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A TREATISE
ON
Suits in. Chancery:
SETTING FORTH
THE PRINCIPLES, PLEADINGS, PRACTICE, PROOFS AND PROCESSES
OF
THE JURISPRUDENCE OF EQUITY;
AND GIVING
NUMEROUS ILLUSTRATIVE FORMS
OF
PLEADINGS, WRITS, ORDERS, REPORTS, DECREES AND OTHER PROCEEDINGS IN SUITS IN CHANCERY
FROM THEIR BEGINNING TO THEIR ENDING;
BESIDES MANY PRACTICAL SUGGESTIONS
FOR
SOLICITORS AND MASTERS. Cursus Curies est Lex Curia.
HENRY R. GIBSON, A.M., LL.D.,
CHANCELLOR OF THE SECOND CHANCERY DIVISION OF TENNESSEE
SECOND EDITION: REVISED AND ENLARGED
BY
THE AUTHOR.
KNOXVIIXE, TENN.:
GAUT-OGDEN CO., PRINTERS AND BINDERS
1907
Entered, according to Act of Congress, in the year, 1907, by
HENRY R. GIBSON, In the office of the Librarian of Congress, at Washington.
TO >
MY WIFE,
FRANCES REED GIBSON,
THIS BOOK
IS DEDICATED,
AS
a to;ken of my appreciation
OF HER SYMPATHY AND ASSISTANCE DURING ITS. PREPARATION
PREFACE TO THE FIRST EDITION.
While there is a general family resemblance between the systems of jurispru- dence prevalent in the various States of the Union, the differences and peculiarities in their systems of pleading and practice are, nevertheless, so great that no work, dealing with the procedure in Courts, is of much practical value to the practitioner, unless it is adapted to the jurisprudence and practice of the particular State in which he lives. Books of general practice, with foot-notes of the diverse rulings in various States, are often more confusing than enlightening. What the practi- tioner needs is a book on Court procedure that omits everything that is not the law in his own State, and contains everything that he is likely to need in the progress of a suit. Such a book I have endeavored to make this, so far as the Chancery practice is concerned.
What ordinarily happens in a litigation can well be compressed into one Volume ; but what very seldom happens, the unusual and the possible, would fill several volumes. What happens in matters of pleading and practice in 99 out of every 100 suits, I have labored to give; what«may happen in the hundredth suit, I have not striven to forecast. The ordinary law is comparatively small in compass : it is the exceptional and the uncommon that necessitate a multiplicity of books, and fill libraries. And while I have not attempted to give what is exceptional and uncom- mon, my purpose has been to give everything likely to prove of value, to be found in our statutes, decisions, and rules of practice, and in standard authorities on the subject.
1. In Matters of Equity Jurisprudence, this work is based mainly on Pomeroy, Story, and the statutes and judicial decisions of our own State.
2. In Matters of Chancery Pleading, I have followed Story, in so far as con- sistent with our statutes. Daniel and Barbour have, also, been drawn on, quite largely. The many differences, between our system of pleading and that of the English Court of Chancery, are clearly pointed out, where necessary to prevent confusion.
3. In Matters of Chancery Practice, the works of Daniel and Barbour have been relied on when consistent with our statutes, decisions, rules of practice, and system of jurisprudence.
VI PREFACE.
4. In Drawing the Forms, Pleadings, Orders, and Decrees, brevity, simplicity, perspicuity and precision have been constantly kept in view; and surplusage and prolixity have been avoided and reprehended.
• 5. In the Arrangement cf the Contents of the Book, everything has been given in the order of time in which it usually takes place in the progress of a suit, when . possible so to do.
6. In Providing Means for Finding any Particular Matter in the Book, a full index has been given in the back part of the book, and a complete table of contents in the front part of the book ; and the titles of the chapters and articles have been given in the top margins of the book, and many cross references will be found in the foot-notes. Each section begins with a statement of its subject, in bold face type.
The object of this work is to aid those who minister in the Chancery Courts; and to contribute somewhat to the improvement of the pleadings and practice in those Courts.
HENRY R. GIBSON.
PREFACE TO THE SECOND EDITION.
Whatever a man does he flatters himself he can improve on, and so the author of the first edition of this work, better aware of its deficiencies than anyone else, began the preparation of what he hoped would be an improved edition before the first had been fully printed.
The main object of the original edition was expressed in its Title, and Preface; but it left many suits- in Chancery unconsidered, and left others very imperfectly considered. To supply these deficiencies is the main object of the present edition.
The deficiencies in the first edition were caused, first, by an apprehension that the necessary additional matter would make too unwieldy a volume ; and second, by the author's duties as Chancellor engrossing too much of his time. Tn preparing this edition, the author has had adequate time, and the suggestions of a considerable proportion of the lawyers of the State, besides the use of the Law Library of Congress for over ten years: so he hopes the deficiencies have been reduced to the minimum consistent with one volume.
The present edition, (which contains 20 per cent more matter1 than the original,) treats of every kind of suit in Chancery the average lawyer will be called on to bring, or defend, in an average lifetime,2 the suits oftenest brought being most fully considered.
The author cannot forbear expressing his gratitude to the Judges and Chan- cellors of the State, and to the members of the bar, for their kind reception of the first edition : it largely compensated him for the drudgery devoted to its compilation and publication. In this connection it may not be out of place to say, that none of the references to reports and text books in either edition are second-hand, but are the results of original investigation, and can be implicitly relied on.
The Code references are, unless otherwise noted, to the Code of 1858 : the reasons for this are, 1st, it is the only Statutory Code of the State ; 2d, all subse- quent Codes contain it, so far as extant ; and 3rd, this work may outlive the tem- porary Codes of individuals, (of which there have already been four,) but cannot hope to outlive the Code of the State. Statutes passed since the Code of 1858 are usually referred to by the date and chapter of the Act.
