatement is caused by the bankruptcy or insolvency 
 of a defendant, be continued by supplemental bill, which 
 in this case is called " a supplemental bill in the nature 
 of a bill of revivor." So, where the suit is abated by the 
 bankruptcy or insolvency of a sole plaintiff, his assignees 
 cannot continue the suit by bill of revivor, but must do 
 so by "original bill in the nature of a supplemental bill." 
 So also, in a suit relating to land, where a plaintiff dies, 
 having devised the land which is the subject of the litiga- 
 tion, the suit must be continued by the devisee by another 
 
 judgment or decree. Purd. Dig. 19. It may be questioned, whetber this act 
 will authorize the husband of a female plaintiff, who was sole at the com- 
 mencement of the suit, to become a party without a bill of revivor; the act 
 appears to have been passed to meet the case of an action at common law, in 
 which the marriage of a female plaintiff, was an absolute abatement of the 
 suit, and the law furnished no means by which an action so abated could be 
 continued for the benefit of the parties in interest. See 1 Chit. PI. 449; 
 Story's Eq. PI. § 354. 
 > 3 Dan. Ch. Pr. 1097. 
 
590 BILLS OF EEVIVOR. 
 
 species of bill, called "an original bill in the nature of a 
 bill of revivor."^ The same rule applies to abatements 
 occasioned by the death of parties defendant as well as 
 parties plaintiff; therefore, a bill of revivor will not lie 
 against the devisee of a defendant, but the suit must be 
 continued against him in the same manner that it is con- 
 tinued by the devisee of a plaintiff.^ 
 
 § 846. A suit in equity does not abate by the death of 
 a co-plaintiff or co-defendant ; ^ in such case the court can 
 go on and decree as to the survivor, but not as to the de- 
 ceased, until his representatives are brought in/ If the 
 interest of the party dying so determine, that it can no 
 longer affect the suit, and no person become entitled 
 thereupon to the same interest; which happens in the 
 case of a tenant for life, or person having a temporary or 
 contingent interest, or an interest defeasible on a contin- 
 gency; the suit does not so abate as to require any pro- 
 ceeding to warrant the prosecution of it against the re- 
 maining parties.* 
 
 § 847. In general, the court will not permit a suit to 
 be revived for the purpose of deciding the question of 
 costs only. The rule being, that if a party die before 
 taxation of costs, there can be no revivor in respect of 
 costs only, against his personal representative.^ The 
 principle, that there can be no revivor fo^ costs, precludes 
 any other person than the plaintiff, or his representative, 
 from reviving before decree; for the plaintiff may, at his 
 pleasure, dismiss the bill with costs, and therefore a re- 
 vivor by any other party would, in effect, be for costs 
 alone. If the plaintiff neglect to revive, the defendant's 
 
 ' 3 Dan. Ch. Pr. 1697; Brady v. M'Cosker, 1 Comst. 219. 
 
 ' a Dau. Ch. Pr. 1698. ' Fisher v. Rutherford, 1 Bald. 188. 
 
 * Bank i'. Biddle, 2 Pars. 31. ^ 3 Dan. Ch. Pr. 1698. « Ibid. 1694-5. 
 
BILLS OF EEVIVOR. 591 
 
 remedy is, to move that he may do so within a limited 
 time, or that the bill may be dismissed. It is otherwise 
 after decree; for then all parties are equally entitled to 
 its benefit ; and on neglect by the plaintiffs, or those stand- 
 ing in their right, a defendant may revive.^ 
 
 § 848. The construction of a bill of revivor is similar 
 in principle to that of an original bill. It states the filing 
 of the original bill, but need not set forth any of the state- 
 ments in it, unless required by the special circumstances 
 of the case.^ It would seem, however, that sufficient 
 should be set out to show the plaintiff's title to revive. 
 It then states the original prayer of relief, the proceedings 
 which have taken place, the event which has caused the 
 abatement, and the plaintiff's title to revive; and charges, 
 that the same ought to be revived and stand in the same 
 condition, with respect to the parties in the bill of revivor, 
 as it was with respect to the parties to the original bill 
 at the time the abatement happened ; and it must pray 
 that the suit may be revived accordingly, or that the de- 
 fendant may show cause to the contrary.^ 
 
 § 849. The rules of court provide, that whenever a suit 
 in equity shall become abated, by the death of either 
 party, or by any other event, the same may be revived, 
 by a bill of revivor, or by a bill in the nature of a bill of 
 revivor, as the circumstances of the case may require, 
 filed by the proper parties totitled to revive the same; 
 which bill may be filed in the prothonotary's office at any 
 time; and u]3on suggestion of the facjts, the proper process 
 of subpoena shall, as of course, be issued by the prothono- 
 tary, requiring the proper representatives of the other 
 party to appear and show cause, if any they have, why 
 the cause should not be revived. And if no cause be 
 
 ' Adams' Eq. 406-7. ^ Eq. Rules, Ivi. p. 132. ^ 3 p^n. Ch. Pr. 1706. 
 
592 BILLS OF KEVIYOE. 
 
 shown, at the next rule daj, which shall occur after 
 fourteen days from the time of the service of the pro- 
 cess, the suit shall stand revived, as of course.* 
 
 § 850. We have seen, that if the death of a party, 
 whose interest is not determined by his death, be at- 
 tended with such a transmission of his interest, that the 
 title to it, as well as the person entitled, may be liti- 
 gated in the court of chancery, as in the case of a de- 
 vise of real estate, the suit cannot be continued by a 
 mere bill of revivor. An original bill, upon which the 
 title may be litigated, must be filed; and this bill will 
 have so far the effect of a bill of revivor, that if the 
 title of the representative substituted by the act of the 
 deceased party be established, the same benefit may be 
 had of the proceedings upon the foi'mer bill, as if the 
 suit had been continued by a bill of revivor.^ 
 
 § 851. The distinction between bills of revivor and 
 bills in the nature of bills of revivor seems to be, that 
 the former, in case of death, are founded upon privity of 
 blood or representation by operation of law; the latter, 
 in privity of estate, or title by the act of the party. 
 In the former case, nothing can be in contest, except 
 whether the party be heir or representative ; in the lat- 
 ter, the nature and operation of the whole act, by which 
 the privity of estate or title is created, is open to con- 
 troversy: thus, for example, the heir may be made a 
 party by a bill of revivor, for his title is by mere ope- 
 ration of law ; but the devisee must come in by a bill in 
 the nature of a bill of revivor; for he comes in as a 
 purchaser under the testator, in privity of estate or title, 
 which may be disputed.^ 
 
 § 852. The bill is said to be original, merely for want 
 
 1 Equity Rules, Iv. p. 131. '' 3 Dan. Ch. Pr. 1718. ' Ibid. 1718-19. 
 
BILLS OF REVIVOR. 593 
 
 of that privity of title between the party to the former 
 bill, and the party to the latter bill, though claiming 
 the same interest, which would have permitted the con- 
 tinuance of the suit by a bill of revivor; therefore, when 
 the validity of the alleged transmission of interest is 
 established, the party to the new bill will be equally 
 bound by, or have advantage of, the proceedings on 
 the original bill, as if there had been such a privity be- 
 tween him and the party to the original bill claiming 
 the same interest; and the suit is considered as pending 
 from the filing of the original bill, so as to save the sta- 
 tute of limitations, to have the advantage of compelling 
 the defendant to answer before an answer can be com- 
 pelled to a cross-bill, and every other advantage which 
 would have attended the institution of the suit by the 
 original bill, if it could have been continued by bill of 
 revivor only.^ 
 
 § 853. If a suit become abated, and by any act be- 
 sides the event by which the abatement happens, the 
 rights of the parties are affected, as by a settlement, or 
 a devise under certain circumstances, though a bill of 
 revivor merely may continue the suit so as to enable the 
 parties to prosecute it; yet, to bring before the court the 
 whole matter necessary for its consideration, the parties 
 must, by supplemental bill added to and made part of 
 the bill of revivor, show the settlement, or devise, or 
 other act, by which their rights are affected; and in the 
 same manner, if any other event which occasions an 
 abatement, be accompanied or followed by any matter ne- 
 cessary to be stated to the court, either to show the 
 rights of the parties, or to obtain the full benefit of the 
 suit, beyond what is merely necessary to show by or 
 
 • 3 Dan. Ch. Pr. 1719. 
 
594 BILLS OF REVIVOE. 
 
 against whom the cause is to be revived, that matter 
 must be set forth by way of supplemental bill added to 
 the bill of revivor.^ 
 
 § 854. A bill of revivor and supplement is merely a 
 compound of these two species of bills, and must be 
 framed and proceeded upon in the same manner. They 
 are each liable to the same description of defence as the 
 bills, if separate, would be liable to ; and it is to be re- 
 collected, that in all cases where there is a bill of re- 
 vivor and supplement, the case must be set down for 
 hearing against all the parties, although the bill be only 
 a bill of revivor against one, and an order to revive have 
 been obtained.^ 
 
 1 3 Dan. Ch. Pr. 1722. ' Ibid. 1722-3. 
 
BILLS OF REVIEW. 595 
 
 CHAPTER XXI. 
 
 BILLS OF REVIEW. 
 
 § 855. After a decree has been made in a cause, a 
 new original bill cannot be brought between the same 
 parties and for the same matters, unless the decree have 
 been obtained by fraud. If a party seek to reverse a 
 final decree, for error apparent on the record, or on the 
 occurrence or discovery of new matter, he must file a bill 
 of review. A bill of review is in the nature of a writ 
 of error, and its object is to procure an examination, and 
 alteration or reversal, of a decree made upon a former 
 bill.^ 
 
 § 856. A bill of review, according to the first of the 
 ordinances of Lord Chancellor Bacon respecting bills of 
 that kind, can be brought only in two cases. The first 
 is, for error in law appearing in the body of the decree, 
 without further examination of matters of fact ; and the 
 second is, for new matter which hath arisen after the de- 
 cree. A bill of review may also, by special leave, be al- 
 lowed for new proof that has come to light after the de- 
 cree, which could not possibly have been used at the 
 time when it passed. It is said, that this rule has never 
 been departed from. Even if an absolute decree be 
 made against an infant, it seems to be necessary that his 
 infancy should appear upon the face of the decree. In 
 
 1 Story's Eq. PI. i 403. 
 
596 
 
 BILLS OF REVIEW. 
 
 this country, however, the bill, answers, and pleadings, 
 are regarded as forming part of the decree, and in that 
 respect the course here differs from the English practice.^ 
 
 § 867. For error of law apparent on the face of the 
 decree, the bill may be filed without leave of the court, 
 but the error complained of must not be mere error in 
 the decree, as on a mistaken judgment, which would in 
 effect render a bill of review a mere substitute for an ap- 
 peal, but it must be error apparent on the face of the de- 
 cree, as in the case of an absolute decree against an in- 
 fant. Errors in form only, though apparent on the face 
 of the decree, and mere matters of abatement, seem not 
 to have been considered sufficient ground for review.^ 
 
 § 858. Where a bill of review is founded on the oc- 
 currence or discovery of new matter, the leave of the 
 court must be first obtained; and this will not be granted 
 except on an affidavit, satisfying the court that the new 
 matter could not, by reasonable diligence, have been pro- 
 duced or used by the applicant, at the time when the 
 decree was made; and showing also, that such new mat- 
 ter is relevant and material, either as evidence of mat- 
 ter formerly in issue, or as constituting a new issue, and 
 is such as, if previously before the court, might proba- 
 bly have occasioned a different decision.^ If such a bill 
 be filed without leave, it may be taken off the file, or the 
 proceedings stayed.* 
 
 § 859. The time within which a review may be had 
 does not seem to have been settled in Pennsylvania. In 
 England, the rule is not to reverse or review after twenty 
 years, except for very apparent error. As a bill of re- 
 view is in the nature of a writ of error, it is probable 
 
 Riddle's Estate, 7 Harris, 433. ' Adams' Eq. 416. 
 
 Mitf. E.|. PI. 81-T. * Hodson v. Ball, 11 Sim. 456. 
 
BILLS OF REVIEW. 597 
 
 this period of twenty years was adopted by analogy, 
 from the statutes limiting writs of error in certain cases; 
 and should it become necessary with us to fix the time 
 within which a review may be granted, the period will 
 probably be much abridged by reference to our act of 1791, 
 prohibiting writs of error after seven years; or it may be 
 to the act of 1840, limiting the time within which a 
 petition of review may be filed in the orphans' court, in 
 certain cases, to five years after the final decree.^ 
 
 § 860. Only parties or privies, as heirs, executors, or 
 administrators, can ordinarily bring this bill. But under 
 our practice, a bill of review may be filed in the orphans' 
 court, in cases within the provisions of the act of 1840, 
 by any person interested ; as, for example, the sureties of 
 an administrator; and this is said by the supreme court 
 to conform to the chancery doctrine on the subject.^ 
 
 § 861. In England a bill of review, on new matter dis- 
 covered, has been permitted even after an affirmance of 
 the decree in Parliament; but after a decree in equity 
 has been affirmed in the supreme court, on appeal, a bill 
 of review does not lie in the court below, for any error 
 in law apparent on the face of the decree.^ This rule is 
 absolutely necessary to prevent the confusion and mis- 
 chief which would flow from practically transposing the 
 relative position of our courts, superior and inferior; an 
 inconvenience which the occasional correction of mistake, 
 in a comparatively few individual cases, would not com- 
 pensate. Nor does the rule deny a remedy for error com- 
 mitted by the appellant jurisdiction. No question can 
 be made of the power of the supreme court to entertain 
 a petition for a rehearing of its own decree, in the nature 
 
 ' George's Appeal, 2 Jones, 262. ' Bishop's Estate, 10 Barr, 471. 
 
 » 2 Hoffman's Ch. Pr. 12. 
 
598 BILLS OF REVIEW. 
 
 of a bill of review, while the record remains in its pos- 
 session. But it is too late, after the record has been re- 
 mitted to the court below for execution ; for then there 
 is nothing remaining in the court upon which it can 
 act.^ It would seem, from the general language of the 
 supreme court in Dennison v. Goehring, that no bill 
 of review would lie in the court below, after an affirmance 
 on appeal, whether for errors in law, or arising upon new 
 facts, or facts newly discovered : the point decided, how- 
 ever, does not go to such a length. 
 
 § §62. The question then naturally presents itself, 
 whether, in this state, after an affirmance of the decree 
 on appeal, and a remittitur of the record, a party be 
 wholly without remedy for error in the decree arising 
 upon new facts, or facts newly discovered. And it 
 would seem, that in such case, notwithstanding the rule 
 above stated, the party may be relieved from the con- 
 sequences of an erroneous decision. The remedies in 
 equity are pliable and easily adapted to any state of cir- 
 cumstances which may arise ; courts of chancery regard 
 the end rather than the means; and to administer jus- 
 tice and equity to their suitors, they permit a combina- 
 tion of almost every conceivable species of bill, which 
 may be necessary to effect the justice of the case. It 
 would seem, therefore, that by bill of certiorari and re- 
 view, this object might be accomplished. The object of 
 a bill of certiorari is to remove a suit in equity, pending 
 in some inferior court, into the court of chancery, or some 
 other superior court of equity, on account of some incom- 
 petency in the inferior court to do complete justice be- 
 tween the parties.^ 
 
 ' Dennison v. Goehring, 6 Barr, 402, 405. 
 » Story's Eq. PL § 298; Mitf. Eq. PI. 50. 
 
BILLS OF REVIEW". 599 
 
 § 863. Now this is precisely the position of a court of 
 common pleas, after an affirmance of its decree in equity, 
 on appeal to the supreme court; and it would seem to be 
 proper in such case, to present in the supreme court a bill 
 of certwrari and review, setting forth the former proceed- 
 ings in the cause, the appeal, the affirmance of the decree, 
 and that the record has been remitted to the court below; 
 the grounds upon which the decree ought to be reviewed, 
 and the inability of the court in which the record re- 
 mains to administer justice by entertaining a bill of re- 
 view; it might then go on to pray the allowance of a 
 writ of certiorari to remove the record to the supreme 
 court, and that the former decree might be there reviewed 
 and reversed in the points complained of It is true, no 
 such bill could be entertained in the house of lords, ac- 
 cording to the English practice, but then it must be re- 
 membered, that the house of lords has no jurisdiction in 
 equity or otherwise, except on appeal, and that no bill 
 can be filed in that court for any purpose ; whereas our 
 supreme court has jurisdiction both of an appeal and on 
 original bill.^ The subject is not without great difficulties, 
 but the author has ventured to suggest this course as 
 most in accordance with the acknowledged principles of 
 equity. 
 
 § 864. In a bill of review, it is necessary to state the 
 
 ' It may be objected, that the supreme court, in revising the decrees of the 
 subordinate courts of equity, acts as an appellant court merely, and that a bill 
 of review is in the nature of an original bill ; but it must be borne in mind, 
 that though this be conceded, yet the decree which is sought to be reviewed by 
 such a bill, is not the decree of the subordinate tribunal, but that of the supreme, 
 court itself, and the object of it is, to enable that court to review and reverse, for 
 errors in fact, not apparent upon the record, its own decree ; which it cannot do, 
 unless the record be removed for that purpose. The author has, with much 
 diffidence, prepared and presented in the appendix a form of bill, in accordance 
 with the views here suggested. 
 
600 BILLS OF REVIEW. 
 
 former bill and the proceedings thereon, the decree, the 
 point in which the p irty conceives himself aggrieved by 
 it, and the ground of law, or new matter, upon which 
 he seeks to impeach ; and if the decree be impeached on 
 the latter ground, it seems necessary to state in the bill, 
 the leave obtained to file it, and the fact of the disco- 
 very; though it may be doubted whether, after leave 
 given to file the bill, that fact be traversable. The bill 
 may pray, simply, that the decree may be i-eviewed and 
 reversed in the point complained of, if it have not been 
 carried into execution. If it have been carried into exe- 
 cution, the bill may also pray the farther decree of the 
 court, to put the party complaining of the former decree 
 into the situation in which he would have been if that 
 decree had not been executed. If the bill be brought 
 to review the reversal of a former decree, it may pray 
 that the original decree may stand. The bill may also, 
 if the original suit have become abated, be at the same 
 time a bill of revivor. A supplemental bill may like- 
 wise be added, if any event have happened which re- 
 quires it, and particularly if any person, not a party to 
 the original suit have become interested in the subject, 
 he must be made a party to the bill of review by way 
 of supplement.^ 
 
 § 865. If the decree have not been signed and enrolled, 
 and the supposed error appear from new matter which 
 has arisen since the decree, or upon new proof mate- 
 rially pressing upon the decree, and discovered after the 
 decree, or at least after the examination of witnesses in 
 the cause, the remedy is by a supplemental bill in the 
 nature of a bill of review. In this case leave must be 
 obtained to file a supplemental bill in the nature of a 
 
 ' 3 Dan. Ch. Pr. 1728-9. 
 
BILLS OF REVIEM^ 601 
 
 bill of review, by a petitioB, supported by affidavit, simi- 
 lar to that used for liberty to file a bill to review a de- 
 cree on new facts or new evidence discovered. There is 
 this difference between a bill of review and a supple- 
 mental bill in the nature of a bill of review: in the 
 former, if introducing also matter of supplement or re- 
 vivor, the prayer, so far as it is a bill of review, is, that 
 the decree may be reviewed and reversed; in the latter, 
 adopting also the proper prayer for revivor, as to the 
 supplemental matter the prayer is, that the cause may 
 be reheard.^ 
 
 § 866. An original bill in the nature of a bill of re- 
 view, is applicable when the interest of the party seek- 
 ing a reversal was not before the court when the decree 
 was made. Thus, if a decree be made against a tenant 
 for life, a remainder-man in tail or in fee cannot defeat 
 the proceedings, except by a bill showing the error in 
 the decree, the incompetency in the tenant for life to 
 sustain the suit, and the accrual of his own interest ; and 
 thereupon praying that the proceedings in the original 
 cause may be reviewed, and that, for that purpose, the 
 other party may appear to and answer this new bill, 
 and the rights of the parties may be properly ascer- 
 tained. A bill of this nature, as it does not seek to 
 alter a decree made against the plaintiff himself, or 
 against any person under whom he claims, may be filed 
 without the leave of the court.^ 
 
 § 867. A bill to impeach a decree for fraud used in 
 obtaining it, sufficiently explains its own character. It 
 may be filed without the leave of the court, because the 
 alleged fraud is the principal point in issue, and must 
 be established by proof, before the propriety of the de- 
 
 1 3 Dan. Ch. Pr. 1739. ' Mitf. Bq. PI. 92. 
 
 39 
 
602 BILLS OF REVIEW. 
 
 cree can be investigated. And where a decree has been 
 so obtained, the court will restore the parties to their 
 Ibimer situation, whatever their rights may be. A bill 
 to set aside a decree for fraud, must state the decree and 
 the proceedings which led to it, with the circumstances 
 of fraud on which it is impeached. The prayer must 
 necessarily be varied according to the nature of the 
 fraud used, and the extent of its operation in obtaining 
 an improper decree.-' 
 
 1 Mitf. Eq. PI. 93-4. 
 
CROSS BILLS. 603 
 
 CHAPTER XXII. 
 
 CROSS BILLS. 
 
 § 868. As a defendant cannot pray any thing in his 
 answer, except to be dismissed the court, if he have any 
 relief \o pray or discovery to seek, he must do so by a 
 bill of his own, which is called a cross-bill. A cross-bill 
 is a bill brought by a defendant against a plaintiff, or 
 other parties in a former bill pending, touching the mat- 
 ters in question in that bill. It is treated as a mere 
 auxiliary suit, or as a dependency upon the original suit, 
 and can be sustained only on matter growing out of the 
 original bill.^ It is, however, the character of the bill 
 and of the relief sought which determines whether it be 
 an original or a cross-bill. That it is called in the body 
 of it a cross-bill is wholly immaterial.^ 
 
 § 869. A cross-bill is usually brought either to obtain 
 a necessary discovery of facts in aid of the defence to 
 the original bill, or to obtain full relief to all parties, in 
 reference to the matters of the origmal bill ; but a cross- 
 bill should never be brought where the party can obtain, 
 in the original suit, the same relief asked for by the 
 cross-bill. The rules of equity prevent a defendant ex- 
 amining a plaintiff: hence arises the necessity of a 
 cross-bill for discovery, when the testimony of the plain- 
 tiff is sought by the defendant as to any material facts. 
 
 ' 3 Dan. Ch. Pr. 1T42. ^ Pollock v. National Bank, 3 Seld. 274. 
 
604 CROSS BILLS. 
 
 The cross-bill gives a perfect reciprocity of proof to each 
 party, derivable from the answers of' each other/ 
 
 § 870. It frequently happens, and particularly if any 
 question arise between two defendants to a bill, that 
 the court cannot make a decree without a cross-bill or 
 cross-bills to bring evei-y matter in dispute completely 
 before the court. In such a case it becomes necessary 
 for some one of the defendants to the original bill, to file 
 a bill against the plaintiff and other defendants in that 
 bill, or some of them, and bring the litigated point pro- 
 perly before the court; for one defendant cannot have a 
 decree against a co-defendant without a cross-bill, with 
 proper prayer and process, or answer, as in an original 
 suit.^ 
 
 § 871. A cross-bill is a mode of defence: the original 
 bill and the cross-bill are but one cause. It must be con- 
 fined to the subject matter of the original bill, and can- 
 not introduce new and distinct matters, not embraced 
 in the original suit, and if it do so, no decree can be 
 founded on those matters. The plaintiff in a cross-bill 
 cannot contradict the assertions in his answer in the ori- 
 ginal suit; but as it is considered simply as a mode of 
 defence, or a proceeding to procure a complete determi- 
 nation of a matter already in litigation in the court, the 
 plaintiff is not, at least as against the plaintiff in the 
 original bill, obliged to show any ground of equity to 
 support the jurisdiction of the court. He may rely 
 upon matters purely legal, connected with the matters 
 of the original bill, for his defence, and by his cross-bill 
 require the plaintiff to answer thereto. It is treated, in 
 short, as a mere auxiliary suit, or a dependency upon 
 the original suit." 
 
 1 3 Dan. Ch. Pr, 1742. ^bid. 1742-3. ' Ibid. 1744, 1746. 
 
CROSS BILLS. 605 
 
 § 872. A cross-bill may be filed to answer the pur- 
 poses of a plea p'*^is darrein continuance at the common 
 law. Thus where, pending a suit, and after replication 
 and issue joined, the defendant, having obtained a re- 
 lease, attempted to prove it, viva, voce, at the hearing, it 
 was determined that the release not being in issue in the 
 cause, the court could not try the fact, nor direct a trial 
 at law for that purpose, and that a new bill must be 
 filed to put the release in issue.^ It seems, that a cross- 
 bill is always necessary, where the defendant is entitled 
 to some positive relief beyond what the scope of the 
 plaintiff's suit will afford him.^ 
 
 § 873. A cross-bill should state the original bill and 
 the proceedings thereon, and the rights of the party ex- 
 hibiting the bill, which are necessary to be made the sub- 
 ject of cross-litigation, or the ground on which he resists 
 the claims of the plaintiff in the original bill, if that be 
 the object of the new bill. The appearance of the defend- 
 ant to a cross-bill is enforced by subpoena, in the same 
 manner as to an original bill.^ 
 
 § 874. Where a defendant in equity files a cross-bill 
 for discovery only against the plaintiff in the original 
 bill, the defendant to the original bill must first answer 
 thereto, before the original plaintiff is compellable to an- 
 swer the cross-bill. And the answer of the original plain- 
 tiff to such cross-bill may be read and used by the party 
 filing the cross-bill, at the hearing, in the same manner 
 and under the same restrictions as the answer to the bill 
 praying relief may be read and used.* 
 
 § 875. The original cause and cross-cause are usually, 
 although not necessarily, heard together; this rule ap- 
 
 ' ?, Dan. Ch. Pr. 1743. " Ibid. 1744. 
 
 =■ Ibid. 174G-7. * Equity Rules, Ixviii. p. 138. 
 
606 CROSS BILLS. 
 
 plies where both causes are at issue, and in a situation 
 to be heard, and then the plaintiff in the cross-suit may 
 have an order that they be heard together; but the 
 delay of the plaintiff in the cross-suit will not be per- 
 mitted to delay the hearing of the original cause. The 
 order, that the causes may be heard together, is obtained 
 on a motion ex parte, and a copy of the order should be 
 served.^ 
 
 1 3 Dan. Ch. Pr. 1751. 
 
INTERLOCUTORY APPLICATIONS. 607 
 
 CHAPTER XXIII. 
 
 INTERLOCUTORY APPLICATIONS. 
 
 § 876. An interlocutory application is a request made 
 to the court, either orally or in writing, for its interfe- 
 rence in a matter arising in the progress of the cause, 
 whether before it has been brought to a hearing, or af- 
 terwards, in consequence of a decree or order made upon 
 such hearing; and it may either relate to the process of 
 the court, or to the protection of the property in litiga- 
 tion pendente lite, or to any matter upon which the in- 
 terference is required before or in consequence of a de- 
 cree or decretal order. Interlocutory applications are 
 extremely various, and the occasions upon which thej^ 
 can be made are too numerous to be discussed in a trea- 
 tise of this nature ; all, therefore, that can now be done, 
 is to direct the reader's attention to some of the most im- 
 portant and frequent occasions upon which such inter- 
 locutory applications may be made, and to point out the 
 course of practice upon each.^ 
 
 § 877. Applications of this nature, when made viva 
 voce to the court, are called motions; when they are in 
 writing, they are called petitions: there does not, how- 
 ever, appear to be any distinct line of demarkation be- 
 tween the cases in which they should be made by mo- 
 tion, and those in which they should be made by peti- 
 
 '3Dan. Ch. Pr.l781. 
 
608 INTERLOCUTORY APPLICATIONS. 
 
 tion; the practice in this respect being generally regu- 
 lated by the circumstances of each case.^ As a general 
 rule, motions can only be made on behalf of the parties 
 to the record; and where they have for their object the 
 giving effect to decrees or orders, should be confined to 
 cases where the order which is to be made upon the mo- 
 tion arises out of recent proceedings upon which there 
 is no doubt ; for as the adverse party knows nothing but 
 by the notice, containing only the name of the cause, 
 and what is prayed of the court, the proceedings ought 
 to be recent and notorious, so as that the adverse party 
 may be supposed to be perfectly conusant of all the 
 steps and proceedings in the cause, as much as if, at a 
 greater expense, they were recited in a petition.^ In all 
 other cases a petition should be presented. 
 
 § 878. A motion is either of course, that is, for an or- 
 der which, by some standing rule or known practice of 
 court, may be granted without hearing both sides; or 
 special, that is, for an order which is not a mere matter 
 of course, and can only be granted under special circum- 
 stances, or upon notice duly served upon the opposite 
 party. A motion of course requires no notice, as no op- 
 position will be allowed to it; but if it be obtained upon 
 a false suggestion, it may be set aside upon application 
 by special motion. A special motion may be made, either 
 ex parte or upon notice : when made ex parte, it must be 
 supported by the affidavit of the party making the ap- 
 plication, and by such collateral affidavits as may be ne- 
 cessary to make out a sufficient case for the interference 
 of the court. It is impossible to lay down any clear rule 
 defining such motions as may be made ex parte, and dis- 
 
 1 3 Dan. Ch. Pr. 1Y8L 
 
 * Lord Shipbrook v. Lord Hinchinbrook, 13 Ves. 393. 
 
INTERLOCUTORT APPLICATIONS. 609 
 
 tinguishing them from such as require notice; but, in 
 general, special applications concerning the proceedings 
 in the cause, not regulated either by the general equity 
 rules, or by any clearly defined rule of practice, must al- 
 most always be made upon notice.^ 
 
 § 879. The equity rules prescribe, that the prothono- 
 tary's office shall be open, and the prothonotary shall be 
 in attendance therein, on the first Monday of every month, 
 for the purpose of receiving, entering, entertaining, and 
 disposing of all motions, rules, orders, and other pro- 
 ceedings, which are grantable of course, and applied for, 
 or had, by the parties or their solicitors, in all causes 
 pending in equity.^ And that all motions and applica- 
 tions in the prothonotary's office, for the issuing of mesne 
 process, and final process to enforce and execute decrees; 
 for filing bills, answers, pleas, demurrers, and other plead- 
 ings; for making amendments to bills and answers; for 
 taking bills ^?'o cow/esso; for filing exceptions ; and other 
 proceedings in the prothonotary's office, which do not, 
 by the general equity rules, require any allowance or or- 
 der of the court, or of any judge thereof, shall be deemed 
 motions and applications grantable of course by the pro- 
 thonotary of the court; but the same may be suspended, 
 or altered, or rescinded, by any judge of the court, upon 
 cause shown.^ 
 
 § 880. Any judge of the supreme court, or courts of 
 common pleas, as well in vacation as in term, may, at 
 chambers, or, on rule days, at the prothonotary's office, 
 make and direct all such interlocutory orders, rules, and 
 other proceedings, preparatory to the hearing of causes 
 upon their merits, in the same manner, and with the 
 
 1 3 Dan. Ch. Pr. I'ZSS-gO. ^ Equity Rules, ii. p. 111. 
 
 ' Ibid. V. p. 112. 
 
610 INTERLOCUTORY APPLICATIONS. 
 
 same effect, as the court could make and direct the same 
 in term, reasonable notice of the application therefor 
 being first given to the adverse party or his solicitor, to 
 appear and show cause to the contrary, at the next rule 
 day thereafter, unless some other time be assigned by the 
 judge for that purpose.^ 
 
 § 881. All motions for rules or orders, and proceedings, 
 which are not grantable of course, or without notice, 
 must, unless a different time be assigned by a judge of 
 the court, be made on a rule day, and entered in the 
 equity docket, and will be heard at the next rule day 
 after that on which the motion is made. And if the ad- 
 verse party, or his solicitor, do not then appear, or show 
 good cause against the same, the motion may be heard 
 by any judge of the court, ex parte, and granted, as if not 
 objected to, or refused, in his discretion.^ 
 
 § 882. All motions, rules, orders, and other proceed- 
 ings, made and directed, at chambers, or, on rule days, 
 at the prothonotary's oflfice, whether special or of course, 
 must be entered by the prothonotary in his equity docket, 
 to be kept at the prothonotary's office, on the day when 
 they are made and directed; which book, it is provided, 
 shall be open at office hours, to the free inspection of the 
 parties in any suit in equity and their solicitors. A 
 notice thereof given to the solicitors, is deemed notice to 
 the parties for whom they appear, in all cases where per- 
 sonal notice to the parties is not otherwise specially re- 
 quired.^ 
 
 § 883. The principal interlocutory applications which 
 are necessary to be specially considered, are the granting 
 of an injunction, or writ of ne exeat regno ; the appoint- 
 
 ' Equity Rules, iii. p. 111. ' Ibid. vi. p. 11.3. 
 
 ' Ibid. iv. p. 112. 
 
IJSrTERLOCUTOEY APPLICATIONS. 611 
 
 ment of a receiver; the payment of money into court; 
 and the production of documents. The subject of injunc- 
 tions has already, in a former chapter, been treate& of at 
 large; and as the writ of ne exeat regno is a writ simply 
 to hold a defendant to bail to answer an equitable de- 
 mand, and will only be granted where such demand is 
 of a pecuniary nature, it would appear to be prohibited, 
 in most cases, as an equitable remedy, by the act of 1842 
 to abolish imprisonment for debt.-^ 
 
 ' Purd. Dig. 28. 
 
612 
 
 RECEIVERS. 
 
 CHAPTER XXIV. 
 
 RECEIVERS. 
 
 § 884. A RECEIVER is an indifferent person between 
 the parties, appointed by the court to receive the rents, 
 issues, and profits of the lands, or other thing in ques- 
 tion in the court, pending the suit, where it does not 
 seem reasonable to the court that either party should do 
 it ; or when a party is incompetent to do so, as in case of 
 an infant. He is to account for such receipts when the 
 court shall require him, and to secure his so doing, he 
 is commonly ordered to give security for the faithful per- 
 formance of his trust. The appointment of a receiver is 
 a matter resting in the discretion of the court; and the 
 receiver, when appointed, is treated as virtually an officer 
 and representative of the court, and subject to its order .^ 
 
 § 885. The most ordinary cases in which receivers are 
 granted by the court, are those in which the suit arises 
 out of claims by parties having equitable interests in the 
 subject; in such cases the court will appoint a receiver, 
 for the purpose of protecting the property till the question 
 between the parties shall have been determined. And, 
 in general, it may be taken as a rule, that where the le- 
 gal estate is vested in an individual claiming an interest 
 paramount to that of the litigant parties, so that the 
 litigant parties can only have an equitable interest, the 
 
 3 Dan. Ch. Pr. 1949; Gowan c. Jeffries, 2 Asli. 303. 
 
RECEIVERS. 613 
 
 court will grant a receiver, although in doing so, it will 
 always take care not to interfere with the rights of the 
 party having the prior estate. But where the party 
 having the legal estate is in the actual possession of the 
 property, a receiver will not be granted unless under ver}^ 
 peculiar circumstances.^ The taking possession by the 
 court of property, the subject of the suit, to preserve it 
 until the final determination of the litigation, is a strong 
 measure. To authorize it, when such property is in the 
 apparent legal possession of the defendant, the plaintiff 
 must show a clear right thereto, or a prima facie right, 
 with sufficient facts to induce the court to consider the 
 property in danger while in its existing custody. An 
 equity judge, before he will exercise such a power, reflects 
 well on the results of the action proposed to him, and 
 will prefer to remain passive, where serious collateral re- 
 sults might ensue from too rigorous an activity, and 
 when no real evil seems to follow from resting quiescent." 
 § 886. The court will appoint a receiver against a party 
 ' having possession under a legal title, if it can be satisfied 
 that such party is wrongfully entitled to such legal estate. 
 Thus, where fraud can be clearly proved, and immediate 
 danger is likely to result, if the immediate possession 
 should not be taken under the care of the court, a re- 
 ceiver will be appointed. If, however, there be no cir- 
 cumstances of either actual or constructive fraud, and 
 no case of spoliation, the court will not appoint a re- 
 ceiver. But although the court will not interfere upon 
 the mere ground of title, it will appoint a receiver at the 
 instance of the parties beneficially interested, even where 
 
 1 3 Dan. Ch. Pr. 1950, 1952. 
 
 '' Langolf V. Seiberlitch, 2 Pars. 80; Thompson v. Diffenderfer, 1 Maryland 
 Ch. Dec. 489. 
 
614 RECEIVERS. 
 
 there is no fraud or spoliation, provided it can be satis- 
 factorily established that there is danger to the estate or 
 fund, unless such a step be taken. Thus, in the case of 
 executors, if the executor have wasted the effects, or in 
 other respects misconducted himself, the court will inter- 
 fere by the appointment of a receiver.^ 
 
 § 887. The same grounds will induce the court to in- 
 terfere in the case of a party clothed with the character 
 of a trustee, and that whether he be a mere trustee or a 
 trustee having an interest in the estate or fund. Thus, 
 where a trustee refuses to act, the court will, on the ap- 
 plication of the persons beneficially interested, appoint a 
 receiver.^ And so, where a trustee or assignee is dis- 
 missed from the trust, it is provided by act of assembly, 
 that the court may order and direct all books, papers, 
 moneys and effects, in the hands of such dismissed trustee 
 or assignee, to be forthwith delivered or transferred to 
 such other person or persons as the court may appoint 
 to receive the same, upon security being given by such 
 receiver according to the order of the court.^ 
 
 § 888. It is also provided by statute, that where any 
 petitioner for the benefit of the insolvent laws shall be 
 bound over, or committed for trial, or tried and convicted, 
 of fraudulent insolvency, it shall be the duty of the court, 
 on the application of any creditor, to appoint a receiver 
 of all the estate which belonged to such insolvent; which 
 receiver shall be appointed and removed in the same 
 manner, invested with like power, perform like duties, 
 subject to like control of the court, give security in like 
 form, and generally do and perform all the duties en- 
 joined by law on the assignees of estates of insolvent 
 debtors, and shall by force and virtue of such appoint- 
 
 1 3 Dan. Ch. Pr. 105;3-6. ' Ibid. l;i.3y. ' Purd. Diff. PO i. 
 
EECEIVERS. 615 
 
 ment become absolutely vested with all the estate, pro- 
 perty, and effects of such insolvents, as fully as assignees 
 of insolvent debtors are by the laws of this common- 
 wealth, and be able and capable in law to sue and be 
 sued in like manner, being in all cases styled and named 
 receiver of such estates.'- 
 
 § 889. Incasesof partnership also, the court frequently 
 appoints a receiver of the partnership estate. Regarding 
 co-partnership property, as it truly is, first, as a general 
 fund for the payment of partnership debts, and, these 
 being satisfied, as the common fund of the co-partners, in 
 which none have an exclusive interest, the court, after a 
 dissolution, in the event of a disagreement as to the dis- 
 position of it, takes upon itself the guardianship of the 
 joint estate for the common benefit of all interested. The 
 principle on which a receiver is appointed, in the case of 
 a dissolution of partnership and a disagreement between 
 the parties as to the pi-esent disposition of the joint estate, 
 is, that each partner has an equal right to the possession 
 and control of the partnership effects and business. In 
 the mode of carrying out this principle, in cases of disso- 
 lution, there seems to be a difference between courts of 
 equity in this country and in England. In England, 
 even after a dissolution, a receiver is not of course; there 
 must be some breach of the duty of a partner, or of the 
 contract of partnership. In New York, however, the 
 rule seems to be, that upon a bill filed hy one partner to 
 close up a dissolved partnership concern, it is a matter 
 of course to appoint a receiver, if the parties cannot agree 
 among themselves as to the disposition and control of the 
 joint property.^ Practically, this conflict of authority can 
 produce but little embarrassment, because an application 
 
 1 Purd. Dig. 442. 
 
 ' Marten v. Van Schai&k, 4 Paige, 479; Law v. Ford, 2 Paij^e, 310; Harding 
 V. Glover, 18 Ves. 281 ; Wilson r. Greenwood, 1 Swanst. 481. 
 
616 EECEIVEES. 
 
 * 
 
 for a receiver will rarely be made, unless a breach of part- 
 nership duty exist ; since, it is the manifest interest of 
 a dissolved co-partnership, that its assets should be ad- 
 ministered by one of the associates, instead of a public 
 officer having no knowledge of or concern in the business.^ 
 § 890. The court will also appoint a receiver on a bill 
 for the dissolution of a subsisting partnership, before 
 answer and final decree. Such a case, however, to autho- 
 rize the appointment of a receiver, must be one which 
 w^ould authorize a decree for a dissolution ; and where it 
 is apparent that a dissolution will be decreed, on the 
 ground of some breach of duty or contract, a receiver 
 will be appointed. The grounds, among others, upon 
 which a dissolution will be decreed and a receiver ap- 
 pointed, are, the insolvency of the copartnership ; ^ the 
 exclusion of the complainants from their full share in 
 the management of the concern; the neglect of the de- 
 fendant, being the active partner, to keep perfect books 
 of account ; and his refusal to keep his books and accounts 
 free and open at all times to the inspection of the com- 
 
 ^ Gowan v. Jeffries, 2 Ash. 303-4. See Holden's Administrators v. M'Makin, 
 1 Pars. 285. 
 
 ^ In New York, when a limited partnership becomes insolvent, its assets are 
 considered a trust fund for the benefit of the creditors generally; and if the 
 insolvent partners neglect to place the partnership effects in the hands of a 
 proper and responsible trustee, to be distributed, without delay, among all the 
 creditors of the firm, other than the special partner, rateably in proportion to 
 the amount of their several debts, either due or to become due, any creditor 
 may file a biU in behalf of himself and the other creditors of the firm; and 
 may have a receiver appointed to distribute it among the several creditors who 
 may come in and prove their debts under the decree to be obtained on such 
 bill. Innes v. Lansing, 1 Paige, 583-4. The gist of the motion, in such case, 
 consists in the fact that the co-partnership property is held by insolvent hands. 
 Edw. on Receivers, 562; Bloodgood ?•. Clark, 4 Paige, 574. In Pennsylvania, 
 however, a court of equity has refused to appoint a receiver of the effects of a 
 special partnership, on the ground that a creditor of the firm was about to 
 obtain judgment for a large amount, and to issue execution, whereby he would 
 obtain a preference. Beebe r. Boswell, Purd. Dig. 544 n. See form of such a 
 bill in the Appendix. 
 
RECEIVERS. 617 
 
 plainants. The exclusion of a partner from his full share 
 of management, has always been held to be the strongest 
 ground for appointing a receiver.^ 
 
 § 891. The same rules which prevail respecting the 
 appointment of a receiver in a suit between partners, 
 are, in general, applicable to a suit between the . repre- 
 sentative of a deceased partner and the surviving part- 
 ner. The rule laid down by courts of equity on this sub- 
 ject, seems to be this : the surviving partner having, at 
 law, the right to the care, custody, and management of 
 the joint estate, a court of equity will not, generally 
 speaking, on a bill being filed against him for an account 
 of the partnership transactions, deprive him of his legal 
 right, by appointing a receiver, because, notwithstanding 
 the death of one, the confidence in the other remains. 
 But if he be guilty of such acts of mismanagement and 
 improper conduct as satisfactorily prove that he cannot 
 be intrusted with the joint estate, the court will then 
 exercise its power, and appoint a receiver to collect in 
 the debts and dispose of the property.* 
 
 § 892. The court has no jurisdiction to appoint a re- 
 ceiver, unless a cause be pending; and when it is in- 
 tended to apply to the court for such appointment, it is 
 usual to insert in the prayer of the bill a request, that 
 the court will, if necessary, appoint a receiver : this, how- 
 ever, is not absolutely requisite, and if the facts of the 
 case authorize it, the court will appoint a receiver, al- 
 though there be no prayer to that effect in the bill; in- 
 deed, the necessity for the appointment frequently occurs 
 after the bill has been filed, so that it could not have 
 been part of the prayer, and the court will, nevertheless, 
 
 ' Gowan v. Jeffries, 2 Ash. 304-6. 
 
 ^ Holden's Administrators v. M'Makin, 1 Pars. 284. 
 
 40 
 
618 
 
 EECEIYEES. 
 
 make the order, without requiring the bill to be amended, 
 or a supplemental bill to be filed.^ 
 
 § 893. The application for a receiver may be by peti- 
 tion, but it is usually made by motion, of which notice 
 must be given : a receiver may also be appointed by de- 
 cree. Strictly speaking, a receiver can only be appointed 
 after answer; but this rule is dispensed with, whenever 
 the justice of the case requires it, and the merits appear 
 by affidavit, and the court will not only appoint a re- 
 ceiver before answer, but will, in cases of emergency, en- 
 tertain the application before appearance.^ As a gene- 
 ral rule, a receiver will not be appointed without notice 
 to the parties interested; but even this rule has its ex- 
 ceptions, for the court will appoint without notice, where 
 irreparable injury would be occasioned by the delay. 
 The defendant, however, after such an appointment, can 
 apply to the court for relief against the order, which will 
 be superseded on satisfactory cause shown.^ 
 
 § 894. Where the application for a receiver is made 
 before answer, it must be supported by affidavits verify- 
 ing the facts which are relied upon by the party making 
 it : after answer, the plaintiff can only rely upon the ad- 
 missions in the answer. But where the answer is filed 
 after notice of a motion for the appointment of a re- 
 ceiver, the practice is, to allow the affidavit of the plain- 
 tiff to be read, and to look upon the answer as a counter- 
 affidavit. And so where one defendant only, of two ma- 
 terial defendants, had answered, the plaintiff was per- 
 mitted to read his affidavit in support of the application, 
 and the answer of the defendant which had come in was 
 treated as an affidavit.* 
 
 1 3 Dan. Ch. Pr. 1973-4. ^ Ibid. 1974-5. 
 
 ' Gowan v. Jeffries, 2 Ash. 307; People v. Norton, 1 Paige, 17; Gibson v. 
 Martin, 8 Paige, 481. ■■ 3 Dan. Ch. Pr. 1976. 
 
RECEIVERS. 619 
 
 § 895. According to the English practice, the order, 
 when made, usually refers it to the master to appoint a 
 proper person to be receiver, either of the rents and pro- 
 fits of the estate, &c., mentioned on the pleadings, or of 
 the outstanding personal estate and effects of the testa- 
 tor, or of the partnership firm in the pleadings men- 
 tioned, (as the case may be) and to allow him a proper 
 salary for his care and pains therein ; the person to be 
 appointed, first giving security to be approved of by the 
 master, duly and annually to account for and pay what 
 he shall so receive, as thereinafter directed, or as the 
 court shall appoint.-^ Our courts, however, have not 
 adopted the practice of referring the appointment to a 
 master, but will receive directly the proposals of the par- 
 ties, of suitable persons for receivers, and will act di- 
 rectly upon such proposals.^ 
 
 § 896. When a receiver has been appointed of lands 
 and tenements, his duty is to obtain possession of such 
 of the estates as may be in the hands of any of the par- 
 ties to the cause, and to obtain the attornment of the 
 tenants of such of them as may be let. If he be unable 
 to accomplish this, by reason of the refusal of the party 
 to deliver up possession of the estate, or of the tenants 
 to attorn, he must report such refusal to the sohcitor of 
 the party on whose application the order for the receiver 
 was made, in order that he may take the necessary 
 steps to put the receiver into possession, or to procure 
 the attornment of the tenants.^ A defendant, who is the 
 owner and occupier of an estate subject to a charge 
 which the suit seeks to enforce, will be compelled to at- 
 torn to a receiver, and a reference will be directed to a 
 master to fix an occupation rent.* 
 
 1 3 Dan. Cli. Pr. 1976-?. ^ Gowan v. Jeffries, 2 Ash. 307. 
 