The quotations of maxims to illustrate the text will, it is believed, prove helpful. No book that treats of Equity is complete without- them. They are not the mere gewgaws of pedantic lore, but the crystallized wisdom of the law, polished and preserved by the masters of jurisprudence.
HENRY R. GIBSON.
Knoxville, Tenn., March 4, 1907.
1 61 old sections have been omitted or consolidated, I 2 Ad ea quce frequentius accidunt jura adaptantur. and 244 new sections added. Over 1,000 of the old sec- tions have been re-written, or revised. I
CONTENTS.
PART I.
THE CHANCERY COURT: ITS HISTORY, JURISDICTION, AND
PRINCIPLES.
CHAPTER I.
THE HISTORY OF THE CHANCERY COURT.
SECTIONS
Article I. The Origin and Evolution of Equity Jurisprudence 1-9
II. The History of the Chancery Courts of Tennessee 10-15
CHAPTER II.
JURISDICTION OF THE CHANCERY COURT.
Article I. Jurisdiction of the Chancery Courts Generally Considered 16-22
II. Equitable, or Inherent, Jurisdiction of the Chancery Court 23-25
III. Statutory Jurisdiction of the Chancery Court 26-30
CHAPTER III.
MAXIMS AND PRINCIPLES OF EQUITY.
Article I. Maxims and Principles of Jurisdiction 31-40
II. Maxims and Principles of Adjudication 41-60
III. Maxims Applicable to the Court, and to its Practice and Pleadings 61-64
CHAPTER IV.
NOTICE, LIS PENDENS, ESTOPPEL, ACQUIESCENCE, NEGLIGENCE, LACHES,
WAIVER AND CONSENT.
Article I. Notice, Lis Pendens, Estoppel, Acquiescence, Negligence, and
Laches 65-70
II. Waiver and Consent 71-72
CHAPTER V. PRIORITIES, AND BONA FIDE PURCHASERS. 73-76
X • CONTENTS.
PART II.
PROCEEDINGS IN A SUIT IN CHANCERY, FROM ITS PRELIMINA- RIES TO THE APPEARANCE OF THE DEFENDANT.
CHAPTER VI. PROCEEDINGS PRELIMINARY TO A SUIT.
SECTIONS
77-79
CHAPTER VII.
PARTIES TO SUITS IN CHANCERY'.
Article I. who May Sue in Chancery
II- Who May be Sued in Chancery •
HI. General Rules as to Parties
IV. Who Should be Complainants
V. Who Should be Defendants '.
VI. Next Friends and Guardians ad Litem
VII. Mis-joinder and Non-joinder of Parties
VIII. Effect of Death or Marriage of Parties, or Assignment of their
Interests
IX. Parties in Particular Suits
X. Parties in Suits by and against the State, Counties, Cities, and Corporations
CHAPTER VIII.
ORIGINAL BILLS IN CHANCERY.
Article I. Original Bills Generally Considered
II. Frame of an Original Bill
III. Form of an Original Bill
IV. Practical Suggestions as to the Drawing of Bills
CHAPTER IX.
PROCEEDINGS PRELIMINARY TO PROCESS.
Article I. Proceedings Preliminary to Extraordinary Process
II. Filing of the Bill
III. Proceedings in Reference to Costs
CHAPTER X.
ORIGINAL PROCESS IN CHANCERY.
Article I. Original Process Generally Considered
II. Subpoena to Answer
III. Process by Publication
IV. Attachment to Compel an Answer
CHAPTER XI.
PROCEEDINGS BETWEEN PROCESS AND APPEARANCE.
Article I. Pro Confessos, and Proceedings Thereon
II. Motions by the Complainant
80-85
86-89
90-95
96-99
100-102
103-108
109-112
113-116 117-127
128-131
132-138 139-152 153-164 165-173
174-176 177-179 180-183
184-186 187-195 196-200 201-204
205-213 214-221
CONTENTS. Xt
PART III.
PROCEEDINGS IN A SUIT IN CHANCERY, FROM THE APPEARANCE OF THE DEFENDANT TO THE CLOSE OF THE PLEADINGS.
Article I.
II.
III.
CHAPTER XII.
APPEARANCE AND DEFENCE.
Appearance by the Defendant
Defences Generally Considered
Preliminary Motions by the Defendant
SECTIONS
222-228 229-232 233-239
CHAPTER XIII.
PLEAS IN ABATEMENT.
Article I. Pleas in Abatement Generally Considered 240-243
II. Pleas in Abatement to the Process 244-246
III. Pleas in Abatement to the Bill 247-252
IV. Frame and Form of Pleas in Abatement 253-254
V. Pleas in Abatement in Attachment Suits 255-259
VI. Proceedings Upon a Plea in Abatement. . . . ' 260-265
CHAPTER XIV. MOTIONS TO DISMISS BILLS.
266-274
CHAPTER XV.
DEMURRERS.
Article I. Demurrers Generally Considered , 275-280
II. Demurrers by Allowance 281-288
III. Demurrers of Right 289-300
IV. Rules Governing Demurrers 301-308
V. Frame and Form of Demurrers 309-312
VI. Action of the Court on Demurrers 313-316
VII. Practical Suggestions Concerning Demurrers 317-319
Article I.
II.
III.
IV.
V.
CHAPTER XVI.
PLEAS IN BAR.
Pleas in Bar Generally Considered 320-324
Kinds of Pleas in Bar 325-334
Frame and Form of Pleas in Bar 335-340
Pleas Supported by an Answer 341-349
Proceedings upon a Plea in Bar , 350-354
Xll
Article I.
II. III. IV.
V. VI.
CONTENTS.
CHAPTER XVII.
ANSWERS AND DISCLAIMERS TO BILLS.
SECTIONS
The Answer as a Pleading ■ • . . 355-360
The Answer as a Deposition 361 367
Matters Common to all Answers 368-376
The Frame and Form of an Answer 377-386
Practical Suggestions as to Answers 387-392
Disclaimers to Bills 393-398
CHAPTER XVIII. CROSS BILLS.
399-401
CHAPTER XIX. THE JOINDER OF DIFFERENT DEFENCES TO A BILL
402-405
CHAPTER XX.
ANALYSIS AND COMPARISON OF PLEADINGS.
Article I. Rationale of Pleadings
II. Different Defences Distinguished
CHAPTER XXI.
HOW PLEADINGS ARE TESTED.
Article I. Testing the Sufficiency of Pleadings
II. Exceptions to Answers
III. Suggestions as to Testing Pleadings
CHAPTER XXII. AMENDED AND SUPPLEMENTAL PLEADINGS.
Article I. Amendments to Pleadings Generally Considered
II. Amended and Supplemental Bills
III. Amended Demurrers and Pleas
IV. Amended and Supplemental Answers
406-410 411-415
416-419 420-424 425-426
427-429 430-431 432-433 434-437
PART IV.
PROCEEDINGS IN A SUIT IN CHANCERY, EROM THE CLOSE OF THE PLEADINGS TO THE CONCLUSION OF THE HEARING.
CHAPTER XXIII. HEARING A CAUSE ON BILL AND ANSWER.
438-440
Article I.
II.
III.
IV.
V.
Article I.
II.
III.
IV.
V.
VI.
VII.
VIII.
CONTENTS.
CHAPTER XXIV.
EVIDENCE IN CHANCERY.
Evidence Generally Considered
When Proof is, and is not, NeCessary
Pleadings when Evidence
When Proof Must be Filed
Practical Suggestions concerning Proof
CHAPTER XXV.
DEPOSITIONS IN CHANCERY.
Depositions Generally Considered
Notice to Take Depositions
Depositions Taken on Interrogatories
Formalities of a Deposition
Powers and Duties of Commissioners, and Rights and Duties of
Witnesses •
Exceptions to Depositions
Amendment of Depositions
Practical Suggestions about Depositions
Xlll
SECTIONS
441-451 452-457 458-462 463-468 469-473
474-479 480-482 483-485 486-491
492-496 497-501 502-504 505-513
CHAPTER XXVI.
MOTIONS PREVIOUS TO THE HEARING.
Article I. Motions Before the Case is Called
II. Motion for a Continuance
III. Motions to Dismiss the Bill '.
IV. Suggestions How to Prevent Delays, Arising From Amendments
and Continuances
CHAPTER XXVII. THE HEARING, OR TRIAL OF THE CAUSE.
Article I. The Hearing; by the Chancellor
II. Incidents of the Hearing
III. Trial by Jury
514-518 519-522
523-525
526-529
530-538 539-546 547-554
PART V.
PROCEEDINGS IN A SUIT IN CHANCERY, FROM THE CONCLUSION
OF THE HEARING TO THE ENFORCEMENT
OF THE DECREE.
CHAPTER XXVIII.
DECREES ON THE MERITS.
Article I. Nature and Extent of the Relief Granted 555-563
II. Decrees Generally Considered 564-574
III. Kinds of Decrees 575-579
IV. Practical Suggestions as to Decrees 580-581
XIV
Article
CONTENTS.
CHAPTER XXIX.
DECREES AS TO COSTS.
I. Costs Generally Considered II. The Adjudication of Costs .
SECTIONS
582-S8S 586-593
CHAPTER XXX.
REFERENCES TO THE MASTER AND PROCEEDINGS THEREON.
Article I. When References are Necessary, or Proper
II. Proceedings upon a Reference
III. The Master's Report '
IV. Proceedings upon a Master's Report
CHAPTER XXXI.
DECREES OF SALE AND PROCEEDINGS THEREON.
Sales Generally Considered
Report of Sales, and Proceedings Thereon
Opening of Biddings
Purchasers' Duties, Rights and Liabilities
Payment of Money under a Decree to Parties Entitled
Article I.
II.
III.
IV.
V.
Article I.
II.
III.
IV.
V.
VI.
, CHAPTER XXXII.
HOW DECREES ARE ENFORCED.
Final Process Generally Considered
Transfer of Title by Decree, or Deed
Final Process Against the Person
Final Process Against Property
Sequestrations to Enforce Decrees
Proceedings in Enforcement of Decrees on Remandment.
594-602 603-610 611-614 615-620
621-627 628-633 634-639 640-643 644-645
646-648 649-650 651-652 653 657 658-661 662-665
PART VI.
BILLS IN CHANCERY RELATING TO ORIGINAL BILLS.
CHAPTER XXXIII.
AMENDED AND SUPPLEMENTAL BILLS.
Article I. Amended Bills
II. Supplemental Bills
III. Defences to Amended and Supplemental Bills
CHAPTER XXXIV.
ABATEMENT AND REVIVOR.
Article I. Bills of Revivor
II. Statutory Methods of Revivor
III. Bills Akin to Bills of Revivor
IV. Defences to Proceedings to Revive
666-679 680-692 693-697
698-709 710-716 717-719 720-722
CONTENTS. XV
CHAPTER XXXV.
SECTIONS
BILLS TO CARRY DECREES INTO EXECUTION. 723-724
CHAPTER XXXVI.