 ^ 3 Dan. Ch. Pr. 1987-8. * Everett v. Balding, 15 Eng. L. & Eq. R. 354. 
 
620 PAYMENT INTO COURT. 
 
 CHAPTEE XXV. 
 
 PAYMENT OF MONEY INTO COURT. 
 
 § 897. One of the most ordinary methods by which 
 the court enforces its jurisdiction of preserving property 
 in dispute, pending a litigation, is by ordering the fund to 
 be paid into court. The payment of money into court is 
 most usually ordered on interlocutory application, in the 
 case of personal representatives, or other persons filling 
 the characters of trustees, having money in their hands 
 which belongs either wholly or in part to the plaintiff. 
 Upon this principle, the court has ordered an auctioneer 
 to pay into court the balance of a deposit upon a sale, 
 admitted by him to be in his hands, after deducting his 
 claims as auctioneer. So also, where an executor admits 
 a sum of money to be due from him, in his individual 
 character, to his testator, the court will order the amount 
 to be paid into court.^ 
 
 § 898. In order to induce the court to direct the im- 
 mediate bringing in of a sum of money, upon an inter- 
 locutory application, the money must be clearly trust 
 money; where it is not impressed with a trust, but is in the 
 nature of a mere debt, the court will not make an order 
 for the payment of it into court till the hearing of the 
 cause. It is not necessary, however, to induce the court 
 to order trust money to be paid in, that the trust should 
 
 > 3 Dan. Ch. Pr. 2010-12. 
 
PAYMENT INTO COURT. 621 
 
 be one absolutely declared; it will, in many cases, do the 
 same where the trust is only implied; as in the case of 
 vendors and purchasers, in which case, as the court con- 
 siders what is agreed to be done, as done, it will treat 
 the vendor as a trustee for the purchaser of the estate 
 contracted for, and the purchaser as a trustee for the 
 vendor, of the purchase money; and therefore, a pur- 
 chaser in possession of the estate may, upon motion, be 
 ordered to pay the purchase money into court.^ 
 
 § 899. The rule upon this subject is thus stated by 
 Sir Edward Sugden: "1. Where the possession is taken 
 under the contract, or is consistent with it, and the pur- 
 chaser has not dealt improperly with the estate, the cause 
 must take its regular course : but, 2. If the possession 
 by the purchaser without payment of the money is con- 
 trary to the intention of the parties, or is held according 
 to it, but the purchaser has exercised improper acts of 
 ownership; for example, cutting timber by which the 
 property is lessened in value, or selling the estate by 
 which the first seller's remedy is complicated without his 
 assent ; in such cases, the court will interpose and compel 
 the purchaser to pay the purchase money into court." ^ 
 
 § 900. In regard to compelling the payment into court 
 of money constituting partnership property, as the rule 
 is, that he who seeks equity must do equity, it seems 
 clear that where the plaintiff is a private debtor to the 
 partnership, he cannot insist upon an account, without 
 paying the amount of his debt into court. Upon similar 
 principles, it would seem, that if the defendant aver by 
 his answer, that a specific sum is due by the plaintiff to 
 the partnership as a private debt, that sum must be paid 
 into court by the plaintiff before an account will be de- 
 
 ' 3 Dan. Ch. Pr. 2014. ^ 1 Sugd. on Vendors, 248-9. 
 
622 PAYMENT INTO COURT. 
 
 creed.^ But one partner, whether plaintiff or defendant, 
 may receive ])o.i'inership money and effects, and insist on 
 not paying in the amount unless all the other partners 
 will pay in what they have in their hands ; and d fortiori, 
 if a partner, as partner, receive money belonging to the 
 firm, and admitting that he has received it, insist that 
 there is a balance in his favour, there is no pretence for 
 making him pay it in.^ 
 
 § 901. A payment of money into court, upon an in- 
 terlocutory application, does not alter the rights of the 
 parties interested in the fund : the only instance in which 
 the payment into court will affect the right of the parties, 
 is where money due to a wife is paid into court in a suit 
 to which the husband and wife are parties, which will 
 have the effect of depriving the wife of her right by sur- 
 vivorship, unless the payment be into the joint names of 
 the husband and wife.^ Such effect, however, would not 
 result in this state from a payment of the wife's money 
 into court, since the passage of the act of 1848 to pro- 
 tect the rights of married women. 
 
 § 902. Applications for the payment of money into 
 court should be made by special motion, of which notice 
 must be given, and they are most commonly made after the 
 answer has come in ; but they are not unfrequently made 
 after decree, on admissions upon proceedings under or 
 before a master; and may in some cases be made before 
 answer ; such cases, however, are very rare : in general 
 such an order will not be made before answer filed, ex- 
 cept upon the ground of fraud.* 
 
 § 903. To support an application for the payment of 
 money into court, upon the answer, there must be a clear 
 
 1 Collyer on Part. 165. ^ 3 Dan. Ch. Pr. 2019. 
 
 « Ibid. 2019-20. * Ibid. 2021, 2024. 
 
PAYMENT INTO COURT. 623 
 
 admission by the answer, of the plaintiff's title : nor will 
 the plaintiff be allowed, in such a case, to make use of 
 affidavits to supply the defect in the answer, the rule of 
 the court being, that the order shall be made upon the 
 defendant's admission alone. This rule, however, must 
 be understood as applying to proof of the plaintiff's title ; 
 for it has frequently been decided, that though the court 
 will not, upon applications of this sort, allow affidavits to 
 be read in support of the plaintiff's title, it will receive 
 affidavits to verify collateral facts; thus, upon a motion 
 that a purchaser may pay his purchase money into court, 
 it will allow affidavits to be read, to prove that he has 
 exercised acts of ownership.^ 
 
 § 904. It must also appear to be admitted, either in 
 the answer or the schedules annexed to it, that there is 
 a balance actually in the hands of the defendant. It is 
 not, however, necessary, that the actual amount of the 
 balance should be stated, either in the answer or on the 
 schedule; if the answer contain a schedule not cast up, 
 the sums may be cast up, and, on affidavit of the amount 
 of what appears to be due, the order will be made. The 
 same indulgence which is allowed to a plaintiff, of veri- 
 fying the amount of the balance admitted by the answer, 
 will, in certain cases, be extended to the defendant; and 
 where an executor admits, in his answer, that he has re- 
 ceived a specific sum belonging to the testator's estate, 
 but adds that he has made payments on account of the 
 estate, the amount of which he does not specify, the court 
 will allow him to verify the amount of his payments by 
 affidavit, and then order him to pay the balance into 
 court.^ 
 
 ' 3 Dan. Ch. Pr. 2021. « jby. 2022-3. 
 
624 PRODUCTION OF DOCUMENTS . 
 
 CHAPTER XXVI. 
 
 PRODUCTION OF DOCUMENTS. 
 
 § 905. It is the constant practice of courts of equity, 
 before the hearing of a cause, to allow a plaintiff to move 
 for the production of documents relative to the matters 
 in question, which have been admitted by the defendant's 
 answer to be in his possession or power. This power to 
 order the production of documents, arises out of that 
 general jurisdiction for the purpose of discovery, which in 
 all proceedings in equity constitutes a peculiar and im- 
 portant feature, and, in some instances, forms as it were 
 the very foundation for the interference. This subject 
 has already been considered, so far as relates to the right 
 of the plaintiff to inspect documents referred to in the an- 
 swer of the defendant ; ^ and we will here briefly examine 
 the rules of practice regulating applications for their pro- 
 duction. 
 
 § 906. As a general rule, the plaintiff must be able to 
 read from the answer an admission that the documents, 
 for which the motion is made, are at that time in the 
 defendant's possession ; the fact cannot be established by 
 affidavit. If the documents be in the hands of an agent 
 of the defendant, against whom the motion is made, the 
 principle of the court is, that the possession of the agent 
 is the possession of the defendant himself It seems, 
 
 ' Ante, § 680-1. 
 
PRODUCTION OF DOCUMENTS. 625 
 
 however, to be necessary, that the person in whose cus- 
 tody the documents are, should hold them exclusively 
 for the defendant ; for where the person who holds them 
 is the agent of other persons as well as the defendant, 
 against whom the motion is made, no order can be made 
 for their production. But this principle does not extend 
 so as to exonerate a defendant from making a discovery 
 of any knowledge he may be able to obtain, by inspecting 
 documents in the joint possession of himself and others.^ 
 
 § 907. The plaintiff having shown that the answer 
 contains a sufficient admission of the possession of docu- 
 ments, it is next incumbent upon him to show that they 
 are sufficiently described so as to enable the court to 
 make an order for their production. As the want of a 
 proper description of documents, admitted to be in the 
 defendant's possession, precludes the plaintiff from moving 
 for their production; such a defect in itself renders the 
 answer insufficient. Consequently, when the answer 
 does not describe the documents the plaintiff may wish 
 to inspect, the proper course for him to adopt is, to except 
 to the answer, before making a motion for production.^ 
 
 § 908. The next subject for investigation is, the nature 
 of the plaintiff's right to the documents themselves, or 
 his interest in inspecting them; for the defendant may 
 object to the production, upon the ground that such right 
 or interest is jiot shown. The defendant may also urge 
 special grounds of exemption as reasons why the motion 
 should not be granted; the onus, however, of proving 
 such objections to the required discovery rests upon the 
 defendant.^ 
 
 § 909. In general, the plaintiff's right or interest in the 
 documents is sufficiently established by an unqualified 
 
 ' 3 Dan. Ch. Pr. 2041-2. '' Ibid. 2044-5. = Ibid. 2045. 
 
626 PRODTJCTION OF DOCUMENTS. 
 
 admission by the defendant, that they are relevant to 
 the plaintiff's case; but this admission may be accom- 
 panied by statements in the answer tending to estabhsh, 
 either that the plaintiff has not that right or interest in 
 the documents which entitles him to their production, or 
 that the defendant has some special grounds for protection. 
 If such qualifying statements contain an entire denial of 
 the plaintiff's title to maintain the suit, a discovery of 
 the documents admitted to be in the defendant's posses- 
 sion will not be granted, until the plaintiff has estab- 
 lished his title.^ Nor is this principle in any way affected 
 by the rule that a defendant who submits to answer must 
 answer fully ; for, as we have seen, a defendant may, 
 according to our practice, by his answer, deny the princi- 
 pal fact, upon which the equity of the plaintiff's bill is 
 founded, and decline making any discovery consequent 
 upon the equity so denied.^ 
 
 § 910. As we have already considered, in the chapter 
 on discovery, the nature of the objections which may be 
 specially urged to making the discovery called for by the 
 plaintiff's bill, it is only necessary here to observe, that 
 the same reasons may be objected to the production of 
 documents admitted to be in the possession of the de- 
 fendant. The one most commonly urged is, that the 
 required documents relate exclusively to the defendant's 
 title and not to the plaintiff's casej for if they relate 
 both to the plaintiff's case and also to the defendant's, 
 then, it seems, that, even though they be the very foun- 
 dation of the defendant's title, still they must be produced.^ 
 
 § 911. A motion for the production of documents must 
 be made upon notice, and is subject to the ordinary rules 
 
 ' 3 Dan. Ch. Pr. 2046-7. = Perry v. Kinley, 3 Am. L. R. 183. 
 
 3 Dan. Ch. Pr. 2052. 
 
PRODUCTION OF DOCUMENTS. 627 
 
 affecting special motions. There does not seem to be 
 any period of the cause, after the tiling of the answer, 
 when such a motion cannot be made. The order usually 
 directs the documents to be left with the prothonotary, 
 and it would appear that the court will never order pro- 
 duction at any other place, except upon the consent of 
 the person in whose possession they are. Upon the ap- 
 plication, however, of the defendant, the court will fre- 
 quently order production at some other place, for the 
 sake of convenience.'^ 
 
 § 912. If the defendant state, by affidavit, that cer- 
 tain portions of the documents required to be produced, 
 do not relate to the matters in question, leave will be 
 given him to conceal them; in such case the order will 
 be qualified in the following manner : " but the said de- 
 fendant is to be at liberty to seal up such parts of the 
 said books as, according to an affidavit to be previously 
 made, do not relate to the matters in question in this 
 cause." In a case of this kind, even though there be 
 strong grounds for suspecting that the defendant has 
 sealed up matter that ought to have been disclosed, the 
 court is concluded by the oath of the defendant from 
 giving further discovery. If, however, the defendant's 
 affidavits contain statements at variance with each other, 
 or if the document itself show a discrepancy in his 
 statements, it seems, that it would be quite consistent 
 with the rules of the court to get at the truth by com- 
 pelling the party to give the discovery.^ 
 
 § 913. The effect of an order against a defendant for 
 the production of documents, is only to give the plaintiff 
 the power of inspecting and taking copies of them. It 
 does not make the documents evidence in the cause. 
 
 1 3 Dan. Ch. Pr. 2064. ' Ibid. 2066. 
 
628 PEODUCTION OF DOCUMENTS. 
 
 unless the mere circumstance of their coming out of the 
 custody of the defendant would, in itself, render them 
 admissible evidence. If, therefore, the plaintiff wish 
 to have them proved in the cause, or to have them pro- 
 duced at the hearing, it is necessary that he should pro- 
 cure an order to that effect. When, however, a document 
 has been produced by the defendant, for the purpose of 
 enabling the plaintiff to have it proved as an exhibit in 
 the cause, then he is bound to have it in court at the 
 hearing, without any direct order against him for its pro- 
 duction.-^ 
 
 § 914. As a general rule, when discovery from the 
 plaintiff, either concerning matters of fact, or the con- 
 tents of documents, is necessary to a defendant, for the 
 purpose enabling him to complete his defence to the case 
 sought to be established against him, he can only obtain 
 such discovery by means of a cross-bill. Upon such a 
 bill being filed, the plaintiff in the original suit, in his 
 character of a defendant to the cross-bill, becomes liable 
 to the application of the same rules concerning the pro- 
 duction of documents, as a defendant in any other case. 
 An answer to a cross-bill cannot, however, in general be 
 obtained, until the original bill has been fully answered ; 
 and not only must a full answer, in the ordinary sense 
 of the term, be placed upon the record, before an answer 
 to the cross-bill can be enforced ; but the plaintiff in the 
 original suit will be allowed time to answer the cross-bill, 
 until after the defendant has complied with an order for 
 production of deeds in-the original suit.^ 
 
 1 3 Dan. Cli. Pr. 2067-8. ^ Ibid. 2069. 
 
orphans' court. 629 
 
 CHAPTER XXVII. 
 
 orphans' court. 
 
 § 915. The orphans' court is a court of record, holden 
 in each county of the state by the judges of the court 
 of common pleas. Its jurisdiction extends to and em- 
 braces the appointment, control, removal, and discharge 
 of the guardians of minors, and the settlement of their 
 accounts; the removal and discharge of executors and 
 administrators deriving their authority from the register 
 of the respective county, and the settlement of their 
 accounts; the distribution of the assets, and surplusage 
 of the estates of decedents, after such settlement, among 
 creditors,^ and others interested;^ the sale and partition 
 
 * It was said, ante § 151, that a creditor could not go into the orphans' 
 court to recover his deht against a solvent estate; but whilst these pages have 
 been passing through the press, the case of Gochenaur's Appeal, 3 Am. L. R. 
 486, has appeared, in which this doctrine is overruled ; and it is now determined 
 by the supreme court, that under the act 13th April 1840, Purd. Dig. 211, the 
 orphans' court has jurisdiction of a disputed claim against the estate of a 
 decedent, whether it be solvent or insolvent. And see Heitlpr's Estate, 3 Am. 
 L. U. 487 n; Kittera's Estate, 5 Harris, 416; Whiteside v. Whiteside, 8 Harris, 
 474. The same point was decided in Bull's Appeal, 17 May "1855. MS. 
 
 ^ In a proceeding before the orphans' court for the distribution of the assets 
 of the estate of a decedent, the parties beneficially interested in the fund are 
 recognised as having a standing in court; and therefore, where the fund is in- 
 sufficient for the payment of all demands against it, each creditor has the 
 right to oppose any other claimant, by showing payment of the debt, or that 
 it is barred by the statute of limitations, or that the lien has expired (if the 
 claim be upon a fund arising from the sale of real estate,) or that any other 
 defence exists against it; and these rights do not depend upon the will of the 
 personal representative of the decedent. Kittera's Estate, 6 Harris, 423. 
 
630 orphans' court. 
 
 of the real estate of decedents; the specific execution of 
 contracts made by decedents, to sell and convey any real 
 estate of which such decedent dies seised; proceedings 
 for the recovery of legacies;^ and all cases within the 
 respective county, wherein executors, administrators, 
 guai'dians, or trustees, may be possessed of, or are in an}- 
 way accountable for any real or personal estate of a 
 decedent.^ 
 
 § 916. The orphans' court is sometimes called a court 
 of limited jurisdiction. This is true, if regard be had to 
 the derivation of its powers, for it possesses none inhe- 
 rently, and exercises such only as are conferred by or im- 
 plied from legislation ; and it is true also as to the subjects 
 of its jurisdiction, for these are set down in the statutes; 
 but, within its appointed orbit, its jurisdiction is exclu- 
 sive, and therefore necessarily as extensive as the de- 
 mands of justice.^ The orphans' court, in matters with- 
 in its jurisdiction, proceeds on the same principles as a 
 court of chancery;* it is essentially such in its proceed- 
 ings and decrees, within the limited sphere of its jurisdic- 
 tion.' But although the orphans' court has been called 
 a court of equity in respect to the few objects within its 
 jurisdiction, the ancillary powers of such a court have 
 not been given to it. It is a special tribunal for specific 
 cases; and its resemblance to a court of equity consists 
 in its practice of proceeding by petition and answer, con- 
 
 1 It has been said, that under the act 24th February 1834, the orphans' court 
 has no jurisdiction, unless a legacy be charged on or payable out of real estate. 
 Galloney's Appeal, 6 Barr, 37 ; Mittenberger v. Schlcgel, 1 Ban-, 243. But it 
 does not appear to have been considered, whether such jurisdiction be not con- 
 ferred by the act IGth June 1836, which gives jurisdiction to the orphans' court, 
 generally, of all proceedings for the recoveiy of legacies, without limitation. 
 
 " Purd. Dig. G20-1. * ShoUenbcrger's Appeal, 9 Harris, 341- 
 
 * Guier v. Kelly, 2 Binn. 299. 
 
 * Commonwealth v. The Judges, 4 Barr, 303; Kittera's Estate, 5 Harris, 423. 
 
orphans' court. 631 
 
 taining the substance, but not the technical subtleties 
 and nice distinctions of a bill in equity; by which, how- 
 ever, justice is obtained more conveniently, and as cer- 
 tainly, as in courts of equity purely so called. As the 
 orphans' court, therefore, has not the general powers of 
 a court of equity, it cannot entertain a bill of discovery : 
 but it can reject an answer to a petition.'^ 
 
 § 917. The statutes which define the jurisdiction of 
 the orphans' court, and direct the mode of its exercise, 
 had it not in view to cumber the proceedings of the 
 courts with the elaborate forms of equity pleading, or to 
 require the niceties which time has introduced into the 
 forms used in chancery.^ lu conducting the business of 
 our statutory courts, we may profitably consult the prac- 
 tice which ol)tains in the purely equitable tribunals, and 
 tlio reasons that have led to its adoption. But this does 
 not necessarily involve the self-imposition of shackles 
 that llicrc sometimes fetter the arms of justice, by sacri- 
 ficing truth to technical rule. The oljjcct should be, 
 just to retain so much of form as is necessary to the right 
 understanding and conduct of the cause, and to adopt 
 the precepts that regulate the modes of procedure, so 
 far as these contribute to the furtherance of right and the 
 suppression of wrong.^ 
 
 § 918. The manner of proceeding in the orphans' 
 court, to obtain the appearance of a person amenable to 
 its jurisdiction, and to compel obedience to its orders and 
 docroes, is as follows : on the petition to tlie court of any 
 person interested, whether such interest be immediate or 
 remote, setting forth the ftxcts necessary to give the court 
 jurisdiction, the specific cause of complaint, and the re- 
 
 ' Brinkor v. Brinkor, 1 Barr, 55. * Johnson's Appeal, 9 Barr, 419. 
 
 ' (ii-orgo's Appeal, 2 Jones, 261. See Slieafi'er's Appeal, 8 Barr, 43-4. 
 
632 orphans' court. 
 
 lief desired, and supported by oath or afErmation, the 
 court, or any judge thereof, in vacation, is required to 
 award a citation, returnable at a day certain, not less 
 than ten days after the issuing thereof.^ 
 
 § 919. Although the orphans' court is not controlled 
 J)y the rules of pleading which have been established in 
 courts of purely equitable jurisdiction, a proper Umited 
 regard to form is not dispensed with by the act defining 
 its course of procedure.^ It must not only appear from 
 the facts set forth in the petition, that the orphans' court 
 has jurisdiction of the cause of complaint, but that the 
 relief desired is such as the court has power to grant in 
 the manner and form prayed for.^ It must also make 
 the proper parties interested defendants in the suit; thus, 
 to a petition praying a sale of land for the payment of 
 legacies, the terre tenants, grantees of a devisee of the 
 land, charged with the payment of the legacies, are ne- 
 cessary parties ; * the court, however, acting on the prin- 
 ciples of a court of chancery, will disregard forms, by 
 striking out or adding parties, if necessary, to reach the 
 justice of the cause. ^ It is also necessary that the peti- 
 tion should be supported by oath or af&rmation : without 
 it, no citation or process can legally issue. ^ But when 
 the subject of the petition is clearly within the jurisdic- 
 tion of the court, and presented in proper form, a cita- 
 tion is as much a matter of right, as a subpcena is in 
 chancery.'' 
 
 § 920. The citation may be served by the party ob- 
 taining the same, or by any authorized agent, or if re- 
 
 1 Purd. Dig. 622. ^ Johnson's Appeal, 9 Barr, 419. 
 
 ' Cohen's Appeal, 2 Watts, 177. But see Brinker v. Brinker, 7 Barr, 56, 
 where it is said, that a prayer for general relief is sufiBcient. 
 
 * Jenkins v. Jenkins, 7 Barr, 246. '' Downer v. Downer, 9 Barr, 303. 
 
 " Darrach's Estate, 4 Penn. L. J. 247-8. ' Smith v. Black, 9 Barr, 308-9. 
 
orphans' court. 633 
 
 quired by the party, it must be served by the sheriff or 
 coroner, as the case may require, of the proper county. 
 The manner of service is directed to be, by giving a copy 
 thereof to the defendant personally, or by leaving such 
 copy with some member of his family at his last place 
 of abode. If the defendant be not found, and have no 
 known dwelling place within the county,^ such citation 
 may be served, in like manner, upon the person or per- 
 sons who may be the surety or sureties of such party, in 
 any bond or recognisance given by him for the per- 
 formance of any trust or duty in respect to which such 
 citation may have issued. The return to a citation, if 
 made by the party on whose petition it issued, or his 
 agent, must be on oath or affirmation ; and in all cases of 
 service, the return must state how such citation was 
 served.^ 
 
 § 921. If the party to be cited cannot be found, and 
 have no known dwelling-place within the commonwealth, 
 and there be no surety on whom service of the citation 
 can be made, and the facts be so stated in the return, on 
 oath or affirmation, by the party complaining, or by some 
 one competent to make affidavit in that behalf, the 
 court may award another citation, returnable in like man- 
 ner with the first; and, at the time of awarding such 
 
 ^ The act 27tli March 1854 provides, that in all cases where executors, ad- 
 ministrators, assignees, or other trustees, shall not reside within the jurisdic- 
 tion of the court having control of their accounts, proceedings may be held, 
 and suits may be brought against them, by creditors and others interested in 
 said estates, in the counties where such accounts are to be settled; and process 
 may be served by the proper officers of said counties, or their deputies, on said 
 executors, administrators, assignees, or other trustees, beyond the bounds of 
 said counties, as if they resided therein, or upon any surety on their official 
 bonds, with like effect as if they resided within the jurisdiction of the courts 
 having control of their accounts. Purd. Dig. 1101. 
 
 2 Ibid. 622. 
 
 41 
 
634 OEPHANS' COURT. 
 
 second citation, may make an order for publication of 
 the same in two or more newspapers, to be designated 
 by tbe court, in such place or places, and for such length 
 of time as the court, having regard to the supposed 
 place of residence of the defendant, and other circum- 
 stances, shall direct.-^ 
 
 § 922. In all cases in which heirs, legatees, or distri- 
 butors, are interested, and in consequence of such in- 
 terest, notice is required to be given to them, or any of 
 them, of any proceedings in the orphans' court, such 
 notice is directed by statute, in all cases, to be given in the 
 following manner, except in cases otherwise specially 
 provided for, namely : to all persons resident within the 
 county in which the court has jurisdiction, notice shall be 
 given personally, or by writing left at their place of abode : 
 to all persons resident without the county, personal 
 notice shall be given, in like manner, if in the opinion of 
 the court, such notice be reasonably practicable : if other- 
 wise, by publication in such one or more newspapers, as 
 in the opinion of the court, will be most likely to meet 
 the eye of those entitled to notice.^ 
 
 § 923. In all cases in which the proceedings in the 
 orphans' court, affect the interest of any minor, notice 
 of such proceedings must be given to the guardian of 
 such minor, if resident within the county, or within 
 forty miles of the seat of justice, in the same manner as 
 provided for in the case of resident persons of full age; 
 but if such minor have no guardian, it is the duty of 
 the party making the application to the orphans'' court, 
 to cause notice of such application to be given to the 
 minor, if above the age of fourteen years, or, if under 
 that age, to his next of kin of full age, provided such 
 minor or next of kin reside within the county, or within 
 
 1 Purd. Dig. 622. ^ Ibid. 621. 
 
orphans' court. 635 
 
 forty miles of the seat of justice thereof; and if, at the 
 next session of the court, appUcation be not made on 
 the part of such minor, praying for the appointment 
 of a guardian, then it becomes the duty of the court to 
 appoint a suitable person as guardian, on whom notice 
 must be served in all cases in which notice shall be re- 
 quisite.-' 
 
 § 924. At the time appointed for the appearance of 
 the defendant, should he not appear, according to the 
 requisition of the citation, and if due proof be made of 
 the service thereof, or when service cannot be made, of 
 the publication thereof as prescribed by the act of as- 
 sembly, the court may, with or without another citation, 
 as justice may require, proceed to make such order or 
 decree in respect to the subject matter as may be just and 
 necessary. The court may also, on such proof, order the 
 petition of the complainant to be taken as confessed, 
 and direct a reference to an auditor or auditors to take 
 proof of the facts and circumstances set forth in the 
 petition, and to report thereon ; and also to report an 
 account against the defendant, if necessary; and on the 
 report of the auditor or auditors, the court may make 
 such order or decree thereon as may be just.- It is 
 irregular to make a decree for the removal of a guar- 
 dian, upon taking the petition pro confesso against him, 
 merely because he neglects or refuses to answer: all 
 the court can do in such case is, to proceed ex parte, 
 and judge how far the complaint is sustained by the 
 evidence on the part of the petitioner.^ Neither can a 
 decree safely be obtained against an infant, upon the 
 mere fact of taking the bill pro confesso, or upon an 
 answer in form by the guardian ad litem. The answer 
 
 ' Purd. Dig. 622. ' Ibid. ' Shilling's Appeal, 1 Ban-, 90. 
 
636 
 
 ORPHANS COURT. 
 
 in such cases generally is, that the infant knows nothing 
 of the matter, and therefore neither admits nor denies the 
 charges, but leaves the plaintiff to prove them as he shall 
 be advised, and throws himself upon the protection of the 
 court. A decree upon such an answer would not bind 
 the infant, and he can open it or set it aside when he 
 comes of age. No laches can be imputed to an infant, 
 and no valid decree can be made against him merely by 
 default.^ 
 
 § 925. The orphans' court, or any auditors appointed 
 by them, have power to examine on oath or affirmation, 
 any of the parties to any proceedings instituted in such 
 court, respecting any matters in dispute in such pro- 
 ceedings;^ such examination, however, can only be at 
 the instance of the opposing party ;^ and if one party 
 call and swear the other, the oath must be taken for 
 true, unless it be clearly disproved : this is the general 
 rule in equity.* The court may also compel the pro- 
 duction of any books, papers, or other documents, neces- 
 sary to a just decision of the question before them, or 
 before auditors.^ 
 
 § 926. The court may likewise send an issue to the 
 court of common pleas of the same county, for the trial 
 of facts by a jury, whenever it deems it expedient so to 
 do.® Such issue, however, ought to state the specific 
 facts to be tried; since many errors, as well as great in- 
 justice, must necessarily grow out of not stating the fact 
 or facts contested between the parties specifically, and 
 making the precise points of the issue or issues which 
 are to be settled by a jury. ^ It would be well if the same 
 
 ■ Rogers v. Smith, 4 Barr, 100-1. ' Purd. Dig. 624. 
 
 ' Mylin's Estate, 7 Watts, 67. 
 
 ' Light's Appeal, Supreme Court, 18 December 1854. MS. 
 ^ Purd. Dig. 624-5. « Ibid. 624. 
 
ORPHANS COURT. 637 
 
 precision and minuteness were to be observed in these 
 issues directed by the orphans' court to settle an admi- 
 nistration account, as is required in forming an issue 
 before auditors in an action of account render. If this 
 course were observed, every thing that is admitted and 
 agreed on between the parties litigant, would be excluded, 
 by the form and terms of the issue or issues, from the 
 consideration of the jury, and leave no ground for mis- 
 take or misapprehension afterwards of what was tried, and 
 the extent of the liability under the finding of the jury.^ 
 § 927. Before an issue is directed upon the distribution 
 of money arising from an orphans' court sale, the apjDli- 
 cant for such issue must make affidavit, that there are 
 material facts in dispute therein, and set forth the nature 
 and character thereof; upon which affidavit the court is 
 to determine whether such issue shall be granted, subject 
 to an appeal by the applicant in case of refusal of the 
 issue demanded.^ It is not sufficient, in order to obtain 
 an issue, to allege that there is a dispute about certain 
 facts, or that there are certain facts in dispute ; the party 
 must, at least, to the best of his knowledge and belief, 
 allege the existence of certain facts material to the matter 
 in question, and that the truth of those facts is disputed 
 by other persons; or that certain facts are alleged by the 
 other party, which, to the best of his knowledge and 
 belief, do not exist and are disputed by him.^ A fact 
 is properly said to be in dispute, when it is alleged by 
 one party and denied by the other, and by both with 
 some show of reason. A mere naked allegation, without 
 evidence, or against the evidence, cannot create a dispute 
 within the meaning of the statute.* 
 
 ' Rife V. Galbreath, 3 Penn. R. 208. ' Purd. Dig. 624. 
 
 ' Brinton v. Perry, 10 Leg. Int. 102. *'Kuight's Appeal, 7 Harris, 494. 
 
638 OEPHANS' COUET. 
 
 § 928. Upon the granting of such an issue, it is dis- 
 cretionary with the court, as soon as the money arising 
 from such sale shall have been paid into court, upon the 
 application of the party or parties appearing by the 
 record prima facie entitled to the fund, to order the 
 same to be invested pendente lite, in the debt of the 
 United States or some other sufficient security, subject 
 to the decree of the court.^ 
 
 § 929. The orphans' court being a court of record, its 
 proceedings and decrees, in matters within its jurisdic- 
 tion, are not liable to be reversed or avoided collaterally 
 in any other court.^ The only cases in which the decree 
 can be questioned, in a collateral proceeding, are those 
 in which fraud can be clearly estabhshed, (and then, like 
 all other proceedings of courts of every character, their 
 judgments and decrees must give way and be dissolved 
 by the taint,) or where the want of jurisdiction appears 
 on the face of the proceedings.^ Such decrees may, how- 
 ever, be reversed, modified, or altered, on appeal to the 
 supreme court.* 
 
 § 930. Compliance with an order or decree of the court 
 may be enforced by attachment or sequestration; or, in 
 case of a decree for the payment of money against a party 
 who has appeared, the complainant may have a writ of 
 execution in the nature of a writ of fieri facias, which 
 writs are allowed by the court, or any judge thereof, in 
 vacation.* A writ of fieri facias may be awarded in 
 favour of a guardian, to whom his ward's estate has been 
 found indebted on a settlement of his accounts.^ Such 
 writ is to be directed to and executed by the sheriff or 
 
 1 Purd. Dig. 624. ^ Ibid. 620. 
 
 ' Lockhart v. John, 7 Barr, 139. " Purd. Dig. 620. 
 
 ' Ibid. 622. 6 SlioUenberger's Appeal, 9 Harris, 337. 
 
orphans' court. 639 
 
 coroner, as the case may be, of the proper county; and 
 the proceedings thereon are the same as on writs of fieri 
 facias issued by a court of common pleas. The court 
 may also issue writs of venditioni exponas, and writs of 
 testatum fieri facias and venditioni exponas, with the like 
 effect as if issued by a court of common pleas.-^ 
 
 § 931. Writs of attachment and sequestration are also 
 to be directed to and executed by the sheriff or coroner 
 of the proper county. The following form for the writ 
 of sequestration is prescribed by statute, viz. : " The 
 Commonwealth of Pennsylvania : To the sheriff of the 
 
 county of , greeting: Whereas A. B." (here set 
 
 out the decree, or so much thereof as is material to ex- 
 plain the duty to be performed.) "Therefore, we com- 
 mand you, that you do, at proper and convenient hours 
 in the day time, go to and enter upon all the messuages, 
 lands, tenements, and real estates of the said A. B., and 
 that you do collect, take, and get into your hands, not 
 only the rents, issues, and profits of all his said real es- 
 tates, but also all his goods, chattels, and personal estate, 
 and detain and keep the same under sequestration in 
 your hands; and also that you attach all stocks held by 
 him in incorporated companies, and keep the same under 
 attachment; until our said orphans' court shall make 
 order to the contrary : and you are to return with this 
 writ an inventory or schedule of the property you have 
 sequestered or attached, and a certificate under your hand 
 of the manner in which you shall have executed this 
 
 writ, to our said court, on the day of next : 
 
 Witness, &c."' 
 
 § 932. It is the duty of the sheriff or coroner, as the 
 case may be, immediately after receiving any such writ 
 
 • Purd. Dig. 622-3. ' Ibid. 623. 
 
640 orphans' court. 
 
 of sequestration, to file a copy thereof in the office of the 
 prothonotary of the court of common pleas of the same 
 county, who is required forthwith to enter the substance 
 of it on his docket, with the names of the parties ; and 
 such entry thenceforward operates to charge the real 
 estate of the defendant, according to the form and effect 
 of the writ, and binds the same in the hands of all pur- 
 chasers and mortgagees, subsequently to such entry, with- 
 out other notice. If, however, such sequestration be dis- 
 solved by order of the orphans' court, the defendant or 
 any person interested in such real estate, may have a 
 certificate of the same from the clerk of the said court, 
 which it is the duty of such clerk to furnish on ap- 
 plication, and which, being entered on the docket, will 
 operate as a satisfaction of the lien. A sequestration 
 does not abate by the death either of the complainant or 
 defendant.^ 
 
 § 933. If proof be made, on oath or affirmation, to 
 the satisfaction of the court, if in session, or to any 
 judge thereof, in vacation, at the time of filing the peti- 
 tion, that the defendant has absconded, or is about to 
 abscond, or depart from his usual place of abode, to the 
 prejudice of the complainant, the court or judge may 
 allow the issuing of a writ of attachment, or a writ of 
 sequestration, or both, in the first instance, against such 
 defendant; and on the return thereof, the hke proceedings 
 may be had as upon the return of a citation. But the 
 court, or any judge thereof, in vacation, may dissolve 
 such attachment or sequestration, when executed, upon 
 the defendant giving security, to the satisfaction of the 
 court, or of such judge, to appear on a day certain, to 
 answer the petition, and to abide the orders and decrees 
 of the court in the premises.^ 
 
 ' Purd. Dig. 623. ^ Ibid. 
 
orphans' court. 641 
 
 § 934. If proof be made, on oath or affirmation, to 
 the satisfaction of the court, or of any judge thereof, in 
 vacation, at the time of presenting a petition, or at any 
 stage of the cause, that the defendant has in his posses- 
 sion trust property or effects, which he is wasting or 
 otherwise disposing of, contrary to his duty and trust; 
 or that he is about to abscond, and carry such trust pro- 
 perty and effects out of the jurisdiction of the court; 
 the court or judge may award a writ, in the name of the 
 commonwealth, to the sheriff or coroner, as the case 
 may require, of the proper county, returnable on a day 
 certain, in the orphans' court, to be convened for that 
 purpose if the court shall not be then in session, com- 
 manding him to take possession of all such trust property 
 and effects, specified in such writ, and to hold the same 
 subject to the order of the court; and also to attach all 
 debts due to such trust, whether by bond, mortgage, or 
 otherwise, and all stocks in incorporated companies ; and 
 serve a copy of such writ upon each debtor, and upon 
 each company in which stock may be held belonging to 
 the trust. Before the execution of such writ, the sheriff 
 or coroner may require of the party at whose instance the 
 same has been issued, sufficient security to indemnify 
 him against all damages arising from the execution 
 thereof. And if the party against whom such writ is 
 issued, give sufficient security to the sheriff or coroner, 
 that the trust property or effects specified in such Avrit 
 shall be forthcoming at the return thereof, then the sheriff 
 or coroner is not to execute the same, but to make return 
 of the facts to the court.^ 
 
 § 935. The like proceedings may be had, where the 
 court has made a final order and decree, for the delivery 
 
 1 Purd. Dig. 623. 
 
642 orphans' couet. 
 
 of the trust property and effects, by the defendant, to any 
 person who may be designated by law, or by the order of 
 the court, to receive them; and on the return of such 
 writ, the court may make such order respecting the dis- 
 position of such trust property and effects, as may be ne- 
 cessary and proper, according to the principles of justice 
 and equity.^ 
 
 § 936. When a decree is made against a defendant who 
 has not appeared to the citation, and a sequestration has 
 issued against the real or personal estate of such de- 
 fendant, the court may order the decree to be satisfied 
 out of the estate and effects sequestered. But such order 
 will not be carried into execution, until the complainant 
 have given security, to the satisfaction of the court, to 
 abide the order of the court, touching the restitution of 
 what he may have received, in case the defendant shall 
 appear, and be admitted to defend the suit; and if such 
 security be not given, the estate and effects sequestered, 
 or the proceeds thereof, will remain subject to the di- 
 rections of the court, to abide its further order .^ 
 
 § 937. If a defendant, against whom such decree has 
 been made, or his representatives, shall, within one year 
 after personal notice of such decree, and within five years 
 after the entry thereof, when no such notice has been 
 given, present a petition to the same court, praying to be 
 admitted to be heard, and shall pay such costs as the 
 court may adjudge, the party so petitioning is entitled to 
 be admitted to a defence, and the case then proceeds in 
 like manner as if such defendant had appeared in due 
 season, and no decree had been made. If, however, such 
 defendant, or his representatives, do not, within such 
 period, present such a petition, then the court may make 
 
 1 Purd. Diff. G24. « jt,;a. 
 
orphans' court. 643 
 
 such final order and decree, both in respect to any estate 
 or effects that may have been sequestered, and in respect 
 to the matters in controversy in the case, as may be ac- 
 cording to justice and equity; and may, if necessary, 
 award a writ in the nature of a writ oi fieri facias, in the 
 manner provided where a defendant appears to the ci- 
 tation.^ 
 
 § 938. If any executor, administrator, or guardian, 
 shall reside or remove out of the county in which his ap- 
 pointment was made, or shall not possess real or personal 
 estate in such county, suflBcient to satisfy any decree or 
 order of the orphans' court of such county, the said court 
 may issue process to the county in which such executor, 
 administrator, or guardian may be, or in which he may 
 have any real or personal estate, amenable to such pro- 
 cess, to be executed by the sheriff or coroner of the county 
 to which such process may be issued.^ 
 
 § 939. If, within five years after the final decree, con- 
 firming the original or supplementary account of any exe- 
 cutor, administrator, or guardian, a petition of review be 
 pi'esented by such executor, administrator or guardian, 
 or their legal representatives, or by any person interested 
 therein, alleging errors in such account, which errors 
 must be specifically set forth, and the said petition and 
 errors are verified by oath or affirmation ; in such case it 
 is provided, that the orphans' court shall grant a rehear- 
 ing of so much of the said account as is alleged to be er- 
 roneous in the petition of review, and give such relief as 
 equity and justice may require, by reference to auditors 
 or otherwise; with like right of ajipeal to the supreme 
 court, as in other cases, except that, in such case, the 
 appeal shall be taken within one year after the decree 
 
 ' Purd. Dig. 624. ' Ibid. 
 
644 orphans' court. 
 
 made on the petition of review. This statute, however, 
 does not extend to any cause wherein the balance found 
 due has been actually paid and discharged.'^ 
 
 § 940. The orphans' court has, from the beginning, 
 exercised the power of reviewing and modifying its pro- 
 ceedings and decrees, as an authority necessarily inhe- 
 rent and essential to the right discharge of its duties. 
 The act of 1840 is confined to reviews of alleged errors 
 in the settled accounts of executors, administrators and 
 guardians. It limits the period within which a review 
 may be had in such cases to five years; but leaves un- 
 touched the pre-existing practice in all other instances.^ 
 To justify a bill of review, there must, however, either 
 be error on the face of the account, or new facts arising 
 since the decree, or newly discovered evidence.^ And it 
 is indispensable that the mistakes or errors in the origi- 
 nal decree which is sought to be opened, should be spe- 
 cifically set out in the petition of review.* 
 
 § 941. Any person aggrieved by a definitive sentence 
 or decree of the orphans' court, may appeal from the same 
 to the supreme court. To obtain an appeal, the party 
 appealing is required to give security, by recognisance, 
 with sufficient surety, in the orphans' court, or before 
 one of the judges thereof, conditioned to prosecute such 
 appeal with effect, and to pay all costs that may be ad- 
 judged against him; and also to make oath or afiirma- 
 tion that the appeal is not intended for delay. An ap- 
 peal, duly entered, stays all proceedings in the court 
 below, until the same is determined in the supreme court 
 
 ' Purd. Dig. 625. 
 
 '' George's Appeal, 2 Jones, 262. See Downing's Estate, 5 Watts, 90; 
 Clauser's Estate, 1 W. & S. 215. 
 
 » Hildebeitel's Appeal, Purd. Dig. 625 n; Riddle's Estate, 7 Harris, 4:!1. 
 * Kachleiu's Appeal, 5 Barr, 95. 
 
OEPHANS' COURT. 645 
 
 and the record remitted to the orphans' court. No ap- 
 peal, however, is allowed, unless the same be entered 
 and security given within three years after the final 
 decree of the orphans' court. A reversal or modification 
 of a decree, for the sale of real estate, will not have the 
 effect of divesting any estate or interest acquired under 
 such decree or proceedings, by persons not parties thereto, 
 where the orphans' court had jurisdiction of the case.^ 
 
 § 942. On an appeal from the orphans' court, it is the 
 duty of the supreme court to hear and determine the case 
 upon the merits, and to decree according to the justice 
 and equity thereof^ In such case the proceedings are 
 de novo, and where the proof to establish a particular 
 point seems defective, the supreme court may order the 
 cause to stand over for further proofs ;^ and for that pur- 
 pose may refer the same to auditors, when in its dis- 
 cretion it may think proper.* This, however, is en- 
 tirely a matter of discretion, and the power will not be 
 exercised, unless in case of a plain and palpable violation 
 of the rules of equity and justice.^ 
 
 1 Purd. Dig. 625. ^ iy^_ 
 
 ' Wallace's Appeal, 5 Barr, 107. * Purd. Dig. 625. 
 
 "" ' Hise's Estate, 5 Watts, 157; Mylin's Estate, 1 Watts, 66. 
 
646 AUDITORS. 
 
 CHAPTER XXVIII. 
 
 AUDITORS. 
 
 § 943. Power is given to the orphans' courts to ap- 
 point auditors in the following cases: 1. Before the dis- 
 charge of aguai^dian:^ 2. To settle and adjust, in sol- 
 vent estates, the accounts of executors, administrators, 
 guardians, and trustees, when excepted to:^ 3. Where 
 such accounts have been confirmed, to report distribu- 
 tion:^ 4. To settle and adjust, in insolvent estates, the 
 rates and proportions, and to report distribution:* 5. To 
 report on the expediency of granting an order for the 
 sale or mortgage of the real estate of a decedent:* 6. In 
 proceedings in partition, to report as to the existence of 
 liens and incumbrances, affecting the interests of the 
 parties:** 7. Where a petition has been taken jjro confesso 
 to take proof of the facts, and report thereon, and, if ne- 
 cessary, to report an account against the defendant.' It 
 is also customary to refer to auditors many other matters 
 not specially provided for by any act of assembly. 
 
 § 944. In general, it is the duty of an auditor, when 
 requested, to report all the facts and inferences of facts 
 that are necessary to sustain the conclusion at which he 
 arrives. Except when appointed to report evidence, he 
 does not perform his duty by returning the testimony 
 
 1 Purd, 
 
 .Dig. 
 
 192. 
 
 ■' Ibid. 
 
 211. 
 
 
 ^ Ibid. 
 
 
 ' Ibid. 
 
 
 
 * Ibid. 
 
 201, 
 
 211. 
 
 « Ibid. 
 
 209. 
 
 ' Ibid. 
 
 622. 
 
 
 
 
 
 
 
AUDITORS. 647 
 
 taken by him, and the court does not look at the evidence, 
 unless the report be' excepted to for some facts specially 
 alleged to be untruly found by the auditor/ Where 
 evidence is offered and objected to, and he is desired to 
 note it for the opinion of the court, he should distinctly 
 state the offer and its purpose, and the objection thereto, 
 and his ruling thereon. In some cases he may also state 
 how the report should be, in case the evidence has been 
 erroneously admitted or rejected by him. And it may 
 be very proper in some cases to report the question of 
 evidence to the court for decision, and suspend the pro- 
 ceedings until it be decided.^ 
 
 § 945. In stating an account he is not obliged to state 
 the facts upon which he finds the several items to be cor- 
 rect, unless he be specifically requested so to do by the 
 party objecting to the item : and no general request as 
 to all or several items should be regarded. It is very 
 proper for an auditor to aid the court by giving the reasons 
 for his judgment, but when he does so, it is more regular 
 to annex his opinion to, than to embody it in his report. 
 He should take sufficient notes of all testimony taken 
 before him, and annex the same to his report, unless 
 where the practice of the • court requires him to return 
 the same for the inspection of the court, in case his re- 
 port of facts be excepted to.^ 
 
 § 946. Every exception to an auditor's report should 
 point specifically to the very error complained of, other- 
 wise it cannot properly be noticed. General exceptions 
 display a want of skill, and also imply that no particular 
 error has been discovered. An excellent rule for securing 
 a careful and well considered report, and preventing fri- 
 
 ' Mengas's Appeal, 7 Harris, 222; Haines r. Burr, 7 Leg. Int. 54. 
 ^ Mengas's Appeal, ut supra. ^ Ibid. 
 