CROSS BILLS. . 725-738
PART VII.
INTERLOCUTORY APPLICATIONS IN SUITS IN CHANCERY, AND PROCEEDINGS THEREON.
CHAPTER XXXVII.
MOTIONS IN COURT, AND PROCEEDINGS THEREON.
Article I. Motions Generally Considered 739-743
II. Motions by the Complainant 744-749
III. Motions by the Defendant 7S0-7S2
IV. Motions Common to Both Parties 753-762
V. Motions by Strangers and Quasi Parties 763-764
VI. Motions About Paying Money Into, or Out of, Court 765-769
CHAPTER XXXVIII.
MOTIONS AT CHAMBERS, AND PROCEEDINGS THEREON.
Article I. Jurisdiction of the Chancellor at Chambers , 770-775
II. Proceedings before the Chancellor at Chambers 776-783
CHAPTER XXXIX.
AFFIDAVITS. 784-790
CHAPTER XL.
PETITIONS. 791-799
CHAPTER XLI.
SUITS FOR INJUNCTIONS, AND PROCEEDINGS THEREIN.
Article I. Injunctions Generally Considered 8C0-803
II. In What Cases Injunctions will be Granted 804-826
III. How Injunctions are Obtained, Issued, and Served 827-837
IV. Pleadings in Injunction Suits, and Reliefs Granted 838-844
V. Violations of Injunctions, and Remedies Therefor 845-848
VI. The Dissolution of Injunctions 849-858
VII. Injunction and Refunding Bonds, and their Breach 859-863
CHAPTER XLII. SUITS PRAYING NE EXEATS, AND PROCEEDINGS THEREIN. 864-868
fXvi CONTENTS.
CHAPTER XLIII. SUITS IN CHANCERY FOR ATTACHMENT OF PROPERTY.
SECTIONS
Article I. Attachment Bills, and Proceedings Thereon . . 869-883
II. Defences, Decrees, and Subsequent Proceedings 884-890
CHAPTER XLIV.
SUITS FOR RECEIVERS, AND PROCEEDINGS THEREIN.
Article I. Receivers Generally Considered 891-894
II. In What Case a Receiver will be Appointed 895-902
III. Time and Manner of Appointing Receivers 903-909
IV. Powers, Duties, and Liabilities, of Receivers 910-913
V. Settlements, Removal, and Discharge, of Receivers 914-917
CHAPTER XLV. ATTACHMENTS OF THE PERSON FOR CONTEMPT. 918-924
PART VIII. PARTICULAR SUITS IN CHANCERY SPECIALLY CONSIDERED.
CHAPTER XLVI.
SUITS IN RELATION TO TRUSTS.
Article I. Suits in Relation to Express Trusts 925-929
II. Suits in Relation to Resulting and Constructive Trusts 930-931
CHAPTER XLVI. SUITS ARISING FROM FRAUDS, ACCIDENTS, AND MISTAKES
Article I. Suits Arising from Actual Frauds 932-935
II. Suits Arising from Constructive Frauds 936-9'S
III. Suits Arising from Accidents and Mistakes 939-941
CHAPTER XLVII.
SUITS TO SET UP, REFORM, AND RESCIND WRITINGS.
Article I. Suits to Set up Written Instruments 942-944
II. Suits to Reform Written Instruments . . 945-946
III. Suits to Rescind Written Instruments 947-948
CHAPTER XLVIII. SUITS FOR SPECIFIC PERFORMANCE. 949-951
CHAPTER XLIX.
SUITS FOR AN ACCOUNTING. 952-958
CONTENTS. CHAPTER L.
SUITS IN RELATION TO PARTNERSHIPS.
XVU
SECTIONS
959-961
CHAPTER LI.
SUITS FOR EXONERATION, SUBROGATION AND CONTRIBUTION.
Article I. Suits for Exoneration 962-963
II. Suits for Subrogation 964-965
III. Suits for Contribution 966-967
Article I.
II.
III.
CHAPTER LII.
SUITS RELATING TO PERSONS UNDER DISABILITY.
Suits Where the Chancery Court Acts as Guardian
Suits to Sell or Lease the Property of Infants and Wives
Suits Relating to Persons of Unsound Mind
968-971 972-979 980-984
Article I.
II.
III.
CHAPTER UII.
SUITS TO ADMINISTER THE ESTATES OF DECEDENTS.
Suits to Appoint an Administrator
Suits to Sell a Decedent's Land to Pay His Debts
Suits to Administer Insolvent Estates
985-987
988-996
997-1004
Article
I. II.
III.
IV.
V.
VI.
CHAPTER LIV.
SUITS BY CREDITORS WITHOUT REMEDY AT LAW.
Suits where Judgment at Law Cannot be Obtained 1005-1008
Suits where Judgment at Law Has been Obtained, but Execution
at Law Cannot be Levied 1009-1018
Suits where Judgment at Law Has been Obtained, but a Discovery
of Property is Necessary 1019-1024
Suits where a Creditor Has Obtained a Judgment in Another
State, and Has Exhausted his Legal Remedy 1025-1027
Suits where Judgments at Law May be Had, but Execution at
Law Cannot be Levied '. 1028-1029
Suits by General Creditors for their Pro Rata of an Insolvent
Debtor's Property 1030-1035
CHAPTER LV. SUITS TO ENFORCE LIENS.
1036-1041
CHAPTER LVI.
SUITS TO PROTECT AND RECOVER REAL AND PERSONAL PROPERTY.
Article I. Suits to Protect Interests in Land 1042-1044
II. Suits to Recover Interests in Land 1045-1050
III. Suits to Recover Escheated Property 1051-1052
IV. Suits to Recover Personal Property 1053-1057
xviii CONTENTS.