648 
 
 AUDITORS. 
 
 volous exceptions, is the usual chancery rule, adopted 
 by the supreme court, and by some of the subordinate 
 courts; which is, that the auditor shall give the several 
 parties ten days' notice that his report is ready for signing, 
 that they may have an opportunity of excepting to it 
 before him. If it be thus excepted to, he reconsiders, 
 and, if necessary, amends his report before filing it, and 
 no exceptions are noticed in the court that were not filed 
 before the auditor. Thus no report can be set aside ex- 
 cept on points to which the auditor's attention has been 
 directed, and then the same point is distinctly presented 
 to the court below, and reviewed by them.^ 
 
 § 947. The court may review the report of an auditor 
 on exceptions filed thereto, but cannot properly set aside 
 or modify it, except for errors of fact or law specifically 
 excepted to in proper time. For reasons that would 
 justify the granting of a new trial by jury, the court 
 should remand the case for rehearing and report to the 
 same auditor; and if the rehearing be for reasons perso- 
 nal to the auditor, then another may be substituted in 
 his place. The court will itself correct such palpable er- 
 rors as arise from mere mistake of computation. Where 
 facts have been found, and excepted to, the court, if it 
 cannot approve the report, may, at the request of either 
 party, order a jury trial, and then the very facts upon 
 which the legal conclusion depends should be distinctly 
 and severally stated in the issue, so that there can be no 
 dispute as to what is to be found.^ 
 
 § 948. Where facts have been found by the auditor 
 and approved by the court below, the case must manifest 
 most flagrant error, in order to justify the supreme court 
 in interfering with the report. Even on appeal, as dis- 
 
 ^ Mengas's Appeal, ut supra. ' Ibid. 
 
AUDITORS. 649 
 
 tinguished from 'a writ of error, it cannot properly be 
 called upon to 'try questions of fact.-^ The report of an 
 auditor, like an award of referees, or verdict of a jury, 
 determining upon facts, ought not to be set aside, except 
 for plain mistake, which it is the business of the except- 
 ant to establish by affirmative evidence.^ It is entitled 
 to the same respect as the verdict of a jury, and should 
 not be set aside, unless it be wrong in law, or contain a 
 plain mistake of fact.^ 
 
 § 949. The costs of an audit, unless the necessity for 
 the reference were occasioned by the improper conduct 
 of one of the parties, will, in general, be directed to be 
 paid out of the fund. But in cases where there has been 
 fraud or misconduct, the costs will be imposed upon the 
 party in default:* they must be borne by him who un- 
 necessarily causes them.' 
 
 ^ Mengas's Appeal, ut supra; Loomis's Appeal, 10 Harris, 319; Quain's 
 Appeal, 10 Harris, 510; Bull's Appeal, 17 May 1855. MS. 
 
 2 Ludlam's Estate, 1 Harris, 190. ' Patterson's Appeal, 11 Leg. Int. 150. 
 
 * Harlan's Estate, 3 Penn. L. J. llY-8; Magaw's Appeal, Pittsburgh Leg. 
 J. 17 February 1855. 
 
 '• Patterson's Appeal, 11 Leg. Int. 150. 
 
 42 
 
APPENDIX. 
 
 EQUITY PRECEDENTS. 
 
 PAETS OF AN ORIGINAL BILL. 
 
 I. THE DIRECTION OB ADDRESS. 
 
 In the Supreme Court. 
 To the Honourable the Justices of the Supreme Court of Pennsylvania, 
 sitting in Equity, in and for the Eastern district. 
 
 In a District Court. 
 To the Honourable the Judges of the District Court for the city and 
 county of Philadelphia, sitting in Equity. 
 
 In a Court of Common Pleas. 
 To the Honourable the Judges of the Court of Common Pleas of the 
 county of Philadelphia, sitting in Equity. 
 
 II. THE INTRODUCTION. 
 A. B., of the city of Philadelphia, merchant, brings this his bill 
 against C. D. and E. P., of the said city; and thereupon your orator 
 complains and says that, &c. 
 
 By a Married Woman. 
 A. B., of the city of Philadelphia, wife of C. D., of the said city, 
 gentleman, by E. P., her father and next friend, brings this her bill 
 against the said 0. D. and Gr. H., of the said city; and thereupon, &e. 
 
 III. THE STATING PART. 
 Conclusion of 'the stating part, (after narrating the facts of the 
 plaintiff's title, or ground of his complaint.} And your orator well 
 hoped that no disputes would have arisen touching the said, &c., (stating 
 
' PARTS OF AN ORIGINAL BILL. 651 
 
 the subject matter^ but that the said defendant would have complied 
 with the reasonable request of your orator, as in conscience and equity 
 he ought to have done.' 
 
 IV. THE CONFEDERATING PART.^ 
 But now so it is, may it please your honours, that the said defendant, 
 combining and confederating with divers persons, at present unknown to 
 your orator, whose names, when discovered, your orator prays he may be 
 at liberty to insert herein, with apt words to charge them as parties de- 
 fendants hereto ; and contriving how to wrong and injure your orator in 
 the premises, he the said defendant absolutely refuses to comply with 
 such request; and he at times pretends that (Jiere follows the statement 
 of the defendant's supposed ground, on which he avoids the plaintiff's 
 claim, and this should he matter disproved or traversed in the charging 
 part of the hill.') 
 
 V. THE CHARGING PART.^ 
 That the said defendant sometimes alleges and pretends (stating the 
 supposed ground of the defendant ;) and at other times he alleges and 
 pretends, &c., whereas your orator charges the contrary thereof to be the 
 truth, and that (stating the special matter with which the plaintiff meets 
 the defendants supposed case.) 
 
 VI. THE JURISDICTION CLAUSE.'' 
 
 All which actings, doings, and pretences of the said defendant, are 
 contrary to equity and good conscience, and tend to the manifest wrong, 
 injury, and oppression of your orator in the premises. In consideration 
 whereof, and forasmuch as your orator is wholly remediless in the pre- 
 mises, according to the strict rules of the common law, and can only 
 have relief in a court of equity, where matters of this nature are pro- 
 perly cognizable and relievable : To the end, therefore, &c. 
 
 VII. THE INTERROGATING PART. 
 
 To the end, therefore, that the said defendants may, if they can. 
 
 1 This part may include, by way of statement and counter-statement, what is 
 supposed to be the defendant's case, and the case of the plaintiff to meet it. 
 Equity Rules, xx. 
 
 2 This part is wholly unnecessary, and may be omitted. Equity Rules, xx. 
 
 3 This part may also be omitted, and the defendant's case may be stated and 
 avoided by counter-statement, in the stating part of the bill. Equity Rules, xx. 
 
 * This is also unnecessary, and may be omitted. Equity Rules, xx. 
 
652 EQUITY PRECEDENTS. 
 
 sliow wliy your orator should not have the relief hereby prayed, and may, 
 upon their several and respective corporal oaths, and according to the 
 best and utmost of their several and respective knowledge, remembrance, 
 information and belief, full, true, direct, and perfect answer make to such 
 of the several interrogatories hereinafter numbered and set forth, as by 
 the note hereunder written, they are respectively required to answer; that 
 is to say: 
 
 1. Whether, &c. 
 
 2. Whether, &c. 
 
 VIII. THE PRAYER FOR RELIEF. 
 
 For General Relief. 
 And that the said defendant may come to a fair and just account, 
 &c., (stating the special relief asked) and that your orator may have 
 such further and other relief in the premises, as the nature and cir- 
 cumstances of his case may require, and to your honours shall seem meet. 
 
 For an Injunction. 
 And that the said defendants, their counsellors, attorneys, or agents, 
 may be restrained by an injunction issuing out of this honourable court, 
 from proceeding further against your orator, in the said action com- 
 menced against him, in the district court for the city and county of 
 Philadelphia, and now pending and at issue therein, for the recovery of 
 the possession of the said premises, with the appurtenances ; (or as the 
 case may be) and also from instituting or proceeding in any new or other 
 action at law for the recovery of the possession of the said premises, or 
 any part thereof; and that your orator may have such further and other 
 relief, &e. 
 
 For an Account. 
 
 And that the said defendants may set forth an account of all and 
 every sum and sums of money received by them, or either of them, or 
 by any person or persons by their or either of their order, or for their 
 or either of their use, for or in respect of the said (as the case stated in 
 the hill may he;) and when, and from whom, and from what in particular, 
 all and every such sums were respectively received, and how the same 
 respectively have been applied or disposed of; and that your orator may 
 have such further, &c. 
 
 For a Specific Performance. 
 And that the said defendant may be decreed specifically to perform 
 the said agreement entered into with your orator, as aforesaid, and to 
 make a good and marketable title to the said premises ; your orator 
 
PARTS OF AN ORIGINAL BILL. 653 
 
 being ready and willing, and hereby offering specifically to perform the 
 said agreement on bis part, and upon tbe said defendant's making out 
 a good and marketable title to tbe said premises and executing a proper 
 conveyance thereof to your orator, pursuant to the terms of tbe said 
 agreement, to pay to the said defendant the residue of tbe said pur- 
 chase money or sum of dollars ; and that your orator may have 
 
 such further, &c. 
 
 IX. THE PRAYER EOR PROCESS. 
 May it please your honours to grant unto your orator the common- 
 wealth's writ of subpoena, to be directed to the said C. D. and E. F.,* 
 thereby commanding them, and every of them, at a certain day, and 
 under a certain pain, to be therein limited, personally to be and appear 
 before your honourable court, and then and there full, true, direct, and 
 perfect answer make to all and singular the premises ; [and further to 
 stand to, perform, and abide such further order, direction, and decree 
 therein, as to your honours shall seem meet.] And your orator shall 
 ever pray, &c. (Where the hill is for discovery only, the words within 
 hraclcets must he omitted.^ 
 
 X. MEMORANDUM AT THE FOOT OF THE EILL. 
 
 The defendant A. B. is required to answer the interrogatories num- 
 bered respectively, 1, 2, 3, &c. 
 
 The defendant C. D. is required to answer the interrogatories num- 
 bered respectively, 5, 6, 7, &c. 
 
 ORIGINAL BILLS. 
 
 BILL FOR SPECIFIC PERFORMANCE. 
 
 A. B., of, &c., brings this his bill against C. D., of, &c., and thereupon 
 your orator complains and says, that your orator being seised, or well 
 entitled in fee simple, of or to a certain messuage or dwelling-house, 
 with the appurtenances, situate at, &c., and hereinafter described, and 
 being desirous of selling such premises, and the said defendant being 
 
 ' The prayer for process must contain the names of all the defendants named 
 in the introductory part of the bill; and if any of them are known to be infants, 
 under age, or otherwise under guardianship, must state the fact. Equity 
 Rules, xxii. 
 
654 
 
 EQUITY PRECEDENTS. 
 
 minded to purchase the same, your orator and the said defendant on, 
 &c., entered into and signed a memorandum of agreement respecting the 
 said sale and purchase in the words following, that is to say : (stating 
 the agreement verbatim) as by the said memorandum of agreement, to 
 which your orator craves leave to refer, when produced, will appear. 
 And your orator further showeth, that he hath always been ready and 
 willing to perform his part of the said agreement, and upon being paid 
 the said purchase money or sum of, &c., with interest, to convey the said 
 premises to the said defendant and his heirs, and to let him into pos- 
 session and receipt of the rents and profits thereof, from the time in the 
 said agreement in that behalf mentioned ; and your orator well hoped 
 that the said defendant would have performed the said agreement on his 
 part, as in justice and equity he ought to have done. But now so it is, 
 may it please your honours, that the said defendant alleges that he is, 
 and always hath been, ready and willing to perform the said agreement 
 on his part, in case your orator could have made, or can make him a 
 good and marketable title to the said messuage and premises, but that 
 your orator is not able to make a good title thereto ; whereas your orator 
 charges that he can make a good title to[the said messuage and premises. 
 To the end, therefore, that the said defendant may, if he can, show why 
 your orator should not have the relief hereby prayed, and may upon his 
 corporal oath, and according to the best and utmost of his knowledge, 
 remembrance, information, and belief, full, true, direct, and perfect 
 answer make to the several interrogatories hereinafter numbered and set 
 forth, that is to say : 1. Whether, &c., (interrogating as to the stating 
 and charging parts.) And that the said defendant may be compelled 
 by the decree of this honourable court specifically to perform the said 
 agreement with your orator, and to pay to your orator the said purchase 
 money, with interest for the same from the time the said purchase money 
 ought to have been paid, your orator being willing, and hereby offering 
 sj)eoifically to perform the said agreement on his part, and on being paid 
 the said purchase money and interest, to execute a proper conveyance 
 of the said messuage and premises to the said defendant, and to let him 
 into possession of the rents and profits thereof, from, &c. ; and that your 
 orator may have such further or other relief in the premises as to your 
 honours shall seem meet, and his case may require. May it please, &o. 
 
 BILL TO CANCEL A BILL OF EXCHANGE. 
 A. B., of, &c., brings this his bill against C. D. of, &c., E. F., of, &c., 
 Gr. H., of, &c., and J. K., of, &c., and thereupon your orator complains 
 and says ; that your orator, previously to the month of, &c., had fre- 
 
ORIGINAL BILLS. 655 
 
 quently accepted bills of exchange for the accommodation of Messrs. 
 C. D. and E. P., defendants above named; that some time in or about 
 the said month of, &c., they applied to your orator to assist them with 
 a loan of his acceptance for a sum of money, and they severally assured 
 your orator that if he would accept or indorse a certain bill of exchange 
 for them, the said C. D. and E. F., they could procure the same to be 
 discounted, and that they or one of them, would punctually provide 
 your orator with the money to take up the same: and your orator, re- 
 lying upon such promise, agreed to accept such bill of exchange, to be 
 drawn upon him by the said C. D. and E. P. And your orator further 
 showeth, that the said C. D. and E. F. accordingly drew upon your orator 
 a certain bill of exchange for the sum of $5000, dated, &c., and payable 
 three months after date, which your orator thereupon accepted. And your 
 orator further showeth unto your honours, that the said bill of exchange 
 having been delivered by your orator to the said C. D. and E. F., without 
 any consideration whatsoever had or received by your orator for the same, 
 the said C. D. and E. F. ought either to have provided your orator with 
 the money to take up the same, when due, as they had promised, or else 
 have re-delivered the same to your orator to be cancelled; and your orator 
 hoped that the said C. D. and E. F. would have provided your orator 
 with the money to take up the bill of exchange, when the same became 
 due, or else would have re-delivered the same, or caused the same to have 
 been re-delivered to your orator to be cancelled, and that no proceedings 
 would have been had against your orator to recover the amount thereof, 
 as in justice and equity ought to have been the case. But now so it is, 
 may it please your honours, that the said C. D. and E. F., combining and 
 confederating to and with the said G. H. and J. K., and contriving how 
 to wrong and injure your orator in the premises, they the said confede- 
 rates absolutely refuse to deliver, or cause or procure to be delivered up 
 to your orator, the said bill of exchange to be cancelled; and instead 
 thereof, the said J. K. hath got into his possession the said bill, and hath 
 lately commenced an action at law against your orator to recover the 
 amount thereof; the said confederates, or some of them, at times giving 
 out and pretending that the said bill of exchange was made and given 
 by your orator to the said C. D. and B. F. for a full valuable considera- 
 tion or considerations in money; whereas your orator expressly charges 
 the contrary thereof to be the truth, and that your orator never had or 
 received any good or valuable consideration or considerations for the 
 said bill of exchange, and that the same was delivered by him to the 
 said C. D. and E. F. for their accommodation, without receiving any con- 
 sideration or considerations for the same, and upon the firm reliance that 
 
656 EQUITY PRECEDENTS. 
 
 tliey, or one of them, would supply your orator with the money to take 
 up the said bill, when the same became due and payable: and so the said 
 defendants will sometimes admit, but then the said defendant Gr. H. 
 pretends that he discounted the said bill of exchange for full valuable 
 consideration, in money or otherwise, at the time when the said bill was 
 indorsed to him, and that when he paid or gave the full valuable con- 
 sideration or considerations for the same, he had not notice that the said 
 bill had been given by your orator, in the manner and upon the express 
 stipulations hereinbefore mentioned, or without a fuU or any consider- 
 ation received by your orator for the same, and that, therefore, your 
 orator ought to pay the amount thereof; and the said G-. H. further 
 pretends that he indorsed the said bill of exchange to the said J. K. for 
 good and valuable considerations, before he, the said G-. H., received any 
 notice from your orator, and before your orator had requested him to 
 deliver up the same. Whereas your orator charges the contrary of all 
 such pretences to be true; and particularly, that the said Gr. H. did not 
 ever give, pay, or allow to the said C. D. and E. F., or either of them, 
 the full value of any consideration whatever, for the said bill of exchange; 
 and that the said G. H. had full notice, or had some reason to know, 
 believe, or suspect that the said bill had been given by your orator to the 
 said 0. D. and E. F. in the manner, and upon the express stipulation 
 hereinbefore mentioned, and without any valuable or other consideration 
 having been received by your orator for the same. And your orator 
 further charges, that the said Gr. H. received the said bill from the said 
 C. D. and E. F., to get the same discounted for them, and with an ex- 
 press understanding on his part, to deliver over the money he obtained 
 upon such bill, to them the said C. D. and E. F. ; but that he never did 
 procure such bill to be discounted, or, if he did, he applied the moneys 
 he obtained upon the same to his own use, and never paid or delivered 
 over any part thereof, to the said C. D. and E. F., or either of them. 
 And your orator further charges, that the said Gr. H. had received notice 
 from your orator, and the said C. D. and E. F., of the terms upon which 
 the said bill had been obtained by the said C. D. and E. F., and had 
 been required by your orator to deliver up the same to him, before he 
 the said Gr. H. had indorsed the said bill of exchange to the said J. K. ; 
 and as evidence thereof, your orator expressly charges, that the said 
 Gr. H. had the said bill of exchange in his custody, possession, or power, 
 on, &c., last past; and that the said G. H. did, on, &c., last, offer the said 
 bill of exchange for sale, together with other bills, to various persons. 
 And your orator further charges, that the said G. H. did not receive any 
 good or valuable consideration for indorsing the said bill of exchange to 
 
ORIGINAL BILLS. 657 
 
 the said J. K., but that the same was contrived between them, in order 
 to compel your orator to pay the said bill when the same became due. 
 And the said J. K. pretends, that he gave the value of the said bill of 
 exchange for which he hath commenced his said action, in money or 
 otherwise, to the said G. H., at the time of receiving the said bill; 
 whereas, your orator expressly charges, that the said J. K. did not ever 
 give or allow to the said G-. A., or to any other person, any considera- 
 tion for the said bill of exchange ; but in case the said J. K. did give 
 any consideration or considerations for the said bill of exchange, (which 
 your orator does not admit) your orator charges that, at the time of the 
 said bill of exchange being indorsed or delivered to the said J. K., and of 
 his giving such consideration or considerations, (if any were or was paid by 
 him) he knew, or had been informed, or had some reason to know, be- 
 lieve, or suspect, that your orator, and the said C. D. and E. P. had never 
 received the full or any consideration for the said bill of exchange; and 
 he well knew, or had been informed, that your orator had accepted the 
 said bill of exchange for the accommodation of the said C. D. and E. 
 F., without having received any consideration for the same; and that he 
 also knew, or had been informed, or had reason to know, believe, or sus- 
 pect, that the said Gr. H. had given no consideration for the said bill of 
 exchange, and that the said G. H. had previously offered the said bill 
 for sale (together with other bills) to several persons, who had refused 
 to purchase the same. And your orator further charges, that the said 
 J. K. is a trustee of the said bill of exchange for the said G. H., or for 
 some other person or persons, whose names he refuses to discover, and 
 that he holds the same for the said G. H., or for such other person or 
 persons, without having given any consideration or considerations for the 
 same, and that if he receives the amount of the said bill of exchange, 
 or any part thereof, he is to deliver over or pay the same to the said G. 
 H., or such other person or persons; and that he is indemnified by the 
 said G. H,, or such other person or persons, from all the costs attending 
 the attempt to recover upon the said bill of exchange on which he has 
 brought his said action at law. And notwithstanding the said J. K. 
 got the said bill of exchange into his possession without giving any con- 
 sideration for the same, yet he threatens and intends to proceed in his 
 action at law, and in case he should recover judgment, to take out exe- 
 cution against your orator for the amount thereof. And your orator 
 further charges, that the said several defendants, or some, or one of them, 
 now have or hath, or lately had, in their or one of their custody, pos- 
 session, or power, some book or books of account, letters, documents, or 
 writings, from which the truth of the several matters and things afore- 
 
658 EQUITY PRECEDENTS. 
 
 said, or of some of thetn, would appear; and so it would appear if tlie 
 said defendants would set forth a full, true, and particular account of 
 all such books of account, letters, documents, and writings. To the 
 end, therefore, &c., (interrogating as to the stating and charging parts.) 
 And that the said defendant, J. K., may be decreed to deliver up, and 
 the said C. D., E. F., and G. H., may be decreed to procure, the said 
 bill of exchange to be delivered up to your orator to be cancelled, as 
 having been given by your orator, and received by the said C. D. and 
 E, P., and the said several defendants, without any consideration. And 
 that the said defendants, respectively, may be restrained by the injunc- 
 tion of this honourable court, from proceeding in any action at law, 
 already commenced against your orator, upon the said bill of exchange, 
 and from commencing any other proceedings at law, against your orator, 
 upon the said bill; and that they may also be restrained from negotiating, 
 indorsing, or delivering over the said bill of exchange to any other per- 
 son or persons; and that your orator may have such further and other 
 relief in the premises, as to your honours shall seem meet, and the 
 nature of his case may require. May it please, &c. 
 
 BILL TO CANCEL AN ASSIGNMENT IN FRAUD OF CREDITORS. 
 
 A. B., of, &c., trustee of the estate and eifects of C. D., late of, &c., an 
 insolvent debtor, brings this his bill, against E. P., of, &o., and thereupon 
 your orator complains and says ; that by an indenture bearing date on 
 or about, &o., G. H., of, &c., demised unto the said C. D., a certain mes- 
 suage or dwelling-house, with the appurtenances, then in the occupation 
 of the said C. D., to hold from, &o., for the term of ten years, under and 
 subject to the payment of the yearly rent of, &c., and to the performance 
 of the several covenants, conditions, and agreements therein contained, 
 as in and by the said indenture of lease, which is now in the possession, 
 custody, or power of the said defendant, would, if produced by the said 
 defendant, fully appear. That on or about, &c., the said C. D., being in- 
 solvent, and unable to pay his creditors, and well knowing that he could 
 not avoid,' and was about praying for the relief provided for insolvent 
 debtors, concerted and agreed with the said defendant, to assign to him 
 the said indenture of lease, for the nominal consideration of, &o., to be 
 expressed in the deed of assignment; and the said C. D. accordingly, 
 caused a deed of assignment to be prepared by his own conveyancer, and 
 the same was dated on, &c., and was executed by the said C. D., on the 
 day of the date thereof; and the said 0. D., then, or about that time, 
 delivered the said indenture of lease, and the assignment thereof, to the 
 
ORIGIIsrAL BILLS. 659 
 
 said defendant. And your orator further slioweth, that the said defen- 
 dant did not in fact pay to the said C. D., the said sum of, &e., and that 
 the said assignment was so made in order to prevent the just creditors 
 of the said C. D. from having the benefit of the said lease; and that the 
 said defendant might hold the same in trust for the said C. J)., or some 
 part of his family, or for the joint benefit of the said C. D., and the said 
 defendant. And your orator further showeth, that on, &c., the said C. T>. 
 presented to the court of common pleas of the county of, &c., his petition 
 praying for the relief provided for insolvent debtors, and having after- 
 wards, by the order and direction of the said court, executed to your 
 orator an assignment of all his estate, real and personal, in trust for the 
 use and benefit of all his creditors, he the said C. D. was duly discharged 
 as an insolvent debtor; and your orator hath since given security, to the 
 satisfaction of the said court, for the faithful execution of his said trust, 
 as by reference to the record of the said proceedings, to which your 
 orator for greater certainty craves leave to refer, will fully appear. And 
 your orator further showeth, that he hath, by himself and his agents, re- 
 peatedly applied to the said defendant, and hath requested him to deliver 
 up the said indenture of assignment to be cancelled, and also to deliver 
 up to your orator the said indenture of lease, in order that your orator 
 may dispose of the same for the benefit of the creditors of the said C. D. ; 
 with which just and reasonable requests your orator well hoped that the 
 said defendant would have complied, as in justice and equity he ought 
 to have done; but the said defendant absolutely refuses so to do, and 
 now pretends that he duly paid to the said C. D. the said consideration 
 of, &c., at the time of his executing the said indenture of assignment; 
 whereas your orator charges the contrary thereof to be the truth. And 
 your orator further charges, that the said defendant is a person in poor 
 circumstances, and had not at that time a sum of, &c., in his possession 
 or power : and the said defendant refuses to set forth, in what manner 
 he paid the said sum of, &o., and when, and from whom, he received or 
 obtained the same, or by what means he was enabled to make such pay- 
 ment. And at other times, the said defendant pretends that the said 
 C. D. was indebted to him, at the time of executing the said assignment, 
 in the said sum of, &c., and that the said assignment was executed by 
 the said C. D. in consideration of the said debt; but when or how the 
 said C. D., became so indebted to him, the said defendant refuses to dis- 
 cover; and your orator charges that, if the said C. D. had, at any time, 
 been indebted to the said defendant, he had by some other means fully 
 satisfied the said debt. And your orator further charges, that the said 
 
660 EQUITY PRECEDENTS. 
 
 C. D. first proposed to the said defendant, the making of the said assign- 
 mentj and that the said defendant, at the time when the same was exe- 
 cuted, knew or had been informed, or had some reason to know, believe, 
 or suspect, that the said C. D. was in embarrassed circumstances, and 
 was about to make application for relief as an insolvent debtor; and 
 that the said defendant accepted such assignment with a view to the ad- 
 vantage of the said C. D., or of some part of his family. And your 
 orator further charges, that it was agreed and understood that the said 
 defendant was not to hold the said lease for his own sole benefit, and as 
 his own property; and that the said lease was of much greater value 
 than the said sum of, &c., and was in fact worth, &c.; and that the said 
 C. D. caused and procured the said assignment to be recorded on the 
 day it was executed. To the end, therefore, &c., (interrogating as to 
 the stating and charging parts.) And that the said assignment of the, &c. 
 may be declared to be void, as fraudulent against your orator and the rest 
 of the creditors of the said CD.; and that the said defendant may be 
 decreed to deliver up the said assignment to be cancelled, and also to de- 
 liver up to your orator the said indenture of lease; and that your orator 
 may have such further and other relief, &c. May it please, &c. 
 
 BILL FOR DOWER. 
 
 A. B., of, &c., brings this her bill against C. B., of, &c., and there- 
 upon your oratrix complains and says, that H. B., the late husband of 
 your oratrix, was in his lifetime, and during the time he was married to 
 your oratrix, seised in fee simple, or fee tail, of divers freehold estates; 
 and, being so seised, the said H. B. departed this life, on or about, &e., 
 leaving your oratrix his widow, and the defendant, C. B., his son and 
 heir at law, him surviving; whereby your oratrix became entitled by 
 law to her dower in the said freehold estates; but upon, or soon after, 
 the decease of the said H. B., the defendant, as his heir at law, or other- 
 wise, entered and took possession thereof, and of all title deeds, evi- 
 dences, and writings relative thereto; and your oratrix has frequently, 
 by herself and otherwise, applied to the said defendant, and requested 
 him to discover the said freehold estates, of which the said H. B. died 
 seised, and his title thereto, and to account for and pay to your oratrix 
 one-third part of the rents and profits of such freehold estates, which 
 your oratrix is entitled to, in respect of her dower, since the death of 
 the said H. B., and to assign and let your oratrix into the absolute pos- 
 session and enjoyment of one- third part of such freehold, which your 
 oratrix hoped he would have done. But now so it is, that the said de- 
 fendant refuses to comply therewith, pretending that your oratrix was 
 
ORIGINAL BILLS. 661 
 
 never accoupled to tte said H. B., in lawful matrimony; wliereas your 
 oratrix charges that on, &c., at, &c., the said H. B. was duly married to 
 your oratrix, and that she is therefore entitled to her dower as aforesaid; 
 but the said defendant refuses to discover the said freehold premises, 
 which are subject thereto, or to produce the title deeds, evidences, and 
 writings, or any of them, relative to the said freehold estates; wherefore 
 your oratrix is unable to proceed at law to establish her said demand. 
 To the end, therefore, &c., (interrogating as to the stating and charging 
 parts.} And that the said defendant may discover and set forth, in man- 
 ner aforesaid, a full and true description of such freehold estates as 
 aforesaid, with all the circumstances and particulars thereof, or relative 
 thereto; and that an account may be taken,' by and under the decree 
 and direction of this honourable court, of the rents and profits of the 
 said freehold estates, wherein your oratrix is dowable, which have ac- 
 crued since the death of the said H. B., and have, or might have been, 
 received by the said defendant; and that one-third part thereof, arising 
 from the said freehold estates, may be paid to her; and that one-third 
 part of such freehold estates may be assigned and set out to her for her 
 dower, and your oratrix let into the full and immediate possession and 
 enjoyment thereof, and decreed to hold the same for her life; and that 
 the said defendant may be decreed to produce all title deeds, evidences, 
 and writings, relative to the said freehold estates, in order to effectuate 
 the purposes aforesaid; and that your oratrix may have such further and 
 other relief, &c. May it please, &c. 
 
 BILL FOR PARTITION. 
 
 A. B. of, &c., and C, his wife, L. G. of, &c., and D., his wife, and 
 E. S., of, &c., widow, bring this their bill against R. F., of, &c., and M., 
 his wife, and thereupon your orators and oratrixes complain and say, 
 that W. R., of, &c., deceased, the father of your oratrixes, G. B., D. G., 
 and E. S., and also of M. ¥., the wife of the said R. F., was in his life- 
 time, and at the time of his death, seised in fee simple, or of some other 
 good estate of inheritance, to him and his heirs, of and in all that mes- 
 suage or dwelling-house, &c., and also of and in all that other messuage, 
 &c.- all which messuages, lands, and premises, are situate, lying, and 
 being in, &c.; and being so seised, he the said W. R., did many years 
 since" depart this life intestate, leaving S. R., his wife, and your oratrixes 
 and their said sister, M. F., his four daughters, and only children and 
 co-heiresses, him surviving; and upon his death, the said messuages, 
 lands, hereditaments, and premises, descended upon, and came to your 
 
662 EQUITY PRECEDENTS. 
 
 oratrixes and the said M. F., as such co-heiresses, subject only to the 
 dower of their said mother, S. K. And your orators and oratrixes fur- 
 ther show unto your honours, that the said S. K., the widow and relict 
 of the said W. R., departed this life, some time in or about the month 
 of, &c., whereupon your oratrixes and the said M. P. became, and have 
 ever since been, and now are seised in fee, of and in the said messuages, 
 lands, hereditaments, and premises, in four, equal, undivided parts or 
 shares, as tenants in coparcenary. And your orators and oratrixes further 
 show, that they have frequently applied to, and requested the said de- 
 fendants to join and concur with your orators and oratrixes in making a 
 fair, just, and equal partition of the said premises between them, in order 
 that their respective shares and proportions thereof might be allotted, 
 held, and enjoyed in severalty; and your orators and oratrixes well hoped 
 that the said defendants would have complied with such reasonable re- 
 quests, as in justice and equity they ought to have done ; but the said 
 defendants absolutely refuse to comply therewith, pretending that your 
 orators and oratrixes and the said defendants have, ever since the death 
 of the said W. E. and S. K., respectively, their said late father and 
 mother deceased, constantly and regularly divided the yearly rents and 
 profits of all the said messuages, lands, hereditaments, and premises, 
 equally between them, and that it will not be for the benefit or advantage 
 of either of them to make an actual partition thereof; whereas your 
 orators and oratrixes charge, and so the truth is, that a fair, just, and 
 equal partition of the said hereditaments and premises will tend greatly 
 to the benefit and advantage of your orators and oratrixes, and the said 
 defendants; but they, the said defendants, under divers frivolous pre- 
 tences, absolutely refuse to join or concur with your orators and oratrixes 
 therein. To the end, therefore, &o., (interrogating as to the stating and 
 charging parts.') And that a commission of partition may be issued out 
 of, and under the seal of this honourable court, and directed to certain 
 commissioners therein named, to divide and allot the said messuages, 
 lands, hereditaments, and premises, in equal fourth parts or shares ; and 
 that one full and equal fourth part or share may be allotted and conveyed 
 to your oratrix C. B., her heirs and assigns; that one other full and 
 equal fourth part or share may be allotted and conveyed unto your oratrix 
 D. Gr., her heirs and assigns; and that one other full and equal fourth 
 part or share may be allotted and conveyed unto your oratrix E. S., her 
 heirs and assigns; and that your oratrixes may severally hold and enjoy 
 their respective allotments of the said hereditaments and premises, in 
 severalty ; and that all proper and necessary conveyances and assurances 
 may be executed for carrying such partition into effect; and that your 
 
ORIGINAL BILLS. 663 
 
 orators and oratrixes may have such further and other relief, &c. May 
 it please, &c. 
 
 BILL OP INTERPLEADER. 
 The Philadelphia Saving Fund Society — a corporation duly established 
 by the laws of the commonwealth of Pennsylvania — bring this their 
 bill against A. B. and M. B., of, &c., and thereupon your orators com- 
 plain and say ; that your orators were incorporated by an act of assembly 
 of this commonwealth, passed on the twenty-fifth day of February, one 
 thousand eight hundred and nineteen, for the sole purpose of receiving 
 and investing in public stock, or substantial security on real estate, such 
 small sums as may be saved from the earnings of tradesmen, mechanics, 
 labourers, servants, and others, and of afibrding to industrious persons 
 the advantages of security and interest. That on, &e., the sum of, &o., 
 was deposited with your orators by a female, who entered her name in 
 their books as M. B., and received from them a book, commonly called 
 a pass-book, numbered 53,051, in which the said sum of, &c., was 
 entered to her credit. That on or about, &c., last, your orator received 
 a notice from a person calling himself A. B., that the said M. B. is his 
 wife, and that the money so deposited by her with your orators was the 
 proper money of him the said A. B. ; and he then and there claimed, 
 and required the said sum of money to be paid to him. And your orators 
 further show, that they caused notice to be given to the said M. B. of 
 the claim and demand of the said A. B. ; and the said M. B. appeared 
 and denied the allegations of the said A. B., and claimed the said money 
 as her own exclusive property. And your orators further show to your 
 honours, that the said A. B. instituted a suit against your orators, before 
 jT. M., Esquire, one of the aldermen of the city of Philadelphia, to recover 
 the said sum of, &c., so deposited with your orators; of which suit your 
 orators gave notice to the said M. B., forthwith ; and at the hearing 
 before the said alderman, the said A. B. was present with G. N., Esquire, 
 his attorney, and the said M. B. was also present, having, as her attorney, 
 Gr. W., Esquire J and the said alderman gave judgment against your orators 
 for the said sum of, &c., so deposited with them on, &c., last. And your 
 orators further show that, having received from the said G. W., Esquire, 
 a certificate setting forth that there was a good defence to the said claim, 
 and particularly that the said A. B. was not the lawful husband of the 
 said M. B., they entered an appeal from the judgment of the said alder- 
 man, and gave the requisite security, and have caused a transcript to be 
 filed according to law, in the court of common pleas of Philadelphia 
 county, the cause being docketed as of June term 1854, No. 268. And 
 
664 
 
 EQUITY PRECEDENTS. 
 
 your orators further show, that they are, and have at all times been ready 
 and willing to pay the said sum of money to whomsoever shall appear 
 to be entitled thereto; but by reason that the said defendants persist in 
 their adverse claims before mentioned, and the said A. B. has actually 
 commenced proceedings at law against your orators for the recovery of 
 the same, your orators are advised that they cannot with safety pay the 
 said sum of money to either of the said defendants, but that they ought 
 to interplead together touching their right to the same, in order that 
 your orators may know to whom the said sum of money ought to be 
 paid ; and the said defendants ought to be restrained by the order and 
 injunction of the court, from prosecuting, proceeding in, or commencing 
 any action or actions at law against your orators, for and in respect of 
 the matters aforesaid. To the end, therefore, &c., (interrogating as to 
 the statements in the bill.') And that the said defendants may be decreed 
 to interplead together; and that it may be ascertained, in such manner 
 as the court shall direct, to which of them the said sum of money, so 
 deposited with your orators, belongs and ought to be paid; and that your 
 orators may be at liberty to pay the said sum of money, with the interest 
 due thereon, into court, which they hereby offer to do, for the benefit of 
 such of the said parties as shall appear to be entitled thereto; and that 
 the said A. B. may be restrained, by the order and injunction of this 
 honourable court, from further prosecution of the said action so com- 
 menced by him, against your orators as aforesaid; and that he and the 
 said M. B. may, in like 'manner, be restrained from commencing or pro- 
 secuting any other proceedings at law whatsoever against your orators 
 in respect of the matters in question in this suit, or any of them; and 
 that your orators may have such further and other relief, &c. May it 
 please, &o. 
 
 •Affidavit. — 6r. Gr., treasurer of the Philadelphia Saving Fund Society, 
 the plaintiffs above-named, maketh oath and saith, that, to the best of his 
 knowledge and belief,' the said society do not, in any respect, collude 
 with either of the above-named defendants, touching the matters in ques- 
 tion in this cause, nor are they in any manner indemnified by the said 
 defendants, or either of them, nor have they exhibited their said bill of 
 interpleader, at the request of them, or either of them, but merely of 
 their own free will, and to avoid being further proceeded against or mo- 
 lested touching the matters contained in their said bill. Sworn, &c. 
 
 ^ Where the bill is filed by an individual, the aifidavit must be positive that 
 'he does not collude," &o. 
 
ORIGINAL BILLS. 665 
 
 BILL FOE DISSOLUTION OP A PARTNERSHIP. 
 
 A. B., of, &o., brings this Ms bill against G-. S., of, &o., and H. M., 
 of, &c., and thereupon your orator ^omplains and says, that in or about 
 the month of, &o., your orator entered into an agreement with the said 
 defendants to form a partnership with them, in the business of auction- 
 eers, which agreement was reduced to writing, and signed by your orator 
 and the said defendants, and was to the purport and effect following, that 
 is to say : (stating tlie same,) as in and by the said agreement, reference 
 being thereunto had, when produced, will more fully and at large appear. 
 And your orator further showeth, that the said co-partnership business 
 was entered upon, and hath ever since continued to be carried on by your 
 orator and the said defendants, in pursuance of and under the aforesaid 
 agreement, no articles or other instrument having ever been prepared 
 and executed between them. And your orator further showeth, that 
 having much reason to be dissatisfied with the conduct of the said G-. S., 
 and being desirous, therefore, to dissolve the said partnership, your orator, 
 on or about, &c., caused a notice in writing, signed by your orator, to be 
 delivered to the said defendants respectively, to the purport and effect 
 following, that is to say : "In conformity," &o. ; as in and by such written 
 notice, now in the custody or power of the said defendants, or of some 
 one of them, when produced, will appear. And your orator further 
 showeth, that the said G. S. hath from time to time, since the commence- 
 ment of the said partnership, applied to his own use, from the receipts 
 and profits of the said business, very large sums of money, greatly ex- 
 ceeding the proportion thereof to which he was entitled; and in order 
 to conceal the same, the said G. S., who hath always had the manage- 
 ment of the said co-partnership books, hath never once balanced the said 
 books. And your orator further showeth, that having in the beginning 
 of the year, &c., discovered that the said G. S. was greatly indebted to 
 the said co-partnership, by reason of his application of the partnership 
 moneys to his own use, your orator, in order to form some check upon 
 the conduct of the said G. S., requested that he would pay all co-partner- 
 ship moneys which he received into bank, to the credit of the said co- 
 partnership, and would draw for such sums as he had occasion forj but 
 the said G. S. hath wholly disregarded such request, and hath continued 
 to apply the partnership moneys received by him, to his own use, with- 
 out paying the same into bank ; and hath also taken to his own use, 
 moneys received by the clerks, and hath, by such means, greatly increased 
 his debt to the partnership, without affording to your orator and the said 
 H. M. any adequate means of ascertaining the true state of his accounts, 
 
 43 
 
666 EQUITY PRECEDENTS. 
 
 And your orator further showeth, that he hath, by himself and his agents, 
 from time to time, applied to the said Gr. S., and hath requested him to 
 come to a full and fair account in respect of the said co-partnership trans- 
 actions, with which just and reasonable request your orator well hoped 
 that the said defendant would have complied, as in justice and equity he 
 ought to have done. But now so it is, that the said G. S. absolutely re- 
 fuses so to do, and at times pretends that he hath not received and applied 
 to his own use more than his due proportion of the partnership profits; 
 whereas, your orator charges the contrary thereof to be the truth; and 
 so it would appear, if the said defendant would set forth a full and true 
 account of all and every his receipts and payments, in respect of the said 
 partnership transactions, and of the gains and profits which have "been 
 made in each year, since the commencement of the said partnership. 
 And your orator charges that the said Gr. S. hath, in fact, received the 
 sum of, &o., and upwards, beyond his due proportion of the partnership 
 profits, and that he is nevertheless proceeding to collect in the partner- 
 ship debts and moneys, whereby the balance due from him will be in- 
 creased, to the great loss and injury of your orator and the said H. M. 
 And your orator charges, that the said G. S. ought, therefore, to be re- 
 strained by the order and injunction of this honourable court, from col- 
 lecting and receiving any of the said partnership debts and moneys ; and 
 your orator further charges, that the said H. M. refuses to join your ora- 
 tor in this suit. To the end' therefore, &o., {interrogating as to the stating 
 and charging parts.^ And that the said co-partnership may be declared 
 to be void; and that an account may be taken of all and every the said 
 co-partnership dealings and transactions from the time of the commence- 
 ment thereof; and also an account of all the moneys received and paid 
 by your orator and the said defendants respectively in regard thereto ; 
 and that the said defendants may be decreed to pay to your orator what, 
 if any thing, shall, upon the taking of the said accounts, appear to be 
 due to him; your orator being ready and willing, and hereby offering to 
 pay to the said defendants, or either of them, what, if any thing, shall, 
 upon the taking of the said accounts, appear to be due to them, or either 
 of them, from your orator; and that, in the mean time, the said G. S. 
 may be restrained by the order and injunction of this honourable court, 
 from collecting or receiving the partnership debts or other moneys; and 
 that your orator may have such further or other relief, &c. May it 
 please, &c. 
 
ORIGINAL BILLS. 667 
 
 BILL FOR AN ACCOUNT AND RECEIVER. 
 A. B., of, &c., brings this his bill against C. D., of, &o., and there- 
 upon your orator complains and says ; that on or about, &c., your orator 
 and the said defendant entered into co-partnership together as, &o. ; your 
 orator engaging to bring into the business the sum of, &o., and being to 
 receive one-third part or share of the profits ; and the said C. D. en- 
 gaging to bring into the business the sum of, &c., and being to receive 
 two-third parts or shares of the said proiitg. And your orator further 
 showeth, that your orator, accordingly, brought into the buaness the 
 said sum of, &o., and that the said co-partnership was carried on and 
 continued until, &c., when the same was dissolved by mutual consent. 
 And your orator further showeth, that the said co-partnership business 
 was carried on in a house in, &o., which, at the time of the dissolution of 
 the said co-partnership, was held by the said defendant and your orator, 
 under an agreement for a lease for, &o. ; and it was verbally agreed be- 
 tween the said defendant and your orator, that the said defendant should 
 take to himself the benefit of the said agreement, accounting to your 
 orator for his proportion of the value thereof; and in pursuance of such 
 agreement, the said defendant hath ever since continued, and now is, 
 in possession of the said house. And your orator further showeth, that 
 no settlement of the said co-partnership accounts hath ever been made 
 between your orator and the said defendant; and that, since the said 
 dissolution, your orator hath repeatedly applied to the said defendant to 
 come to a final settlement with respect thereto ; and your orator well 
 hoped that the said defendant would have complied with such, your 
 orator's reasonable requests, as in justice and equity he ought to have 
 done ; but the said defendant absolutely refuses so to do. And your 
 orator charges, that the said defendant hath possessed himself of the said 
 co-partnership books, and hath refused to permit your orator to inspect 
 the same; and hath also refused to render to your orator any account of 
 the co-partnership moneys received by him. And your orator charges, 
 that he has, since the said dissolution, paid the sum of, &c., in respect 
 of the co-partnership debts. And your orator further charges, that upon 
 a true and just settlement of said accounts, it would appear that a con- 
 siderable balance is due from the said defendant, to your orator, in 
 respect of their said co-partnership dealings; but, nevertheless, the said 
 defendant is proceeding to collect in the said co-partnership debts, and 
 to apply the same to his own use, which the said defendant is enabled to 
 do by means of his possession of the books of account as aforesaid. And 
 your orator charges, that the said defendant ought to be restrained, by 
 
668 EQUITY PRECEDENTS. 
 
 the injunction of this honourable court, from collecting in the said debts; 
 and that some proper person ought to be appointed, by this honourable 
 court, for that purpose. To the end, therefore, &c., (interrogating as 
 to the stating and charging parts.') And that an account may be taken 
 of all and every the said late co-partnership dealings and transactions, 
 until the time of the expiration thereof; and that the said defendant 
 may be directed to pay to your orator what, if any thing, shall, upon 
 such account, appear to be due from him ; your orator being ready and 
 ■willing, and hereby offering to pay to the said defendant what, if any 
 thing, shall appear to be due to him from the said joint concern; and 
 that some proper person may be appointed to receive and collect all 
 moneys which may be coming to the credit of the said late co-partner- 
 ship; and that the said defendant may, in the meantime, be restrained 
 by the order and injunction of this honourable court, from collecting or 
 receiving any of the debts due and owing thereto ; and that your orator 
 may have such further and other relief, &c. May it please, &e. 
 
 A. B. of, &o., brings this his bill against C. D., E. F., and G. H. of, &e., 
 trading under the firm of D. & F., on behalf of himself and all other un- 
 satisfied creditors of the said firm of D. & F., who shall come in and con- 
 tribute to the expense of this suit ; and thereupon your orator complains 
 and says, that the said firm of D. & F., is a special firm in, &c., under the 
 statute relating to limited partnership; and was formed on or about, &c., for 
 the term of five years; wherein the said defendants C. D., and E. F., are 
 general partners, and the said defendant Gr. H. is the special partner ; 
 as will more fully appear, by reference to the certificate thereof on record 
 in the office of the recorder of deeds, of the county of, &c., and to which, 
 for greater certainty, your orator craves leave to refer. And your orator 
 further showeth, that the said firm of D. & F. are justly indebted to your 
 orator in the full sum of, &c., on their promissory note dated, &c., and 
 payable six months after date, to the order of your orator, which is now 
 due and unpaid, as will appear by the said promissory note, now in your 
 orator's possession, and ready, at all proper times, to be produced ; and 
 the said firm of D. & F. is also largely indebted to various other persons. 
 And your orator further showeth, that the said firm of D. & F. is insolvent, 
 and has been notoriously insolvent in the mercantile market, for many 
 weeks past ; and that the general partners composing the said firm are 
 
 1 See ante, § 890, note. 
 
ORIGINAL BILLS. 669 
 
 also insolvent. And your orator further showeth, that, as lie hath been 
 informed and verily believes, the said general partners of the said limited 
 firm of D. & F. have, or one of them has, since the said firm became in- 
 solvent, been making sales and improper dispositions of, or in some way 
 or manner covering the property, estate, and effects of the said firm, or 
 some part thereof; and that they control, and are able and likely to di- 
 vert, the said property, estate, or effects, from the creditors equally; and 
 are allowing favoured creditors to sue them, so as thereby to get an ad- 
 vantage and priority of payment. And your orator further showeth, that, 
 as he is informed and believes, the property, estate, and effects of the 
 said limited partnership is large, consisting of ships, shares in ships, 
 cargoes, stock in trade, debts, notes, bills, and other property and effects. 
 And your orator further showeth, that although the said firm of D. & F. 
 has been insolvent, and stopped payment ever since, &c., and even before 
 that time, yet they still attempt to carry on business ; and that the same 
 is done in fraud of creditors. And your orator further showeth, that 
 the said partners, constituting the said firm of D. & F., have neglected 
 and refused to place, and fully deliver the partnership effects, in the 
 hands of a proper and responsible trustee, to be distributed, without 
 delay, among all the creditors of the said firm (and excluding the special 
 partner) rateably, in proportion to the amount of their several debts, 
 either due or to become' due. And your orator insists, that the property 
 of the said limited partnership has, ever since the first day the said firm 
 became insolvent, become a trust for the benefit of all their creditors. 
 To the end, therefore, &c., (interrogating as to the statements in the bill.) 
 And that the property, estate, and effects of the said firm of J). & F. may 
 be decreed to be a trust fund for the benefit of all their creditors, and 
 that an account may be taken of all and every the debts due, or to be- 
 come due, by the said firm of D. & F. ; and also of the assets of the said 
 firm; and that the said assets may be applied in payment of the debts of 
 the said firm, rateably, in proportion to the amount thereof; and that the 
 said defendants may be restrained by the order and injunction of this ho- 
 nourable court from selling or in any way disposing of the property, estate, 
 and effects of the said firm, and from collecting or receiving any of the 
 debts due and owing thereto; and that a receiver may be appointed to 
 protect the trust fund and to distribute it among the several creditors 
 who shall come in and prove thoir debts, under the decree to be obtained 
 herein ; and that your orator and the other creditors of the said firm may 
 have such further and other relief, &c. May it please, &o. 
 
670 EQUITY PRECEDENTS. 
 
 BILLS TO RESTRAIN WASTE. 
 A. B., of, &o., brings this his bill against C. D., of, &c., and thereupon 
 your orator complains and says, that your orator, before and at the time 
 of making the indenture hereinafter mentioned, was seised of certain te- 
 nements, with the appurtenances, situate, &c., hereinafter more particu- 
 larly described; and, being so seised, by an indenture bearing date, &c., 
 and made between your orator of the one part, and the said C. D., the 
 defendant, of the other part, your orator did demise and lease unto the 
 said defendant, his executors, administrators, and assigns, all, &c., (de- 
 scrihing the subject of the demise;') to hold the same, with the appur- 
 tenances, unto the said defendant, his executors, administrators, and as- 
 signs, from, &c., for the term of, &c., next ensuing, at the yearly rent of, 
 &c. And your orator further showeth, that the said defendant did 
 thereby, for himself, his executors, administrators, and assigns, covenant, 
 promise, and agree with your orator, his heirs and assigns, that he, the 
 said defendant, his executors, administrators, and assigns, would, during 
 the said term, keep the said premises in good repair, and manage and culti- 
 vate the said farm and lands, in a proper, husband-like manner, according 
 to the custom of the country, as by the said indenture, to which your 
 orator craves leave to refer, when produced, will more fully appear. And 
 your orator further showeth, that the said defendant, under and by virtue 
 of the sajd indenture, entered into the said demised premises, with the 
 appurtenances, and became, and was possessed thereof, for the said term, 
 so granted to him thereof by your orator as aforesaid. And your orator 
 further showeth, that at the time the said defendant entered upon the 
 said premises, the same were in good repair and condition, and your orator 
 hoped the said defendant would so have kept the same, and have culti- 
 vated the said lands in a proper and husband-like manner, according to 
 the custom of the country, and that such parts of the premises as con- 
 sisted of ancient meadow or pasture ground, would have remained so, and 
 not have been ploughed up, and converted into tillage ; and that no waste 
 would have been committed on the said premises. But now so it is that, 
 although the said premises and the buildings, out-houses, rails and fences, 
 were in a good and perfect state and condition when the said defendant 
 entered upon and took possession of the said premises, yet, they are now 
 very ruinous and bad, and the land very much deterioi'ated, from the 
 wilful mismanagement and improper cultivation thereof, by the said de- 
 fendant, who has ploughed up certain fields called, &o., containing re- 
 spectively, &c., and has otherwise committed great spoil, waste, and de- 
 struction in, upon, and about the said premises; and your orator charges. 
 
ORIGINAL BILLS. 671 
 
 that the said defendant ought to put the said premises into the same con- 
 dition they were in, when he entered thereon, and to make your orator 
 a reasonable compensation for the waste and damage done or occurred 
 thereto ; and that the said defendant ought to be restrained by the order 
 and injunction of this honourable court from ploughing up the remaining 
 pasture-fields, part of the said demised premises, which he threatens to 
 do, and also restraining him from committing any further or other waste, 
 spoil, or destruction, in and about, or to the said estate and premises, or 
 any part thereof. To the end, therefore, &c., (interrogating as to the 
 material statements in the bill') And that the said defendant may be 
 compelled by the decree of this honourable court to put the said premises 
 into such repair and condition, in every respect, as far as circumstances 
 will permit, as they were in, when he entered upon the same, under and 
 by virtue of such demise as aforesaid ; and may also be decreed to make 
 a reasonable compensation to your orator for all waste done, committed, 
 or suffered by him on the said premises, and all damage occasioned thereto 
 by his mismanagement or neglect (your orator hereby waiving all pains 
 and penalties incurred by the said defendant on account of committing 
 waste on the said premises ;) and that he may be decreed to keep the said 
 premises in good and sufficient repair and condition, during the remain- 
 der of his interest therein, and to manage and cultivate the said farm and 
 lands in a proper and husband-like manner, according to the custom of 
 the country; and that he may be likewise restrained, by the order and 
 injunction of this honourable court, from ploughing up the said remaining 
 pasture lands, forming part of the said demised premises, and particularly 
 the said fields called, &c., and from committing or permitting any further 
 waste or spoil, in, on, or to the said demised premises, or any part thereof; 
 and that your orator may have such further and other relief, &c. May it 
 please, &c. 
 
 BILL FOR AN INJUNCTION. 
 J. A. B., (and others) of, &o., as well for themselves, as for such other 
 citizens, residents and tax payers of Ihe county of Philadelphia, who 
 may come in and contribute to the expenses of this suit, bring this their 
 bill against A. S., W. F., and W. S. A., county commissioners of the 
 county of Philadelphia; and thereupon your orators complain and say, 
 that they are residents, and owners of real and personal estate, within the 
 county of Philadelphia, and as such are bound by law, and do pay all 
 taxes justly assessed and levied thereupon, and as such citizens, residents, 
 and owners, are directly interested in every question which can or may 
 in any wise whatsoever increase or augment the amount of the said taxes 
 
672 EQUITY PRECEDENTS. 
 
 chargeable upon their property in the said county, and in the lawful and 
 economical administration of the affairs thereof. And your orators further 
 show, that the said defendants were, according to law, elected county com- 
 missioners of the county of Philadelphia, have been duly qualified, have 
 undertaken the discharge of the duties thereof, and now fill the said 
 ofiioe. And your orators further show, that by an act of the general as- 
 sembly of the commonwealth of Pennsylvania, approved the third day of 
 April 1837, to which your orators crave leave to refer, and by certain 
 proceedings by virtue thereof, there was and is established by law, in this 
 commonwealth, a body politic or corporate known by the name of "The 
 Sunbury and Erie Railroad Company," with all the powers and privileges 
 which, by the said law, and by any acts and supplements thereto duly ap- 
 proved, are granted and conferred. And your orators further show, that 
 they are informed and believe, and so charge, that these defendants, as 
 such county commissioners, are about, for or on behalf of the county of 
 Philadelphia, and in the name of the said county, to contract for, pur- 
 chase, or subscribe to, stock of the said corporation, to the extent of 
 twenty thousand shares, at the rate of one hundred dollars for each share, 
 and to make payment therefor, by the issue of bonds of the said county, 
 bearing an interest at the rate of six per cent, per annum, to the amount 
 of two millions of dollars. And your orators further show, that they do 
 not know certainly, nor are they able to ascertain, whether the said con- 
 tract has been actually entered into by the said defendants; but, if the 
 said contract and subscription has been entered into and made, they be- 
 lieve and charge that, for the purpose of paying for the said stock so con- 
 tracted for, subscribed to, and purchased, the said defendants have not 
 yet, but are about to, make and issue, in the name of the county of Phila- 
 delphia, and with the pledge of the faith and credit of the said county 
 for the payment thereof, bonds to the amount required by the said con- 
 tract, subscription, or purchase, namely, to the amount of one hundred 
 dollars for each of said twenty thousand shares of stock, in all, two mil- 
 lions of dollars. And your orators further show, that by the said con- 
 tract, subscription, and purchase, and by the issuing of the said bonds, 
 the debt of the said county, now exceeding one million eight hundred 
 thousand dollars, will be greatly increased, the credit thereof seriously 
 impaired, and the taxes chargeable to, and to be levied in the said county, 
 upon the property of your orators, and their fellow citizens, will be greatly 
 augmented. And your orators further show, that they are advised and 
 believe, that the said contract, and subscription and purchase, and the 
 making and issuing of the bonds 'of the said county, by the defendants as 
 
ORIGINAL BILLS. 673 
 
 aforesaid, for the purpose of carrying into effect the said contract and 
 subscription, and paying for the said stock, are without any warrant or 
 authority whatsoever. To the end, therefore, &c., (interrogating as to 
 the statements in the bill.') And that the said defendants may be re- 
 strained, by the order and injunction of this honourable court from sub- 
 scribing, taking, or purchasing, or from agreeing to subscribe, take, or 
 purchase, for, or on behalf of, or in the name of the county of Philadel- 
 phia, any shares of the stock of the Sunbury and Erie Railroad Company 
 aforesaid, and from pledging the credit of the said county, in any manner, 
 thereto, and from making, signing, sealing, delivering, or issuing any 
 bond, or instrument of writing of any nature whatsoever, for or on behalf 
 of the said county, for the purpose of purchasing, paying for, or in any 
 manner connected with any agreement to take, purchase, or pay for, any 
 shares of the stock of the Sunbury and Erie Railroad Company aforesaid. 
 And that it may be decreed and declared by this honourable court, that 
 any such contract, agreement, or subscription by the said defendants, in 
 the name of the said county, to or for any stock of the Sunbury and Erie 
 Railroad Company is null and void, and that the same, if executed, be 
 cancelled;^ and that any bonds of the county of Philadelphia signed and 
 sealed by the said county commissioners, issued in pursuance of any such 
 contract, subscription, or agreement, or for the payment of any shares of 
 the stock of the Sunbury and Erie Railroad Company aforesaid, are or 
 will be null and void, and not binding and obligatory upon the said 
 county, or the citizens thereof; and that the county commissioners of 
 the county of Philadelphia have not, by law, the right or power to pur- 
 chase, contract for, or subscribe to the stock of the Sunbury and Erie 
 Railroad Company aforesaid, in the name and on behalf of the said 
 county; and that your orators may have such further and other relief, 
 &o. May it please, &c. 
 
 BILLS TO PERPETUATE TESTIMONY. 
 
 1. 0/ Illegitimacy. 
 
 M. A. H., of, &c., brings this her bill against W. W., G. W., S. ^Y., 
 
 and C. W., of, &o., and thereupon your oratrix complains and says, that 
 
 on, &c., your oratrix intermarried with one J. H., now deceased, who, 
 
 in his lifetime, and at the time of her decease, was seised of, or well en- 
 
 1 It would seem, that no such relief as that prayed in this bill, could be had, 
 without making the railroad company parties defendant, who were clearly in- 
 terested in resisting such a decree. 
 
674 EQUITY PRECEDENTS. 
 
 titled in fee, to considerable real estate in, &c. That the' said J. H. 
 died on, &c., intestate, and without issue, or known heirs, competent to 
 inherit his said real estate, hut leaving your oratrix him surviving, in 
 whom his said real estate vested for such estate, as the said J. H., in his 
 lifetime, had therein, by virtue of the intestate laws of Pennsylvania; 
 and your oratrix, ever since his decease, hath been, and now is, in the 
 lawful possession of the said real estate, and in the receipt of the rents 
 and profits of the same. And your oratrix further showeth, that the 
 said J. H. was born about the year, &c., and that he was the illegitimate 
 son of one S. K., of, &c., who, at the time of the birth of her said son, 
 the said J. H., was a single and unmarried woman. That some time 
 after the birth of the said J. H., his mother, the said S. K., intermar- 
 ried with one W. A. W., and is since deceased, leaving issue four chil- 
 dren, to wit, the said defendants ; and your oratrix well hoped that her 
 title as statutory heir of her late husband, the said J. H., deceased, to 
 the said real estate so vested in her, would in no manner have been dis- 
 puted; yet so it is, that the said defendants now insist that the said 
 J. H. was the legitimate child of their mother, the said S. K., born in 
 lawful wedlock, and that they, the said defendants, are the lawful heirs 
 of the said J. H., deceased, and entitled to the said real estate, and that 
 your oratrix is only entitled to dower therein; whereas your oratrix ex- 
 pressly charges the contrary thereof to be the truth, and that the said 
 S. K., at the time of the birth of the said J. H., was single and un- 
 married. But nevertheless the said defendants, although they well 
 know the several facts aforesaid, yet mean and intend to dispute the va- 
 lidity of your oratrix's title to the said real estate, when the several wit- 
 nesses necessary to establish the same are dead, many of whom are now 
 infirm and much advanced in years. To the end, therefore, that the said 
 defendants may, if they can, show why your oratrix should not have 
 the testimony of the said witnesses perpetuated,' and that your oratrix 
 may be at liberty to examine her witnesses to the several matters and 
 •things herein before mentioned, and particularly with reference to the 
 illegitimacy of her late husband, the said J. H., deceased, so that the 
 testimony of the said witnesses may be preserved and perpetuated ; and 
 that your oratrix may be at liberty, at all future occasions, to read and 
 make use of the same, as she shall be advised. May it please, &c.^ 
 
 1 As no discovery is sought from the defendant, interrogatories are unnecessary 
 in a bill to perpetuate testimony. 
 ^ This bill should not pray relief. 
 
ORIGINAL BILLS. ' 675 
 
 2. Of Re-entry for Breach of Covenant. 
 A. B., of, &c., brings this his bill against C. D., of, &e., and, there- 
 upon, your orator complains and says, that on, &c., your orator made his 
 certain deed, bearing date the day and year aforesaid ; by which said 
 deed he conveyed to the said defendant, his heirs and assigns, all that, 
 &o., (describing the •premises,') to have and to hold to the said defendant, 
 his heirs and assigns forever, by yielding and paying, therefor, unto 
 your orator, his heirs and assigns, the yearly rent or sum of, &c., com- 
 mencing on, &c., next after the date of the said deed, and payable in 
 half yearly payments, on, &c., in every year forever, without any deduc- 
 tion, defalcation, or abatement for any taxes, charges, or assessments what- 
 soever, to be assessed as well on the said thereby granted lot, as on the 
 said yearly rent. And by the said deed it was further made lawful, on 
 default of payment of said yearly rent, on the days or times, and in man- 
 ner aforesaid, for your orator, his heirs and assigns, to enter into and 
 upon the said thereby granted premises, or any part thereof, and into 
 the buildings thereon to be erected, and distrain for the said yearly rent 
 so in arrear and unpaid, and to proceed and sell such distrained goods 
 and effects, according to the usual course of distresses for rent charges. 
 But if sufficient distress could not be found upon the said thereby granted 
 premises, to satisfy the said yearly rent in arrear, and the charges of 
 levying the same ; then, by the said deed, it was made lawful for your 
 orator, his heirs and assigns, into and upon the said thereby granted lot, 
 and all improvements thereon, wholly to re-enter, and the same to have 
 again, repossess, and enjoy, as in his first and former estate and title in 
 the same, and as though the said deed had never been made. And the 
 said defendant, for himself, his heirs, executors, administrators, and as- 
 signs, did covenant, promise and agree, by the said deed, that he, the 
 said defendant, his heirs and assigns, should and would pay or cause to 
 be paid, the said yearly rent above mentioned, at the days and times, 
 and under the conditions heretofore set forth, as in and by the counter- 
 part of the said deed, now in your orator's possession, and ready to be 
 produced, as this honourable court shall direct, will on reference more 
 fully appear. And your orator further showeth, that on, &c., by the terms 
 and conditions of the said deed, heretofore set forth, there became due to 
 him, by the said defendant, the sum of, &c., the same being the half- 
 yearly rent, by the said deed so as aforesaid reserved, and payable on 
 that day. That your orator, by his lawful attorney, duly constituted and 
 appointed, did, upon that day, and at and upon the said land, make de- 
 mand of the said sum of, &c., so due and payable as aforesaid, and did 
 
676 EQUITY PRECEDENTS. 
 
 then and there continue said demand until the last moment of the said 
 day, to wit, until the hour of, &e.; but that, notwithstanding said de- 
 mand, so continued as aforesaid, the said defendant did not, nor did any 
 one for him, pay to your orator the said sum of, &c., so reserved as afore- 
 said, or any part or portion thereof. And your orator further showeth, 
 that there was not upon said land, sufficient distress to pay the said sum 
 of, &c., and the costs of levying the same, according to the tenor and 
 intent of the said deed. And youi* orator further showeth, that for de- 
 fault of pajmient of the said sum, of, &c., so as aforesaid reserved, and 
 for want of sufficient distress to pay the same ; and the costs of levying 
 said distress, on the said, &c., and at the hour aforesaid, and by his law- 
 ful attorney so constituted as aforesaid, your orator did re-enter upon the 
 said lot or piece of ground, agreeably to the tenor and intent of the 
 said deed, and of the said condition therein contained as aforesaid ; and 
 your orator hath ever since been, and is now, in the lawful possession 
 thereof; and your orator well hoped that he and his heirs and assigns 
 would have been permitted to enjoy the same quietly without any inter- 
 ruption from any person whomsoever. Nevertheless the said defendant 
 insists and pretends that your orator did not legally demand the said 
 rent when the same became due as aforesaid, and did not in default of 
 payment re-enter upon the said land in accordance with the condition in 
 the said deed, whereas your orator charges the contrary thereof to be 
 the truth ; and the said defendant threatens that he will hereafter contest 
 the rights of your orator to the said land, when the witnesses who are 
 able to prove the matters hereinbefore set forth are dead ; whereby your 
 orator, his heirs and assigns, will be deprived of the benefit of their tes- 
 timony, and your orator's right may be thereby defeated. To the end, 
 therefore, that the said defendant may, if he can, show why your orator 
 should not have the testimony of the said witnesses perpetuated. And 
 that your orator may be at liberty to examine his witnesses with respect 
 to the several matters aforesaid, and particularly with respect to his de- 
 mand of the said rent, and his re-entry upon the said land, so that their 
 testimony may be perpetuated and preserved. Blay it please, &c. (^This 
 bill should not ^ray relief?) 
 
 BILLS OF DISCOVERY. 
 1. In aid of a Defence at Law. 
 S. K. S., of, &c., brings this his bill against P. P. G., of, &c., and there- 
 upon your orator complains and says ; that heretofore, to wit, at the term 
 of, &c., the said defendant did commence and prosecute against your 
 orator, a certain suit at law, in this honourable court, wherein the said 
 
ORIGINAL BILLS. 677 
 
 defendant, by his attorney, hatli filed a declaration, to wliieh your orator, 
 by Hs attorney, hatb pleaded an issuable plea, so that the said cause is 
 at issue. And your orator further showeth, that the said defendant, in 
 his said action at law, claims to recover against your orator the sum of, 
 &c., or some other large sum of money, for certain goods and merchan- 
 dise sold and delivered by the said defendant to one A. T. Gr., for the 
 payment whereof he alleges and pretends that your orator undertook and 
 promised to be responsible to him the said defendant. And your orator 
 further showeth, that on or about, &c., the said A. T. G., being desirous 
 of purchasing a bill of goods from the said defendant upon credit, re- 
 quested your orator to guaranty and become responsible to the said de- 
 fendant, for the payment of the same, which your orator agreed to do ; 
 and, thereupon your orator drew an order upon the said defendant, in 
 favour of the said A. T. G-., and delivered the same to the said A. T. G., 
 in the words and figures, or to the purport and effect following, that is 
 to say, (stating the same.) And your orator further showeth, that the said 
 defendant received the said order from the said A. T. G., and sold and 
 delivered to him a bill of goods, upon the faith and credit thereof; and 
 that the said A. T. G. gave to the said defendant his promissory note 
 in payment for the said bill of goods, which promissory note was duly 
 paid, at maturity, by the said A. T. G. And your orator further showeth, 
 that the said defendant subsequently, from time to time, sold und deli- 
 vered to the said A. T. G. other goods and merchandise, without the 
 knowledge of your orator, in payment whereof, he received the promissory 
 notes of the said A. T. G., many of which wore paid by him, at the maturity 
 thereof; which course of dealing between the said defendant and the said 
 A. T. G., continued until about, &c. ; about which time the said A. T. G. 
 became insolvent, and failed to pay his notes as they became due. And 
 the said defendant now alleges and pretends, that your orator agreed to 
 become responsible for the payment of such subsequent purchases of 
 merchandise, by the said A. T. G., from the said defendant ; whereas 
 your orator expressly charges the contrary thereof to be the truth. And 
 your orator also charges, that the said defendant now hath, or lately had, 
 in his custody, possession, or power, some book or books of account, 
 letters, documents, accounts, or writings, from which the truth of the 
 several matters and things aforesaid, or of some of them, would appear. 
 And so it would appear, if the said defendant would set forth a full, true, 
 and particular account of all such books of account, letters, documents, 
 accounts, and writings. To the end, therefore, that the said defendant 
 may upon his corporal oath, &c., (interrogating as to the stating and 
 charging parts.) And that the said defendant may make a full and 
 
678 EQUITY PRECEDENTS. 
 
 true disclosure and discovery of the several matters aforesaid, to the end 
 that your orator may be the better enabled to defend the said action; 
 and that he may be restrained by the order and injunction of this ho- 
 nourable court, from further proceeding in the said action against your 
 orator. May it please, &c. (^This hill should not pray relief .) 
 
 2. In aid of an Execution. 
 A. B., of, &c., brings this his bill against C. D. and E. P., of, &c., 
 and thereupon your orator complains and says, that your orator is a cre- 
 ditor of the said defendant, C. D., and hath recovered a judgment against 
 him in an action in the district court for the city and county of Philadel- 
 phia of the term of, &c., for the sum of, &o., with costs of suit, which 
 said judgment was recovered on, &c.; and a writ of fieri facias was issued 
 thereon to the term of, &c., which has been duly returned by the sheriff 
 " nulla bona." That your orator is informed and believes, and so charges, 
 that the said CD., the defendant in the said judgment, hath real and 
 personal estate, wherewith the said judgment may be satisfied; that such 
 real estate hath been fraudulently conveyed and transferred, and such 
 personal estate hath been removed and cancelled, by the said C. D. with 
 intent to prevent the same being made liable for the payment of his 
 debts; whereby your orator is prevented from having execution of his 
 said judgment. And your orator further showeth, that he is informed 
 and believes, and so charges, that the said defendant, E. F., hath posses- 
 sion or knowledge of the real or personal estate of the said C. D., and 
 can make discovery of such facts, as will enable your orator to have satis- 
 faction of his said judgment. To the end, therefore, that the said de- 
 fendants may upon their several and respective corporal oaths, &c., (^in- 
 terrogating minutely as to the statements in the bill.') And that the said 
 defendants may make a full and true disclosure and discovery, as to the 
 several matters aforesaid, to the end that your orator may be enabled to 
 have execution of his judgment; may it please your honours to grant unto 
 your orator a writ of scire facias, to the sheriff of the county of Philadelphia 
 directed, requiring him to make known to the said C. D., and E. F., that 
 they be and appear before this honourable court, at a certain time to be 
 therein appointed, to answer this bill, and all such interrogatories as shall 
 be propounded to them, or show cause why they should not, and abide 
 the judgment of this honourable court in the premises. And your orator 
 will ever pray, &c. 
 
 Affidavit. — A. B., the complainant above-named, being duly sworn, 
 saith, that he verily believes the facts set forth in the foregoing bill to 
 be true. Sworn, &c. 
 
BILLS NOT ORIGINAL. 679 
 
 BILLS NOT ORIGINAL. 
 
 SUPPLEMENTAL BILL. 
 
 A. B., of, &c., brings this his supplemental bill against C. D., of, &c., 
 and thereupon your orator complains and says; that on, &o., your orator 
 exhibited his original bill of complaint against the said defendant, thereby 
 praying that the said defendant might be decreed specifically to perform 
 his agreement with your orator, touching the lease of the farm and pre- 
 mises in the said bill mentioned, and to grant to your orator a lease 
 therefor, for, &o., commencing from the expiration of his former lease, 
 at the yearly rent of, &c. ; your orator being willing and ready to do 
 and perform every thing on his part, required to be done and performed, 
 in pursuance of the said agreement. And your orator further showeth, 
 that the said defendant appeared, and put in his answer to the said 
 original bill; as by the said bill and answer, now remaining of record 
 in this honourable court, reference being thereunto had, will appear. And 
 your orator showeth, by way of supplement, that since the filing of the 
 said original bill, the said defendant hath caused an action of ejectment 
 to be commenced in the court of, &c., for the purpose of turning your 
 orator out of possession of the said farm and premises; and the said 
 action is still depending in the said court. And your orator, being ad- 
 vised that the said defendant cannot support such action, and that your 
 orator is entitled to a specific performance of the said agreement, as 
 prayed by his said original bill, he has, by himself and his agents, 
 several times applied to, and requested the said defendant to desist from 
 proceeding in the said action; and he was in hopes that the said defen- 
 dant would have complied therewith, as in justice and equity he ought 
 to have done. But so it is, that the said defendant absolutely refuses 
 to comply with your orator's requests, and insists upon proceeding in his 
 said action, and to turn your orator out of possession of the said farm 
 and lands, to the manifest wrong and injury of your orator, in the pre- 
 mises. To the end, therefore, &c., (interrogating as to the statements.) 
 And that the said defendant may be restrained, by the order and in- 
 junction of this honourable court, from proceeding in the said action 
 of ejectment, and from commencing any other action or proceeding at 
 law for the purpose of turning your orator out of possession of the said 
 farm and lands; and that your orator may have such further and other 
 relief, &c. May it please, &c. 
 
680 EQUITY PRECEDENTS. 
 
 SUPPLEMENTAL BILL AFTER DECREE. 
 
 Gr. S., of, &0., brings this his bill against G-. W., of, &e., and there- 
 upon your orator complains and says, that on, &c., your orator exhibited 
 his original bill of complaint against E. W., of, &c., thereby stating 
 such matters and things as are therein, for that purpose, more particu- 
 larly mentioned and set forth, and praying that the said E. W. might be 
 compelled, by the decree of this honourable court, specifically to perform 
 his agreement with your orator in the said bill mentioned, and transfer and 
 assign unto your orator, &c., (as in the prayer of the original bill.') And 
 your orator further showeth, that the said E. W., having been duly 
 served vpith process, appeared and put in his answer to the said bill, and 
 your orator replied thereto; and the said cause being at issue, and wit- 
 nesses having been examined on both sides, the same was, according to 
 the practice of the court, set down for hearing ; and at, &c., the said 
 cause came on to be heard, and was argued by counsel, and thereupon, 
 upon consideration thereof, it was ordered, adjudged, and decreed, by 
 this honourable court, that, &c., (stating the decree for specific 'perform- 
 ance, &c. ;) as in and by the said bill, answer, and proceedings, now re- 
 maining of record in this honourable court, reference being thereunto 
 had, will fully appear. And your orator further showeth, by way of 
 supplement, that on or about, &c., after the exhibiting by your orator of 
 his said original bill of complaint, and after the said E. W. had put in 
 his answer thereto, and whilst your orator was in the possession and en- 
 joyment of the said premises, he, the said E. W., without any valuable 
 consideration whatever, assigned and transferred his title to the said pre- 
 mises to the said Gr. W., the defendant, who is the brother of the said 
 E. W. ; and your orator further showeth, that at the time of the said as- 
 signment, the said defendant well knew, or was informed, that the said 
 original bill of complaint exhibited by your orator against the said E. 
 W., was pending and undetermined, and that the said E. W. was not in 
 the possession of the said premises, and that your orator claimed title 
 to the same; and your orator further showeth, that the said defendant 
 did not pay any valuable consideration for the said assignment. And your 
 orator further showeth, that the said defendant having thus obtained the 
 legal title to the said premises threatens and intends to enter upon and 
 take possession of the said premises, or to commence proceedings at 
 law to turn your orator out of possession of the same, to the manifest 
 wrong and injury of your orator. And your orator is advised, that 
 he is entitled to the same relief against the said defendant, as he was 
 
BILLS NOT ORIGINAL. 681 
 
 entitled to against the said E. W., and tLat the said decree, so made 
 against the said E. W., ought to be prosecuted and carried into full 
 effect against the said defendant. To the end, therefore, &o., (^interro- 
 gating as to the statements in the bill.) ' And that your orator may 
 have the benefit of the said decree, and that the same may be directed 
 to be prosecuted and carried into full effect against the said defendant ; 
 and that the said defendant may be compelled, by the decree of this 
 honourable court, to assign and transfer unto your orator, &c., (as in 
 the prayer of the original hill;) and that the said defendant may be 
 restrained by the order and injunction of this honourable court from 
 transferring or assigning the legal title to the said premises to any other 
 person or persons whatsoever, and from molesting or disturbing your 
 orator in the possession and enjoyment thereof, or from commencing or 
 prosecuting any action or proceeding at law, for the purpose of turning 
 your orator out of the possession of the same ; and that your orator may 
 have such further and other relief, &c. May it please, &c. 
 
 BILL OF EEVIVOR. 
 A. B., of, &c., brings this his bill against C. D., of, &c., and thereupon 
 your orator complains and says; that J. A., late of, &c., but now deceased, 
 on or about, &e., exhibited his original bill of complaint in this honourable 
 court, against the said defendant, thereby stating such several matters 
 and things as are therein contained, and praying as therein particularly 
 set forth; and your orator further showeth, that process duly issued 
 against the said defendant, and he appeared and put in his answer to the 
 said bill ; and that some proceedings have been had before the master 
 to whom this cause stands referred, but no general report hath yet been 
 made in the said cause. And your orator further showeth, that the said 
 J. A., lately, on or about, &o., departed this life intestate; and that your 
 orator hath obtained letters of administration of the goods and chattels, 
 rights and credits of the said J. A., deceased, to be granted to him, by 
 the register of wills of the proper county, and hath thereby become, and 
 now is, his legal personal representative. And your orator further 
 showeth, that the said suit and proceedings have become abated by the 
 death of the said J. A. ; and your orator is, as he is advised, as the per- 
 sonal representative of the said J. A., entitled to have the said suit and 
 proceedings revived against the said defendant, and to have the said cause 
 
 ' If a discovery be required from the original defendant, he should be made a 
 party to the supplemental bill, for that purpose. 
 
 44 
 
G82 EQUITY PRECEDENTS. 
 
 put in the same state and condition as the same was in, previously to the 
 death of the said J. A. To the end, therefore, that the said defendant 
 may answer the premises; ' and that the said suit and proceedings, which 
 so became abated as aforesaid, may stand revived, and stand in the same 
 plight and condition as they were in, at the time of the death of the said 
 J. A., or that the said defendant may show good cause to the contrary. 
 May it please your honours to grant unto your orator the commonwealth's 
 writ of subpoena to be directed to the said G. D., thereby commanding 
 him at a certain time, and under a certain pain, to be therein limited, 
 personally to be and appear before your honourable court, and then and 
 there [to answer the premises and] " to show cause, if he can, why the said 
 suit and proceedings should not stand and be revived against him, and 
 be in the same plight and condition as the same were, at the time of the 
 abatement thereof; and further to stand to, perform and abide such order 
 and decree in the premises as to your honours shall seem meet. And 
 your orator shall ever pray, &c. 
 
 ORIGINAL BILL IN NATURE OF A BILL OF REVIVOR. 
 A. B., of, &c., brings this his bill against C. H., and E. H., of, &c., 
 and thereupon your orator complains and says; that on, &c., he exhibited 
 his original bill of complaint in this honourable court, against Gr. H., of, 
 &c., now deceased, setting forth in substance that, &c., (setting forth 
 hriefiy the statements of the hill, sufficient to show the nature of the case 
 and rights involved;') and praying, &c., (as in the prayer of the original 
 hill.) And your orator further showeth, that, &c., (stating the proceed- 
 ings had in the cause, and its then situation.) And your orator further 
 showeth, that before any further proceedings were had in the cause, and 
 on or about, &c., the said Gr. H. departed this life, leaving the said C. 
 H., his only child and heir at law, him surviving. And your orator 
 further showeth, that the said Gr. H., in his lifetime, made and published 
 his last will and testament, dated, &c., and therein and thereby devised 
 all his estate, real and personal, to the said E. H., who thereby claims 
 to be entitled to, and have interest in the premises in question in this 
 cause ; as in and by the said last will and testament, since the decease of 
 the said G. H., duly proved and remaining of record, in the register's 
 office at, &c., will, on reference, more fully appear. And your orator is 
 
 1 No interrogatories are necessary. 
 
 - Where it is only necessary to prny a subpoena to revive, the words within 
 brackets should be omitted. 
 
BILLS NOT ORIGINAL. 683 
 
 advised, that the said suit having become abated by the death of the said 
 G. H., he is entitled to have the same revived against the said C. H., 
 the heir at law of the said Gr. H., and is also entitled to have the said 
 suit and the proceedings therein stand in the same plight and condition, 
 and to have the benefit of such proceedings against the said E. H., the 
 devisee in such v?ill, in the same manner, and to the same effect, as he 
 was entitled to, against the said Gr. H., in his lifetime. But now so it 
 is, that the said C. H., in order to defeat the just claims of your orator, 
 insists and pretends that the said Gr. H.,. at the time when he is alleged 
 to have executed the said will, was wholly incompetent to execute the 
 same, or any other last will and testament; whereas, your orator charges 
 the contrary thereof to be the truth. To the end, therefore, that the said 
 defendants may answer the premises, and that the said suit and pro- 
 ceedings may stand revived against the said C. H., and be in the same 
 plight and condition as they were in at the death of the said 6. H. ; 
 and that your orator may have the same benefit and advantage of such 
 suit and proceedings against the said E. H., as he could or might have 
 had against the said G. H., if he were living, or that they may show 
 cause to the contrary. May it please, &c., (as in the precedhig form) to 
 answer the premises; and the said 0. H., to show cause, if any he hath, 
 why the said suit and the proceedings therein, should not stand and be 
 revived against him, and be in the same plight and condition as they were 
 at the death of the said G. H. ; and the said E. H., to show cause, if any 
 he hath, why your orator should not have the same benefit of this suit 
 and of all the proceedings therein against him, the said E. H., as your 
 orator had, or could haveagainst the said G. H., if living; and further, 
 that the said defendants may stand to, perform, and abide such further 
 order, direction, and decree in the premises, as to your honours shall seem 
 meet. And your orator shall ever pray, &o. 
 
 BILLS OF REVIEW. 
 1. For Errors in law ajiparent on the face of the Decree. 
 A. B., of, &c., brings this his bill against C. D., of, &c., and there- 
 upon your orator complains and says ; that on, &c., the said defendant 
 exhibited his bill of complaint in this honourable court, against your 
 orator, and thereby set forth, that, &c., (here insert the substance of the 
 original hillf) and your orator being served with a process for that pur- 
 pose, appeared, and put in his answer to the said bill, to the effect follow- 
 ing : (here insert the substance of the answer;) and said defendant replied 
 to the said answer, and issue having been joined, and witnesses examined^ 
 
684 EQUITY PRECEDENTS. 
 
 the said cause was, according to the practice of the court, set down for 
 hearing, and was heard before your honours on, &c., when it was ordered, 
 adjudged, and decreed by this honourable court, that, &c., (here insert 
 the decree;) and your orator insists that the said decree is erroneous, and 
 ought to be reviewed, reversed, and set aside, for many apparent errors 
 and imperfections, inasmuch as, &c., (here insert the errors complained 
 of.') In consideration whereof, and inasmuch as such errors and imper- 
 fections appear in the body of the said decree, your orator hopes that the 
 said decree will be reversed and set aside, and no further proceedings 
 had thereon. To the end, therefore, &c., (interrogating as to any fact 
 comprised in the statement that may he necessary.) And that, for the 
 reasons, and under the circumstances aforesaid, the said decree may be 
 reviewed, reversed, and set aside, and no further proceedings had there- 
 on. May it please, &c. 
 
 2. For Errors in fact. 
 Whereby your honours decreed, that your orator's title to the said pre- 
 mises was valid and effectual; after which the said C. D. petitioned 
 your honours for a rehearing, and the said cause was accordingly reheard, 
 and a decree of reversal made by your honours, on the ground of the said 
 C. D., being the heir at law of the said Gr. H., deceased ; as in and by 
 the said decree and other proceedings now remaining of record, in this 
 honourable court, reference being thereunto had, will fully appear. And 
 your orator showeth unto your honours, by leave of this honourable court, 
 first had and obtained for that purpose, by way of supplement, that since 
 the said decree of reversal, your orator has discovered, as the fact is, that 
 the said G. H. was, in his lifetime, seised in his demesne as of fee, of and 
 in the hereditaments and premises in question in the said cause ; and 
 that the said Gr. H. being so seised, and of sound mind, duly made and 
 published his last will and testament in writing, bearing date on or about, 
 &o., and thereby gave and devised unto the said J. W., his heirs and 
 assigns forever, to and for his and their own absolute use and benefit^ 
 the said hereditaments and premises in question, in the cause ; which 
 your orator claims to be entitled to as purchaser thereof, from the said J. 
 W. And your orator further showeth, that since the said decree of re- 
 versal was so made as aforesaid, to wit, on or about, &c., the said C. D. 
 departed this life intestate, leaving the said E. F. the defendant, his heir 
 at law, who, as such, claims to be entitled to the said hereditaments and 
 premises, in exclusion of your orator. And your orator is advised and 
 insists, under the circumstances aforesaid, that the said last mentioned 
 decree, in consequence of the discovery of such new matter as aforesaid, 
 
BILLS NOT ORIGINAL. 685 
 
 ought to be reviewed and reversed ; and tliat the first decree, declaring 
 your orator entitled to the said hereditaments and premises, should stand, 
 and be established and confirmed ; and for effectuating the same, the 
 said several proceedings, which became abated, by the death of the said 
 C. D., should stand, and be revived against the said defendant as his 
 heir at law. To the end, therefore, &c., (interrogating as to the prece- 
 ding statements, and particularly as to the will, &c.) And that the said 
 suit may be revived against the said defendant, or that he may show cause 
 to the contrary J and that the said last decree, and all proceedings there- 
 on, may be reviewed and reversed, and the said first mentioned decree 
 may stand, and be established and confirmed, and added to, by the said 
 will being declared a good and effectual devise of such hereditaments and 
 premises as aforesaid ; and that the said defendant may be decreed to 
 put your orator into possession of the said hereditaments and premises, 
 and in the same situation in every respect, as far as circumstances will 
 now permit, as your orator would have been in case such last decree had 
 never been pronounced and executed ; and that your orator may have 
 such further and other relief, &c. May it please, &c. 
 
 3. After affirmance on appeals 
 A. B., of, &c., brings this his bill against I. W. of, &c., and thereupon 
 your orator complains and says ; that on, &c., the said defendant exhi- 
 bited his original bill of complaint against your orator, in the court of 
 common pleas of the county of, &c., and thereby set forth, that, &c., 
 (here insert the substance of the original hill;) and your orator being 
 served with process, for that purpose, appeared, and put in his answer to 
 the said bill, to the effect following : (here insert the substance of the 
 answer;') and the said defendant replied to the said answer, and issue 
 having been joined, and witnesses examined, the said cause was, according 
 to the practice of the said court, set down for hearing j and was heard 
 before the said court on, &c., when it was ordered, adjudged, and de- 
 creed by the said court, that, &c., (here insert the decree.) And your 
 orator further showeth, that conceiving the said decree to be erroneous, 
 and that he was thereby aggrieved and injured, your orator entered an 
 appeal from the said decree to this honourable court ; and the said appeal 
 having been duly perfected, and the record of the said cause removed to 
 this honourable court, the said cause was set down for hearing before 
 your honours, upon the said appeal, and was heard by this honourable 
 
 1 See ante, 2 861-3. 
 
686 EQUITY PRECEDENTS. 
 
 court on, &c., when it was ordered, adjudged, and decreed, that the de- 
 cree of the said court of common pleas should be, and the same was in 
 all things affirmed, confirmed, and established, &c. And the record 
 thereof, with the said decree of this honourable court, was afterwards, on, 
 &c., remitted to the said court of common pleas, in order that the said 
 decree so made by this honourable court might be carried into full effect; 
 as in and by the said bill, answer, decrees, and'proceedings, now remaining 
 of record in the said court of common pleas, will fully appear. And 
 your orator showeth unto your honours, by leave of this honourable 
 court first had and obtained for that purpose, by way of supplement, 
 that since the said decree of affirmance, and since the said record was re- 
 mitted to the said court of common pleas, &c., (here set forth the new 
 facts which have arisen, or the facts which have been newly discovered, 
 upon which the decree is sought to he reviewed.") And your orator is 
 advised and insists, that under the circumstances aforesaid, the said 
 decree of affirmance ought to be reviewed, and for the cause aforesaid, 
 as well the said decree of affirmance, as also the original decree of the 
 said court of common pleas, ought to be reversed and set aside; and that, 
 inasmuch as, in consequence of the said decree of, affirmance, the said 
 court of common pleas hath no jurisdiction to review the same, and the 
 record of the said cause is not now remaining in this honourable court, 
 your orator ought to have allowed and granted to him a writ of certiorari, 
 to remove the record of the said proceedings to this court, in order that 
 the said decree of affirmance may be reviewed by your honours, and that 
 as well the said decree of affirmance as the decree of the said court of 
 common pleas may be here reversed and set aside. To the end, there- 
 fore, &c., (interrogating as to the preceding statements, and particularly 
 as to the matters alleged for reversing the decree.) And that a writ of 
 certiorari may be granted to your orator, directed to the judges of the said 
 court of common pleas of the county of, &c., thereby commanding them 
 to certify and remove the record of the proceedings in the said cause 
 into this honourable court ; and that the said decree of affirmance may 
 be reviewed ; and that the same, together with the decree of the said 
 court of common pleas, may be reversed and set aside ; and that the said 
 defendant may be decreed to put your orator into possession of the said 
 premises, and in the same situation in every respect, as your orator would 
 have been, in case the said decrees had never been pronounced and ex- 
 ecuted; and that your orator may have such further and other relief, &c. 
 May it please, &o. 
 
BILLS NOT OEIGINAL. 687 
 
 BILL TO CARRY A DECREE INTO EXECUTION. 
 A. B., of, &o., brings this his bill against C. D., of, &c., and thereupon 
 your orator complains and says; that on or about, &o., your orator filed 
 his bill of complaint, &c., (statement and prayer of the hill of partition,) 
 and the said defendant having put in his answer thereto, and the said 
 cause being at issue, the same came on to be heard before your honours, 
 on, &o., when your honours were pleased to order and decree that a com- 
 mission should issue to certain commissioners to be therein named, to 
 make partition of the estate in question, who were to take the depositions 
 of witnesses to be examined by them, in writing, and return the same, 
 with the said commission ; and the said estate was to be divided and se- 
 parated, and one-third part thereof set out in severalty, and declared to 
 belong to the said defendant and his heirs ; and the remaining two-third 
 parts thereof, declared to belong absolutely to your orator, to be held in 
 severalty by him and his heirs; and the respective parties were decreed 
 to convey their several shares to each other, to hold in severalty according 
 to their respective undivided shares thereof; and that it should be referred 
 to G. H., one of the masters of this honourable court, to settle the con- 
 veyances in case the parties diflFered about the same ; as by the said pro- 
 ceedings and decree, now remaining of record in this honourable court, 
 reference being thereunto had, will more fully appear. And your orator 
 further showeth, that the commission awarded to issue, by the said decree, 
 never did issue, on account of the said defendant going abroad, and 
 being, till lately, out of the jurisdiction of this honourable court; but the 
 said defendant having since returned, and the inconvenience mentioned 
 in your orator's former bill still subsisting, your orator is desirous of 
 having the said decree forthwith carried into execution, but from the 
 great length of time that has elapsed, and the refusal of the said de- 
 fendant to concur therein, your orator is advised the same cannot be done 
 without the assistance of this honourable court. To the end, therefore, 
 &c., (interrogating as to the foregoing statements.) And that the said de- 
 cree may be directed to be carried specifically into execution ; and the 
 said defendant ordered to do and concur in all necessary acts for that 
 purpose. May it please, &c. 
 
 CROSS BILL. , 
 
 A. B., of, &c., brings this his bill against C. D., of, &o., and thereupon 
 your orator complains and says; that the said defendant on or about, &c., 
 exhibited his bill of complaint, in this honourable court, against your 
 orator, thereby praying, &c., (stating the prayer of the original bill;) and 
 your orator being duly served with process, appeared and put in his answer 
 
688 EQUITY PRECEDENTS. 
 
 thereto, to which the said defendant replied; and issue being thus joined, 
 and "witnesses examined, the said cause, according to the practice of the 
 court, hath been set down for hearing, by the said defendant; as in and 
 by the said bill, answer, and proceedings in the said cause, now remain- 
 ing of record in this honourable court, reference being thereunto had, 
 will more fully appear. And your orator further showeth, that the said 
 cause hath not yet been heard; and that, on or about, &o,, the said de- 
 fendant, by a certain deed or writing of release, bearing date, &c., did 
 remise, release, and forever quit claim unto your orator, his heirs, execu- 
 tors, and administrators, the several matters and things complained of, 
 in and by the said bill of the said defendant, and in question in the said 
 suit, and each and every of them, and of all sums of money then due 
 and owing, or thereafter to become due and owing, together with all and 
 all manner of actions, causes of action, suits and demands whatsoever, both 
 at law and in equity, or otherwise howsoever, which he, the said defend- 
 ant, then had, or which he should or might at any time or times there- 
 after have, claim, allege, or demand, against your orator, for or by reason 
 or means of any matter, cause, or thing whatsoever, from the beginning 
 of the world to the day of the date of the said deed or writing of release; 
 as in and by the said release, now in your orator's possession, and to 
 which, for greater certainty, he craves leave to refer, when produced, will 
 more fully appear. And your orator hoped that in consequence of the 
 said release, the said defendant would not have proceeded in the said suit 
 against your orator; but notwithstanding the said release, the said de- 
 fendant threatens and intends to proceed in the said suit, and to bring 
 the said cause on for hearing in due course ; and he pretends that no 
 such release was ever executed by him, or if so, that the same was ob- 
 tained by fraud and surprise, and therefore void ; whereas your orator 
 charges that the same was, in every respect, fairly and properly obtained 
 by your orator, and duly executed by the said defendant. And your 
 orator further charges, that under the circumstances aforesaid, he is un- 
 able to put the said release in issue, or to use the same in bar to the said 
 suit. To the end, therefore, &o., (interrogating as to the statements in 
 the bill.) And that the said release may be established, and declared by 
 this honourable court, a sufficient bar to any further proceedings by the 
 said defendant in the said suit ; and that the bill of the said defendant 
 therein, may, under the circumstances, be forthwith dismissed with costs > 
 and that your orator may have such further and other relief, &c. May 
 it please, &c. 
 
PETITIONS. 689 
 
 PETITIONS. 
 
 PETITION FOR GUARDIAN AD LITEM. 
 