CHAPTER EVIL SUITS TO PARTITION LANDS, OR THEIR PROCEEDS.
SECTIONS
Article I. Partition by Division 1058-1064
II. Partition by Sale 1065-1069
III. Gross Value of Life Estate 1070 1072
CHAPTER LVIII. SUITS IN CHANCERY IN CASES ACTIONABLE AT LAW. 1073-1080
CHAPTER LIX. SUITS IN THE NATURE OP A QUO WARRANTO PROCEEDING. 1081-1083
CHAPTER LX. SUITS FOR WRITS OF MANDAMUS. 1084-1087
CHAPTER LXI.
SUITS FOR DIVORCE AND ALIMONY.
Article I. Matters Relating to the Jurisdiction 1088-1091
II. Pleadings and Procedure 1092-1098
III. Trial, Orders, and Decrees 1099-1105
CHAPTER LXII.
SUITS WHERE NO RECOVERY IS SOUGHT.
Article I. Suits for an Interpleader 1106-1115
II. Suits for a Discovery 1116-1124
III. Suits to Perpetuate Testimony : 1125-1132
IV. Suits to Take Testimony de Bene Esse 1133-1135
PART IX.
THE OFFICERS AND RULES OF THE CHANCERY COURT.
CHAPTER LXIII.
THE CHANCELLOR: HIS POWERS AND DUTIES.
Article I. The Qualifications and Powers of the Chancellor 1136-1138a
II. Duties of the Chancellor 1139-1141
III. Provisions when the Chancellor is Incompetent 1142-1147
IV. The Etiquette of the Chancery Court 1148-1152
CHAPTER LXIV. THE CLERK AND MASTER: HIS POWERS AND DUTIES. 1153-1172
CHAPTER LXV. SOLICITORS : THEIR RIGHTS, DUTIES AND LIABILITIES. 1173-1184
CONTENTS.
CHAPTER LXVI. THE SHERIFF: HIS DUTIES.
CHAPTER LXVII. RULES OF THE COURT.
xix
SECTIONS
1185-1188
1189-1205
PART X.
PROCEEDINGS FOR THE CORRECTION OF ERRORS.
CHAPTER LXVIII.
NEW TRIALS AND REHEARINGS.
Article I. New Trials After Judgment at Law 1205a-1209
II. New Trials After Verdict in Chancery 1210-1214
III. Rehearings in Chancery 1215-1222
CHAPTER LXIX.
BILLS OF REVIEW.
Article I. Bills of Review Generally Considered 1223-1231
II. Bills of Review for Errors of Law 1232-1236
III. Bills of Review for New Proof 1237-1239
IV. The Leave to File a Bill of Review 1240-1243
V. Frame and Form of a Bill of Review 1244-1248
VI. Defences to a Bill of Review 1249-1253
CHAPTER LXX. WRITS OF ERROR CORAM NOBIS. 1254-1261
CHAPTER LXXI. APPEALS IN THE CHANCERY COURT. 1262-1269
CHAPTER LXXII.
WRITS OF ERROR, AND OF SUPERSEDEAS.
Article I. Writs of Error 1270-1276
II. Writs of Supersedeas 1277-1279
CHAPTER LXXIII. TRANSCRIPTS FOR APPEALS, AND WRITS OF ERROR. 1280-1286
CHAPTER LXXIV. THE COURT OF CIVIL APPEALS : ITS HISTORY AND JURISDICTION. 1287-1291
CHAPTER LXXV. THE SUPREME COURT : ITS HISTORY AND JURISDICTION. 1292-1293a
XX CONTENTS.
CHAPTER LXXVI. PROCEEDINGS AND PRACTICE IN THE APPELLATE COURTS.
SECTIONS
Article I. Matters Relating to their Jurisdiction and Powers 1293b-1301
II. Briefs in the Appellate Courts ' 1302-1307
III. Motions in the Appellate Courts 1308-1312
IV. The Hearing and Decrees in the Appellate Courts 1313-1323
PART XL CHANCERY SUITS IN THE CIRCUIT AND COUNTY COURTS.
CHAPTER LXXVII. CHANCERY SUITS IN THE CIRCUIT COURT. 1324-1326
CHAPTER LXXVIII.
CHANCERY SUITS IN THE COUNTY COURT.
Article I. Chancery Suits in the County Court Generally Considered 1327-1328
II. Assignment of Homestead and Dower 1329-1333
III. Suits to Settle Insolvent Estates 1334-1342
PART XII. INDEXES.
PAGES
GENERAL INDEX. 1085-1171
INDEX TO FORMS. 1172-1203
INDEX TO BRRATA. 1203
PART I.
THE CHANCERY COURT: ITS HISTORY, JURISDICTION
AND PRINCIPLES.
CHAPTER I.
THE HISTORY OE THE CHANCERY COURT.
Article I. Origin and Evolution of Equity Jurisprudence. Article II. History of the Chancery Courts of Tennessee.
ARTICLE I.
ORIGIN AND EVOLUTION OF EQUITY JURISPRUDENCE.
§ 1. The Civil Law : its Development.
§ 2. Evolution of Equity in England.
§ 3. Character of the First Chancery Suits.
§ 4. Principles on which the Early Chancel- lors Acted.
§ 5. The Common Law as Compared with the Civil Law.
§ 6. Some of the Deficiencies of the Common
Law. § 7. How the Law has Followed Equity. § 8. The Divine Law of Justice the Rule of
Decision.
§ 9. Other Causes Contributing to the Estab- lishment of the Chancery Court.