 To the honourable the judges of the court of common pleas of the 
 county of, &c., sitting in equity. 
 
 The petition of A. B., of, &c., respectfully showethj that your peti- 
 tioner is an infant, over the age of fourteen years, to wit, of the age of 
 sixteen years and upwards. That a bill has been filed in this honourable 
 court, by C. D., of, &c., against, &c., to procure, &c., (here state the sub- 
 stance and prayer of the bill, so as to show the interest of the infant.') 
 And your petitioner further showeth, that a subpoena was served upon 
 him, requiring your petitioner to appear and answer the said bill, re- 
 turnable, &c. Your petitioner, therefore, prays that J. W., of, &o., may 
 be appointed the guardian ad litem of your petitioner, to appear and de- 
 fend the said suit. And your petitioner will ever pray, &c. 
 
 PETITION FOR A REHEARING. 
 ( Title of the cause.) 
 To, &c. The petition of G-. H., the defendant in this cause, respect- 
 fully showeth; that your petitioner is much aggrieved by a decree made 
 in this cause, by this honourable court, on, &o., whereby your petitioner 
 is ordered and decreed, &c., (here state the substance of the decree.) And 
 your petitioner further showeth, &c., (here setforth the special matter or 
 cause on which the rehearing is applied for.) Your petitioner therefore 
 prays that your honours will be pleased to vouchsafe a rehearing in this 
 cause, before this honourable court; your petitioner submitting to pay 
 such costs as the court shall award, in case his complaint shall be found 
 groundless. And your petitioner will ever pray, &c. 
 
 PETITION FOR AN APPEAL. 
 
 A. B. and C. D., appellants,") 
 
 V. J- In the Supreme Court of Pennsylvania. 
 
 Gr. H., respondent. J 
 
 To the Honourable the Justices of the supreme court of Pennsyl- 
 vania, sitting in equity, in and for the eastern district. 
 
 The petition of appeal of the above named A. B. and C. D., respect- 
 fully showeth ; that a decree was lately made in the court of common 
 pleas, of the county of, &c., bearing date, &c., in a certain suit in equity, 
 pending in the said court, wherein the said G. H. was complainant, and 
 
690 EQUITY PRECEDENTS. 
 
 your petitioners were defendants ; by whioli decree it was, among other 
 things, ordered, adjudged, and decreed, that, &o., (setting forth so much 
 of the decree as is sought to be reversed;) which said decree of the said 
 court of common pleas, in ao much thereof as is herein above stated and 
 set forth is, as these petitioners are advised, erroneous, and ought to be re- 
 versed. And your petitioners further show unto your honours, that on, 
 &o., they entered in the said court of common pleas, an appeal from the 
 said decree to this honourable court; and made the oath required by 
 law, and gave security by recognisance, with sufficient surety, in the said 
 court of common pleas, conditioned to prosecute the said appeal with ef- 
 fect, and to pay all costs that may be adjudged against them. Your pe- 
 titioners, therefore, pray, that a writ of certiorari may be granted to re- 
 move the record of the said cause to this honourable court, in order that 
 the said appeal may be heard and determined; and that the said decree 
 may, in the particulars aforesaid, be reversed and pet aside; and that 
 such other decree may be made by this honourable court, in the pre- 
 mises, as shall be agreeable to equity and good conscience. And your 
 petitioners will ever pray, &c. 
 
 PETITION FOE LEAVE TO FILE A SUPPLEMENTAL BILL. 
 (Title of the cause.) 
 To, &c. The petition of, &c. That on or about, &c., your petitioner 
 jiled his bill in this court against, &c., stating in substance, among other 
 things, &c., (here insert the material allegations of the bill;) and praying, 
 &c., (as in the prayer of the original bill.) And your petitioner further 
 showeth, that the said defendant appeared to the said bill, and put in his 
 answer thereto, &o., (here state the proceedings in the cause.) And 
 your petitioner further showeth, that before any further proceedings 
 were had in the said cause, the said defendant, &c., (here state the cir- 
 cumstances rendering the supplemental bill necessary;) and your peti- 
 tioner is advised, that it is necessary to bring the said S. T. before the 
 court, as a party to this suit. Your petitioner, therefore, prays that 
 leave may be granted him to file a supplemental bill against the said 
 S. T., to make him a party defendant therein, with proper allegations, 
 setting forth at large the facts and matters before stated, with all neces- 
 sary and incidental matters, and all proper interrogatories adapted there- 
 to, and with such prayer for relief in the premises as the case may re- 
 quire. And your petitioner, &c. 
 
DEMURRERS. 691 
 
 DEMURRERS. 
 
 FORMAL PARTS OF A DEMURRER. 
 
 1. Tlie Title. 
 The demurrer of C. D., defendant, to the bill of complaint of A. B., 
 complainant. 
 
 2. The Introduction. 
 
 This defendant, by protestation, not confessing or acknowledging all, 
 or any of the matters and things in the said complainant's bill contained, 
 to be true, in such manner and form as the same are therein set forth 
 and alleged,* doth demur in law to the said bill, and for cause of de- 
 murrer showeth, that, &c. 
 
 Where the Demurrer is to part of the hill, or to the relief. 
 This defendant, by protestation, &c., (as in the last form to the as- 
 terisk ;) as to so much and such part of the said bill as seeks that this 
 defendant may answer and set forth, whether, &c. ; and whether, &c. ; 
 and prays, &c. ; doth demur, and for cause of demurrer showeth, that, &c. 
 
 3. The Conclusion. 
 Wherefore, and for divers other good causes of demurrer, appearing 
 in the said bill, this defendant doth demur to the said bill, and to all the 
 matters and things therein contained, and prays the judgment of this 
 honourable court, whether he shall be compelled to make any further or 
 other answer to the said bill ; and prays to be hence dismissed with his 
 reasonable costs, in this behalf sustained. 
 
 Where the Demurrer is to part only, or to the relief. 
 Wherefore and for divers other good causes of demurrer appearing in 
 the said bill, as to so much of the said complainant's bill as is demurred 
 unto as aforesaid, this defendant doth demur, and prays the judgment of 
 this honourable court, whether he shall be compelled to make any further 
 or other answer to such part of the said bill as is so demurred unto as 
 aforesaid ; and prays, &c. 
 
 DEMURRER FOR WANT OP AN AFFIDAVIT. 
 That although the said complainant's said bill is, on the face thereof, 
 a bill of interpleader, and prays that this defendant, and the other de- 
 fendants thereto, may interplead together concerning the matters therein 
 mentioned, and may be restrained by the order and injunction of this 
 
692 EQUITY PRECEDENTS. 
 
 honourable court, from proceeding at law against the said complainant, 
 touching such matters; yet the said complainant hath not annexed an af- 
 fidavit to his said bill, that he does not collude concerning such matters, 
 or any of them, with this defendant and the other defendants thereto, or 
 any or either of them; which affidavit ought, as this defendant is advised, 
 to have been made by the said plaintiff, and annexed to the said bill ; 
 wherefore, &c. 
 
 DEMURRER FOR WANT OF EQUITY. 
 That the said complainant hath not, in and by his said bill, made or 
 stated such a case as doth, or ought to entitle him, to any such discovery 
 or relief as is thereby sought and prayed for, from or against this de- 
 fendant; wherefore, &c. 
 
 DEMURRER FOR MULTIFARIOUSNESS. 
 That it appears by the said bill, that the same is exhibited by the said 
 complainant against this defendant, and A. B., &c., as defendants thereto, 
 for several distinct matters and causes, in many whereof, as appears by 
 the said bill, this defendant is in no way interested; and by reason of such 
 distinct matters, the said bill is drawn out to a considerable length, and 
 this defendant is compelled to take a copy of the whole thereof; and by 
 joining distinct matters together, which do not depend on each other, 
 the proceedings in the progress of the said suit will be intricate and 
 prolix, and this defendant put to unnecessary charges and expenses, in 
 matters which in no way relate to or concern him; wherefore, &c. 
 
 DEMURRER TO DISCOVERT. 
 That the said complainant hath not by his said bill, shown such privity 
 of title between him and this defendant, or shown any such right or title 
 as entitles him, in a court of equity, to the discovery from this defendant 
 thereby sought ; wherefore, &c. 
 
 PLEAS. 
 
 FORMAL PARTS OF A PLEA. 
 
 1. The Title. 
 The plea of C. D., defendant to the bill of complaint of A. B., com- 
 plainant. 
 
 Or, 
 
 The joint and several plea of A. B. and C. D., defendants to the bill, &c. 
 
PLEAS. 693 
 
 Or, 
 The joint plea of A. B. and C. B., his wife, defendants, to the bill, &c. 
 
 Of Plea to part, and Answer to remainder. 
 The plea of A. B., defendant, to part of the bill of C. D. complainant, 
 and the answer of the said A. B., to the remainder of the said bill of 
 complaint. 
 
 Of Plea supported hy an Answer. 
 The plea and answer of A. B., defendant, to the bill of complaint, &c. 
 
 2. Tlie Commencement of a Plea. 
 This defendant, by protestation, not confessing or acknowledging all, 
 or any of the matters and things, in the said complainant's bill of com- 
 plaint mentioned and contained, to be true, in such sort, manner, and 
 form, as the same are therein set forth and alleged, for plea to the whole 
 of the said bill, &c. 
 
 Or, 
 To so much and such part of the said bill as prays, &c. — or, seeks a 
 discovery from this defendant, whether, &c. 
 
 3. The Conclusion. 
 Therefore, this defendant doth plead the said (act of assenibly, <&c., as 
 the case may 6e,) in bar to the said complainant's bill, (or to so much of 
 the said hill as hereinbefore particularly mentioned,') and prays the 
 judgment of this honourable court whether he shall be compelled to 
 make any further answer to the said bill, (or to so much of the said bill 
 as is hereinbefore pleaded to,) and prays to be hence dismissed with his 
 reasonable costs and charges in that behalf most wrongfully sustained. 
 
 PLEA OE A FORMER SUIT PENDING. 
 That in the term of, &o., the said present complainant, exhibited his 
 bill of complaint, in this honourable court, against this defendant, and 
 one J. S., for an account of, &c., in the said complainant's present bill 
 mentioned, and claiming such shares and proportions thereof, and such 
 rights and interests therein, as he. now claims by his present bill; and 
 praying relief against this defendant, in the same manner, and for the 
 same matters, and to the same effect, as the said complainant now prays 
 by his said present bill; and this defendant and the said J. S., appeared 
 and put in their answer to the said former bill, and the said complainant 
 replied thereto, and witnesses were examined on both sides ; and the said 
 former bill and the several proceedings in the said former cause, as this 
 defendant avers, now remain depending, and of record in this honourable 
 
694 EQUITY PRECEDENTS. 
 
 court, the said cause being yet undetermined and undismissed ; all which 
 said several matters and things this defendant doth aver, and pleads the 
 said former bill, answer, and the several proceedings in the said former 
 suit, in bar to the said complainant's present bill; and prays, &c. 
 
 PLEA OP A STATED ACCOUNT. 
 This defendant, &c.; as to so much and such part of the complainant's 
 bill as seeks an account of and concerning the dealings and transactions 
 therein alleged to have taken place between the said complainant and 
 this defendant, at any time before, &c.; this defendant for plea thereto 
 saith, that on the said, &c., which was previously to the said bill of com- 
 plaint being filed, the said complainant and this defendant did make up, 
 state, and settle an account in writing, a counterpart whereof was then 
 delivered to the said complainant, of all sums of money which this de- 
 fendant had before that time, by the order and direction, and for the use 
 of the said complainant received, and of all matters and things thereunto 
 relating, or at any time before the said, &c., being or depending between 
 the said complainant and this defendant, (and in respect whereof the said 
 complainant's bill of complaint has been filed;) and the said complainant, 
 after a strict examination of the said account, and every item and par- 
 ticular thereof, which this defendant avers, according to the best of his 
 knowledge and belief, to be true and just, did approve and allow the 
 same; and actually received from this defendant the sum of, &c., the 
 balance of the said account, which by the said account appeared to be 
 justly due to him from this defendant; and the said complainant there- 
 upon, and on, &c., gave to this defendant a receipt or acquittance for the 
 same, under his hand, in full of all demands; which said receipt or ac- 
 quittance is in the words and figures following, that is to say; (here set 
 forth the receipt;) as by the said receipt or acquittance, now in the pos- 
 session of this defendant, and ready to be produced to this honourable 
 court, will appear; therefore, &c. 
 
 PLEA OF A RELEASE. 
 This defendant, &c.; as to so much and such part of the said com- 
 plainant's bill as seeks an account of the several dealings and transactions 
 between the said complainant and this defendant, previously and up to, 
 &c., and prays that the balance, if any, wliich shall be found due, upon 
 taking said account, from this defendant, may be paid by him to the said 
 complainant ; this defendant doth plead thereto, and for plea saith, that 
 previously to the said complainant's bill being filed, that is to say on, &c., 
 the said complainant, in consideration of the sum of, [&o., then paid to 
 
PLEAS. 695 
 
 him by this defendant, by a certain writing of release under his hand, 
 and sealed with his seal, ready to be produced to this honourable court, 
 did, for himself, his executors and administrators, remise, release, and 
 forever quit claim unto this defendant, his heirs, executors, and adminis- 
 trators, (among other things) the several matters and things in the said 
 complainant's bill mentioned and complained of, (an account whereof is 
 thereby sought against this defendant as aforesaid,) and all suits and de- 
 mands whatsoever, both at law and in equity, which the said complainant 
 then had, or might thereafter have in respect of the several dealings and 
 transactions, matters and things, in the said bill mentioned, or any of 
 them; and this defendant avers, that the said release was freely, fairly, 
 and voluntarily given and executed by the said complainant, on the day 
 the same bears date j and that the said complainant well knew the nature 
 and effect thereof previously to giving and executing the same; and that 
 the sum of, &c., so paid by this defendant to the said complainant as 
 aforesaid, was a full and fair equivalent for any demand which the said 
 complainant could or might have against this defendant, in respect of 
 the several matters therein, and in the said bill also mentioned, or any 
 of them. Therefore, this defendant pleads the said release in bar to so 
 much of the said complainant's bill, as is hereinbefore particularly men- 
 tioned, and prays the judgment of this honourable court, whether he 
 ought to be compelled to make any further answer to so much of the said 
 bill, as is before pleaded unto. And this defendant, not waiving his 
 said plea, but insisting thereon, for answer to the residue of the said bill, 
 and in support of his said plea, saith, he denies that the said release was 
 unduly obtained by this defendant from the said complainant, or that the 
 said complainant was ignorant of the nature and effect of such release, 
 or that the consideration paid by this defendant to induce the said com- 
 plainant to execute the same, was at all inadequate to the just claims and 
 demands of the said complainant against this defendant, in respect of the 
 several dealings and transactions in the said bill mentioned, or any of 
 them ; and this defendant denies, &c. 
 
 PLEA OF THE STATUTE OF LIMITATIONS. 
 This defendant, &c.; as to so much of the said bill as seeks an account 
 and discovery of, &c., this defendant pleads thereto, and for plea saith, 
 that by an act of the general assembly of this commonwealth, passed, &c., 
 entitled, &c., it was enacted, &c.; and this defendant further pleadeth, 
 that if the said complainant ever had any cause of action or suit against 
 this defendant, for or concerning any of the matters in the aforesaid bill 
 of complaint mentioned, which this defendant doth in no wise admit, 
 
696 
 
 EQUITY PRECEDENTS. 
 
 such cause of action or suit did accrue or arise above six years before the 
 said bill was filed, or this defendant served with process to appear and 
 answer the same ; and the said complainant was not at any time within 
 upwards of six years before the serving or suing out of process against 
 this defendant, under any of the disabilities mentioned and described in 
 the said act of assembly. And this defendant for further plea saith, 
 that he, this defendant, did not at any time within six years before ex- 
 hibiting the said bill, or serving or suing out process against him to ap- 
 pear and answer the same, promise or agree to come to any account for, 
 or to pay, or any way satisfy the said complainant, any sum or sums of 
 money, for or by reason of any matters, transactions, or things, in the 
 complainant's said bill of complaint charged or alleged. All which mat- 
 ters and things this defendant doth aver to be true, and is ready and 
 willing to maintain and prove as this honourable court shall award ; and 
 he doth plead the same in bar to so much of the complainant's said de- 
 mand, as aforesaid, and prays the judgment of this honourable court, 
 whether, &c. And this defendant for answer, &c. 
 
 PLEA OF PURCHASE FOR A VALUABLE CONSIDERATION WITHOUT 
 
 NOTICE. 
 This defendant, &c.; as to so much of the said bill as seeks an ac- 
 count of what is due and owing to the said complainant, in respect of 
 the annuity of, &c., therein mentioned, and stated to be charged upon, and 
 issuing out of the hereditaments and premises therein and hereinafter men- 
 tioned, this defendant doth plead thereto, and for plea saith, that A. B. 
 previously to and on, &c., was, or pretended to be, seised in fee simple, 
 and was in, or pretended to be in, the actual possession of all those lands 
 in the said bill particularly mentioned and described, free from all in- 
 cumbrances whatever; and this defendant, believing that the said A. B. 
 was so seised and entitled, and that the said hereditaments and premises 
 were in fact free from all incumbrances, on, &c., agreed with the said 
 A. B. for the absolute purchase of the fee simple and inheritance thereof; 
 whereupon a certain indenture, bearing date on, &o., between the said 
 A. B. of the one part, and this defendant of the other part, was duly 
 made and executed, whereby the said A, B., in consideration of the sum 
 of, &c., paid to him by this defendant, did grant, bargain, sell, release, 
 and confirm unto this defendant, all, &c., (describing the premises from 
 the deed,~) to hold unto, and to the use of, this defendant, his heirs and 
 assigns forever; as in and by the said indenture, reference being there- 
 unto had, will more fully appear; and this defendant doth aver, that the 
 said sum of, &c., the consideration money in the said indenture men- 
 
PLEAS. 697 
 
 tioned, was actually paid by this defendant to the said A. B., at the time 
 the said indenture bears date; and this defendant doth also aver, that at 
 or before the time of the execution of the said indenture, and of the pay- 
 ment of the said purchase money, he, this defendant, had no notice what- 
 soever of the said annuity of, &c., now claimed by the said complainant, 
 or of any other incumbrance whatsoever, that in any wise affected the 
 said hereditaments and premises, so purchased by this defendant, as 
 aforesaid, or any of them, or any part thereof; and this defendant insists 
 that he is a bond fide purchaser of the said hereditaments and premises 
 for a good and valuable consideration, and without any notice of the said 
 annuity claimed by the complainant ; all which matters and things this 
 defendant doth aver and plead in bar to so much of the said complain- 
 ant's bill as is hereinbefore particularly mentioned; and prays the judg- 
 ment of this honourable court whether he should make any further answer 
 to so much of the said bill as is hereinbefore pleaded to ; and this de- 
 fendant, not waiving his said plea, but relying thereon, and for better 
 supporting the same, for answer saith, that he had not at any time before, 
 or at the time of purchasing the said hereditaments and premises, or 
 since, until the said complainant's bill was filed, any notice whatsoever, 
 either express or implied, of the said annuity of, &c., claimed by the 
 said complainant, or that the same or any other incumbrance whatsoever 
 was charged upon, or in any wise affected the said hereditaments and 
 premises, so purchased as aforesaid, or any of them, or any part thereof; 
 and this defendant denies, &o. 
 
 DISCLAIMERS. 
 
 A DISCLAIMER. 
 
 The disclaimer of A. B., the defendant, to the bill of complaint of C. 
 D., the complainant. 
 
 This defendant saving, &c., Qiere follow the words of course wJiich 
 precede an answer;) saith, that he doth not know, that he, this defen- 
 dant, to his knowledge and belief, ever had, nor did he claim or pretend 
 to have, nor doth he now claim, any right, title, or interest of, in, or to 
 the estates and premises, situate, &c., in the said complainant's bill men- 
 tioned, or any part thereof. {Eere follow the words of course, which 
 conclude an answer.) 
 
 45 
 
698 EQUITY PRECEDENTS. 
 
 ANSWER AND DISCLAIMER. 
 The answer and disclaimer of, &c. This defendant saving, &c., saith, 
 that he, this defendant, on behalf of E. F., one of the other defendants 
 in the said bill named, did, about fifteen years ago, contract and agree 
 with G. H., for the purchase of the messuage or tenement, &c., now in 
 question, and in possession of L. M., in the said bill also named, and 
 another defendant thereto, which said messuage, &c., at that time was, 
 and for upwards of, &c., before, had been in the possession of the said 
 G. H., and J. K., in the said bill also named, or one of them, and for 
 the purchase whereof, this defendant, on behalf of the said defendant E. 
 F., agreed to give, and accordingly did give and pay to the said G. H., 
 the sum of, &c., which was the full and real value thereof; and in con- 
 sideration thereof, the said G. H., and N., his wife, by indenture, bearing 
 date, &e., duly conveyed the said messuage, &c., to the said E. F., who 
 thereupon, and under and by virtue of such conveyance, as this defen- 
 dant has heard and believes, entered on, and became seised of the said 
 messuage, &c., and continued so seised thereof, without any entry or 
 claim made by the said complainant, or any other person or persons, 
 until, &c., when the said E. P., as this defendant hath heard and believes, 
 by good and sufficient conveyances in the law, and in consideration of the 
 sum of, &o., hand fide paid, sold and conveyed the said messuage, &c., to 
 the said defendant L. M., and his heirs, who thereupon entered thereon, 
 and was, and yet is, seised and possessed of the same ; and this defendant 
 further answering saith, he does not know, nor can he set forth as to his 
 belief or otherwise, whether K. S., in the said bill named, was ever seised 
 of the said premises, or any part thereof; and this defendant further 
 answering saith, he has been advised and believes, that the said G. H., 
 and N., his wife, had good right and title to sell and convey the said 
 premises, so purchased by this defendant, on behalf of the said E. F., as 
 aforesaid. And this defendant further answering saith, he denies that 
 he ever had any notice of any right or title, the said complainant, or any 
 other person, save as aforesaid, had, or might, or could claim, of, in, or 
 to the said messuage, &c., or any part thereof. And this defendant 
 saith, that he never had, or claimed, or pretended to have, nor has he 
 now, nor does he claim or pretend to have, any right, title, or interest, 
 of, in, or to the said premises, or any part thereof; and this defendant 
 disclaims all right and title, of, in, or to the same, and any part thereof, &c. 
 
ANSWERS. 699 
 
 ANSWERS. 
 
 FORMAL PARTS OP AN ANSWER. 
 
 1. Tlie Title. 
 The answer of A. B., the defendant, to the bill of complaint of C. D., 
 complainant. 
 
 Further Answer, where the Bill has been amended. 
 The further answer of A. B., one of the defendants, to the original bill, 
 and his answer to the amended bill of complaint of C. D., complainant. 
 
 2. The Commencement. 
 This defendant, now and at all times hereafter, saving and reserving 
 unto himself, all benefit and advantage of exception which can or maj 
 be had to the many errors, uncertainties, and other imperfections in the 
 said complainant's said bill of complaint contained ; for answer thereunto, 
 or unto so much, and such parts thereof, as this defendant is advised, ia 
 or are material or necessary for him to make answer unto, this defendant 
 answering saith, &c. 
 
 3. Forms used in framing Answers. 
 Admission of a statement. 
 And this defendant further answering saith, he hath been informed, 
 and believes it to be true that, &c. Or, this defendant admits that, &c. 
 Admission of a statement of a written instrument. 
 And this defendant further saith, he hath been informed and believes 
 it to be true that, &c., but this defendant, for greater certainty therein, 
 craves leave to refer to the said, &c., when the same shall be produced. 
 Qualified admission. 
 And this defendant further saith, he hath never heard or been informed, 
 save by the said complainant's bill, whether, &c., but this defendant 
 believes that, &c., as in the said bill is alleged. 
 
 Where defendant is ignorant of the matters inquired of. 
 And this defendant further answering saith, he knows not, and has 
 not been informed, save by the said complainant's bill, and cannot set 
 forth as to his belief or otherwise, whether, &c. 
 
 AVhere one defendant denies, and the other believes such denial. 
 And this defendant A. B., farther severally answering saith, he denies, 
 and this defendant C. D., believeg such denial to be true, that, &c. 
 
700 EQUITY PRECEDENTS. 
 
 4. The Conclusion. 
 
 And ftis defendant denies all and all manner of unlawful combination 
 and confederacy whether he is by the said bill charged, without this, 
 that there is any other matter, cause, or thing, in the said complainant's 
 said bill of complaint contained, material or necessary for this defendant 
 to make answer unto, and not herein or hereby well and sufficiently 
 answered, confessed, traversed, and avoided or denied, is true, to the 
 knowledge or belief of this defendant; all which matters and things this 
 defendant is ready and willing to aver, maintain, and prove, as this 
 honourable court shall direct, and humbly prays to be hence dismissed 
 with his reasonable costs and charges, in this behalf most wrongfully 
 sustained. 
 
 ANSWER OF AN INFANT. 
 
 The answer of A. B., an infant under the age of twenty-one years, by 
 C. D., her guardian, one of the defendants to the bill of complaint of E. 
 F., complainant. This defendant answering by her said guardian, saith, 
 that she is a stranger to all and singular the matters and things in the 
 said bill of complaint contained ; that this defendant is an infant under 
 the age of twenty-one years, and claims such interests in the premises, 
 as she is entitled to, and submits her interests to the protection of this 
 honourable court. 
 
 ANSWER OF A TRUSTEE. 
 This defendant, &o., admits it to be true that such an indenture, as in 
 the said bill of complaint is stated to bear date, &c., was duly made and 
 executed, by and between such parties, and to such purport or effect as 
 is therein set forth, so far as the same is therein set forth ; but for greater 
 certainty, nevertheless, this defendant craves leave to refer to the said 
 indenture, when produced. And this defendant further answering saith, 
 he admits it to be true that the intended marriage between the said com- 
 plainants A. B., and C. B. was soon afterwards had and solemnized, and 
 that the said other complainants, are the only children of the said mar- 
 riage. And this defendant admits that he doth decline to act in the 
 trusts of the said settlement, and that he is desirous of being discharged 
 therefrom, and that he is ready to convey and release the said trust pro- 
 mises to the said complainant S. M. JL, and such new trustee as may 
 be appointed by this honourable court, on being indemnified in that 
 behalf, and paid all his costs and expenses. 
 
 ANSWER INSISTING ON THE BENEFIT OF THE STATUTE OF FRAUDS. 
 
 That by a certain act of assembly of this commonwealth, made and 
 passed on the twenty-first day of March, one thousand seven hundred 
 
ANSWERS. 701 
 
 and seventy-two, entitled " an act for the prevention of frauds and per- 
 juries/' and commonly called the statute of frauds, all contracts and agree- 
 ments in relation to lands, except as therein is excepted, are required to 
 be reduced into writing, and signed by the party or parties to be bound 
 thereby ; and that the said agreement in the said bill mentioned, and 
 therein alleged to have been made and entered into by this defendant 
 and the said complainant, was not reduced into writing and executed 
 pursuant to the said statute ; and therefore, this defendant insists, that 
 the same is void as against this defendant, and that he cannot be affected 
 thereby; and this defendant claims the same benefit as if he had 
 pleaded the same statute in this cause; and this defendant, for the 
 reasons, and ubder the circumstances aforesaid, is advised and insists, 
 that the said complainant is not entitled to any relief against this defen- 
 dant, touching the matters complained of in the said bill. And this 
 defendant denies, &c.' 
 
 REPLICATION. 
 
 The replication of A. B., complainant, to the answer of C. D., defendant. 
 This repliant, saving and reserving unto himself all manner of ad- 
 vantage of exception to the manifold insuflficiencies of the said answer, 
 for replication thereunto saith, that he will aver and prove his said bill 
 to be true, certain, and sufficient in the law, to be answered unto, and 
 that the said answer of the said defendant is uncertain, untrue, and in- 
 sufficient to be replied unto by this repliant ; without this, that any other 
 matter or thing whatsoever in the said answer contained, material or 
 effectual in the law to be replied unto, confessed, and avoided, traversed 
 or denied, is true ; all which matters and things this repliant is, and will 
 be ready to aver and prove 'as this honourable court shall direct, and 
 humbly prays as in and by his said bill he hath already prayed. 
 
 1 It has not been thought necessary here to give any further precedents of 
 answers to a bill in equity ; an answer in chancery must necessarily be framed 
 to meet the particular circumstances of the case, and but little advantage can be 
 had by a reference to precedents. For these the reader may consult Curtis's 
 Equity Precedents, and Hughes's Equity Draftsman. 
 
702 EQUITY PRECEDENTS. 
 
 EXCEPTIONS. 
 
 EXCEPTIONS TO AN ANSWER. 
 Exceptions taken by the said complainant to the insufficient answer of 
 the said defendant, 0. D., to the said complainant's bill of complaint. 
 
 1. For that the said defendant hath not to the best and utmost of his 
 knowledge, remembrance, information, and belief, answered and set forth, 
 whether, &c. 
 
 2. For that the said defendant hath not in manner aforesaid, answered 
 and set forth, whether, &c. 
 
 In all which particulars, the said complainant excepts to the answer 
 of the said defendant, C. D., as evasive, imperfect, and insufficient; and 
 humbly prays that the said defendant may be compelled to put in a full 
 and sufficient answer thereto. 
 
 EXCEPTIONS TO A MASTER'S REPORT. 
 Exceptions taken by the said A. B., one of the defendants in the said 
 bill of complaint named, to the report of J. S. H., Esquire, one of the 
 masters of this honourable court, to whom the said cause stands referred, 
 made in pursuance of the decree made on the hearing of the said cause, 
 bearing date, &c. 
 
 1. For that the said master hath, in and by his said report, certified 
 that he has charged this defendant, &c.; whereas the said master ought 
 to have certified that he found this defendant had expended the further 
 sum of, &c. 
 
 2. For that the said master hath in and by his said report certified 
 that, &c. 
 
 Wherefore the said A. B., excepts to the said master's report, and 
 humbly appeals therefrom to the judgment of this honourable court. 
 
 INTERROGATORIES. 
 
 THE TITLE. 
 
 Interrogatories t6 be administered to witnesses to be produced, sworn, 
 and examined, in a certain cause now depending and at issue in the court 
 of common pleas of the county of, &c., sitting in equity, wherein A. B. 
 is complainant, and C. D. is defendant, on the part of the said complain- 
 
INTERROGATORIES. 703 
 
 ant, (or defendant,) under a commission issued out of the said court di- 
 rected to J. T. and L. C, of, &o., commissioners on the part of the com- 
 plainant, (or, on the part as well of the said complainant, as of the said 
 defendant.) 
 
 FIRST GENERAL INTERROGATORY. 
 1. Do you know the parties, complainant and defendant, (or, com- 
 plainants and defendants,) in the title to these interrogatories named? 
 or (any or) either, and which of them, and how long have you known 
 them respectively, or such (one) of them as you do know? Declare the 
 truth and your utmost knowledge, remembrance, and belief herein. Or 
 thus : Declare the truth of the several matters inquired after by this in- 
 terrogatory, according to the best of your knowledge, remembrance, and 
 belief, with your reasons fully and at large. 
 
 THE CONCLUDING GENERAL INTERROGATORY. 
 
 Lastly. Do you know, or can you set forth, any other matter or thing, 
 which may be a benefit and advantage to the parties at issue in this 
 cause, or either of them, or that may be material to the subject of this 
 your examination, or the matters in question in this cause ? If yea, set 
 forth the same fully and at large in your answer. 
 
 WHEN REFERENCE IS MADE TO AN EXHIBIT. 
 
 Look upon the paper writing, now produced and shown to you, at this 
 the time of your examination, marked with the letter (A.) declare whe- 
 ther, &c. 
 
 TO PROVE A STATED ACCOUNT. 
 
 Were you or not, present at any time, and when, at the stating of any 
 and what account, between the said complainant and the said defendants, 
 touching or concerning the estate and effects of the said testator R. F., 
 in the pleadings of this cause named ? If yea, was or were, or not, any 
 account or accounts touching such estate or effects then settled between 
 them ; and was, or not, any, and what, balance then settled and ascer- 
 tained as due to any, and which, of the said parties; and was, or not, 
 such balance then paid over, and if not, why, and for what reason ? De- 
 clare, &c. 
 
 TO PROVE THE BIRTH OP THE PLAINTIFF. 
 
 Do you know, and from what circumstances, when and where the said 
 complainant A. B. was born ? If yea, set forth the time and place of 
 his birth ; and the reasons of your knowledge therein ; and who were his 
 
704 EQUITY PRECEDENTS. 
 
 father and mother, and where they usually resided at the time of the 
 birth of the said complainant, and what was their situation in life. De- 
 clare, &c. 
 
 TO PROVE EOUNDAEIES. 
 Are you or not acquainted with the piece or parcel of land, containing 
 a stone quarry, in the pleadings of this cause mentioned to be situate at 
 or near certain places called or known by the name of, &o., and, &c., in, 
 &c., and near to the river, &c. ? If yea, how long have you been ac- 
 quainted therewith, and how is such piece of land bounded, and at what 
 distance is the same situated from the said river, &c. ? Look upon the 
 map or plan, now produced and shown to you, at this, the time of your 
 examination, marked with the letter (A.) what doth the same purport to 
 be or contain ; and does not the same contain a true and correct plan of 
 the said piece or parcel of land, and quarry, and of the boundaries thereof, 
 as you know, or do, for any, and what reason, believe ? Declare, &c. 
 
 TO PROVE WHAT CHILDREN THE PLAINTIFFS HAVE. 
 Are you, or not, acquainted with the said complainants, A. B., and C, 
 his wife ? And if yea, are you acquainted with the state of the said 
 complainants' family ? What children or child have the said complain- 
 ants now living, and what are, or is, the names or name of such children 
 or child ? Set forth all you know concerning the particulars inquired after 
 by this interrogatory, and the reason for such your knowledge. De- 
 clare, &c. 
 
 TO PROVE A CONVERSATION. 
 
 Whether or not, were you at any time in the year, &e., and when and 
 where, present with the said complainant and the said defendant, when 
 any conversation passed between them respeeting the public house called; 
 &c., at, &c., in the occupation of the said complainant, and any agreement 
 relating thereto ? If yea, set forth the particulars of such conversation, 
 and what was said therein by the said parties respectively, and whether 
 the said complainant then offered to pay any, and what sum of money to 
 the said defendant. Declare, &c. 
 
 TO PROVE LETTERS. 
 Whether or not, did you, at any time or times, and when, and on whose 
 behalf, correspond by letters, or otherwise, and how, with the said de- 
 fendant, C. B., or did you, or not, at any time or times, and how, and in 
 what manner, and by what means, receive any letter or letters from him, 
 with respect to, &c. And if yea, have you such letters, or any, and which 
 
INTERROGATORIES. 705 
 
 of them, in your possession, custody, or power, or what has become of 
 the same respectively ? If you are able, produce [such letters, and de- 
 clare how, or in what manner, and by what means, the same, respec- 
 tively, came into your possession ; and whose hand-writing all such 
 letters, respectively, are ; and were, or were not the same, or any, or 
 either, and which, of them ever, and when, and by whom, and on what 
 occasion, produced or shown to the said defendant? If yea, in whose 
 hand-writing, did he declare or admit the same, respectively, or any, 
 and which of them, to be ; and what is the purport or effect of such 
 letters respectively? Declare, &e. 
 
 TO PROVE THE DEATH OF A PARTY. 
 
 Did you, or not, know J. S., in the pleadings of this cause named? 
 If yea, is he living or dead ; and, if dead, where, and when, did he die ; 
 and did you, or not, see him after he was dead; and where was he buried; 
 and did you, or not, attend at his funeral; or how do you know that he 
 is dead? Declare, &e. 
 
 TO PROVE THE DEATH OF SUBSCRIBIN& WITNESSES AND THEIR 
 HAND-WRITING. 
 
 Did you know A. B. and C. D. ? If yea, do you know whether they, 
 or either, and which of them, be now living or dead? And if they are 
 dead, when did they, respectively, die ; and how do you know that they 
 are both, or either of them, is dead? Declare particularly your reasons 
 for knowing, or believing, that the said A. B. and C. D. are, or that 
 either of them, and which of them, is dead. And are you acquainted 
 with the character or manner of hand-writing of the said A. B. and C. 
 D., or either, and which of them? If yea, look on the exhibit, marked 
 with the letter (A.) and now produced and shown to you, at this, the 
 time of your examination, and at the names of A. B. and C. D., in- 
 dorsed thereon as witnesses to the sealing and delivering thereof, and de- 
 clare whether the same be of the respective proper hand-writing of the 
 said A. B. and C. D., as you know, or for any, and what reason, believe. 
 Declare, &c. 
 
 TO PROVE THE RECEIPT OP DIVIDENDS. 
 
 Do you, or not, know, and if yea, how, and by what means, whether 
 the said complainant A. B., ever, and where, and of whom, and in what 
 manner, received any, and what sum or sums of money, and to what 
 amount, for, or in respect, or on account of, the dividends due upon the 
 sum of, &c., in the pleadings in this cause mentioned; and, in particu- 
 lar, do you know whether he received such dividends, or any part thereof, 
 and from whom, subsequently to, &c. ? Declare, &o. 
 
706 EQUITY PRECEDENTS. 
 
 TO PROVE A MARRIAGE. 
 
 Do you, or not, know whether the said A. B., deceased, and C. B., 
 also deceased, in the pleadings of this cause named, did, at any time, and 
 when, intermarry together, or not? If yea, were you present at such 
 marriage ceremony, and by whom, and in the presence of what witnesses, 
 and when, and on what day in particular, was such marriage solemnized ? 
 Declare, &c. 
 
 INTERLOCUTORY ORDERS. 
 
 ORDER FOR INJUNCTION. 
 
 Ou filing the hill of complaint in this cause, and the said complainant 
 having this day given bond, &c., as required by the act of assembly, in 
 such case made and provided, it is, on motion of, &c., ordered, that an 
 injunction issue, pursuant to the prayer of the said bill. 
 
 ORDER FOR EXAMINATION PRO INTERESSE SUO. 
 It appearing to this court, that by an order made in this cause, 
 wherein, &c., dated, &c., it was ordered, that a commission of sequestra- 
 tion should issue, directed, &o., and that a commission issued accordingly. 
 And it also appearing, by the certificate of, &c., two of the sequestrators 
 named in such commission, that they had taken possession of a certain 
 messuage and premises, situate, &c., as part of the real estate of the 
 said defendant; since which A. B. has claimed title to such premises, 
 by virtue of a certain deed or conveyance thereof, made and executed, 
 as alleged by the said defendant, to the said A. B., and dated, &c., and 
 otherwise ; and that the said A. B. has brought an ejectment in the court 
 of, &c., against the said, &c., the said sequestrators, for recovering the 
 possession of such premises; thereupon, on reading such order, and 
 reading and filing such certificate, (and also an afiidavit of the said A. B.) 
 and upon motion of, &c., of counsel for the plaintiff, and hearing what 
 was alleged by, &c., of counsel for the said A. B., it is ordered, that all 
 proceedings on such ejectment be stayed by an injunction to be issued 
 out of and under the seal of this court. And it is further ordered, upon 
 the consent of the said A. B., by his counsel, that the said A. B. do 
 come in and be examined, pro interesse suo, before, &c., one of the mas- 
 ters of this court, touching his title and interest by him claimed, in and 
 to the messuage and premises so sequestered; and the plaintiffs are to 
 file interrogatories for that purpose, within a week before such master 
 
INTERLOCUTORY ORDERS. 707 
 
 who is hereby authorized to examine the said A. B. upon the same ; 
 and if a replication be filed to such examination, then he is also to ex- 
 amine any other persons as witnesses touching such claim. And the 
 said A. B. is also to produce before the master all deeds, documents, and 
 evidences, relating to his interest in such premises. And it is further 
 ordered, that the said master do certify whether the said A. B. hath 
 made out a title to the said premises, or any or what interest therein, 
 and that he report with all convenient speed, to the end that such fur- 
 ther order may be made in the premises as shall be just. 
 
 ORDER FOR SECURITY FOR COSTS. 
 
 It appearing to the court, that A. B., the complainant in this cause, 
 resides out of the state of Pennsylvania, to wit in, &c.; it is, thereupon, 
 on motion of, &c., of counsel for the said defendant, ordered that the said 
 defendant give security for costs in this cause ; and that until this order 
 be complied with, all further proceedings in the cause be stayed. 
 
 ORDER TO AMEND BILL. 
 No appearance having been entered for either of the defendants in this 
 cause, on motion of, &c., of counsel for the complainant, it is ordered, that 
 the said complainant be, and he is hereby authorized to amend his bill 
 filed in this cause, as he shall be advised. 
 
 ORDER TO DISMISS ON PLAINTIFF'S APPLICATION. 
 The complainant being advised to dismiss his bill in this cause ; there- 
 upon, on motion of, &c., of counsel for the said complainant, it is ordered, 
 that the same be dismissed. And it is further ordered, that the com- 
 plainant pay to the defendants their costs in this cause, to be taxed. 
 
 ORDER THAT PLAINTIFF ELECT. 
 It appearing that the complainant prosecutes the defendant, both at law 
 and in this court, for one and the same matter, whereby he is doubly 
 vexed ; therefore, on motion of, &o., it is ordered, that the complainant, 
 within eight days after notice of this order, elect whether he will proceed 
 at law in the suit brought by him against the defendant, or in this court 
 upon his bill ; and if he elect to proceed at law, or if he neglect to file 
 such election, within the said eight days, the bill in this cause shall 
 thereupon stand dismissed with costs ; and if he elect to proceed here, 
 it is then further ordered that he proceed no further in the said suit at 
 law, without leave of this court. (^And in such case an injunction irnay 
 issue to stay such proceedings.^ 
 
708 EQUITY PRECEDENTS. 
 
 ORDER FOR EXAMINATION OF A PARTY. 
 On filing an affidavit of A. B., one of the above named complainants, 
 setting forth that the defendant, Gr. H., is a material witness for him in 
 this cause, and is not interested in the matter to which he is to be ex- 
 amined; on motion of, &c., it is ordered, that the said complainants may 
 examine the said G-. H., as a witness, to any matter to which he is not 
 interested, subject to all just exceptions. 
 
 DECREES. 
 
 THE COMMENCEMENT. 
 
 This cause came on to be heard, (or to be further heard, as the ease 
 may be,) at this term, and was argued by counsel ; and thereupon, upon 
 consideration thereof, it was ordered, adjudged, and decreed, as follows, 
 viz. : (Jiere insert the decree or order.) 
 
 REFERENCE TO THE MASTER. 
 That it be referred to, &c., one of the masters, &c., to inquire and state 
 to the court, &c. And for the better discovery of the matters aforesaid, 
 the parties are to produce before the said master, upon oath, all books, 
 papers, and writings, in their custody or power, relating thereto, and are 
 to be examined upon interrogations as the said master shall direct. 
 
 Liberty to state special circumstances. 
 And the master is to be at liberty to state any special circumstances. 
 
 Further directions. 
 And the court doth reserve the consideration of all further directions, 
 until the said master shall have made his report. 
 
 Liberty to apply. 
 And any of the parties are to be at liberty to apply to the court as oc- 
 casion shall require. 
 
 DECREE FOR ACCOUNT. 
 
 That it be referred to, &o., one of the masters of this court, to take a 
 mutual account of all dealings and transactions between the plaintiff and 
 the defendant, for the better taking of which account, the parties are 
 to produce, &c., as the said master shall direct ; who, in taking the said 
 
DECREES. 709 
 
 aooountj is to make unto tlie parties all just allowances; and what, upon 
 the balance of the said account, shall appear to be due from either party 
 to the other, is to be paid as the said master sh^ll direct. And it is 
 further ordered, that the injunction formerly granted in this cause, for stay 
 of the defendant's proceedings at law, be in the meantime continued, 
 and the defendant's judgment is to stand as security for payment of what, 
 if any thing, shall appear to be coming to him, on the balance of the said 
 account ; and the court doth reserve the consideration of the costs of this 
 suit, and of all further directions, until after the said master shall have 
 made his report, when either side is to be at liberty to apply, &c. 
 
 Direction for allowing stated Account. 
 And if, in taking the said account, the said master shall find any ac- 
 ooimt stated, he is not to ravel into the same. 
 
 Liberty to surcharge and falsify. 
 
 That the account stated on, &o., between the plaintiff and the defend- 
 ant, do stand, with liberty to either side to falsify or surcharge the same. 
 And it is hereby referred to, &c., to tike a general account of all deal- 
 ings and transactions between the said plaintiif and defendant, from the 
 foot of the said account; and that the said master do likewise take an 
 account of what is due for principal and interest on the bond in question, 
 (loliich had been given for the balance of the stated account^) and that the 
 same be brought into the general account, and if in taking the said ac- 
 count between the parties, the master shall find the said defendant debtor 
 to the plaintiff in the said general account, at any particular period of 
 time, and after that time, the plaintiff does not become debtor to the 
 defendant in the said general account, then, from such period of time, 
 that the said master do apply what shall be coming due from the defend- 
 ant to the plaintiff, first, to pay the interest on the said bond, and then 
 to sink the principal. And it is ordered, that what shall appear to be 
 due from either party to the other on the balance of the said account, be 
 paid, &c. 
 
 * DECREE FOR THE REDEMPTION OP GOODS PLEDGED. 
 
 That it be referred to, &c., to take an account of what remained due 
 on, &c., the date of the last note exhibited in this cause, for principal 
 and interest of the money advanced and lent by the defendant to the 
 said "W. C, the bankrupt,^ on the pledge of the jewels, plate, and effects, 
 
 1 The plaintiff was the assignee of the bankrupt. 
 
710 EQUITY PRECEDENTS. 
 
 mentioned in the original note from the defendant to the said W. C, dated, 
 &c., and to carry interest on so much of the principal as remained due. 
 And it is further ordgred, that the said master do likewise take an ac- 
 count of the said jewels, plate, and effects, specified in the last mentioned 
 note, and see which of them remain in sj>ecie, in the custody or power 
 of the defendant, and what part thereof hath been sold or otherwise 
 disposed of by the defendant. And as to such part thereof, as hath been 
 so sold or disposed of, it is further ordered, that the said master do take 
 an account of the real value thereof; and that the value of such amount 
 thereof as hath ^been so sold or disposed of by the defendant be applied 
 in the first place towards paying the interest, and then towards sinking 
 the principal of what shall be so found to have been due to the defendant 
 for the money lent or advanced by him as aforesaid. And if upon the 
 balance of the said account, any thing shall be found to remain due to 
 the defendant for principal or interest, then, on payment thereof, as the 
 said master shall appoint, it is further ordered, that the defendant do de- 
 liver to the plaintiff such part of the said jewels, plate, and eJBFects, as 
 shall be found to remain in specie. But in default of such payment, by 
 the plaintiff to the defendant as aforesaid, it is further ordered, that the 
 said plaintifi''s bill do from thenceforth stand dismissed out of this court, 
 with costs to be taxed by the said master. And in case it shall appear 
 on the said account, that the defendant is overpaid his said principal and 
 interest, then it is further ordered, that the said defendant do pay to the 
 plaintifi' so much as shall remain due to the plaintiff on the said account, 
 and also do deliver to the plaintiff such part of the said jewels, plate, and 
 effects as shall remain, in specie, to be applied as part of the personal 
 estate of the bankrupt, for the benefit of the creditors seeking relief under 
 the said decree. And the court doth reserve the consideration of in- 
 terest of any money that may be found due from the defendant to the 
 plaintiff, in case there shall be any such, and also the consideration of 
 costs, till after the said master shall have made his report. And for the 
 better taking of the aforesaid accounts, &c. And any of the parties are 
 at liberty to apply, &c. 
 
 DECREE FOE PARTITION. 
 That a partition be made of the lands, tenements, and hereditaments in 
 question in this cause, with the appurtenances, in two moieties, between 
 the plaintiff and the defendant; and that a commission do issue to cer- 
 tain commissioners to be therein named for that purpose. And it is 
 ordered, that the said commissioners do respectively make a division of 
 the said lands, tenements, and hereditaments, with the appurtenances. 
 
DECREES. 711 
 
 into two equal moieties, and make the same by metes and bounds where 
 they shall see occasion, if the same can be so divided, without prejudice 
 to the interest of the said parties, respectively; but if the same cannot be 
 so divided without prejudice to the interest of the said parties, the said 
 commissioners are to value and appraise the same. And all deeds and 
 writings, surveys and muniments relating to the said premises, in the 
 custody or power of any of the parties, are to be produced before the said 
 commissioners, on oath, as the said commissioners shall direct. And it 
 is further ordered, that the said commissioners do examine witnesses on 
 interrogatories, or otherwise, relating to the matters in question, as they 
 shall think fit. And if the said commissioners shall make such division, 
 then it is further ordered, that they do allot one moiety of the said pre- 
 mises to the plaintiff to be enjoyed by him, his heirs and assigns, in 
 severalty, forever; and the other moiety thereof to the defendant, to be 
 enjoyed by him, his heirs and assigns, in severalty, forever. And after 
 such partition shall have been made, it is further ordered, that the said 
 plaintiff and the said defendant, do convey such several moieties to each 
 other respectively, to be held by them, their respective heirs and assigns, 
 in severalty, forever. And after the commissioners shall have made such 
 partition and returned the same, it is further ordered, that such of the 
 deeds and writings in the custody or power of any of the parties as relate 
 to such part of the premises, as shall, by such division, be allotted to 
 either of the parties alone, be delivered to them respectively ; and as to 
 those that concern any parts of the premises that shall be so allotted to 
 one of the said parties jointly with those allotted to the other, any of the 
 said parties are to be at liberty to apply to the said court for directions 
 concerning the same. But if the said premises cannot be so divided 
 without prejudice to the interests of the said parties, then it is ordered, 
 that the said commissioners do so return to this court, with a valuation 
 or appraisement of the same, and that the said premises be sold subject 
 to the approval of this court to the best purchaser or purchasers that can 
 be got for the same, and that the said parties do convey the said premises 
 to the purchaser or purchasers thereof, in fee simple; and that the pro- 
 ceeds of such sale be equally divided between the said parties. And any 
 of the parties are to be at liberty to apply to the court for further direc- 
 tions concerning such sale and conveyance. And it is further ordered, 
 that the costs of the partition before directed, be borne in equal moieties^ 
 by the said parties, according to their respective interests in the premises. 
 
712 EQUITY PRECEDENTS. 
 
 DECREE FOR SPECIFIC PERFORMANCE. 
 That the agreement in the pleadings mentioned, dated, &c., be spe- 
 cifically performed and carried into execution; and it is ordered, that the 
 said defendant do, on or before, &o., execute a good and sufficient con- 
 veyance of the premises in the said agreement mentioned to the said 
 plaintiff, his heirs and assigns, in fee simple, according to the terms of 
 the said agreement. And upon the said defendant executing and deli- 
 vering to the plaintiff such conveyance of the said premises as aforesaid, 
 it is ordered, that the said plaintiff pay to the defendant the sum of, &c., 
 the residue of the purchase money in the said agreement mentioned. And 
 the court doth not think fit to give any costs on either side. And any 
 of the parties are to be at liberty to apply, &c. 
 
 DECREE FOR DOWER. 
 
 That it be referred to, &c., one of the masters, &c., to inquire what 
 freehold lands the said S. M. died seised of, wherein the said plaintiff 
 is dowable; and that the said master do assign to the plaintiff her dower 
 in such freehold lands and tenements. And the said master is to assign 
 and set out particular lands and tenements for that purpose; and after 
 the said lands and tenements shall be set out and ascertained, it is ordered, 
 that the said defendant do deliver possession to the said plaintiff, of the 
 lands and tenements that shall be so set out and ascertained, for the said 
 dower of the said plaintiff; and the tenants thereof are to attorn and pay 
 their rents to the said plaintiff. And it is ordered and decreed, that the 
 said master do take an account of the said freehold lands and tenements, 
 whereof the said S. M. died seised, accrued since the death of the said 
 S. M., which have been received by the said defendant, or by any other 
 person, by his order or for his use. And that one-third part of what 
 shall be coming on the said account, of rents and profits of such freehold 
 lands and tenements, be paid to the plaintiff by the said defendant, in 
 respect of her dower out of such lands and tenements : and for the better 
 taking of the said accounts, &c. And it is ordered, that the defendant 
 do pay unto the plaintiff her costs of this suit, to this time, to be taxed 
 by the said master, of which the said master is to make a separate report. 
 And the court doth reserve the consideration of the subsequent costs, as 
 between the said parties until after, &c. 
 
 Direction for day to show cause against decree. 
 And this decree is to be binding upon the said defendant E. S., the 
 infant, unless he, being served with a subpoena to show cause against the 
 same shall, within six months after he shall attain his age of twenty-one 
 years, show unto this court good cause to the contrary. 
 
DECREES. 713 
 
 DECREE FOB PERPETUAL INJUNCTION. 
 That the injunction formerly granted in this case, to restrain the de- 
 fendants, &o., be made perpetual. And it is further ordered, that the 
 defendants do pay to the plaintiff his costs of suit, to be taxed, &c. 
 
 DECREE OF REVERSAL ON APPEAL. 
 This cause came on for hearing on an appeal from the decree of the 
 district court of, &o., and was argued by counsel, at, &c., and re-argued 
 at, &c., and now, on mature consideration thereof, it is ordered, adjudged, 
 and decreed, that the said decree of the district court be reversed and set 
 aside; and that the plaintiff's bill be dismissed at his costs; and it is 
 further ordered, that the receiver appointed by the said district court, 
 pendente lite, do account with the plaintiff, under the direction of the said 
 court, for the rents and profits of the land in controversy, which have 
 been or ought to have been received by him, by virtue of his appoint- 
 ment; and the cause is remanded to the said district court, with directions 
 to carry this decree into execution. 
 
 PROCESS. 
 
 WRIT OP ATTACHMENT. 
 County of, &c. 
 
 The Commonwealth of Pennsylvania, to the sheriff of the county of, 
 &c., greeting: 
 
 We command you to attach A. B., so as to have him before our judges, 
 at, &c., in our court of common pleas for the county of, &c., there to 
 answer us, as well touching a contempt which he, as is alleged, hath 
 committed against ua, (in not appearing to a certain hill of complaint 
 exhibited against him in our said court, hy C. D.) as also such other 
 matters as shall then be laid to his charge ; and further to abide such 
 order as our said court shall make in his behalf; and hereof fail not, and 
 bring with you this writ. Witness, &c. 
 
 WRIT OF SEQUESTRATION. 
 
 The Commonwealth, &c., to A. B., and C. D., &c. Whereas, J. S., 
 complainant, lately exhibited his bill of complaint in our court of com- 
 mon pleas for the county of, &c., against E. W., defendant; and whereas 
 the said defendant, being duly served with a writ of subpoena issuing out 
 
 46 
 
714 EQUITY PRECEDENTS. 
 
 of our said court, commanding him, under the penalty therein mentioned, 
 to appear and answer the said bill, has refused so to do, and thereupon 
 our process of contempt has issued against him, to the sheriff of the said 
 county of, &c., directed. And whereas, the said defendant hath of late 
 absconded and so concealed himself, that the said sheriff hath not been 
 able to find him, as by the certificate of the said sheriff appears. Know 
 ye, therefore, that we, in consideration of your prudence and fidelity, 
 have given, and by these presents do give to you, or any three or two of 
 you, full power and authority to enter upon all the messuages, lands, 
 tenements, and real estate whatsoever of the said defendant, and to take, 
 collect, receive, and sequester into your hands, not only all the rents 
 and profits of the said messuages, lands, tenements, and real estate, but 
 also all his goods, chattels, and personal estate, whatsoever : and therefore, 
 we command you, any three or two of you, that you do, at certain proper 
 and convenient days and hours, go to and enter upon all the messuages, 
 lands, tenements, and real estate of the said defendant ; and that you do 
 collect, talre, and get into your hands, not only all the rents and profits 
 of his real estate, but also, all his goods, chattels, and personal estate, 
 and keep the same under sequestration in your hands, until the said de- 
 fendant shall fully answer the said complainant's bill, and clear his con- 
 tempts, and our said courtmake other order to the contrary. Witness, &c. 
 
 WEIT OF INJUNCTION. 
 The Commonwealth, &c. To A. B., and his workmen, labourers, ser- 
 vants, and agents, and each and every of them, greeting : Whereas it 
 hath been represented unto us, in our court of common pleas for the 
 county of, &c., in a certain cause there depending, wherein C. D. is com- 
 plainant, and you, the said A. B., are defendant, on the part of the said 
 complainant, that, &c., (as in the order.') We, therefore, in considera- 
 tion of the premises aforesaid, do strictly enjoin and command you, the 
 said A. B., and your workmen, labourers, servants, and agents, and all 
 and every one of you, under the penalty of five thousand dollars, to be 
 levied upon your, and each and every of your lands, goods, and chattels, 
 to our use; that you, and every one of you, do from henceforth altogether 
 absolutely desist from felling or cutting down any timber or other trees, 
 growing or being in or upon the premises in question, or from committing 
 or doing any other or further waste or spoil in or upon the said premises, 
 or any part thereof, until our said court shall make other order to the 
 contrary. Witness, &c. 
 
PROCESS. 715 
 
 WRIT OF ASSISTANCE. 
 The Commonwealth, &o., to the sheriff of the county of, &c., greeting: 
 Whereas C. D., of, &c., by our writ of injunction issuing out of our 
 court of common pleas for the county of, &c., in pursuance of a certain 
 order made in our said court, in a cause between A. B., complainant, and 
 the said C. D., defendant, dated, &c., was commanded and enjoined, that 
 he should deliver up the possession of the lands and tenements in ques- 
 tion in this cause to A. B., the said complainant, according to a certain 
 decree or order of our said court, lately made and rendered, dated, &c. 
 Now, since it hath been shown to us, in our said court, that the said C. 
 D. hath refused to obey the command in our said writ of injunction con- 
 tained; know you, that in pursuance of an order made in our said court, 
 between the parties aforesaid, on, &c. ; we have given, and by these 
 presents, do give you full power and authority, immediately after the re- 
 ception of this writ, and do hereby command you, to go and enter into 
 and upon the premises in our aforesaid decree mentioned and expressed, 
 and known and described as follows, to wit, all, &c. j and that you eject 
 and remove therefrom, all and every person or persons, holding possession 
 of the same against the tenor of the said decree, and our writ of injunc- 
 tion aforesaid. And that you put and establish the above named com- 
 plainant, or his assigns, in full and peaceable possession of the said pre- 
 mises; and that you, from time to time, as often as shall be necessary, 
 preserve and defend the said complainant, his heirs and assigns, in such 
 possession of the aforesaid premises, against all force and interruption 
 whatsoever, according to the true intent and meaning of our decree and 
 writ of injunction aforesaid. Witness, &c. 
 
 RULES OF EQUITY PRACTICE. 
 
 FOR THE SUPREME COURT, AND THE SEVERAL COURTS OF COMMON 
 PLEAS OF THE STATE OF PENNSYLVANIA. 
 
 ADOPTED AND PKOMULGATED BI THE SUPKEME CO0ET, MARCH TERM, 1844. 
 
 Preliminary Regulations. 
 I. The equity side of the supreme court and courts of common 
 pleas shall be deemed always open for the purpose of filing bills, an- 
 swers, and other pleadings, for issuing and returning mesne and final 
 process and commissions, and for making and directing all interlocutory 
 
716 RULES OF EQUITY PRACTICE. 
 
 motions, orders, rules, and other proceedings, preparatory to the hearing 
 of all causes upon their merits. 
 
 II. The prothonotary's oflSce shall be open, and the prothonotary shall 
 be in attendance therein, on the first Monday of every month, for the 
 purpose of receiving, entering, entertaining, and disposing of all motions, 
 rules, orders, and other proceedings, which are grantable of course and 
 applied for, or had by the parties, or their solicitors, in all causes pending 
 in equity, in pursuance of the rules hereby prescribed. 
 
 III. Any judge of the supreme court or courts of common pleas, as 
 well in vacation, as in term, may, at chambers, or on the rule days, at 
 the prothonotary's office, make and direct all such interlocutory orders, 
 rules, and other proceedings preparatory to the hearing of all causes 
 upon their merits, in the same manner and with the same effect as the 
 court could make and direct the same in term, reasonable notice of the 
 application therefor being first given to the adverse party or his solicitor, 
 to appear and show cause to the contrary at the next rule day thereafter, 
 unless some other time is assigned by the judge for the hearing. 
 
 IV. All motions, rules, orders, and other proceedings made and di- 
 rected at chambers, or on rule days, at the prothonotary's office, whether 
 special or of course, shall be entered by the prothonotary in his equity 
 docket, to be kept at the prothonotary's office, on the day when they 
 are made and directed — which book shall be open at all office houi-s to 
 the free inspection of the parties in any suit in equity and their solicitors. 
 And notice thereof given to the solicitors shall be deemed notice to the 
 parties for whom they appear, and whom they represent in all cases where 
 personal notice on the parties is not otherwise specially required. 
 
 V. All motions and applications in the prothonotary's office for the 
 issuing of mesne process, and final process to enforce and execute decrees, 
 for filing- bills, answers, pleas, demurrers, and other pleadings ; for making 
 amendments to bills and answers ; for taking bills pro confesso ; for filing 
 exceptions, and for other proceedings in the prothonotary's office, which 
 do not, by the rules hereinafter prescribed, require any allowance or order 
 of the court, or of any judge thereof, shall be deemed motions and ap- 
 plications, grantable of course, by the prothonotary of the court ; but 
 the same may be suspended, or altered, or rescinded by any judge of the 
 court, upon cause shown. 
 
 VI. All motions for rules or orders, and other proceedings, which are 
 not grantable of course, or without notice, shall, unless a different time 
 be assigned by a judge of the court, be made on a rule day, and entered 
 in the equity docket, and shall be heard at the rule day next after that 
 on which the motion is made ; and if the adverse party, or his solicitor. 
 
RULES OF EQUITY PRACTICE. 717 
 
 shall not then appear, or shall not show good cause against the same, the 
 motion may be heard by any judge of the court, ex "parte, and granted, 
 as if not objected to, or refused, in his discretion. 
 
 Proceis. 
 
 VII. The process of subpcena shall constitute the proper mesne pro- 
 cess in all suits in equity, in the first instance, to require the defendant 
 to appear and answer the exigency of the bill ; and unless otherwise pro- 
 vided in these rules, or specially ordered by the court, a writ of attach- 
 ment, and if the defendant cannot be found, a writ of sequestration, or 
 a writ of assistance to enforce a delivery of possession, as the case may 
 require, shall be the proper process to issue for the purpose of compelling 
 obedience to any interlocutory or final order or decree of the court. 
 
 VIII. Final process to execute any decree may, if the decree be solely 
 for the payment of money, be by a writ of execution, in the form used 
 in the same court in suits at common law in actions of assumpsit. If 
 the decree be for the performance of any specific act, as, for example, 
 for the execution of a conveyance of land, or the delivering up of deeds, 
 or other documents, the decree shall, in all cases, prescribe the time 
 within which the act shall be done, of which the defendant shall be bound 
 without further service to take notice ; and upon affidavit of the plaintiff 
 filed in the prothonotary's office, that the same has not been complied 
 with within the prescribed time, the prothonotary shall issue a writ of 
 attachment against the delinquent party, from which, if attached thereon, 
 he shall not be discharged, unless upon a full compliance with the decree, 
 and the payment of all costs, or upon a special order of the court, or of 
 a judge thereof, upon motion and affidavit, enlarging the time for the 
 performance thereof. If the delinquent party cannot be found, a writ 
 of sequestration shall issue against his estate upon the return of non est 
 inventus, to compel obedience to the decree. 
 
 IX. When any decree or order is for the delivery of possession, upon 
 proof made, by affidavit, of a demand and refusal to obey the decree or 
 order, the party prosecuting the same shall be entitled to a writ of as- 
 sistance from the prothonotary of the court. 
 
 X. Every person, not being a party in any cause, who has obtained 
 an order, or in whose favour an order shall have been made, shall be en- 
 abled to enforce oliedience to such order by the same process as if he 
 were a party to the cause ; and every person not being a party in any 
 cause, against whom obedience to any order of the courtmay be enforced, 
 shall be liable to the same process for enforcing obedience to such order, 
 as if he were a party in the cause. 
 
718 EXILES OF EQUITY PRACTICE. 
 
 Service of Process. 
 XT. No process of subpcena shall issue from the prothouotary's office 
 in any suit in equity, until the bill is filed. 
 
 XII. Whenever a hill is filed, the prothonotary shall issue the process 
 of subpoena thereon, as of course, upon the application of the plaintifi^, 
 which shall be returnable into the prothonotary' s office the next rule day, 
 or the next rule day but one, at the election of the plaintiff, occurring 
 after twenty days from the time of the issuing. At the bottom of the 
 subpoena shall be placed a memorandum, that the defendant is to enter 
 his appearance in the suit in the prothouotary's office, on or before the 
 day at which the writ is returnable, otherwise the bill may be taken pro 
 confesso. When there are more defendants than one, a writ of subpcena 
 may, at the election of the plaintiff, be sued out separately for each de- 
 fendant, except in the case of husband and wife defendants, or a joint 
 subpoena against all the defendants. 
 
 XIII. The service of all subpoenas shall be in the same manner as 
 writs of suminons are directed by law to be served. In cases where hus- 
 band and wife are defendants, service on the husband shall be deemed a 
 sufficient service on both. 
 
 XIV. Whenever any subpcena shall be returned not executed as to 
 any defendant, the plaintiff shall be entitled to another subpoena, toties 
 quoties, against such defendant, if he shall require it, until due service 
 is made. 
 
 XV. Upon issuing the subpcena, the prothonotary shall enter the suit- 
 upon his docket as pending in the court, and shall state the time of the 
 entry, and upon the return thereof such return. 
 
 Apjpearance. 
 
 XVI. The appearance day of the defendant shall be the rule day to 
 which the subpoena is made returnable, provided he has been served 
 with the process twenty days before that day ; otherwise, his appearance 
 day shall be the next rule day succeeding the rule day when the process 
 is returnable. The appearance of the defendant, either personally or by 
 his solicitor, shall be entered in the margin of the equity docket, by 
 writing his name opposite the name of the defendant for which he ap- 
 pears. 
 
 Bills taken pro confesso. 
 
 XVII. The plaintiff shall be entitled, immediately after the defend- 
 ant's appearance is entered, to a rule on defendant, to be entered of 
 course in the prothouotary's office, to file his plea, demurrer, or answer 
 to the bill on the rule day next succeeding that on which he entered his 
 
RULES OF EQUITY PRACTICE. 719 
 
 appearance : provided, twenty days or more intervene between the ser- 
 vice of notice of such rule, and the rule day; in default thereof, the 
 plaintiff may, at his election, enter an order (as of course) in the equity 
 docket, that the bill be taken jiro confesso : and thereupon the cause 
 shall be proceeded in, ex parte, and the case may be put upon the next 
 equity argument list, and the matter of the bill may be decreed by 
 the court when there reached in its order, if the same can be done with- 
 out an answer, and is proper to be decreed; or, the plaintiff, if he re- 
 quires any discovery or answer to enable him to obtain a proper decree, 
 shall be entitled to process of attachment against the defendant, to com- 
 pel an answer, and the defendant shall not, when arrested upon such 
 process, be discharged therefrom, unless upon filing his answer, or other- 
 wise complying with such order as the court or a judge thereof may di. 
 rect, as to pleading to, or fully answering the bill, within a period to be 
 fixed by the court or judge, and undertaking to speed the cause; or it 
 shall be in the option of the plaintiff when such rule shall have been 
 served as aforesaid, instead of taking the bill jiro confesso, to have pro- 
 cess of contempt to compel an answer; in the latter case, the rule must 
 be served personally upon defendant. 
 
 XVIII. When the bill is taken pro confesso, and the court shall have 
 
 proceeded to a decree as aforesaid, such decree, so rendered, shall be 
 
 deemed absolute, unless the court shall, within three months after the 
 
 service of notice of such decree on the defendant, set aside the same, and 
 
 give the defendant time for filing the answer, upon cause shown. And 
 
 no such motion shall be granted, unless the defendant shall undertake 
 
 to file his answer within such time as the court shall direct, and submit 
 
 to such other terms as the court shall direct, for the purpose of speeding 
 
 the cause. 
 
 Frame of Bills. 
 
 XIX. Every bill, in the introductory part thereof, shall contain the 
 names of all the parties, plaintiffs and defendants, by and against whom 
 the bill is brought. The form in substance shall be as follows: — 
 
 "To the Judges of the Court, &c. ; and thereupon your orator complains, 
 and says, that," &c. 
 
 XX. The plaintiff in his bill shall be at liberty to omit, at his option, 
 the part which is usually called the common confederacy clause of the 
 bill, averring a confederacy between the defendants to injure or defraud 
 the plaintiff; also what is commonly called the charging part of the bill, 
 setting forth the matters or excuses which the defendant is supposed to 
 intend to set up by way of defence to the bill; also what is commonly 
 called the jurisdiction clause of the bill, that the acts complained of are 
 
720 RULES OF EQUITY PRACTICE. 
 
 contrary to equity, and that the defendant is without any remedy at 
 law, and the bill shall not be demurrable therefor. And the plaintiff 
 may, in the narrative or stating part of his bill, state and avoid, by 
 counter averment, at his option, any matter or thing, which he supposes 
 will be insisted upon by the defendant, by way of defence or excuse, to 
 the case made by the plaintiff for relief. The prayer of the bill shall 
 ask the special relief to which the plaintiff supposes himself entitled, and 
 also shall contain a prayer for general relief; and if an injunction, or a 
 writ of ne exeat, or any other special order pending the suit, is required, 
 it shall also be specially asked for. 
 
 XXI. If any persons, other than those named as defendants in the 
 bill, shall appear to be necessary or proper parties thereto, the bill shall 
 aver the reason why they are not made parties, by showing them to be 
 without the jurisdiction of the court, or that they cannot be joined with- 
 out ousting the jurisdiction of the court, as to the other parties. And 
 as to persons who are without the jurisdiction, and may properly be 
 made parties, the bill may pray that process may issue to make them 
 parties to the bill, if they should come within the jurisdiction. 
 
 XXII. The prayer for process of subpoena in the biU shall contain 
 the names of all the defendants named in the introductory part of the 
 bill, and if any of them are known to be infants, under age, or otherwise 
 under guardianship, shall state the fact, so that the court may take order 
 thereon, as justice may require, upon the return of the process. If an 
 injunction, or a writ of ne exeat, or any other special order pending the 
 suit, be asked for in the prayer for relief, that shall be suf&oient without 
 repeating the same in the prayer for process. 
 
 XXIII. Every bill shall contain the signature of counsel annexed to 
 it, which shall be considered as an aiSrmation on his part, that upon the 
 instructions given to him, and the case laid before him, there is good 
 ground for the suit, in the manner in which it is framed. 
 
 Scandal and Impertinence in Bills. 
 
 XXIV. Every bill shall be expressed in as brief and succinct terms 
 as it reasonably can be, and shall contain no unnecessary recitals of 
 deeds, documents, contracts, or other instruments, in licec verba, or any 
 other impertinent matter, or any scandalous matter not relevant to the 
 suit. If it do, it may on exceptions be referred to a master by any judge 
 of the court for impertinence or scandal, and if so found by him, the 
 matter shall be expunged at the expense of the plaintiff, and he shall pay 
 to the defendant all his costs in the suit up to that time, unless the court 
 or a judge thereof, shall otherwise order. If the master shall report 
 
RULES OF EQUITY PRACTICE. 721 
 
 that the bill is not scandalous or impertinent, the defendant shall be en- 
 titled to all costs occasioned by the reference. 
 
 XXV. No order shall be made by any judge for referring any bill, an- 
 swer, or pleading, or other matter, or proceeding depending before the 
 court, for scandal or impertinence, unless exceptions are taken in writing 
 and signed by counsel, describing the particular passages which are con- 
 sidered to be scandalous or impertinent ; nor unless the exceptions shall 
 be filed on or before the next rule day after the process on the bill shall 
 be returnable, or after the answer or pleading is filed. And such order, 
 when obtained, shall be considered as abandoned, unless the party ob- 
 taining the order shall, without any unnecessary delay, procure the master 
 to examine and report for the same, on or before the next succeeding 
 rule day, or the master shall certify that further time is necessary for 
 him to complete the examination. 
 
 Amendments of Bills. 
 
 XXVI. The plaintiff shall be at liberty, as a matter of course, to 
 amend his bill in any matters whatsoever, before answer, pie?,, or demur- 
 rer to the bill; but he shall without delay give defendant notice of such 
 amendment, and all rules taken by the plaintiff in the case shall be sus- 
 pended until such notice is given. 
 
 XXVII. After an answer, or plea, or demurrer is put in, and before 
 replication, the defendant may, upon motion or petition, with notice, 
 obtain an order from any judge of the court, to amend his bill on or 
 before the next succeeding rule day. But after replication filed, the 
 plaintiff shall not be permitted to withdraw it and to amend his bill, 
 except upon an order of a judge of the court, upon motion or petition, 
 after due notice to the other party, and upon proof by affidavit that the 
 same is not made for the purpose of vexation or delay, or that the matter 
 of the proposed amendment is material, and could not with reasonable 
 diligence have been sooner introduced into the bill, and upon the plain- 
 tiff's submitting to such other terms as may be imposed by the judge for 
 speeding the cause. 
 
 XXVIII. K the plaintiff so obtaining any order to amend his bill, after 
 answer, or plea, or demurrer, or after replication, shall not file his amend- 
 ments or amended bill, as the case may require, in the prothonotary's 
 office, on or before the next succeeding rule day, he shall be considered 
 to have abandoned the same, and the cause shall proceed as if no appli- 
 cation for any amendment had been made. 
 
722 RULES OF EQUITY PRACTICE. 
 
 Demurrers and Pleas. 
 
 XXIX. No demurrer or plea shall be allowed to be filed to any bill, 
 unless upon a certificate of counsel, tbat in his opinion it is well founded 
 in point of law, and supported by the affidavit of the defendant, that 
 it is not interposed for delay ; and if a plea, that it is true in point of 
 fact. 
 
 XXX. The defendant may, at any time before the bill is taken for 
 confessed, or afterwards with the leave of the court, demur or plead to 
 the whole bill, or to part of it, and he may demur to part, plead to part, 
 and answer as to the residue ; but in every case in which the bill specially 
 charges fraud or combination, a plea to such part must be accompanied 
 with an answer fortifying the plea, and explicitly denying the fraud and 
 combination, and the facts on which the charge is founded. 
 
 XXXI. The plaintiff may set down the demurrer or plea to be argued, 
 or he may take issue on the plea. If, upon an issue, the facts stated in 
 the plea be determined for the defendant, they shall avail him as far as 
 in law and equity they ought to avail him. 
 
 XXXn. If, upon the hearing, any demurrer or plea is overruled^ 
 unless the court shall be satisfied that it was intended for vexation and 
 delay, the defendant shall be assigned to answer the bill, or so much 
 thereof as is covered by the plea or demurrer, the next succeeding rule 
 day, or at such other period as, consistently with justice and the rights 
 of the defendant, the same can, in the judgment of the court, be reason- 
 ably done ; in default whereof the bill shall be taken against him, pro 
 confesso, and the matter thereof proceeded in and decreed accordingly ; 
 and such decree shall also be made when the court deems the plea or 
 demurrer to have been for vexation or delay, and to have been frivolous 
 or unfounded. 
 
 XXXIII. If, upon the hearing, any demurrer or plea shall be allowed, 
 the court may, in its discretion, upon motion of the plaintiff, allow him 
 to amend his bill upon such terms as it shall deem reasonable. 
 
 XXXIV. No demurrer or plea shall be held bad and overruled upon 
 argument, only because such demurrer or plea shall not cover so much 
 of the bill as it might by law have extended to. 
 
 XXXV. No demurrer or plea shall be held bad and overruled upon 
 argument, only because the answer of the defendant may extend to 
 some part of the same matter, as may be covered by such demurrer or 
 plea. 
 
 XXXVI. If the plaintiff shall not reply to any plea, or set down any 
 • plea or demurrer for argument, on the rule day, when the same is filed, 
 
RULES OF EQUITY PRACTICE. 723 
 
 or on the next succeeding rule day, the defendant shall have the power 
 so to set it down if the plaintiff shall fail or neglect so to do after ten 
 days' notice. 
 
 Answers. 
 
 XXXVII. The rule, that if a defendant submits to answer, he shall 
 answer fully to all the matters of the bill, shall no longer apply in cases 
 where he might, by plea, protect himself from such answer and discovery. 
 And the defendant shall be entitled in all cases, by answer, to insist upon 
 all matters of defence (not being matters of abatement, or to the character 
 of the parties, or of matters of form,) in law, of or to the merits of the 
 bill, of which he may be entitled to avail himself by a plea in bar ; and 
 in such answer he shall not be compellable to answer any other matters, 
 than he would be compellable to answer and discover, upon filing a plea 
 in bar, and an answer in support of such plea, touching the matters set 
 forth in the bill, to avoid or repel the bar or defence. — Thus, for example, 
 a bond fide purchaser, for a valuable consideration, without notice, may 
 set up the defence by way of answer, instead of plea, and shall be entitled 
 to the same protection, and shall not be compellable to make any further 
 answer or discovery of his title than he would be in any answer in sup- 
 port of such plea. 
 
 XXXVIII. A defendant shall not be bound to answer any interroga- 
 tory in the bill, except those interrogatories which such defendant is re- 
 quired to answer. 
 
 XXXIX. The interrogatories contained in the interrogating part of 
 the bill shall be divided as conveniently as may be from each other, and 
 numbered consecutively 1, 2, 3, &c., and the interrogatories which each 
 defendant is required to answer shall be specified in a note at the foot 
 of the bill, in the form or to the efiect following; that is to say: "The 
 defendant (A. B.) is required to answer the interrogatories numbered re- 
 spectively, 1, 2, 3," &c. 
 
 XL. The note at the foot of the bill, specifying the interrogatories 
 which each defendant is required to answer, shall be considered and 
 treated as part of the bill, and the addition of any such note to the bill, 
 or any alteration in, or addition to such note after the bill is filed, shall 
 be considered and treated as an amendment of the bill. 
 
 XLI. Instead of the words of the bill now in use, preceding the in- 
 terrogating part thereof, and beginning with the words " To the end, 
 therefore," there shall hereafter be used words in the form or to the 
 effect following: "To the end, therefore, that the said defendants may, 
 if they can, show why your orator should not have the relief hereby 
 prayed, and may, upon their several and respective corporal oaths, and 
 
724 RULES OF EQUITY PRACTICE. 
 
 according to the best and utmost of their several and respective know- 
 ledge, remembrance, information and belief, full, true, direct and perfect 
 answer make to such of the several interrogatories hereinafter numbered 
 and set forth, as by the note hereunder written they are respectively re- 
 quired to answer; that is to say: — 
 
 "1. Whether, &c. 
 
 "2. Whether, &c." 
 
 XLII. A defendant shall be at liberty, by answer, to decline answer- 
 ing any interrogatory, or part of an interrogatory, from answering which 
 he might have protected himself by demurrer'; and he shall be at liberty 
 so to decline, notwithstanding he shall answer other parts of the bill, 
 from which he might have protected himself by demurrer. 
 
 XLni. No special replication to any answer shall be filed. But if 
 any matter alleged in the answer shall make it necessary for the plaintiff 
 to amend his bill, he may have leave to amend the same upon motion to 
 the court, or to a judge thereof, in vacation. 
 
 XLIV. In every case where an amendment shall be made after answer 
 filed, the defendant shall put in a new or supplemental answer within 
 twenty days after the amendment or amended bill is filed, and notice 
 thereof given to him, unless the time therefor is enlarged or otherwise 
 ordered by a judge of the court; and upon his default the like proceed- 
 ings may be had as in cases of an omission to put in an answer. 
 
 Parties to Bills. 
 
 XLV. In all cases where it shall appear to the court, that persons who 
 might otherwise be deemed necessary or proper parties to the suit, can- 
 not be made parties by reason of their being out of the jurisdiction of 
 the court, incapable otherwise of being made parties, or because their 
 joinder would oust the jurisdiction of the court as to the parties before 
 the court, the court may, in their discretion, proceed in the cause with- 
 out making such persons parties ; and in such cases the decree shall be 
 without prejudice to the rights of the absent parties. 
 
 XL VI. Where the parties on either side are very numerous, and can- 
 not without manifest inconvenience and oppressive delays in the suit, 
 be all brought before it, the court in its discretion may dispense with 
 making all of them parties, and may proceed in the suit, having sufficient 
 parties before it to represent all the adverse interests of the plaintiffs and 
 the defendants in the suit properly before it. But, in such cases, the 
 decree shall be without prejudice to the rights and claims of all the 
 absent parties. 
 
 XL VII. In all suits concerning real estate, which is vested in trustees 
 
RULES OF EQUITY PRACTICE. 725 
 
 by devise, and such trustees are competent to sell and give discharges 
 for the proceeds of the sale, and for the rents and profits of the estate, 
 such trustees shall represent the persons beneficially interested in the 
 estate or the proceeds, or the rents and profits, in the same manner, and 
 to the same extent, as the executors or administrators in suits concerning 
 personal estate represent the persons beneficially interested in such 
 personal estate; and in such cases it shall not be necessary to make the 
 persons beneficially interested in such real estate, or rents and profits, 
 parties to the suit; but the court may, upon consideration of the matter 
 on the hearing, if it shall so think fit, order such persons to be made 
 parties. 
 
 XL VII I. In suits to execute the trusts of a will, it shall not be neces- 
 sary to make the heir at law a party ; but the plaintifi' shall be at liberty 
 to make the heirs at law a party, where he desires to have the will 
 established against them. 
 
 XLIX. In all cases in which the plaintifi' has a joint and several de- 
 mand against several persons, either as principals or sureties, it shall not 
 be necessary to bring before the court, as parties to a suit concerning such 
 demand, all the persons liable thereto; but the plaintiff may proceed 
 against one or more of the persons severally liable. 
 
 L. Where the defendant shall, by his answer, suggest that the bill is 
 defective for want of parties, the plaintiff shall be at liberty, within four- 
 teen days after answer filed, to set down the cause for argument upon 
 that objection only; and the purpose for which the same is so set down 
 shall be notified by an entry, to be made in the equity docket, in the 
 form or to the effect following, that is to say : " Set down upon the de- 
 fendant's objection for want of parties." And where the plaintiff shall 
 not set down his cause, but shall proceed therewith to a hearing, not- 
 withstanding an objection for want of parties taken by the answer, he 
 shall not, at the hearing of the cause, if the defendant's objection shall 
 then be allowed, be entitled as of course to an order for liberty to amend 
 his bill by adding parties. But the court, if it think fit, shall be at 
 liberty to dismiss the bill. 
 
 LI. If a defendant 'shall, at the hearing of a case, object that a suit 
 is defective for want of parties, not having by plea or answer taken the 
 objection, and therein specified by name or description the parties to 
 whom the objection applies, the court, if it shall think fit, shall be at 
 liberty to make a decree, saving the rights of the absent parties. 
 
726 EULES OF EQUITY PRACTICE. 
 
 Nominal Parties to Bills. 
 
 LII. Where no account, payment, conveyance, or other direct relief 
 is sought against a party to a suit not being an infant, the party, upon 
 service of the subpoena upon him, need not appear and answer the bill, 
 unless the plaintiff specially requires him so to do by the prayer of his 
 bill ; but he may appear and answer at his option ; and if he do not 
 appear and answer, he shall be bound by all the proceedings in the cause. 
 If the plaintiflF shall require him to appear and answer, he shall be en- 
 titled to the costs of all the proceedings against him, unless the court 
 shall otherwise direct. 
 
 Injunction Bills. 
 
 Lin. Wherever an injunction is asked for by the bill to stay pro- 
 ceedings at law, if the defendant do not enter his appearance and plead, 
 demur, or answer to the same within the time prescribed therefor by 
 these rules, the plaintiff shall be entitled as of course, upon motion and 
 notice, to such injunction. But special injunctions shall be grantable 
 only upon due notice to the other party by the court in term, or by a 
 j udge thereof in vacation, after a hearing, which may be ex parte, if the 
 adverse party do not appear at the time and place ordered. 
 
 Bills of Revivor and Sujyplemental Bills. 
 
 LIV. Whenever a suit in equity shall become abated by the death of 
 either party, or by any other event, the same may be revived by a bill 
 of revivor, or a bill in the nature of a bill of revivor, as the circumstances 
 of the case may require, filed by the proper parties entitled to revive the 
 same ; which bill may be filed in the prothonotary's office at any time ; 
 and upon suggestion of the facts, the proper process of subpoena shaU, 
 as of course, be issued by the prothonotary, requiring the proper repre- 
 sentatives of the other party to appear and show cause, if any they have, 
 why the cause should not be revived. And if no cause shall be shown 
 at the next rule day, which shall occur after fourteen days from the 
 time of the service of the same process, the suit shall stand revived, as 
 of course. 
 
 LV. Whenever any suit in equity shall become defective, from any 
 event happening after the filing of the bill, (as, for example, by a change 
 of interest in the parties,) or for any other reason, a supplemental bill 
 or a bill in the nature of a supplemental bill, may be necessary to be filed 
 in the cause, leave to file the same may be granted by any judge of the 
 court, on proper cause shown, and due notice to the other party. And if 
 leave is granted to file such supplemental bill, the defendant shall demur, 
 plead or answer thereto, on the next succeeding rule day after the sup- 
 
RULES OF EQUITY PRACTICE. 727 
 
 plemental bill is filed in the prothonotary's office, unless some other time 
 shall be assigned by a judge of the court. 
 
 LVI. It shall not be necessary in any bill of revivor, or supplemental 
 bill, to set forth any of the statements in the original suit, unless the 
 special circumstances of the case may require it. 
 
 Affidavits to Ansxoers. 
 LVII. Every defendant may swear to his answers before any justice 
 or judge of the court of the United States, or before any commissioner 
 appointed by any court to take testimony or depositions, or before any 
 master in chancery appointed by any court, or before any judge of any 
 court of a state or territory, or before any justice of the peace or 
 alderman within this commonwealth. 
 
 Amendment of Answers. 
 LVin. After an answer is put in, it may be amended as of course, in 
 any matter of form, or by filling up a blank, or correcting a date, or re- 
 ference to a document or other small matter, and be resworn, at any time 
 before a replication is put in, or the cause is set down for a hearing upon 
 bill and answer. But after replication, or such setting down for a hearing, 
 it shall not be amended in any material matters, as by adding new facts 
 or defences, or qualifying or altering the original statements, except by 
 special leave of the court or a judge thereof, upon motion and cause 
 shown after due notice to the adverse party, supported, if required, by 
 affidavit. And in every case where leave is so granted, the court or the 
 judge granting the same, may, in his discretion, require that the same 
 be separately engrossed and added as a distinct amendment to the original 
 answer, so as to be distinguishable therefrom. 
 
 Exceptions to Answers. ' 
 
 LIX. After an answer is filed on any rule day, the plaintiff shall be 
 allowed until the next succeeding rule day to file, in the prothonotary's 
 office, exceptions thereto for insufficiency, and no longer, unless a longer 
 time shall be allowed for the purpose, upon cause shown to the court or 
 a judge thereof; and if no exceptions shall be filed thereto within that 
 period, the answer shall be deemed and taken to be sufficient. 
 
 LX. "Where exceptions shall be filed to the answer for insufficiency, 
 within the period prescribed by these rules, if the defendant shall not 
 submit to the same, and file an amended answer on the next succeeding 
 rule day, the plaintiff shall forthwith order the prothonotary to set them 
 down for a hearing on the next succeeding rule day thereafter, before a 
 judge of the court; and shall give notice of such order to the opposite 
 
728 RULES OF EQUITY PRACTICE. 
 
 party, or his solicitor. And if he shall not so set the same down for a 
 hearing, the exceptions shall be deemed abandoned and the answer shall 
 be deemed insufficient: provided, however, that the court, or any judge 
 thereof, may, for good cause shown, enlarge the time for filing exceptions, 
 or for filing an amended answer, in his discretion, upon such terms as 
 he may deem reasonable. 
 
 LXI. If, at the hearing, the exceptions shall be allowed, the defendant 
 shall be bound to put in a full and complete answer thereto, on the next 
 succeeding rule day, unless the time be enlarged by order of the court; 
 otherwise, the plaintiff shall, as of course, be entitled to take the bill, so 
 far as the matter of such exceptions is concerned, as confessed, or, at his 
 election, he may have a writ of attachment to compel the defendant to 
 make a better answer to the matter of the exceptions; and the defendant, 
 when he is in custody upon such writ, shall not be discharged there- 
 from but by an order of the court, or of a judge thereof, upon his putting 
 in such answer and complying with such other terms as the court or judge 
 may direct. 
 
 Replication and Issue. 
 
 LXII. Whenever the answer of the defendant shall not be excepted 
 to, or shall be adjudged or deemed sufficient, the plaintiff shall file the 
 general replication thereto on or before the next succeeding rule day there- 
 after, unless he shall put the same down on bill and answer; and in all 
 cases where the general replication is filed, the cause shall be deemed to 
 all intents and purposes at issue, without any rejoinder or other pleading 
 on either side. If the plaintiff shall omit or refuse to file such replication 
 within the prescribed period, the defendant shall be entitled to a rule 
 upon him to reply at the next rule day, under the penalty of having 
 his bill dismissed ; and if at the expiration of such rule said plaintiff 
 shall not have filed his replication, and shall have had ten days' notice, 
 the defendant shall be entitled to an order, as of course, for a dismissal 
 of the suit; and the suit shall thereupon stand dismissed, unless the court, 
 or a judge thereof, shall upon motion for cause shown, allow a replication 
 to be filed, nunc pro tunc, the plaintiff submitting to speed the cause, and 
 to such other terms as may be directed. 
 
 Testimony/, how tahen. 
 
 LXIII. An order to take the testimony of ancient, infirm, and going 
 
 witnesses de bene esse before any alderman or justice of the peace of the 
 
 respective county, may be entered by either party in the prothonotary's 
 
 office, of course, at any time after the service of the subpoena, stipulating 
 
RULES OF EQUITY PRACTICE. 729 
 
 a reasonable notice to the adverse party : so of an order for a commission 
 to any place within the state of Pennsylvania, more than forty miles 
 distant from the county seat of the respective county, or to any other 
 state or territory, or to foreign parts. But in case of a commission, 
 the interrogatories must be filed in the prothonotary's office at the time, 
 and written notice of this last order and of the names of the commissioners 
 must be served on the adverse party, at least fifteen days before the com- 
 mission issues, in order that he may file cross-interrogatories, or nominate 
 commissioners on his part, if he shall deem it eligible. Provided, that 
 depositions taken before magistrates in the method prescribed in this 
 rule, shall only be allowed to be read in evidence on the hearing of the 
 cause, in case the same facts shall appear before the examiner appointed 
 to take testimony in the cause after it is at issue, and be certified by him 
 to excuse the production of such witnesses before him, as are necessary 
 for the introduction of depositions taken de lene esse on trials by jury in 
 the same courts; or if taken by the commissioner before the cause is at 
 issue, under this rule, it shall appear by affidavit at the hearing that the 
 witnesses so examined were aged, infirm, or going out of the country, or 
 that any of them was a single witness to a material fact. 
 
 LXIV. The method of taking testimony, except in cases provided for 
 in the foregoing rule, shall be as follows : after the cause is at issue the 
 court shall appoint an examiner, at the request of either party who may 
 first make application, which examiner shall cause such witnesses as either 
 party may name to him to come before him on a reasonable day or days, 
 to be appointed by him, of which he shall give notice to the parties; for 
 the enforcing the attendance of which witnesses, either party may have 
 subpoena or subpoenas returnable before such examiner, to be enforced 
 by the usual process of contempt. The examination shall be conducted 
 by the counsel of the parties, viva voce, and the answers of the witnesses 
 shall be reduced to writing by the examiner, and the questions also, if 
 necessary to the understanding of the answer, or if it be required by 
 either party : the testimony of both parties shall be taken before the same 
 examiner, and the defendant shall not be compelled to proceed with the 
 taking of his testimony until the plaintiff has finished, or declared he has 
 none to take, nor shall the plaintiff be compelled to proceed with the re- 
 butting testimony until the defendant has completed the testimony on 
 his part; but the court may, upon the special application of either party, 
 upon cause shown, appoint an additional examiner before whom the party 
 making such application may proceed to take his testimony, notwith- 
 
 47 
 
730 EULES OF EQUITY PRACTICE. 
 
 standing the pendency of the proceeding of his adversary before the ex- 
 aminer first named. 
 
 LXV. Either party may, on application to the court, obtain an order 
 on his adversary to close the taking of his testimony within three months 
 after notice of such order j any testimony taken after three months' notice 
 of such order shall not be read in evidence at the hearing of the cause. 
 But it shall be in the discretion of the court to enlarge the time on the 
 application of the party against whom such order may have been granted; 
 and no such order shall be granted against a party while, by the provi- 
 sions of the sixty-fourth rule, such party is not bound to begin until his 
 adversary has closed. 
 
 LXVI. Upon the return of the commission executed, the same may, 
 at the application of either party, be opened by any one or more of the 
 judges of the court, in term time or vacation, or by the prothonotary; 
 and the prothonotary shall give notice to the parties of the return of any 
 commission, and of the filing of depositions taken before any alderman, 
 justice of the peace, or examiner; and the parties shall, within ten days 
 after service of such notice upon them respectively, enter exceptions in 
 writing, if they have any, to the form of the interrogatories or the man- 
 ner of the execution of the commission, and the taking of the depositions, 
 or be forever precluded from the benefit of such exceptions; which ex- 
 ceptions, when so taken, may be put down for hearing by either party at 
 the next rule day, giving notice to his adversary thereof. 
 
 Form of the last Interrogatory. 
 LXVII. The last interrogatory in the written interrogatories to take 
 testimony, now commonly in use, shall in the future be altered and stated 
 in substance thus: "Do you know, or can you set forth any other matter 
 or thing, which may be a benefit or advantage to the parties at issue in 
 this cause, or either of them, or that may be material to the subject of 
 this your examination, or the matters in question in this cause ? If 
 yea, set forth the same fully and at large in your answer." 
 
 Cross Bills. 
 LXVIII. Where a defendant in equity files a cross bill for recovery 
 only against the plaintiff in the original bill, the defendant to the origi- 
 nal bill shall first answer thereto, before the original plaintiff shall be 
 compellable to answer the cross bill. The answer of the original plain- 
 tiff to such cross bill may be read and used by the party filing the cross 
 bill at the hearing, in the same manner and under the same restrictions 
 as the answer praying relief may now be read and used. 
 
EULES OF EQUITY PEACTICE. 731 
 
 Reference to and proceedinr/s he/ore Masters. 
 LXIX. Whenever any reference of any matters is made to a master, 
 to examine and report thereon, the party at whose instance, or for whose 
 benefit the reference is made, shall cause the same to be presented to 
 the master for a hearing, on or before the next rule day succeeding the 
 time when the reference was made; if he shall omit to do so, the ad- 
 verse party shall be at liberty forthwith to cause proceedings to be had 
 before the master, at the costs of the party procuring the reference. 
 