§ 1. The Civil Law: Its Development. — The system of jurisprudence called Equity was originally largely derived from the civil law of the Romans ; and its early development in England was similar to the development of an analogous system in the jurisprudence of Rome. Therefore, in endeavoring to trace the origin of the Chancery Court, it may be well to notice, briefly, the development of the civil law.
The early laws of Rome, like the old common law of England, were exceed- ingly stern, rigid, formal and arbitrary, paying little attention to abstract right and justice.1 Their judicial proceedings were technical to the last degree. Absolute accuracy was required in complying with the established phrases and acts in the enforcement of civil rights. Any omission, or mistake, of a word or a movement was fatal.2 As civilization, however, progressed in Rome, subtle technicalities gave way to simpler methods of pleading ; but even then it was found that cases occasionally arose to which the improved formulas were inad- equate. These extraordinary cases were decided by the praetor without being referred to the ordinary tribunal, and without being hampered by any technical requirements as to the proper formula, or kind of action, he himself determining both the law and the facts of the case.1 The complainant stated the facts of his case, the defendant set up his defense, the praetor decided. This extraordinary method of determining suits, so simple, so free from technicalities, so easily moulded to the exigencies of every case, was found so superior to even the
1 1 Pom. Eq. Jur., § 7. • $ | 2 1 Pom. Bq. Jur., § 3.
§2
ORIGIN AND EVOLUTION OF EQUITY.
improved formulas, that eventually it superseded them, and became the only mode of procedure, — much as, in many of the States and in England, the pro- cedure by bill and answer has supplanted the rigid formulas of common law actions.3 Not only were the pleadings thus simplified by the Roman jurists, but the law was correspondingly improved; and a deliberate and persistent effort was made to bring their jurisprudence into perfect harmony with an absolutely impartial equity, that should do equal and perfect justice to all.4 And, thus, was perfected that system of jurisprudence known as the civil law, from which are derived many of the maxims, principles and doctrines of Equity, now followed and enforced in the Chancery Courts.5
§ 2. Evolution of Equity in England. — The development of the extraor- dinary jurisdiction of the Chancery Court of England was similar, in its causes, progress and results, to the development of the system of Equity in the Roman law, as already intimated.6 In England, the King was regarded as the ' ' foun- tain of justice;" and, when any person conceived that he had been wronged, either in court or out of court, he had the privilege of petitioning the King for redress. The King, being unable to hear and determine all of these complaints because of their number and complexity, generally referred them to his chief secretary, who was called his Chancellor. This officer was an ecclesiastic, trained in the law and theology of Rome,7 and was sometimes called the "keeper of the King's conscience."8 When thus directed to adjudicate the rights, and determine the remedies, of those petitioning the King for justice, the Chancellor naturally had recourse to the civil law of Rome, being most familiar therewith; and, also, finding therein a diviner sort of justice, and a simpler and more efficient form of procedure. Besides, these Chancellors, who were generally very able and very learned men, were no doubt, disposed to regard the English common law as a barbarous code compared with the Roman civil law.9 The Chancellor 's office was one of great trust and confidence : he was the King's adviser and confidant, the chief member of his eouncil, and the keeper of his great seal of State. He is spoken of, at a very early day, as one who "annuls unjust laws, and executes the commands of a pious prince, and puts an end to what is injurious to the people or to morals."10
§ 3. Character of the First Chancery Suits. — The Chancellors, following the example of the Roman praetors,11 applied the equitable principles of the civil law to the determination of all suits referred to them by the King. The suits thus referred were, generally : 1, applications to obtain redress for injuries and acts of oppression where from the power of the offender, or for any other cause, a fair trial in the ordinary courts could not be had ; 2, cases where there were fraud, deceit and dishonesty beyond the reach of the common law;12 and 3. eases where the common law was inadequate to the requirements of justice. In those times of disorder and oppression, many were the appeals to the King by the poor and the weak for protection against the rich and the strong, the local magistrates being often overawed ; and many were the complaints of want of remedy at law. The King, unable to give personal attention to so many petitions, finally, conferred upon the Chancellor full authority to give relief in all matters of "Grace," as these applications for redress were termed; and from this period petitions began to be addressed to the Chancellors themselves, and not to the King. This delegation of authority was made in the year 1348 ;
3 1 Pom. Eq. Jur., § 6. See post, § lo.
4 1 Pom. Eq. Jur., § 8.
s 1 Sto. Eq. Jur., § 23; 1 Pom. Eq. Jur., § 14.
6 1 Pom. Eq. Jur., §§ 1-9; 1 Sto. Eq. Jur., § 50.
7 1 Sto. Eq. Jur., § 23. The fact that the first- Chancellors were ecclesiastics, generally bish- ops or achbishops, accounts for and explains -various words and phrases found in the old forms of bills, such as: (1) "Orator," one who prays; (2) "doings contrary to conscience," the bishop being bound to act according to con- science; and being also, the keeper of the King's conscience; and (3) "and your orator
shall ever pray, etc.," the full sentence being, "and your orator shall ever pray for you." Barton's Suit in Equity, 40, note; see also, Sto. Eq. PI., § 14; and Lube's Eq. PI., 260. This antiquated conclusion is still sometimes used.
8 Snell's Pr. Eq., 10. The Chancery Courts of Tennessee represent the conscience of the State, as the Chancery Court of England rep- resented the conscience of the King.
o 1 Pom. Eq. Jur., § 17.
10 Bouvier's Law Die, "Equity."
11 1 Sto. Eq. Jur., § 50.
12 1 Pom. Eq. Jur., § 31.
ORIGIN AND EVOLUTION OF EQUITY.