 LXX. Upon every such reference it shall be the duty of the master, 
 as soon as he reasonably can, after the same is brought before him, to 
 assign a time and place for proceeding in the same, and to give due no- 
 tice thereof to each of the parties or their solicitors; and if either party 
 shall fail to appear at the time and place appointed, the master shall be 
 at liberty to proceed ex parte, or in his discretion to adjourn the exami- 
 nation and proceedings to a future day, giving notice to the absent party 
 or his solicitor of such adjournment; and it shall be the duty of the 
 master to proceed with all reasonable diligence in every such reference, 
 and with the least practicable delay; and either party shall be at liberty 
 to apply to the court, or a judge thereof, for an order to the master to 
 speed the proceedings, and to make his report, and to certify to the court 
 or judge the reasons for any delay. 
 
 LXXI. The master shall regulate all the proceedings in every hear- 
 ing before him, upon every such reference ; and he shall have full au- 
 thority to examine the parties in the cause, upon oath, touching all 
 matters contained in the reference; and also, to require the production 
 of all books, papers, writings, vouchers, and other documents applicable 
 thereto, where, by the principles of the courts of chancery, the produc- 
 tion of them may be compelled ; and also, to examine on oath, viva, voce, 
 all witnesses produced by the parties before him, and to order the ex- 
 amination of other witnesses to be taken, under a commission to be is- 
 sued upon his certificate by the prothonotary ; and 'also, to direct the 
 mode in which the matters requiring evidence shall be proved before 
 him; and generally to do all other acts, and direct all other inquiries 
 and proceedings in the matters before him, which he may deem neces- 
 sary and proper to the justice and merits thereof, and the rights of the 
 parties. 
 
 LXXn. All parties accounting before a master shall bring in their 
 respective accounts in the form of debtor and creditor; and any of the 
 other parties, who shall not be satisfied with the account so brought in, 
 shall be at liberty to examine the accounting party, viva voce, or upon 
 
732 RULES OF EQUITY PRACTICE. 
 
 interrogatories before the master, or by deposition, as the master shall 
 direct. 
 
 LXXIII. All affidavits, depositions, and documents, which have been 
 previously made, read, or used in the court, upon any proceeding in any 
 cause or matter may be used before the master. 
 
 LXXIV. The master shall be at liberty to examine any creditor or 
 other person coming in to claim before him, either upon written interro- 
 gatories or viva voce, or in both modes, as the nature of the case may 
 appear to him to require. The evidence upon such examination shall 
 be taken down by the master, or by some other person by his order and 
 in his presence, if either party requires it, in order that the same may 
 be used by the court, if necessary. 
 
 LXXV. The courts may appoint standing masters in chancery in 
 their respective jurisdictions, and they may also appoint a master pro 
 hac vice, in any particular case. The compensation to be allowed to 
 every master in chancery for his services in any particular cause, shall 
 be fixed by the court in its discretion, having regard to all the circum- 
 stances thereof; and the compensation shall be charged upon and borne 
 by such of the parties in the cause as the court shall direct. The mas- 
 ter shall not retain his report as security for his compensation ; but when 
 the compensation is allowed by the court, he shall be entitled to an at- 
 tachment for the amount against the party who is ordered to pay the 
 same, if, upon notice thereof, he does not pay it within the time pre- 
 scribed by the court. 
 
 Exceptions to report of Master. 
 
 LXXVI. No exception will be received to the report of any master, 
 unless the party excepting has filed the same with the master by whom 
 the report has been made, whose duty it shall be, on such exception 
 being filed, to re-examine the subject and amend his report, if in his 
 opinion such exceptions are in whole or in part well founded. And in 
 order to give all parties in interest an opportunity of entering such ex- 
 ception, no master shall file his report until ten days after he has noti- 
 fied to the parties his intention so to do on a day designated, and given 
 them an opportunity of having access to such report. On the hearing 
 of the question of confirming or setting aside the master's report, the 
 party excepting thereto shall be confined to the exception made by him 
 before the master, according to the previous requisition of this rule; re- 
 serving to the court, however, the power of committing the report again, 
 should justice require it. On the return of the master's final report, on 
 
RULES OP EQUITY PRACTICE. 733 
 
 the next succeeding rule day, either party may set down the cause for 
 hearing on the nest equity argument list. 
 
 [This rule is composed partially of the old rule of March 1844, and 
 partially of a new one adopted January 1847. In the court of com- 
 mon pleas of Philadelphia county, though not in the supreme court, the 
 rule proceeds as follows :] 
 
 And it is further ordered, that all reports of auditors and masters in 
 the court of common pleas, shall be confirmed on the third Saturday 
 next succeeding the day on which they shall have been respectively 
 fikd, unless in case of exceptions duly filed as provided by the foregoing 
 rule. 
 
 Decrees. 
 
 LXXVII. Clerical mistakes in decrees, or decretal orders, or errors, 
 arising from any accidental slip or omission, may be corrected by order 
 of the court or a judge thereof, upon petition, without the form or ex- 
 pense of a rehearing. 
 
 LXXVIII. In drawing up decrees and orders, neither the bill, nor 
 answer, nor other pleadings, nor any part thereof, nor the report of any 
 master, nor any other prior proceeding, shall be recited or stated in the 
 decree or order ; but the decree and order shall begin in substance as 
 follows : " This cause came on to be heard (or to be further heard, as 
 the case may be) at this term, and was argued by counsel ; and, there- 
 fore, upon consideration thereof, it was ordered, adjudged, and decreed 
 as follows, viz.:" (here insert the decree or order.) 
 
 LXXIX. The decree shall be drawn by the solicitor of the party in 
 whose favour it is, who shall serve a copy thereof on the solicitor of the 
 adverse party, with notice of the time, which shall not be less than three 
 days thereafter, when the same will be submitted to the court. If the 
 opposite party shall not deem such draft of decree in conformity with 
 the intentions of the court, he may file exceptions before the day of 
 hearing designated in such notice, which shall be submitted with the 
 draft of the decree on the day so prefixed, and thereupon the court ap- 
 proving of the draft or correcting the same in conformity with such 
 exceptions or otherwise, the prothonotary shall enter it in his equity 
 docket, and from thenceforth it shall become the act and decree of the 
 court. 
 
 LXXX. If the decree be merely for the payment of money, the party 
 in whose favour it is made shall be entitled to have a minute thereof 
 (without waiting for the draft of a more formal decree) entered in the 
 equity docket, and placed in the usual form of entering judgments, in 
 the judgment index of the common law side of the court. 
 
734 RULES OF EQUITY PRACTICE. 
 
 Guardians andprochein amis. 
 LXXXI. Guardians ad litem to defend a suit may be appointed by 
 the court, or by any judge thereof, for infants or other persons, who are 
 under guardianship, or otherwise incapable to sue for themselves ; all 
 infants and other persons so incapable, may sue by their guardians, if 
 any, or by their prochein ami, subject, however, to such orders as the 
 court may direct for the protection of infants and other persons. 
 
 Rehearings. 
 LXXXII. Every petition for rehearing, shall contain the special 
 matter or cause on which such rehearing is applied for, shall be signed 
 by the counsel, and the facts therein stated, if not apparent on the re- 
 cord, shall be verified by the oath of the party, or by some other person. 
 A petition for rehearing may be granted at any time within the discre- 
 tion of the court ; but where the decree has been executed, parties who 
 have acted on the faith of such decree shall not be injured by such de- 
 cree being reversed or varied. 
 
 General Regulations. 
 
 LXXXIII. The courts may make any other and further rules and 
 regulations for the practice, proceedings, and process, mesne and final 
 in their respective districts, not inconsistent with the rules hereby pre- 
 scribed, in their discretion, and from time to time alter and amend the 
 same. 
 
 LXXXIV. In all cases, when the rules prescribed by this court, or 
 by the court of common pleas, do not apply, the practice of the courts 
 shall be regulated by the present practice of the high court of chan- 
 cery in England, so far as the same may reasonably be applied con- 
 sistently with the local circumstances and local convenience of the dis- 
 trict where the court is held, not as positive rules, but as furnishing just 
 analogies to regulate the practice. 
 
 LXXXV. Whenever under these rules an oath is or may be required 
 to be taken, the party may, if conscientiously scrupulous of taking an 
 oath, in lieu thereof make solemn affirmation to the truth of the fact- 
 stated by him. 
 
EQUITY FEE BILL. 735 
 
 EQUITY FEE BILL. 
 
 ADOPTED BY THE SUPREME COURT, AND THE COURT OP COMMON PLEAS 
 OP PHILADEIJ>HIA COUNTY.^ 
 
 ProthoTWtary's Fees. 
 Filing bill, original or subsequent thereto, ... 50 
 Docketing every cause, . . . _ 25 
 Subpoenas, all names, . . . j 50 
 Office copy of any paper, for every line of ten words, . IJ 
 Certificate to office copy, when made by a party, . . 37 J 
 Entering every motion, rule, and report, and filing exceptions, 12J 
 Every order of reference to a master, . . .25 
 Entering every order and decree in a cause, and for every injunc- 
 tion, for every line of ten words, . . . ij 
 Subpoena to testify, the same as at law. 
 Every other writ, same as at law. 
 Affixing the seal of the court, the same as at law, 
 Administering oath or affirmation, . . . . 12J 
 Stationery, in every cause in which decree is made, . 75 
 Taxing bill of costs, . . . . . . 1 50 
 
 Examiner's Fees. 
 Taking depositions, per line of ten words, ... 5 
 
 Exhibits, each, ...... 25 
 
 Administering oaths or affirmations, . . . . 12J 
 
 Subpoena, same as prothonotary. 
 
 Attesting and returning depositions, . . . 1 50 
 
 The examiner is to be paid, as for taking a deposition of one page 
 of thirty lines, by a party who makes an appointment to 
 take depositions, and does not attend, or attends, and does 
 not examine a witness. 
 
 Fees of the Sheriff, Witnesses, Surveyors, and Commissioners in Dower 
 
 and Partition. 
 Sheriff's fees for service of subpcena, and to appear and answer, 
 and of injunction, the same as service of summons at law. 
 Witnesses' fees, the same as at law. 
 
 ' See Purdon's Digest, 774. 
 
736 EQUITY FEE BILL. 
 
 Fees of commissioners appointed to make partition, or to ad- 
 measure dower, and of surveyors appointed to make surveys 
 in such oases, — for every day's actual and necessary service 
 — two dollars to each, 
 
 For necessary assistants to the same, — one doUar per day. 
 
 Party's Costs. 
 For drawing bill, answer or other pleading, demurrer, exceptions, 
 interrogatories, and any decree or order of the court, for 
 every page of thirty lines, each of ten words, ten cents for 
 each line of the first page, and six cents per line for each 
 subsequent page. 
 For every motion, and notice thereof to the opposite party, . 20 
 For service of subpoena to testify, the same as at law. 
 Copy, to keep, of any paper that shall be filed in the cause, one 
 half of the allowance for an office copy. 
 
 EQUITY FEE BILL. 
 
 ADOPTED BY THE DISTRICT COURT TOR THE COUNTY OF ALLEGHENY.' 
 
 ProtJionotary' s Fees. 
 
 Filing bill, original or subsequently thereto, . 50 
 
 Docketing every cause, . . . . . 1 00 
 
 Subpcena, all names, . . . . 1 50 
 
 Office copy of any paper, for every ten words, . . .11 
 
 Certificate to copy, when made by the. party, . . 75 
 
 Entering any motion, rule, report, or filing exceptions, . 125 
 Each order of reference to a master, commissioner, or examiner, 25 
 
 Entering every order, or decree, each ten words, . . li 
 Subpoena to testify, same as at law 
 Every other writ, same as at law 
 
 Affixing the seal of the court, . . .25 
 
 Administering oath or affirmation, . . 12J 
 
 Stationery, in each cause, ... .75 
 
 Taxing each bill of costs, . . . ■ 1 00 
 
 Entering appeal and making up record for supreme court, . 1 50 
 
 1 See Purdon's Digest, 1070. 
 
EQUITY FEE BILL. 737 
 
 Taking and filing any recognizance or bond, . . 50 
 
 Entering proceedings of supreme court, . . 50 
 
 Writ of injunction, . . . . 1 25 
 
 Examiner's Fees. 
 Taking depositions for every ten words, ... 2 
 
 Copying exhibits, . . . . . 1| 
 
 Administering oath or affirmation, . . . 12J 
 
 Subpoena, same as protbonotary. 
 
 Attesting and returning depositions, exhibits, &c., . . 1 50 
 
 A party making an appointment to take depositions a;nd failing 
 to attend, or attending and not examining a witness, shall pay 
 the examiner, . . . . . 1 00 
 
 Sheriff's Fees. 
 Serving subpoena or injunction, same as sci. fa. at law. 
 Any other writ, order, or notice, same as a summons at law. 
 
 Commissioner. 
 
 Commissioner appointed to admeasure dower, or make partition, 
 and of surveyors appointed to make surveys in such cases, 
 for each day's actual and necessary service, . . 2 00 
 
 Each necessary assistant, per day, . . . 1 00 
 
 Party's Costs. 
 Drawing bill, answer, demurrer, or other pleading; exception, 
 interrogatories, and any decree or order of court : — first five 
 pages, of 300 words each, per page, . . . 2 00 
 
 Next five or fewer pages of 300 words each, per page, . 75 
 
 Each additional page of 300 words, . . • 37 J 
 
 Each motion or notice thereof to opposite party, . . 20 
 
 Serving subpoena to testify, same as at law. 
 
INDEX. 
 
 ABATEMENT. 
 
 When remedied, by bill of revivor, 588. 
 
 When by supplemental bill, 589. 
 
 Death of co-plaintiff or co-defendant does not cause, 590. 
 
 ACCIDENT. 
 
 May be proved, under equitable plea of payment, 42. 
 
 Definition of, 51. 
 
 Jurisdiction of equity, in oases of, when maintainable, 51—2. 
 
 Loss of instruments, how remedied, 52, 55—6. 
 
 When equity will not relieve in case of, 54. 
 
 What courts have equity jurisdiction in cases of, 55. 
 
 How relief granted, 117. 
 
 ACCOUNT. 
 
 Jurisdiction in cases of, 118, 121, 126. 
 
 Certificate of counsel to bill of, 118. 
 
 Mode of proceeding in equity, 120. 
 
 Grounds of equitable jurisdiction, 120-1. 
 
 In cases of agency, 125. 
 
 In cases of apportionment and contribution, 126. 
 
 Defendant may have decree in, 134. 
 
 Matters of defence in, 135. 
 
 Account stated, 135-6. 
 
 When courts will open, 135, 484. 
 
 Liberty to surcharge and falsify, 135, 484. 
 
 Effect in laches in bill for, 136. 
 
 Proceedings for settlement of administration, 137-8. 
 
 Widow may have, of arrears of dower, 149-50. 
 
 On dissolution of a corporation, 1Y3. 
 
 In partnership cases, 174. 
 
 Powers of the master, 175. 
 
 Plea of stated, 483, 694. 
 
 Mode of taking, before a master, 543-5. 
 
 Bill for, and receiver, 667. 
 
 Decree for, 708-9. 
 
 ACCOUNT RENDER. 
 
 When it lies, 118-19. 
 
 Defects of action of, 119, 133-4. 
 
 ACTION. 
 
 Equity administered through common law actions, 35. 
 Parties may still resort to, for enforcing an equity, 48. 
 
INDEX. ' 739 
 
 ACT OF ASSEMBLY. 
 
 Contract to procure passage of, void, 91. 
 And contract in violation of, 92. 
 
 ADMINISTRATION. 
 
 Jurisdiction of the orphans' court, 137. 
 
 What are deemed assets, 137. 
 
 When lands to be sold, 137. 
 
 How accounts to be settled, 137. 
 
 Proceedings to enforce settlement, 138. 
 
 When creditors may recover in the orphans' court, 139, 629. 
 
 Order of application of funds to payment of debts, 140. 
 
 Foreign administration, effect of, 144. 
 
 ADMINISTRATOR. See Personal Representatives. 
 Power of, appointed in another state, 143. 
 When to transmit assets to foreign administrator, 143. 
 When courts may dismiss, 235. 
 When further security may be required from, 23.5. 
 
 ADVANCEMENT. 
 
 Definition of, 322. 
 
 What wiU amount to an, 322-3. 
 
 ADVERTISEMENT. 
 
 When notice may be given to parties by, 55. 
 
 AFFIDAVIT. 
 
 Of loss of instrument, when necessary, 53, 438. 
 
 To bill of discovery in and of an execution, 393, 439. 
 
 When requisite to bill in equity, 438. 
 
 To bill of interpleader, 439, 664. 
 
 To demurrer, 456. 
 
 To plea, 486. 
 
 To answer, 500. 
 
 Demurrer for want of, 691. 
 
 AGENT. 
 
 May not contract for his own benefit, 101. 
 When turned into a trustee, 101-2. 
 Of corporation, cannot contract with principal, 105. 
 When principal affected by notice to, 115. 
 Liability to account, in equity, 125-6. 
 
 ALIEN. 
 
 May sue in equity, 406. 
 
 AMENDBIENT. 
 
 Demurrers to amended bUls, 464. 
 
 To bills, 508, 510. 
 
 What niay be introduced by, 508. 
 
 When a matter of right, 509. 
 
 When cause must be shown, 509. 
 
 Of bill, authorizes change of answer, 510. 
 
 How made, 511. 
 
 When to be made, 511. 
 
 When answer may be amended, 511-12. 
 
 Order to amend, 707. 
 
 Rules of practice, 721, 727. 
 
740 INDEX. 
 
 ANNUITY. 
 
 Fund may be set apart to answer, when charged on real estate, 145-6. 
 
 ANSWEK. 
 
 Right to discovery by, 379. 
 
 Discovery must be material, 381. 
 
 In support of a plea of purchase without notice, 390. 
 
 No person excused from answering bill to discover property in aid of 
 an execution, 393. 
 
 Form of infant's, 408. 
 
 How compelled, 452-3. 
 
 Accompanying demurrer, when to be excepted to, 468. 
 
 When plea to be accompanied by, 473-5. 
 
 Form of plea and answer, 475. 
 
 In support of a plea must be full, 476. 
 
 Nature of defence by, 490. 
 
 Must be full, 490. 
 
 When defendant may protect himself from discovery by, 491-2. 
 
 What defendant excused from answering, 492-3. 
 
 Divided into defence and discovery, 493-4. 
 
 Requisites of, 494-5. 
 
 Certainty required in, 495-6. 
 
 Discovery of documents referred to in, 496-7. 
 
 To amended bill, 497. 
 
 Joint and several, 498. 
 
 Form of; 498-9. 
 .^' Must be signed by counsel, 499. 
 
 Must be on oath, 499. 
 
 Effect of, not under oath, 499 n., 519 n. 
 y Form of affidavit to, 500. 
 ' Before whom sworn, 500. 
 
 Effect of, when cause set down on bill and, 500-1. 
 
 Exceptions to, 502-7, 702. 
 
 Amendment of, 511-12. 
 
 Effect of admission in, 517-18. 
 
 Weight of, on the hearing, 518-20. 
 
 Answer and disclaimer, 698. 
 
 Formal parts of, 699. 
 
 Of an infant, 700. 
 
 Of a trustee, 700. 
 
 Insisting on the benefit of the statute of frauds, 700. 
 
 Rules of practice, 723, 727. 
 
 APPEAL. 
 
 From final decree only, 562. 
 
 What is a final decree, 562-3. 
 
 Conditions of, 564-6. 
 
 Stay of proceedings by, 564-6. 
 
 Within what time a party may appeal, 564. 
 
 To be determined on the merits, 564. 
 
 Perishable property may be sold, notwithstanding, 565. 
 
 Effect of, on execution, 565. 
 
 Entered in the court below, 568. 
 
 How removed, 568-9. 
 
 Appearance to, 569. 
 
 Specification of errors, 569. 
 
 Paper books, 569-71. 
 
INDEX. 741 
 
 A P P E A L — Oontinued. 
 Argument of, 571-3. 
 List of short causes, 572. 
 Evidence on, 573. 
 Decree on, 573. 
 Remittitur, 573-4. 
 From the court of nisi prius, 574. 
 To the supreme court of the United States, 574-5. 
 From decree of the orphans' court, 644-5. 
 Petition for, 689. 
 Decree of reversal, 713. 
 
 APPEAEANCE. 
 
 When to be entered, 446. 
 How entered, 447. 
 How compelled, 447. 
 Process of attachment, 447. 
 Sequestration, 447-8. 
 Rules of practice, 718. 
 
 APPLICATION OF PAYMENTS. 
 
 Right of parties to make, 122. 
 How made by law, 122. 
 In case of partnership, 124. 
 On official bonds, 125. 
 
 APPOINTMENT. 
 
 Power of, when deemed a trust, 305, 
 Eft'ect of general power of, 306-7. 
 Construction of power of, 307-8. 
 
 APPOKTIONMENT. 
 
 Jurisdiction of equity in cases of, 126. 
 When rent may be apportioned, 127. 
 
 ARTICLES OF AaREEMENT. 
 
 May be enforced by ejectment, 39. 
 When reformed in equity, 117. 
 
 ASSETS. 
 
 What are deemed, 137, 308. 
 
 No distinction between legal and equitable, 139. 
 
 Order of application of funds, 140. 
 
 Marshalling of, 140-1. 
 
 Power of executors, &c., over, 142. 
 
 Jurisdiction in distribution of, 309. 
 
 ASSIGNMENT. 
 
 When deemed fraudulent, 112-13, 295. 
 Effect of, as to creditors, 295-6. 
 AVhat may be assigned, 296-7, 300-1. 
 Consideration not necessary to be executed, 297. 
 How made, 298. 
 
 Effect of, on collateral securities, 299. 
 Assignees, not regarded as purchasers, 391. 
 Bill to cancel, in fraud of creditors, 658. 
 
742 INDEX. 
 
 ASSISTANCE. 
 
 When writ of, may be issued, 264. 
 In aid of a decree, 535-6. 
 Form of writ of, 715. 
 
 ASSUMPSIT. 
 
 An equitable action, 35. 
 Principles of, 37. 
 
 ATTACHMENT. 
 
 To compel appearance, 447. 
 
 How executed, 447. 
 
 When bailable process, 447, 453, 535. 
 
 To compel an answer, 453. 
 
 To enforce decree, 533-5. 
 
 In the orphans' court, 638-9. 
 
 Form of writ of, 713. 
 
 ATTORNEY. 
 
 When contract of, with client, avoided in equity, 95, 98, 99. 
 When agreement for contingent fee may be enforced by, 99, 100. 
 Not compellable to make discovery, 384. 
 AUCTION. 
 
 Agreement in fraud of sale by, when void, 90. 
 
 AUDITOR-GENEEAL. 
 
 To file bill to discover property defeasibly held, 394. 
 AUDITORS. 
 
 Powers of, 636. 
 In what cases appointed, 646. 
 Their duties, 646-7. 
 Exceptions to reports of, 647. 
 Effect of report of, 648-9. 
 Costs of audit, 649. 
 
 AVERAGE. 
 
 Definition of general average, 131. 
 Contribution in case of, 131. 
 
 AWARD. 
 
 Plea of, 484. 
 BANKRUPT. 
 
 Suits by, 406. 
 
 Proceedings on bankruptcy of plaintiff, 406. 
 
 BILL. 
 
 Must aver fraud specifically, 72. 
 
 Of discovery, requisites of, 381-4. 
 
 In aid of an execution, form of, 393. 
 4 Preparation of, 423. 
 ' Different kinds of, 423. 
 
 Original, how divided, 424. 
 
 Bequisites of, 424-5. 
 
 Prayer of, 425-6. 
 
 What put in issue by, 426-7. 
 
 Scandal and impertinence in, 427-8. 
 
 Multifariousness to be avoided, 428-9. 
 
 Parts of, 429. 
 
INDEX. 743 
 
 BILL — Con tinned. 
 
 The address, 429. 
 
 The introduction, 429. 
 
 The stating part, 430-1. 
 
 The charge of confederacy, 431. 
 
 The charging part, 432. 
 
 The jurisdiction clause, 433. 
 
 The interrogating part, 433-4. 
 
 The prayer for reUef, 435-6. 
 
 The prayer for process, 437. 
 
 To be signed by counsel, 437-8. 
 
 When affidavit is necessary, 438-9. 
 
 Proceedings on filing, 440. 
 
 Supplemental bill, 576. 
 
 Bills of revivor, 588. 
 
 Bills of review, 595. 
 
 Cross-biUs, 603. 
 
 Parts of an original, 650-3. 
 
 Bill for specific performance, 653. 
 
 To cancel a biU of exchange, 654. 
 
 To cancel an assignment in fraud of creditors, 658. 
 
 For dower, 660. 
 
 For partition, 661. 
 
 Of interpleader, 663. 
 
 For dissolution of a partnership, 665. 
 
 For an account and receiver, 667. 
 
 To wind up an insolvent limited partnership, 66b. 
 
 To restrain waste, 670. 
 
 For an injunction, 671. 
 
 To perpetuate testimony, 673-5. 
 
 For discovery, 676-8. 
 
 Supplemental, 679-80. 
 
 Of revivor, 681. 
 
 Original, in nature of bill of revivor, 6 a 2. 
 
 Of review, 683-5. 
 
 To carry decree into execution, 687. 
 
 Cross-bill, 687. 
 
 Eules of practice, 719. 
 
 BILL OE EXCHANGE. 
 
 Bill to cancel, 654. 
 
 BOND. 
 
 In case of loss, may be declared on without profert, 41. 
 
 When conditional verdict proper, in action on, 46-7. 
 
 Remedy in equity, in case of loss, 52. 
 
 Equity wUl relieve from penalty of, 53. 
 
 To indemnify stakeholder in giving up illegal wager, void, 91. 
 
 Appropriation of payments on, 123-6. 
 
 CANCELLATION. 
 
 When instrument cancelled in equity, 117. 
 
 Bill to cancel a bill of exchange, 654. 
 
 Bill to cancel an assignment in fraud of creditors, 658. 
 
 CAVEAT EMPTOE. 
 
 When maxim of, adopted in equity, 76. 
 
744 INDEX. 
 
 CESTUI QUE TEUST. 
 
 May maintain ejectment, 36. 
 
 Contract of, with trustee, how regarded in equity, 10.^. 
 
 CHANCERY. 
 
 Origin of, in England, 25. 
 
 Court of, refused in Pennsylvania, 11. 
 
 Early efforts to establish, 28-33. 
 
 Case of the court of, 30-5, n. 
 
 Extra territorial jurisdiction of, 193, 248, 
 
 CHARITIES. 
 
 Favoured by the law, 328, 332. 
 
 Will not fail for want of a trustee, 328, 331. 
 
 Principles of statute of charitable uses, 328-9. 
 
 Jurisdiction of equity over, 329. 
 
 Definition of, 329. 
 
 Devise to, when supported, 330-1. 
 
 Intent of donor, to be observed, 331. 
 
 Proceedings to establish, 331. 
 
 When object not ascertained, 332. 
 
 Execution of power aided in favour of, 332. 
 
 Doctrine of cy pres, 333. 
 
 How affected by rule against perpetuities, 334. 
 
 Power of alienation, 335. 
 
 Statutes of mortmain, 335. 
 
 When gifts to, void, 336. 
 
 CLERGYMEN. 
 
 When contract with, avoided in equity, 100, 101, n. 
 
 COMMISSIONERS. 
 
 In partition, how appointed, 152. 
 
 Their compensation, 152. 
 
 To take testimony, 523. 
 
 Proceedings on return of commission, 526. 
 
 COMMON LAW. 
 
 Equity administered in courts of, 27. 
 
 And through forms of, 34-5. 
 
 Jurisdiction not ousted by grant of equitable jurisdiction, 48. 
 
 Eemedies concurrent, 49. 
 
 Contract in violation of, void, 92. 
 
 COMMON PLEAS. 
 
 What courts of, have equity jurisdiction, 55, 59, 69, 118, 147, 167, 184, 
 226, 240, 266, 378, 392, 395. 
 
 COMPENSATION. 
 
 When decreed, in equity, 214-16. 
 
 COMPOSITION. 
 
 Agreement in fraud of, when void, 97-8. 
 
 CONCEALMENT. 
 
 When fraudulent, 75-8. 
 
 CONCURRENT REMEDIES. 
 
 When parties may proceed at law or equity, 48-9, 121 u. 
 Foundation of concurrent jurisdiction of equity, 51. 
 
INDEX. 745 
 
 CONDITION. 
 
 la restraint of marriage, when void, 89. 
 
 CONDITIONAL VERDICT. 
 
 Mode of enforcing an equity by, 35. 
 
 How framed, to compel payment of purchase money, 39 n. 
 
 When proper, 46. 
 
 Must not be in the alternative, 47. 
 
 CONSIDEEATION. 
 
 Want of, may be proved under plea of payment, 42. 
 Illegal, contract avoided by, 91-2. 
 What considerations are illegal, 93. 
 
 CONSTABLE. 
 
 When additional security may be required from, 236. 
 
 CONSTRUCTIVE FRAUD. 
 
 Definition of, 87. 
 
 Different kinds of, 87. 
 
 Marriage brokage contracts, 87. 
 
 Contracts in fraud of marriage, ^. 
 
 Contracts in restraint of marriage, 89. 
 
 In restraint of trade, 89. 
 
 In fraud of auction sale, 90. 
 
 Against public policy, 91-2. 
 
 Illegal considerations, 93. 
 
 When equity will relieve one of the parties, 94, 
 
 Usurious contracts, 94. 
 
 Gaming contracts, 94. 
 
 Abuse of confidential relations, 95-108. 
 
 Affecting the rights of others, 108. 
 
 Purchase with notice of prior conveyance, 114. 
 
 CONSTRUCTIVE NOTICE. 
 
 What amounts to, 114-16. 
 CONSTRUCTIVE TRUST. 
 
 Distinction between implied and constructive trusts, 351. 
 CONTINGENT FEE. 
 
 When agreement for, may be enforced by attorney, 99-100. 
 CONTRACT. 
 
 What facts are of the essence of, 75. 
 
 Concealment of such facts will avoid it, 75. 
 
 Under pressure of necessity, will be set aside, 82. 
 
 In restraint of marriage, when void, 89. 
 
 In restraint of trade, 89. 
 
 In fraud of auction sale, 90. 
 
 Against public policy, 91. 
 
 Between parties occupying confidential relations, 95-104. 
 
 Between corporations and their officers, &c., 105. 
 
 With sureties, requisites of, 105. 
 
 When time of the essence of, 189, 206. 
 
 When perforpiance of, not enforced in equity, 188-93. 
 
 When rescinded, in equity, 205-6. 
 
 Bfi"ect of, for sale of lands, 211. 
 
 Of decedent, how enforced, 217-24. 
 
 Of lunatics and habitual drunkards, 225. 
 
 48 
 
746 INDEX. 
 
 CONTEIBUTION. 
 
 How enforced, at law, 36. 
 
 Jurisdiction of equity, in cases of, 126-33. 
 
 C0NVEK8I0N. 
 
 When eifected by contract of sale, 211-12, 346. 
 
 By devise, 213, 346. 
 
 When prevented, by election, 213. 
 
 Of infants' property, not permitted, 36n. 
 
 CORPOEATIONS. 
 
 Equitable jurisdiction over, 49, 167. 
 Foreign corporations, 167. 
 Contracts of officers, &c., with, when void, 105. 
 Restraint on disposition of corporation property, 168. 
 Notwithstanding alteration of charter not assented to by corpora- 
 tor, 169. 
 Construction of charters, 169-70. 
 When injunctions awarded against, 170. 
 Jurisdiction over municipal, 170-1. 
 
 How judgment against, enforced in equity, against corporators, 171-2. 
 Account and settlement of equities, on dissolution of, 173. 
 When invasions of franchises will be restrained, 255-6. 
 Officers may be compelled to make discovery, 387. 
 
 COSTS. 
 
 Of proceedings to supply lost deed, 56. 
 
 In dower, 150-1. 
 
 In partition, 153, 160. 
 
 On bill of interpleader, 233. 
 
 Security for, when required, 403-4. 
 
 Discretion in giving, 548-9. 
 
 Authority to tax, 549-50. 
 
 What are "costs in the cause," 550. 
 
 Successful party generally entitled to, 551. 
 
 What will excuse from payment of, 552-3. 
 
 Effect of a tender on, 552. ' 
 
 Effect of laches of the plaintiff, 552. 
 
 When apportioned, 534. 
 
 Set-off of, 534-5. 
 
 When paid out of the fund, 555-6. 
 
 On bill of discovery, 556. 
 
 On bill to perpetuate testimony, 556. 
 
 Of audit, 649. 
 
 Order for security for, 707. 
 
 Fees in equity cases, 735-7. 
 
 COVENANT. 
 
 An equitable action, 35. 
 
 How used to enforce equitable rights, 38. 
 
 When violations of, restrained by injunction, 250. 
 
 CRIMINAL PROSECUTION. 
 
 Agreement to suppress, when void, 92. ■ 
 
 CROSS-BILL. 
 
 Nature of, 603. 
 
 When necessary, 603-5, 628. 
 
INDEX. 747 
 
 CROSS-BIL L — Continued. 
 A mode of defence, 604. 
 Construction of, 605. 
 Practice on, 605-6. 
 Precedent for, 687. 
 Rules of practice, 730, ' 
 
 DAMAGES. 
 
 -When decreed, in equity, 214. 
 
 DEBT. 
 
 An equitable action, 35. 
 
 DECEDENTS' CONTRACTS. 
 
 When enforced in the orphans' court, 217, 219. 
 
 Proof of, 218. 
 
 Proceedings to enforce, 219-22. 
 
 Construction of executory agreements, 221. 
 
 Decree, how executed, 221-2. 
 
 How proved in the common pleas, 223-4. 
 
 How ground rent extinguished by executors, Ac, 224. 
 
 DECREE. 
 
 Defendant may have decree in account, 134. 
 
 On bill for assignment of dower, 149-50. 
 
 In partition, 153, 1.39. 
 
 On bill of interpleader, 232. 
 
 Pro confesso, 447, 449, 530. 
 
 Interlocutory or final, 529. 
 
 Proceedings on interlocutory, 529. 
 
 What is a final, 530. 
 
 How drawn up, 53J.. 
 
 Exceptions to draft of, 531. 
 
 Form of, 531. 
 
 Correction of mistakes in, 531. 
 
 For payment of money to be entered up, 531-2. 
 
 For performance of specific act, 532. 
 
 Effect of, 532. 
 
 From what, an appeal lies, 562-3. 
 
 Bill to carry, into execution, 687. ' 
 
 Formal parts of, 708. 
 
 For an account, 708-9. 
 
 For redemption of goods pledged, TO:*. 
 
 For partition, 710. 
 
 For specific performance, 712. 
 
 For dower, 712. 
 
 For perpetual injunction, 713. 
 
 Of reversal on appeal, 713, 
 
 Rules of practice, 733. 
 
 DEED. 
 
 How pleaded, in case of loss, 41. 
 Loss of, how supplied, 55. 
 
 DEFENCE. 
 
 Eight to plead an equitable, at law, 3 5. 
 
 To equitable ejectment, 39. 
 
 To ejectment for purchase money, 40 n. 
 
748 INDEX. 
 
 DEFENCE— Continued. 
 
 Equitable, may be proven under general issue, 41. 
 
 Or specially pleaded, 41. 
 
 What must be established under equitable, 42. 
 
 Previous notice to be given of, 42. 
 
 Proceedings for want of equity in notice, 42. 
 
 Grounds of, in equity, 450. 
 
 Different forma of, 450-1. 
 
 May be combined, 451. 
 
 Each must apply to a separate part of the bill, 451. 
 
 Rule to demur, plead, or answer, 452. 
 
 Notice of rule, 452-3. 
 
 Process to compel answer, &o., 453- 
 
 DEMUERBE. 
 
 When objection to the jurisdiction must be taken by, 49. 
 
 Nature of, 455. 
 
 May be to part of the bill, 455. 
 
 If too general, to be overruled, 456. 
 
 To be signed by counsel, 456. 
 
 And supported by affidavit, 456. 
 
 Proceedings, if vexatious or frivolous, be put in, 456. 
 
 To particular interrogatories, 457, 463. 
 
 What admitted by, 457. 
 
 Causes of, to be specified, 457. 
 
 What may be assigned for cause of, 458. 
 
 Speaking demurrer, what, 458. 
 
 Demurrer ore tenus, 458. 
 
 May be to relief or discovery, 458. 
 
 Grounds of, to original bills for relief, 459. 
 
 To the jurisdiction, 459-61. 
 
 Where plaintiff's remedy is barred, 461. 
 
 To the disability of the plaintiff, 461-2. 
 
 To the substance of the bill, 462. 
 
 To the form of the bill, 463. 
 
 To bills of discovery, 463. 
 
 To amended bill, 464. 
 
 To supplemental bill, 465. 
 
 Frame of, 465-6. 
 
 Partial demurrers, 466. 
 
 Proceedings on, 467. 
 
 Hearing of, 467. 
 
 If allowed, bill may be amended, 467. 
 
 Proceedings, when overruled, 468. 
 
 Exceptions to answer accompanying, when to be taken, 468. 
 
 To interrogatories, 527. 
 
 Formal parts of, 691. 
 
 For want of an affidavit, 691. 
 
 For want of equity, 692. 
 
 For multifariousness, 692. 
 
 To discovery, 692. 
 
 Rules of practice, 722. 
 DEPOSITIONS. 
 
 When read, in equity, 525. 
 DEVISE. 
 
 To widow, in lieu of dower, 148. 
 
INDEX. 749 
 
 DISCLAIMEK. 
 
 Nature of, 453. 
 
 When defendant may disclaim, 453. 
 
 When to be accompanied by an answer, 453. 
 
 Form of, 454, 697-8. 
 
 Effect of, 454. 
 
 DISCOVERY. 
 
 Orphans' court cannot compel, 50. 
 
 When it gives jurisdiction in equity, 120, 379-80. 
 
 On bill of, proceedings at law stayed, until answer, 243. 
 
 Jurisdiction of the courts in cases of, 378. 
 
 In what cases a plaintiff is entitled to, 379. 
 
 What title must be shown, 380-5. 
 
 Must be material, 381-2, 385. 
 
 Does not extend to defendant's case, 381-2. 
 
 Only granted in aid of civil proceedings, 383. 
 
 Refused, if it subject the defendant to penalties, &c., 383. 
 
 When granted in aid of the jurisdiction of another court, 383. 
 
 Not in aid of inferior courts, 383. 
 
 Or of proceedings before arbitrators, 384. 
 
 In aid of a foreign jurisdiction, 384. 
 
 When not compelled, 384, 386. 
 
 Not enforced against a witness, 386. 
 
 Except officers of corporations, 387. 
 
 Or where the parties have rendered themselves liable to a decree, 387-8. 
 
 When purchaser protected from making, 388. 
 
 Who is deemed such a purchaser, 389-90. 
 
 What a purchaser must answer to, 390. 
 
 In aid of an execution, 392. 
 
 Against whom compelled, 392. 
 
 Parties to blU for, 392. 
 
 Requisites of such bill, 393. 
 
 Affidavit and interrogatories, 393. 
 
 No person excused from answering, 393. 
 
 Bill of, to discover property defeasibly held, 394. 
 
 Process on bill of, in aid of execution, 445. 
 
 Proceedings thereon, 445. 
 
 Effect of service of process, 445-6. 
 
 Demurrer to, 458, 463. 
 
 Of documents referred to in answer, 496-7. 
 
 Costs on bill of, 556. 
 
 Bills of, 676-8. 
 
 Demurrer to, 692. 
 
 DISMISSAL. 
 
 Right of plaintiff to dismiss his bill, 513. 
 Order for, 707. 
 
 DISSOLUTION. 
 
 Of a corporation, how equities settled, in case of, 173. 
 Of partnership, proceedings on, 174. 
 When decreed during the term, 176. 
 
 DISTRIBUTION. 
 
 Jurisdiction of the orphans' court to decree, 139, 629. 
 Where made, in case of ancillary administration, 143. 
 
750 INDEX. 
 
 DISTKIGT COUKTS. ' 
 
 Equity jurisdiction of, 55, 59, 69, 118, 147, 167, 184, 226, 240, 266, 
 378, 395. 
 DOCKET. 
 
 What to be entered on, 440. 
 
 Parties and their solicitors to have access to, 440. 
 
 DO C UMEN TS. See Production. 
 How authenticated, 526. 
 
 DOWEK. 
 
 Equitable jurisdiction in, 147, 149. 
 
 Definition of, 147. 
 
 Remedy for, at law, 147. 
 
 When maintainable, 147. 
 
 When jurisdiction of equity exclusiTe, 148. 
 
 Widow's share under intestate laws, 148. 
 
 Devise to be in lieu of, 148. 
 
 Widow may elect her dower, 148. 
 
 May be cited to elect, 148. 
 
 Proceedings in equity, to assign, 149. 
 
 Right to an account, 149. 
 
 Costs in, 150-1. 
 
 Bill for, 660. 
 
 Decree for, 712. 
 
 DKUNKENNESS. See Habitual DrunJcard. 
 When contract avoided by, 80-1. 
 
 DUKESS. 
 
 When contract avoided by, 82. 
 
 EJECTMENT. 
 
 An equitable action, 35. 
 
 Cestui que trust may maintain, 36. 
 
 Substitute for bill in equity, 37. 
 
 To compel performance of -a trust, 39. 
 
 To enforce articles of agreement, 39. 
 
 To compel payment of purchase money, 40 3. 
 
 Equitable title, a sufficient defence in, 43. 
 
 Under plea of not guilty, 44. 
 
 Principles of equitable action of, 44. 
 
 Conditional verdict in, 4-6. 
 
 ELECTION. 
 
 Widow's right of, 148. 
 
 Proceedings to determine, 148. 
 
 When binding, 148. 
 
 When conversion prevented by, 213-14. 
 
 Doctrine of, in wills, 310-11. 
 
 Effect of acceptance, 312. 
 
 Effect of election to take against the wiU, 313-15. 
 
 When party put to his election, 315. 
 
 When devise or bequest will bar dower, 316. 
 
 Widow's election, 316-7. 
 
 How enforced, 316-7. 
 
 Of husband, under his wife's will, 318. 
 
 Order to elect, 707. 
 
INDEX. 751 
 
 EQUITABLE DEFENCE, ^qq Defence. 
 
 EQUITABLE TITLE. 
 
 SufRoient to support ejectment, .36. 
 Or to defend possession, 43-4. 
 Bound by the lien of a judgment, 48. 
 
 EQUITY. 
 
 Historical view of, in Pennsylvania, 25. 
 
 Definition of, 26 n. 
 
 Principles of, part of the law, 26, 27. 
 
 Administered in common law forms, 27, 34. 
 
 All courts to administer, 29 n. 
 
 How enforced, at law, 36. 
 
 Parties may still resort to law for enforcing, 48. 
 
 Jurisdiction of the courts limited, 49. 
 
 When general, 49. 
 
 Division of equitable jurisdiction, 51. 
 
 Extra territorial jurisdiction of, 193-4, 248-9. 
 
 Demurrer for want of, 692. 
 
 ESTREPBMENT. 
 
 To stay waste, when granted, 238-9. 
 Effect of, 238-9. 
 
 EVIDENCE. 
 
 Equitable defence may be proven at law under general issue, 41. 
 
 What may be given in, under plea of payment, 42. 
 
 When evidence under notice of equitable defence may be rejected, 42-3. 
 
 Of lost deeds, how perpetuated, 55-6. 
 
 Of lost record, 58. 
 
 Rules of, in equity, 515-16. 
 
 What must be proved, 516, 520-4 
 
 When statements in bill evidence, 516-17. 
 
 Admissions in answer, 517-18. 
 
 Effect of, as evidence for defendant, 518-20. 
 
 Documentary evidence, 522. 
 
 Examination, viv9. voce, 523. 
 
 Who are competent witnesses, 523. 
 
 Examination of witnesses, 523-4. , 
 
 Testimony, how taken, de bene esse, 524. 
 
 When depositions may be read, 525. 
 
 Form of general interrogatory, 525. 
 
 Documents, how authenticated, 526. 
 
 Proceedings on return of commission, 526. 
 
 Demurrers to interrogatories, 527. 
 
 When depositions suppressed, 527. 
 
 Order for examination of a party, 703. 
 
 Rules of practice, 728-30. 
 
 EXAMINER. 
 
 Duties of, in taking testimony, 523-4. 
 Rules of practice, 729. 
 
 EXCEPTIONS. 
 
 When taken to answer accompanying demurrer, 468. 
 To answer for scandal or impertinence, 502. 
 Or for insufficiency, 502. 
 
752 INDEX, 
 
 EXCEPTIONS— ConimMecZ. 
 Practice on, 502-5. 
 When to be put in, 503-4, 507. 
 To. answers to amended bills, 504, 507. 
 Must be in writing, 504. 
 How intituled, 504. 
 Form of, 505, 702. 
 Hearing of, 506. 
 
 If allowed, defendant to answer, 506. 
 To be signed by counsel, 507. 
 To further answer, 507. 
 To draft of decree, 531. 
 
 To master's report, 546-7, 702. ' 
 
 Rules of practice, 727, 732. 
 
 EXECUTION. 
 
 At common law, for equitable purposes, 35. 
 
 Special execution may be awarded at law, to enforce an equity, 47. 
 
 Kquitable estate may be sold on, 48. 
 
 Discovery in aid of, 392-3, 678. 
 
 In equity, 533. 
 
 By process of contempt, 533-5. 
 
 By common law process, 533. 
 
 Against a corporation, 533-4. 
 
 Attachment, not bailable, 535. 
 
 Sequestration, 535. 
 
 Examination ^0 interesse suo, 535. 
 
 Writ of assistance, 535-6. 
 
 For and against whom process of, may issue, 535-6. 
 
 EXECUTOR. See Personal Representatives. 
 When courts may dismiss, 23. 
 Or require security from, 235. 
 Responsibility for acts of co-executors, 359-60. 
 
 EXTENT. 
 
 Creditor in, liable to account in equity, 134. 
 
 FALSIFICATION. 
 
 Definition of, in equity, 135. 
 Liberty to surcharge and falsify, 709. 
 
 FEES. 
 
 Equity fee bills, 735-7. 
 
 FEIGNED ISSUE. 
 
 On interlocutory decree, 523. 
 
 Practice on, 537. 
 
 When awarded, 537. 
 
 How framed, 538. 
 
 Court may order parties to be examined on, 538. 
 
 Proceedings after verdict, 538-9. 
 
 Motion for new trial, 539. 
 
 How reviewed, 540. 
 
 When writ of error lies, 540-1. 
 
 Effect of verdict, 541. 
 
 In the orphans' court, 636-7. 
 
 FEME COVERT, ^e^ Married Women. 
 
INDEX. 753 
 
 FOKFEITURE. 
 
 Jurisdiction of equity to relieve from, 53. 
 
 PKANCHISE. 
 
 When invasion of, restrained by injunction, 255-6. 
 
 FRAUD. See Constructive Fraud. 
 
 May be proved under equitable plea of payment, 42. 
 
 When relievable, in equity, 69. 
 
 Definition of, 69-70. 
 
 Different species of, 70. 
 
 Not to be presumed, 71. 
 
 Limitation of the rule, 71 n. 
 
 Must be averred in the bill, 71. 
 
 In specific terms, 72. 
 
 If averred, and not proved, no other relief can be granted, 72. 
 
 By misrepresentation, 72. 
 
 By suppression of the truth, 75. 
 
 Against sureties, 76. 
 
 Unconscionable bargains, 79, 85. 
 
 When instrument will be cancelled, 117. 
 
 FRAUDULENT CONVEYANCE. 
 What conveyances fraudulent, 109. 
 When void as to subsequent creditors, 110. 
 Vest no estate in the grantee, 110. 
 Good between the parties. 111. 
 When assignments in trust, fraudulent, 112. 
 
 Voluntary conveyance, if recorded, good as against subsequent pur- 
 chasers, 116. 
 Bill to cancel assignment in fraud of creditors, 658. 
 
 GAMING. 
 
 All gaming contracts void, 94. 
 
 GENERAL ISSUE. 
 
 Equitable defence may be proven under, 41. 
 
 GOOD WILL. 
 
 When violation of contract for sale of, restrained, 186. 
 
 GROUND RENT. 
 
 When apportioned, 128. 
 
 How extinguished, when vested in persons under disabilities, Ac, 224. 
 
 GUARDIAN. 
 
 When release to, by ward, fraudulent, 89. 
 
 Contract of, with ward, when avoided in equity, 95, 97. 
 
 When settlement with ward, may be opened, 97. 
 
 When courts may dismiss, 235. 
 
 When further security may be required from, 235. 
 
 Jurisdiction of orphans' court over, 361. 
 
 Appointment of, 361-3. 
 
 Removal of, 363. 
 
 Cannot convert the property, 368. 
 
 Guardians ad litem, 407-8. 
 
 Petition for appointment of, 689. 
 
 Rules of practice, 734. 
 
754 
 
 INDEX. 
 
 HABITUAL DRUNKAKD. 
 
 Contracts of, how enforced, 225. 
 
 HEARING. 
 
 Of demurrer, 467. 
 
 Notice that case is set down for, 407, 528. 
 On bill and answer, 500-1, 513, 528. 
 Of exceptions to answer, 505. 
 How case set down for, 528. 
 Paper books to be delivered, 529. 
 HEIRS. 
 
 Bargains with, when set aside in equity, 108. 
 
 HUSBAND AND "WIFE. See Married Women. 
 
 Contract of husband to procure wife's concurrence not enforced, 192- 
 Powers of husband of lunatic wife, 377. 
 Suits by, 409. ' 
 
 IDIOT. See Lunatic. 
 
 IGNORANCE. 
 
 Of law, not relieved against, in equity, 59-60. 
 
 IMBECILITY. 
 
 "What, sufficient to avoid a contract, 81. 
 
 IMPERTINENCE. 
 
 Reference for, 427, 502. 
 
 Nature of, 428. 
 
 How exceptions for, to be taken, 428, 502-3. 
 
 Rules of practice, 720. 
 
 IMPLIED TRUST. 
 
 Nature of, 337. 
 
 "When enforced, 337-9, 343, 351. 
 
 How proved, 340, 342. 
 
 In whose favour raised, 341. 
 
 "When trust not implied, 341. 
 
 Evidence of, 342. 
 
 Trusts ex maleficio, 344^5. 
 
 Difference between implied and constructive trusts, 351. 
 
 IMPROVEMENTS. 
 
 "When compensation for, decreed, 215. 
 Equitable lien for, 348-9. 
 
 INADEQUACY. 
 
 "When evidence of fraud, 85. 
 
 When ground for refusing specific performance, 204. 
 
 INDEMNITY. 
 
 Promise to indemnify on performance of illegal act, void, 92. 
 
 INFANT. 
 
 Contracts of, void, 82-3. 
 
 "When binding, 83. 
 
 "When to have a day in court, 153, 408-9. 
 
 Appointment and removal of guardians, 361-3. 
 
 How discharged from illegal custody, 364. 
 
 Duties of parents, 365. 
 
INDEX. 755 
 
 INFANT— Continued. 
 
 AUoAvance for maintenance of, 365. 
 
 Snits by, in equity, 407. 
 
 Guardians ad litem, 407. 
 
 Decree pro confesso cannot be obtained against, 408. 
 
 Answer of, 408, 700. 
 
 Kftect of decree, 408. 
 
 Day given to show cause against decree, 712. 
 INJUNCTION. 
 
 Jurisdiction in cases of, 240. 
 
 When granted to restrain disposition of corporation or partnership pro- 
 perty, 168. 
 
 Or pledge or corporation or partnership credit, 168. 
 , Or AQolatiou of corporate powers, 170, 257. 
 
 Against municipal corporations, 171. 
 
 Against partners, when granted, 175-6, 256. 
 
 To restrain violation of contract for sale of good will, 186, 256. 
 
 On bill of interpleader, 232. 
 
 Different kinds of, 241. 
 
 In what cases granted, 242-56. 
 
 To restrain proceedings at law, 242-3. 
 
 To restrain alienation of property pendente lite, 243. 
 
 To restrain waste, 244-5. 
 
 In cases of nuisance, 246-50. 
 
 To restrain violation of covenant, 250, 256. 
 
 In cases of trespass, 251. 
 
 To restrain piracy of trade marks, 253-5. 
 
 To restrain disclosure of secrets of trade, 255. 
 
 To restrain invasion of corporate franchises, 255-6. 
 
 Requisites for obtaining, 257-60. 
 
 When counter affidavits will be heard, 261-2. 
 
 Mode of obtaining, 262-3. 
 
 Party to give security, 263. 
 
 Application to dissolve, 263. 
 
 When made perpetual, 264. 
 
 Breach of, how punished, 264. 
 
 When writ of assistance may issue, 264-5. 
 
 Effect of committal, 265. 
 
 Bills for, 670-1. 
 
 Order for, 706. 
 
 Decree for perpetual, 713. 
 
 Form of writ of, 714. 
 
 Rules of practice, 726. 
 
 INQUEST. 
 
 To make partition, in the orphans' court, 155. 
 
 INSOLVENT. 
 
 Suits by, 406. 
 
 Proceedings on insolvency of plaintiff, 406. 
 
 INSTALMENT. 
 
 When equity will relieve from forfeiture for nonpayment of, on mo rt- 
 gage, 53. 
 INSURANCE. 
 
 Loss of policy, how remedied, 57. 
 
 Policy avoided by misrepresentation or concealment, 77. 
 
756 INDEX. 
 
 INTEKEST. 
 
 Liability of trustees for, 358. 
 
 INTEELOCUTOKY APPLICATION. 
 
 Nature of, 607. 
 Motions and petitions, 607. 
 Distinction between, 607-8. 
 Principal kinds of, 610-11. 
 
 INTEEPLEADEK. 
 
 Jurisdiction in cases of, 226. 
 
 Principles of, 226-7. 
 
 How enforced in common law actions, 227. 
 
 By notice to adverse claimant, 227. 
 
 By scire facias at common law, 227-8. 
 
 Proceedings at law, 228. 
 
 By bill in equity, 229. 
 
 When it lies, 229-30. 
 
 Requisites of the biU, 231-2. 
 
 Injunction upon, 232. 
 
 Decree, 232. 
 
 Costs, 233. 
 
 Bill of, 663. 
 
 INTEREOGATORIES. 
 
 Defendant in biU of discovery in aid of an execution, may be examined 
 
 on, 393. 
 Nature of, 433. 
 
 To be divided and numbered, 434. 
 Form of general, to witnesses, 525. 
 Demurrer to, 527. 
 Forms of, 702-6. 
 
 ISSUE. See Feigned Issue. 
 
 JOINT CLAIM. 
 
 May be enforced, at law, against representatives of deceased party, 41. 
 
 JUDGMENT. See Special Judgment. 
 
 At law, may be entered specially, to enforce an equity, 47. 
 
 Binds equitable rights, 48. 
 
 Against corporation, how enforced in equity against corporators, 171-2. 
 
 Judgment creditor, not a purchaser, 391. 
 
 JURISDICTION. 
 
 When objection to, may be taken by demurrer, 49, 459-61. 
 
 Equity jurisdiction of the courts is limited, 49. 
 
 When general, 49. 
 
 What courts have chancery jurisdiction, 55, 59, 69, 118, 147, 167, 184, 
 
 226, 240, 266, 378, 395. 
 Extra territorial jurisdiction of equity, 193-4. 
 Of the orphans' courts, 217, 266. 
 Of the supreme court and common pleas when equal, 477- 
 
 JUEY TEIAL. 
 
 Advantages of, 28 n. 
 
 JUSTICE OF THE PEACE. 
 
 When additional security may be required from, 236. 
 
INDEX. 757 
 
 LANDS. 
 
 Deemed assets for payment of debts, 137. 
 
 When to be sold, 137. 
 
 Proceedings to recover legacy charged on, 144—5. 
 
 Held by a partnership, how treated in equity, 179-81. 
 
 LEGACY. 
 
 Condition in restraint of marriage, annexed to, void, 89. 
 
 Recoverable at law, 144. 
 
 When charged on real estate, in the orphans' court, 144-5. 
 
 When fund may be set apart for payment of contingent, 145. 
 
 Proceedings for such purpose, 145-6. 
 
 Chattels may be bequeathed for life, 236. 
 
 Legatees to give security, 237. 
 
 When deemed a satisfaction, 319-20. 
 
 When a release of a debt, 323. 
 
 When cumulative, 323-4. 
 
 When charged on lands, 349-50. 
 
 LIEN. 
 
 Of judgment, binds equitable title, 48. 
 
 Of widow's share, under sale in partition, 159. 
 
 Nature of equitable, 347. 
 
 For unpaid purchase money, 347-8. 
 
 For repairs and improvements, 348-9. 
 
 For charge of debts and legacies, 349. 
 
 When legacy becomes a lien, 350. 
 
 Of decree in equity, 532. 
 
 LIMITATION. See Statute of Limitations. 
 
 LIMITED PARTNERSHIP. 
 
 Special partner may have account in equity, without dissolution, 174, 
 Appointment of receiver, in ease of insolvency of, 616 n. 
 BiU to wind up insolvent, 668. 
 
 LIS PENDENS. 
 
 When notice to purchasers, 114. 
 
 Transmission of legal title, no bar to specific performance, 210. 
 
 LOSS. 
 
 Of bond or deed, how remedied at law, 41, 52-3. 
 
 In equity, 52-3. 
 
 Of unsealed security, how remedied, 52. 
 
 Form of bill on lost instrument, 52-3. 
 
 Of deeds, how supplied, 55. 
 
 Proceedings on lost mortgage, 5G._ 
 
 Of policy of insurance, how remedied, 57. 
 
 Of record, how supplied, 58. 
 
 LUNATIC. 
 
 Deed of, may be avoided, 79- 
 
 Contract of, deemed fraudulent, 80. 
 
 When binding, 80. 
 
 Contract of, how enforced, 225. 
 
 Jurisdiction of the courts over, 368. 
 
 How exercised, 369. 
 
 Powers of husband of lunatic wife, 377. 
 
 Suits by, how brought, 410. 
 
758 INDEX. 
 
 MAINTENANCE. 
 
 When allowed by tlie courts, 365-7. 
 
 When confined to the income, 367. 
 MAEKET OVERT. 
 
 Doctrine of, not in force here, 39. 
 MARRIAGE. 
 
 Brokage contracts, void, 87. 
 
 And all contracts in fraud of, 88. 
 
 When ante-nuptial settlement fraudulent, 88-9. 
 
 Contracts in restraint of, when void, 89. 
 
 Legal effects of, 370. 
 
 MARRIAGE SETTLEMENT. 
 
 When fraudulent, 88-9. 
 
 Nature of, 279, 282. 
 
 How construed, 279. 
 
 When reformed by articles, 280-1. 
 
 In whose favour reformed, 281. 
 
 When not reformed, 281. 
 
 What may be the subject of, 282. 
 
 Effect of, by infant wife, 283. 
 
 MARRIED WOMEN. 
 
 When their contracts void, 83. 
 
 When binding in equity, 84, 370-1. 
 
 Rights of, under Pennsylvania statute, 84. 
 
 Their powers to contract, 84, 370-2, 377. 
 
 Contracts with their husbands, when valid, 371-3. 
 
 How they may acquire property, 373-4. 
 
 Powers of, over their separate estate, 374-5, 377. 
 
 Parental rights of, 375. 
 
 Power to bind their separate estate, 375-6. 
 
 Powers of husband, in case of wife's insanity, 377. 
 
 Suits by, how brought, 409. 
 
 When to answer separately, 409. 
 
 MARSHALLING OP ASSETS. 
 
 How assets marshalled in equity, 140-1. 
 
 MARSHALLING OP SECURITIES. 
 
 Jurisdiction of equity in, 160. 
 Principle of, 161. 
 
 How effected in Pennsylvania, 161-2. 
 When exercised, 162-6. 
 In cases of partnership, 166. 
 MASTER. 
 
 Powers of, in taking account, 175. 
 
 Reference to, 529. 
 
 Appointment of, 542. 
 
 Proceedings before, 542. 
 
 Powers of, 543. 
 
 Mode of taking accounts before, 543-5. 
 
 Evidence before, 545. 
 
 Who may attend before, 545. 
 
 Compensation of, 540. 
 
 Exceptions to report of, 546-7, 702. 
 
 Rules of practice, 731-2. 
 
INDEX. 759 
 
 MINES. 
 
 Liability to account, in case of waste, arising from working, 134. 
 Working of, not restrained by injunction, 176. 
 When manager will be appointed, 176. 
 
 MISREPKESENTATION. 
 
 When fraudulent, 72-3, 78. 
 When equity will relieve against, 74. 
 Contract obtained by any kind of, not enforced, 191-2. 
 MISTAKE. 
 
 May be proved, under equitable plea of payment, 42. 
 
 Definition of, 59. 
 
 Jurisdiction of equity, in case of, 59. 
 
 Of law and fact, 59. 
 
 Of law not relieved against, 59, 62, 66. 
 
 Qualification of the rule, 63 n. 
 
 Of fact, when remedied in equity, 63-4. 
 
 In written agreements, 64—66, 281. 
 
 Specific performance may be decreed, on reformed instrument, 66. 
 
 In execution of a power, 67. 
 
 How relief granted, 117. 
 
 MORTGAGE. 
 
 When equity will relieve from forfeiture for non-payment of instalment, 53. 
 
 Proceedings on lost, 56. 
 
 When fraudulent, will be reformed, 74 n. 
 
 When payable out of the personal estate, 141. 
 
 Nature of, 284-5. 
 
 What is deemed, 285-6. 
 
 Difference between, and conditional sale, 286—7. 
 
 Effect of unrecorded defeasance, 287. 
 
 How created, 287-8. 
 
 To secure future advances, when valid, 288-9. 
 
 When future advances entitled to a preference, 289. 
 
 Tacking, not allowed, 290. 
 
 Remedy by scire facias, 290-1. 
 
 Effect of time on the rights of parties, 291-2. 
 
 How extinguished, 292-3. 
 
 Parties to foreclosure of, 294. 
 
 MORTMAIN. 
 
 Statutes of, how far in force, 335. 
 
 MOTION. 
 
 To be entered on the equity docket, 44, 610. 
 When application may be made by, 607. 
 Distinction between, and petitions, 607-8. 
 Of course, 608. 
 Special, 608. 
 
 OfBoe to be opened on rule day for, 609, 
 When grantable by the prothonotary, 609. 
 Power of judges to grant special, 609. 
 When returnable, 610. 
 
 MULTIFARIOUSNESS. 
 
 Nature of, 428-9. 
 Plea of, 478. 
 Demurrer for, 692. 
 
760 INDEX. 
 
 MUNICIPAL CORPOKATION. 
 
 Jurisdiction of equity over, 170-1. 
 
 NE EXEAT. 
 
 Nature of writ of, 611. 
 
 NEW TRIAL. . 
 
 Motion for, on feigned issue. 539. 
 
 NEXT FRIEND. 
 
 Infant may sue by, 407. 
 
 NON ASSUMPSIT. 
 Equitable plea of, 43. 
 
 NOT GUILTY. 
 
 Equitable title may be proved under plea of, 44. 
 
 NOTICE. 
 
 To be given of equitable defence, 42. 
 
 What such notice must contain, 42. 
 
 Proceedings for want of equity in, 42. 
 
 Under plea of payment with leave to defalcate, 43 
 
 Want of, may be remedied by special plea, 45. 
 
 Purchase with notice of unrecorded deed, fraudulent, 113. 
 
 Who is a purchaser with notice, 114. 
 
 What is notice, 114^16. 
 
 NUISANCE. 
 
 Jurisdiction of equity in cases of, 246. 
 When injunction granted, 246-50. 
 
 OFFICE. 
 
 Contract to procure appointment to, void, 91. 
 
 ORDERS, INTERLOCUTORY. 
 
 For injunction, 706. 
 
 For examination pro interesse suo, 706. 
 
 For security for costs, 707. 
 
 To amend bill, 707. 
 
 To dismiss, on plaintiff's application, 707. 
 
 That plaintiff elect, 707. 
 
 For examination of a party, 708. 
 
 ORPHANS' COURT. 
 
 A court of equity, 50, 630. 
 
 Jurisdiction of, exclusive, 50, 630. 
 
 Pleading in, 50, 630-2. 
 
 Cannot compel discovery, 50, 630. 
 
 Jurisdiction in administration causes, 137-9, 629. 
 
 Where legacy is charged on lands, 144-5, 630. 
 
 May set apart fund to answer contingent legacy, &c., 145. 
 
 Jurisdiction of, in partition, 147, 154, 629-50. 
 
 Proceedings in partition, 154^60. 
 
 Specific performance of decedents' contracts, 217-23, 630. 
 
 Jurisdiction in cases of trust, 266, 630. 
 
 Jurisdiction over guardians, 361, 629-30. 
 
 Practice in, 631. 
 
 Proceedings by petition, 631-2. 
 
 Citation and service, 632-3. 
 
INDEX. 761 
 
 ORPHANS' GOVRT— Continued. 
 
 Notice to heirs, &o., 634. 
 
 Notice to minors, 634. 
 
 Decree pro confesso, 635. 
 
 Powers of, 636. 
 
 Feigned issues, 636-7. 
 
 Investments pendente Kte, 638. 
 
 Effect of decree, 638. 
 
 How decrees of, enforced, 638. 
 
 Attachment and sequestration, 639. 
 
 Proceedings where defendant has, or is about to abscond, 640. 
 
 Process to secure trust funds, 641. 
 
 On final decree, 641-2. 
 
 Proceedings against property sequestered, after decree, 642. 
 
 When defendant may be heard after decree pro confesso, 642. 
 
 Proceedings against non-resident executors, &c., 643. 
 
 Bill of review, 643-4. 
 
 Appeal from decree of, 644-5. 
 
 OWELTY. 
 
 Of partition, how charged on the premises, 158. 
 
 PAPER BOOKS. 
 
 Parties to furnish, 467, 529. 
 
 On appeal to the supreme court, 569-71. 
 
 PARDON. 
 
 Contract to procure, void, 91. 
 
 PARENT AND CHILD. 
 
 When contracts between, avoided in equity, 95-6. 
 Duties and rights of parents, 365. 
 
 PARTIES. 
 
 To partition in the orphans' court, 154-5. 
 
 To discovery in aid of an execution, 392. 
 
 Who may be parties to a suit in equity, 402. 
 
 The commonwealth, 402. 
 
 Corporations, 403. 
 
 Non-residents, 403. 
 
 Who are disabled from being, 405. 
 
 AKenage, outlawry, and attainder, effect of, 406. 
 
 Bankruptcy and insolvency, effect of, 406. 
 
 Effect of infancy, coverture and lunacy, 407. 
 
 Married women, 409. 
 
 Lunatics and persons of infirm mind, &c., 410. 
 
 Who are necessary parties, 411, 418. 
 
 Qualifications of the rule, 411. 
 
 Persons out of the j urisdiction, 412. 
 
 Where there is no personal representative, 413. 
 
 Where discovery of necessary parties is sought, 413. 
 
 Where the parties are numerous, 414-18. 
 
 By members of a corporation, 416. 
 
 Who are parties by representation, 418-20. 
 
 How defect of, may be taken advantage of, 420-1. 
 
 Objection for want of, to be set down for hearing, 421-2. 
 
 Eule as to nominal parties, 422. 
 
 Demurrer for want of, 462. 
 
 49 
 
762 
 
 INDEX. 
 
 PAKTIES — Continued. 
 
 Plea of want of, 478. 
 Rules of practice, 724-6. 
 
 PAKTITION. 
 
 An equitable action, 35. 
 
 Equitable estate, sufficient to support, 40. 
 
 Jurisdiction of equity in, 147, 151. 
 
 Of the orphans' court, 147, 154. 
 
 Proceedings in equity, 151-3. 
 
 When sale may be decreed, 152, 158-9. 
 
 Costs in, 153. 
 
 Proceedings in the orphans' court, 154-60. 
 
 How property to be divided, 156. 
 
 Right to accept at appraisement, 156-7. 
 
 Owelty of partition, 158. 
 
 By widow of deceased co-tenant, 158. 
 
 Bill for, 661. 
 
 Decree for, 710.* 
 
 PARTNERSHIP. 
 
 Equitable jurisdiction in cases of, 49, 167. 
 
 Appropriation of payments, in cases of, 124. 
 
 Contribution to losses, on dissolution, in equity, 133. 
 
 When partners restrained from disposing of property of, 168. 
 
 Proceedings for account, 174-5. 
 
 When receiver appointed, 175, 182-3. 
 
 When partners restrained by injunction, 175-6, 256. 
 
 When dissolution will be decreed, 176. 
 
 Rights of assignee of a partner, 176-7. 
 
 Administration of partnership funds, 178. 
 
 Rights of firm creditors, 178-9. 
 
 Lands held by, how treated in equity, 179-81. 
 
 Duties of surviving partner, 182. 
 
 Suits between firms partly composed of the same persons, ISo. 
 
 Appointment of reoei-^r in cases of, 615-16. 
 
 Bill for dissolution of, 665. 
 
 Bill to wind up insolvent limited, 668. 
 
 PAYMENT. See Application of Payments. 
 
 Effect of equitable plea of, 42. 
 Plea of, with leave to defalcate, 43. 
 
 Distinction between equitable plea of, and plea of, with leave to defal- 
 cate, 43. 
 Presumption of, may be taken advantage of by demurrer, 461. 
 
 PAYMENT INTO COURT. 
 
 In what cases ordered, 620. 
 
 Of trust money, 620. 
 
 Of purchase money on sale of real estate, 621. 
 
 Of partnership funds, 621. 
 
 EfiPect of, 622. 
 
 Application for, how made, 622. 
 
 PENALTY. 
 
 When equity will relieve from, 5' 
 PERFORMANCE. 
 
 Equitable plea of, 43. 
 
INDEX. 763 
 
 PERPETUATION OF TESTIMONY. 
 
 Of lost deed, 55, 399. 
 
 Of lost record, 58, 398. 
 
 Jurisdiction in cases of, 395. 
 
 What bill must set forth, 396. 
 
 Interest of the plaintiff, 396. 
 
 Rule as to discovery, 397. 
 
 Proceedings in the suit, 397-8. 
 
 Service of process on the attorney-general, 398. 
 
 Bills to take testimony de bene esse, 399. 
 
 And to examine witnesses abroad, 399. 
 
 Costs on bill, for, 556. 
 
 Bills for, 673-5. 
 
 PERSONAL REPRESENTATIVES. 
 
 Of deceased joint debtor, may be sued at law, 41. 
 When to sell lands for payment of debts, 137. 
 Proceedings for settlement of administration account, 137. 
 P(5wer of, over the assets, 142. 
 
 May sue here, on foreign letters testamentary, &c., 144. 
 When chargeable with costs, 555-6. 
 
 PETITIOjST. 
 
 When interlocutory application should be by, 608. 
 
 For guardian ad litem, 689. 
 
 For rehearing, 689. 
 
 For an appeal, 689. 
 
 For leave to file a supplemental bill, 690. 
 
 PHYSICIAN. 
 
 When contract of, with patient, avoided in equity, 95, 100. 
 PLEA. 
 
 Nature of, in equity, 467. 
 
 When applicable, 469. 
 
 When several, allowed, 470. 
 
 To part of the bill, 470. 
 
 May be good in part and bad in part, 471. 
 
 Affirmative or pure pleas, 471-2. 
 
 Negative pleas, 472. 
 
 When to be accompanied by an answer, 473-5. 
 
 Form of plea and answer, 475. 
 
 Object of averments in, 475 n. 
 
 Answer in support of, must be foil, 476. 
 
 May be to the relief or discovery, 476. 
 
 Division of pleas to relief, 476. 
 
 To the jurisdiction, 476. 
 
 To the person of the plaintiff or defendant, 476. 
 
 To the frame of the bill, 477. 
 
 Of former suit pending, 477. 
 
 Proceedings on such plea, 478. 
 
 In bar of the suit, 478-9. 
 
 Division of pleas in bar, 479. 
 
 Statutes, 479. 
 
 Statute of limitations, 479-80. 
 
 Statute of frauds, 481. 
 
 Of matters of record, 482. 
 
 Of matters in pais, 483. 
 
764 INDEX. 
 
 PL E A — Continued. 
 Of release, 483. 
 Of stated account, 483. 
 Of award, 484. 
 Of bona fide purchase, 485. 
 Of title in defendant, 485. 
 To amended biU, 486. 
 To have certificate of counsel, 486. 
 Affidavit to, 486. 
 Argument of, 486-7. 
 
 When exceptions to be filed to answer in support of, 487. 
 Proceedings on hearing of, 487. 
 Effect of replication to, 488. 
 Plea must be supported by evidence, 488. 
 When benefit of, saved to the defendant, 488. 
 When ordered to stand for answer, 488-9. 
 If vexatious and frivolous, bill may be taken pro confesso, 489. 
 When ordered to stand for an answer with liberty to except, 489. 
 Formal parts of, 692. 
 Of former suit pending, 693. 
 Of stated account, 694. 
 Of a^release, 694. 
 Of the statute of limitations, 695. 
 
 Of purchase for valuable consideration without notice, 696. 
 Rules of practice, 722. 
 
 PLEADINGS. 
 
 At common law, the vehicles of equity, 35. 
 
 When equitable circumstances must be pleaded, 38, 40. 
 
 How lost instrument pleaded, 41. 
 
 Equitable defence may be specially pleaded, 41, 44^5. 
 
 Effect of equitable plea of payment, 42. 
 
 Pleas of non assumpsit, and performance, 43. 
 
 Payment with leave to defalcate, 43. 
 
 Distinction between equitable plea of payment, and payment with leave 
 
 to defalcate, 43. 
 In equitable ejectment, 44. 
 Mode of pleading equitable defence, 44. 
 Special plea may be filed on the trial, without notice, 45. 
 Effect of filing such plea, 45. 
 Equitable replications, 45. 
 In the orphans' court, 50. 
 What put in issue by, in equity, 426-7. 
 How framed in equity, 430-1. 
 
 POLICY. 
 
 Loss of policy of insurance, how remedied, 57. 
 
 POSSESSION. 
 
 When notice to purchasers, 115. 
 
 POWER. 
 
 When equity will relieve from defective execution of, 54, 67, 332. 
 
 In whose favour, 67-8. 
 
 Of appointment, when deemed a trust, 305. 
 
 When deemed to be executed, 305-6. 
 
 Effect of general power of appointment, 306-8. 
 
 Construction of, 307-8. 
 
INDEX. 765 
 
 PKACTICE. 
 
 Of the supreme court of the United States, bindinjr, 401. 
 Of the English court of chancery, when followed, 401. 
 Equity side of the courts always open, 440. 
 Rules of, in equity, 715-34. 
 
 PRECEDENTS. 
 
 Parts of an original bill, C50-3. 
 
 Bill for specific performance, 653. 
 
 Bill to cancel a bill of exchange, 654. 
 
 Bill to cancel an assignment in fraud of creditors, 658. 
 
 Bill for dower, 660. 
 
 Bill for partition, 661. 
 
 Bill of interpleader, 663. 
 
 Bill for dissolution of a partnership, 665. 
 
 Bill for an account and receiver, 667. 
 
 Bill to wind up insolvent limited partnership, 668. 
 
 Bill to restrain waste, 670. 
 
 Bill for an injunction, 671. 
 
 Bills to perpetuate testimony, 673-5. 
 
 Bills for discovery, 676-8. 
 
 Supplemental biUs, 679-80. 
 
 Bill of revivor, 681. 
 
 Original bill in nature of bill of revivor, 682. 
 
 Bills of review, 683-5. 
 
 Bill to carry decree into execution, 687. 
 
 Cross-bill, 687. 
 
 Petition for guardian ad litem, 689. 
 
 Petition for rehearing, 689. 
 
 Petition for an appeal, 689. 
 
 Petition for leave to file supplemental bill, 690. 
 
 Formal parts of a demurrer, 691. 
 
 Demurrer for want of an affidavit, 691. 
 
 Demurrer for want of equity, 692. 
 
 Demurrer for multifariousness, 692. 
 
 Demurrer to discovery, 692. 
 
 Formal parts of a plea, 692. 
 
 Plea of former suit pending, 693. 
 
 Plea of stated account, 694. 
 
 Plea of a release, 694. 
 
 Plea of the statute of limitations, 695. 
 
 Plea of purchase for valuable consideration without notice, 696. 
 
 Disclaimer, 697. 
 
 Answer and disclaimer, 698. 
 
 Formal parts of an answer, 699. 
 
 Answer of an infant, 700. 
 
 Answer of a trustee, 700. 
 
 Answer insisting on the benefit of the statute of frauds, 700. 
 
 Replication, 701. 
 
 Exceptions to an answer, 702. 
 
 Exceptions to a master's report, 702. 
 
 Interrogatories, 702-6. 
 
 Order for injunction, 706. 
 
 Order for examination pro interesse suo, 706. 
 
 Order for security for costs, 707. 
 
 Order to amend bill, 707. 
 
766 INDEX. 
 
 PKECEDENTS — Co»<mMe(i. 
 
 Order to dismiss, on plaintiff' a application, 707. 
 
 Order that plaintiff elect, 707. 
 
 Order for examination of a party, 708. 
 
 Formal parts of decree, 708. 
 
 Decree for an account, 708-9. 
 
 Decree for redemption of goods pledged, 709. 
 
 Decree for partition, 710. 
 
 Decree for specific performance, 712. 
 
 Decree for dower, 712. 
 
 Decree for perpetual injunction, 713. 
 
 Decree of reversal on appeal, 713. 
 
 Writ of attachment, 713. 
 
 Writ of sequestration, 713. 
 
 Writ of injunction, 714. 
 
 Writ of assistance, 715. 
 PEESUMPTION. 
 
 Fraud not to be presumed, 71. 
 
 Limitation of the rule, 71 n. 
 
 Of payment, may be taken advantage of, by demurrer, 461. 
 PEOCESS. 
 
 Not to issue before bill filed, 440. 
 
 Of subpcena, 440. 
 
 Of scire facias, 445. 
 
 On bill of disc&very, 446. 
 
 Writ of attachment, 713. 
 
 Writ of sequestration, 713. 
 
 Writ of injunction, 714. 
 
 Writ of assistance, 715. 
 
 Rules of practice, 717-18. 
 
 PRO C0NFE8S0. 
 
 When decree, may be entered, 447, 449. 
 How obtained, 449. 
 When absolute, 449. 
 On vexatious or frivolous demurrer, 468. 
 On vexatious or frivolous plea, 489. 
 Rules of practice, 718-19. 
 PRODUCTION. 
 
 Rules as to production of documents referred to, in answer, 496-7. 
 
 What admission sufficient for order of, 624. 
 
 How documents must be described, 625. , 
 
 Proceedings on defect in description, 625. 
 
 Plaintiff's right in the documents required, 625-6. 
 
 Objection to, 626. 
 
 Proceedings for, 626-7. 
 
 When defendant allowed to seal up parts of the documents, &c., 627. 
 
 Effect of order for, G27-8. 
 
 How enforced against plaintiff, 628. 
 
 PROPERT. 
 
 Of lost instrument, dispensed with at law, 41, 52. 
 PROMISSORY NOTE. 
 
 Loss of, how remedied, 52-3. 
 
 Given on illegal consideration, void, 92. 
 
 On gaminij consideration, void, 95. 
 
INDEX. 767 
 
 PUBLIC POLICY. 
 
 Contracts against, void, 91. 
 
 QUIA TIMET. 
 
 Nature of the jurisdiction, 234. 
 
 Powers of the courts in such cases, 234-9. 
 
 When security may be required from trustees, &c., 234-5. 
 
 From executors, guardians, &e., 235. 
 
 Prom public officers, 236. 
 
 When security may be required from legatee for life, &c., of a chattel, 
 
 23V. 
 Restraint of waste, 237-9. 
 
 RECEIVER. 
 
 On dissolution of a partnership, 1V5, 182-3, 615-17. 
 
 Appointment of, 612, 617-18. 
 
 In what cases appointed, 612-19. 
 
 In case of a subsisting partnership, 616. 
 
 In case of limited partnership, 616 n. 
 
 Petition for, 618. 
 
 Affidavits in support of application for, 618. 
 
 Mode of appointment of, 619. 
 
 Duties of, 619. 
 
 Bill for an account and, 667. 
 
 Bill for, in case of insolvent limited partnership, 6(iy. 
 
 RECORD. 
 
 How perpetuated, in case of loss, &c., 58. 
 Of conveyance, notice to purchasers, 114. 
 Plea of matter of, 482. 
 
 REFORMATION. 
 
 Of instrument in equity, 117, 280. 
 
 REGISTER. 
 
 Duties of, in settlement of administration account, 137. 
 
 REHEARING. 
 
 Practice on, 557-61. 
 
 Grounds of, 560. 
 
 Within what time granted, 560. 
 
 Petition for, 560, 689. 
 
 Evidence on, 560-1. 
 
 Rules of practice, 734. 
 
 RELEASE. . . ^ 
 
 Of joint obligor, not relieved against in eciuity, 61. 
 By ward to guardian, when fraudulent, 89. 
 Of principal, discharges surety, 107. 
 Plea of, 48.3, 694. 
 
 REMAINDER. 
 
 When contract for purchase of, set aside in equity, 108. 
 
 RENT. ^Qd Ground Rent. 
 When apportioned, 127. 
 
 REPLEVIN. 
 
 An equitable action, 35. 
 How equity enforced by, 38. 
 
768 IKDEX. 
 
 EEPLICATION. 
 
 When equitable replication may be used, 45. 
 
 Of non solvit, when proper, as the vehicle of an equity, 45. 
 
 Effect of, in equity, 488, 514. 
 
 When requisite, 501, 513. 
 
 Special not allowed, 513. 
 
 How compelled, 514. 
 
 Form of, 701. 
 
 Rules of practice, Y28. 
 
 RESCISSION. 
 
 Grounds on which contracts may be rescinded in equity, 205-6. 
 
 REVERSION. 
 
 When contract for purchase of, set aside in equity, 108. 
 
 REVIEW. 
 
 Nature of bills of, 595. 
 
 When bill of, lies, 595. 
 
 For errors in law, 596. 
 
 For errors in fact, 596. 
 
 Time within which review may be had, 596-7. 
 
 Who may bring bill of, 597. 
 
 After affirmance, on appeal, 597-9. 
 
 Construction of bill of, 599, 600. 
 
 Supplemental bill in nature of bill of, 600. 
 
 Original bill in nature of bill of, 601. 
 
 Bill of, to impeach a decree for fraud, 601-2. 
 
 In the orphans' court, 643-4. 
 
 Bill of, for errors in law, 683. 
 
 For errors in fact; 684. 
 
 After affirmance on appeal, 685. 
 
 REVIVOR. 
 
 Bill of, when necessary, 588. 
 
 When supplemental bill necessary, 589. 
 
 Cannot be had for costs only, 590. 
 
 Defendant cannot revive before decree, 590-1. 
 
 Construction of bill of, 591. 
 
 Practice on, 591-2. 
 
 Distinction between bills of, and bills in nature of, 592. 
 
 Effect of, 592-3. 
 
 Bills of revivor and supplement, 593-4. 
 
 Precedents for bills of, 681-2. 
 
 Rules of practice, 726. 
 
 REWARD. 
 
 Promise of to constable, when void, 91-2. 
 
 RULES OF PRACTICE. 
 
 In courts of equity, 715-34. 
 
 Preliminary regulations, 715. 
 
 Process, 717. 
 
 Service of process, 718. 
 
 Appearance, 718. 
 
 Bills taken pro confesso, 718. 
 
 Frame of bills, 719. 
 
 Scandal and impertinence, 720. 
 
 Amendments, 721, 727. 
 
 Demurrers and pleas, 722. 
 
INDEX. 769 
 
 RULES OF F-RAGIICE— Continued. 
 
 Answers, 723, 727. 
 
 Parties to bills, 724. 
 
 Nominal parties, 726. 
 
 Injunction bUls, 726. 
 
 Bills of revivor and supplemental biUa, 726. 
 
 Affidavits, 727. 
 
 Exceptions to answers, 727. 
 
 Replication and issue, 728. 
 
 Testimony, how taken, 728. 
 
 Form of the last interrogatory, 730. 
 
 Cross-bUls, 730. 
 
 Eeference to and proceedings before masters, 731. 
 
 Exceptions to report of master, 732. 
 
 Decrees, 733. 
 
 Guardians and prochein amis, 734. 
 
 Rehearings, 734. 
 
 General regulations, 734. 
 
 SATISFACTION. 
 
 Doctrine of, in wills, 318-24. 
 
 SCANDAL. 
 
 Reference for, 427, 502. 
 
 Nature of, 428. 
 
 How exceptions for, to be taken, 428, 502-3. 
 
 Rules of practice, 720. 
 
 SCIRE FACIAS. 
 
 On bill of discovery, 445. 
 Service of, 445. 
 Effect of service, 445. 
 
 SEAMEN. 
 
 Contracts with, for wages or prize money, when set aside in equity, 108. 
 
 SECURITY FOR COSTS. 
 
 When required, 403-4. 
 
 When motion for, to be made, 404. 
 
 Bond for, 405. 
 
 Order for, 707. 
 
 SEQUESTRATION. 
 
 To compel appearance, 447-8. 
 
 Nature of, 448. 
 
 Powers of sequestrators, 448. 
 
 To enforce decree, 535. 
 
 Examination pro interesse suo, 535. 
 
 In the orphans' court, 638-9. 
 
 Form of writ, 639, 713. 
 
 Service of, by sherifij 639-40. 
 
 Effect of, 640. 
 
 Not to abate by death, 640. 
 
 Order for examination pro interesse suo, 706. 
 
 SET-OFF. 
 
 May be proved under plea of payment, 43. 
 Notice to be given, 43. 
 In equity, 554-5. 
 
 50 
 
770 INDEX. 
 
 SETTLEMENT. See Marriage Settlement. 
 
 SOLICITOK. 
 
 Preparation of bill by, 423. 
 Muat show authority to sue, 423. 
 
 SPECIAL JUDGMENT. 
 
 Equity enforced by means of, 35, 36, 47. 
 
 SPECIFIC PBRFOKMANCE. 
 
 How enforced, by replevin, 38. 
 
 By action of ejectment, 39. 
 
 By conditional verdict, 46. 
 
 May be decreed on reformed agreement, 66. 
 
 Not decreed, if material facts be suppressed, 75. 
 
 Or if obtained by misrepresentation, 191. 
 
 Or if the price be inadequate, 85. 
 
 When enforced in equity, 184, 206. 
 
 When recovery in damages an inadequate remedy, 185, 188. 
 
 On bill for delivery of specific chattels, 185. 
 
 Of personal acts, when enforced, 186. 
 
 Not of right, but of discretion, 187, 190. 
 
 Contract must be mutual, 187, 207. 
 
 Vendor of lands may have, 187. 
 
 And vendee, 187. 
 
 When not enforced in equity, 188-93. 
 
 When time of the essence of a contract, 189, 206. 
 
 Of contract to procure wife's concurrence not enforced, 192-3. 
 
 When contract respecting lands out of the jurisdiction enforced, 193-4. 
 
 Cases within the statute of frauds, 194, 201. 
 
 Proof of contract must be clear, 202. 
 
 Of inequitable contract not decreed, 203-5. 
 
 When laches will bar, 206. 
 
 What title must be shown by vendor, 206-10. 
 
 Voluntary executory contract not enforced, 210-11. 
 
 Of decedents' contracts, 217-24. 
 
 Of covenant to extinguish ground rent, 224. 
 
 Of contracts of lunatics, &c., 225. 
 
 Bni for, 653. 
 
 Decree for, 712. 
 
 STATUTE OF FRAUDS. 
 
 Provisions of, 194. 
 
 When a bar to specific performance, 195. 
 
 Exceptions to the statute, 19G. 
 
 When contract is admitted by the answer, 196. 
 
 Defendant may admit the contract and rely iipon, 196. 
 
 When contract partly performed, 196. 
 
 What part performance sufiicieut, 197, 200. 
 
 Proof of parol contract must be clear, 200. 
 
 Exceptions not to be further extended, 201-2. 
 
 When contract not reduced to writing in consequence of fraud, 203. 
 
 Plea of, 481. 
 
 Answer, insisting on the benefit of, 700. 
 
 STATUTE OF LIMITATIONS. 
 
 May be taken advantage of, by demurrer, 461. 
 When pleadable in bar, 479. 
 Plea of, 695. 
 
INDEX. 771 
 
 SUBP(ENA. 
 
 Not to issue, before bill filed, 440. 
 
 Form oi; 441. 
 
 Memorandum, 441. 
 
 How issued, 441. 
 
 When returnable, 441. 
 
 Service^ of, 442-4. 
 
 Cannot be served out of the jurisdiction, 444. 
 
 Alias, when to issue, 444. 
 
 Substituted service, when allowed, 444-5. 
 
 SUBKOGATION. 
 
 Jurisdiction of equity to marshal securities, effected by, 161-2. 
 Principles of, 162 n. 
 
 SUIT. 
 
 In equity, how commenced, 401, 423. 
 Plea of pendency of former, 693. 
 
 SUPPLEMENTAL BILL. 
 Demurrer to, 465. 
 When requisite, 576, 579, 582. 
 Different kinds of, 577. 
 What may be added by, 577-8. 
 To bring in new parties, 578. 
 After decree, 578. 
 
 In the nature of a bill of review, 579. 
 Proceedings on, 579-80. 
 Original bill in nature of, 580. 
 Distinction between, 580-1, 583. 
 Form of, 583-5. 
 
 Of original bill in nature of, 585. 
 Leave to file, 586. 
 When answer to be filed to, 586. 
 Process on, 586. 
 
 Petition for leave to file, 586, 690. 
 To carry decree into execution, 587. 
 Bills of revivor and supplement, 593-4. 
 Precedents for, 679-80. 
 Rules of practice, 726. 
 
 SUPPKESSION. 
 
 When fraudulent, 75-8. 
 
 SUPREME COURT. See Appeal. 
 
 Equity jurisdiction of, 65, 59, 69, 118, 147, 167, 184, 226, 240, 266, 
 378, 395. 
 
 SURCHARGE. 
 
 Definition of, in account, 135. 
 Liberty to, and falsify, 709. 
 
 SURETY. 
 
 Discharged by misrepresentation or concealment, 76, 105-6. 
 
 Rights of, 105-7, 132-3. 
 
 When contract of, will be avoided, 105-7- 
 
 Not discharged by forbearance, 107. 
 
772 INDEX. 
 
 S U K E T Y— Continued. 
 
 May compel suit against principal, 108. 
 Responsibility of, in official bonds, 125. 
 Contribution between co-sureties, 131. 
 
 SURPRISE. 
 
 When relieved against, in equity, 62-3. 
 
 TERRE TENANT. 
 
 "Who is deemed, 294. 
 TIME. 
 
 When of the essence of a contract, 189. 
 
 Effect of lapse of, on rights of mortgagor and mortgagee, 291-2. 
 
 TITLE. 
 
 What, must be shown by vendor, in suit for specific performance, 206-10. 
 Plea of, in the defendant, 485. 
 
 TRADE. 
 
 Contracts in restraint of, when void, 89. 
 
 When violation of contract for sale of good wiU restrained, 186. 
 
 When disclosure of secrets of, restrained by injunction, 255. 
 
 TRADE MARKS. 
 
 Piracy of, when restrained by injunction, 253-5. 
 
 TRESPASS. 
 
 When restrained, by injunction, 251-2. 
 
 TRUST. See Implied Trust. 
 
 Performance of, how compelled by ejectment, 39. 
 
 By conditional verdict, 46. 
 
 Jurisdiction of equity over, 266. 
 
 Statutory jurisdiction of the courts, 266. 
 
 How created, 267-8. 
 
 Eules of construction applied to, 268-9. 
 
 May be taken in execution, 270. 
 
 Powers of trustees, 273-4. 
 
 Against whom enforced, 27.3-4, 351-2. 
 
 Express and implied, 278. 
 
 When created by precatory words in a will, 310. 
 
 When purchaser to see to the application of the purchase money, 324-T. 
 
 TRUSTEE. 
 
 Contract of, with cestui que trust, how regarded in equity, 103. 
 
 Cannot become purchasers at their own sales, 103-4. 
 
 When courts may dismiss, 234, 277, 360. 
 
 When further security may be required from, 235. 
 
 When courts may appoint, 270-2. 
 
 Powers of, over the trust estate, 273-5. 
 
 Jurisdiction of the courts over, 275, 354-5. 
 
 Compensation of, 276, 355-6. 
 
 Duties of, 353-4. 
 
 May be decreed to improve the trust property, 355. 
 
 Eesponsibilities of, 356. 
 
 When responsible for security of investments, 357. 
 
 When liable for interest, 358. 
 
 Responsibility for acts of co-trustees, 359. 
 
 Answer of, 700. 
 
INDEX. 
 
 UNDUE INFLUENCE. 
 
 When inferred, in equity, !I5. 
 
 UNINCORPORATED ASSOCIATION. 
 
 Equitable jurisdiction over, -ti), 167, 181. 
 
 When restrained from disposing- of property, ICb'. 
 
 "When deemed a partnership, 181. 
 
 AVhen as a charity, 101. 
 
 When equity will restore a member, is 2. 
 
 USURY. 
 
 When equity will relieve in case of, 94. 
 VERDICT. See Conditional Verdict. 
 
 WAGER. 
 
 No action can be maintained ou, !)2. 
 
 WASTE. 
 
 Liability to account, in cases of, 134. 
 
 When estrepement may be issued to stay, 2rl8-l'. 
 
 Effect of such writ, 2.S8-9. 
 
 Injunctions to restrain, 244-"). 
 
 Bill to restrain, 670. 
 
 WIDOW. ^e<i Dower. 
 
 WILL. 
 
 Trusts created by, 302. 
 
 By whom executed, 302-3. 
 
 Powers of executors, &c., 303-4. 
 
 Power of appointment, when deemed a trust, 305. 
 
 When power deemed executed, 305-6. 
 
 Effect of power of appointment, 307-8. 
 
 Construction of power, 307-8. 
 
 .Turisdiction of equity in distribution of assets, oO'J, 
 
 Effect of precatory words in, 310. 
 
 Doctrine of election, 310-18. 
 
 Of satisfaction, 318. 
 
 Construction of legacy, 319. 
 
 Cases of satisfaction, 320-4. 
 
 Advancements, 322. 
 
 WITNESSES. 
 
 Who are competent, in equity, 523. 
 Examination of, 523-4. 
 How examined de bene esse, 'i24. 
 When depositions may be read, 525. 
 Form of general intcrro.a-iitory, 525. 
 Rules of practice, 728-:ili. 
 
 THE END. 
 
 773