§4
and, in the next fifty years, the Equity jurisdiction of the Chancellor was clearly established.13
§ 4. Principles on which the Early Chancellors Acted. — When matters of Grace were thus referred to the Chancellor, he issued a writ commanding the party complained against to appear and answer the complaint, and abide by the order of the Court.14 The principles on which the Chancellor based his decisions were those of Honesty, Equity and Conscience.15 By "Conscience" was meant those obligations one person is under to another to exercise that good faith the other has a right to expect.18 On an application to Parliament for redress, the petition was referred to the Chancellor, with the command: "Let there be done, by authority of the Parliament, that which right and reason, and good faith and good conscience, demand in the case. ' '17
Matters of Grace being thus brought before the Chancellor, as the keeper of the King's conscience, and he being required to do justice in the King's name, he felt under no obligation to determine the rights of petitioners by that law from which they had fled to the King for relief ; and, for reasons already stated, the Chancellors, at an early day, adopted the equitable principles and simple procedure of the civil law of Rome, adapting them, with wisdom and prudence, to the emergencies of the particular cases. The matters referred to them being matters of Grace and of conscience, the Chancellors felt bound to decide the cause according to conscience. The jurisdiction of the Chancellor being thus established upon Grace and conscience, and his judgments being in the name of the King, and by his authority, whenever the Courts of common law were inadequate to the demands of justice, the party unable to obtain relief therein would have recourse to the Chancellor, who in his Court, called the High Court, of Chancery of England, undertook, like the praetor of Rome, to administer an equity not found in the law, himself determining all questions both of law and fact, and rendering a decree adapted to all the exigencies of justice.18
§ 5. The Common Law as Compared with the Civil Law. — The common law was then utterly incapable of doing complete justice in many cases ; and, in not a few cases, it furnished no remedy or relief whatever. It had certain rigid molds or formulas, into some one of which every cause of action had to be cast ; and if the cause could not be run into any of these molds, there was no re- dress; and if it could be run into one of the molds, only such redress as the formula gave could be had, regardless of the equities of the case, and the real rights of the parties. The fictions, formalisms and arbitrary technicalities of the common law, and its dialectical refinements, were inexplicable and incom- prehensible jargon to the public, and often a costly mockery of justice to the litigants. Those who asked for bread were often given a stone, and those who applied for a fish sometimes received a serpent.
Equity, on the other hand, disregarded forms, ignored fictions, subordinated technicalities to the requirements of justice, and indulged in no dialectical re- finements. Its pleadings were simple and natural, and its doctrines were founded upon the eternal principles of right as interpreted by a lofty Christian morality. Its great underlying principles, the constant sources, the never i ailing roots of its particular rules, were the principles of equity, justice, mor-
13 1 Sto. Eq. Jur., §§ 44; 46.
14 This writ was the subpoena.
15 1 Spenoe Eq. Jur., 338-339.
16 Ibid, 411. Fides est obligatio conscientiw ali- ening ad intentionem alterius. (Good. faith is an obligation binding the conscience of one party to a transaction according to the understand- ing of the other party. )
it Ibid, 346. The matters thus brought before the King were decided according to reason and conscience; and when matters were referred to the Chancellor, either by the King or by Par- liament, he was required to do "that which right and reason, and good faith, and good con- science demanded in the case." The term 'con- science" embraced all those obligations which
rested upon a person, who, from the circum- stances in which he was placed towards an- other, and the relations subsisting between them, was bound to exercise good faith in his conduct and dealings with that other person. 1 Spence Eq. Jur. 411. The early Chancellors decided, as a rule, according to this conscience, but, in process of time, a system of rules and general principles, based on reason and con- science, were evolved from the adjudications of the Court, or were adopted by the Chancellors from the jurisprudence of the Civil Law, as formulas to specify the nature and limit the extent of their equity jurisdiction. 1 Pom. Eq Jur., §§ 43-58. See post, % 58. is 1 Pom. Eq. Jur., § 5; Bisph. Pr. Eq., §§ 6-8.
§ 6 ORIGIN AND EVOLUTION OF EQUITY. 4
ality and honesty, enforced according to conscience and good faith, and so adapted to the requirements of each case and the complications of business affairs, that the rights and duties of all the parties were fully determined.19
§ 6. Some of the Deficiencies of the Common Law. — The common law then was not what it has since become under the benign inspiration of the Chancery jurisprudence.20 At common law, 1, a vendor's lien could not be enforced; 2, a fraudulent conveyance could not be set aside ; 3, a defective instrument could not be reformed; 4, a mistake or accident could not be effectually relieved against; 5, a debt, note or account could not be assigned; 6, a resulting trust could not be set up ; 7, a beneficial interest in property could not be enforced ; 8, a void instrument could not be cancelled ; 9, a will or trust could not be con- strued in advance of action thereon; 10, testimony could not be perpetuated; 11, a trust fund could not be impounded ; 12, a specific performance could not be decreed ; 13, an equitable partition of land could not be had ; 14, a deed could not be declared a mortgage ; 15, title to land could not be effectually quieted ; 16, waste, trespasses and other violations of rights could not be stayed; 17, a forfeiture or penalty could not be relieved against; 18, a set-off could not be obtained ; 19, land could not be redeemed from a mortgagee ; 20, a lien on realty could not be enforced ; 21, a lost instrument could not be set up ; 22, the estates of minors and lunatics could not be administered ; 23, a pro rata distribution of assets could not be had ; 24, a contract could not be apportioned ; 25, a cloud could not be removed from one 's title ; 26, securities could not be marshalled ; 27, a partnership could not be wound up; 28, a subrogation or contribution could not be obtained; 29, trusts were not recognized, and could be violated with impunity; 30, a wife's equities did not exist; 31, a title bond was no de- fence to an action of ejectment; 32, an injunction could not be had in any case, or for any purpose, however great the wrong ; 33, receiverships were unknown ; 34, equitable rights and interests were not recognized, and, 35, frauds could not be adequately remedied.21
§ 7. How the Law has Followed Equity. — Under the influence of the princi- ples of Equity as administered in Chancery, the rugged features of the common law have grown constantly more and more smooth and humane, and its capacity to do justice has constantly increased. The evolution of the law in England and in America has been on the lines marked out by Equity,22 until, in the lan- guage of Lord Hale, "by the growth of Equity on Equity the heart of the common law has been eaten out."23 To show the effect of the principles and doctrines of Equity upon our own statutes the following illustrations are cited : 1, the law in reference to gambling and wagering contracts ;24 2, the whole law of landlords', mechanics', laborers' and other liens;25 3, the law of notice through registration of deeds ;26 4, the pro rata distribution of insolvent es- tates;27 5, the apportionment of rents;28 6, the provisions for the benefit of married women;29 7, the guardianship over the estates of infants and persons of unsound mind;30 8, the allowance of set-offs;31 9, the right to sue upon a debt, note or account purchased from the original creditor ;32 10, the statutory remedy of interpleader ;38 11, the right to set aside the satisfaction of a judg- ment;34 12, the proceeding by garnishment;35 13, the right to a sale of land
19 1 Pom. Eq. Jur., §§ 49-56; 1 Sto. Eq. Jur., §§ 25-30.
20 The present common law of England is as dissimilar from that of Edward III as is the present state of society. Jacob v. State, 3 Hum., 493; Box v. Lanier, 4 Cates, 408. Equity jurisdiction was established in England in the reign of Edward III. Green v. Allen, 5 Hum., 197. Edward III was born in 1312, and died in 1377.
21 See 1 Pom. Eq. Jur., §§ 40; 43-88; 97; 102- 117; 137; 162; 155; 175; 182; 279-280; 340; 370- 406; 430; 912; 1098; 1121; 1179-1180; 1270; 1280.
22 Case, trover and assumpsit were invented to give quasi equitable remedies, in the Courts of law. 1 Pom. Eq. Jur., §§ 24-29.
23 3 Pom. Eq. Jur., § 1180, note.
24 Code, §§ 1769-1775.
2.1 M. & V.'s Code, § 2739-2799; 4280-4305.
26 Code, §§ 2071-2075.
27 Code, §§ 2311-2397.
28 M. & V.'s Code, § 3289.
29 Code, §§ 2478-2488.
30 Code, §§ 2489-2546;
31 Code, §§ 2918-2925. Bank, 7 Pick., 336.
32 Code, §§ 2795-2797.
33 Code, § 2800. 31 Code, §§ 2990-2996. 35 Code, §§ 3087-3103.
3681-3719. Nashville Trust Co.
5
ORIGIN AND EVOLUTION OF EQUITY.
§8
for partition;36 14, the proceding at law to remove a cloud from title by suing a claimant not in possession, in ejectment;37 15, the right to defend by title bond as by deed ;38 16, the power to sell the property of infants and lunatics for rein- vestment or support;39 17, the right to impound the property of absconding debtors;40 18, the remedies by motion allowed sureties;41 19, the removal and appointments of trustees ;42 20, giving the right to take depositions at law ;43 21, making parties witnesses ;44 22, providing for the perpetuation of testimony and the taking of evidence de bene esse;45 23, allowing lost instruments to be proved ;46 and authorizing lost records to be supplied.47 All of these statutes are mere enactments of rights recognized and enforced, remedies employed, de- fences allowed, and procedures used, in the Chancery Court by virtue of its in- herent jurisdiction, and were wholly unknown to the common law, their recog- nition in our Courts of law depending exclusively upon the statute, and the statute being suggested by the practice in Equity.
§ 8. The Divine Law of Justice the Rule of Decision. — The statement, often made, that the Court of Chancery was established to mitigate the rigor of the common law, and to supply its defects, is not wholly true.48 This Court was established to do justice, regardless of any and all law. The King deemed it a duty imposed upon his conscience, both by his oath and by religion, to "decree justice," and in decreeing justice he deemed himself bound rather by the Divine Law than by human law ;49 and, when the Chancellor acted in his stead, he based his decisions, not upon the law of the land, but upon honesty, equity and conscience, for so was he commanded to do in exercising the King's pre- rogative of Grace.50 In short, the Chancery Court was established rather as a Court based on the precepts of Religion than as a Court based on the rules of Law.51
It is unquestionably true that the harshness of the common law, its unfitness to cope with fraud, its incapacity to do justice in many cases, the defects in its remedies, the opportunities it gave the strong to oppress the weak, and its general inadequacy to meet the requirements of equity, greatly contributed to perpetuate the existence of the Chancery Court, and to enlarge and justify its jurisdiction. Nevertheless, the vital principle from which the Court sprung was the prerogative doctrine that the King was the "fountain of justice ;" and that, when a citizen could not get justice in the ordinary Courts, he might come to this fountain.52 The King, in administering justice in such cases, deemed himself above all the laws and customs of his realm, and bound only by his conscience and his will. As it was not a matter of right in a citizen to draw on this reserve source of justice, when remedy was given it was deemed "granted as of Grace."53
§ 9. Other Causes Contributing to the Establishment of the Chancery Court. — As the Chancery was the office out. of which all writs at common law issued, the Chancellor retained cases for his own disposition when the facts were such that no common law writ was adapted to the requirements of the case, or when the common law Courts were unable to furnish adequate relief ; and some con- tend that herein originated the extraordinary jurisdiction of the Chancellor. In this class of cases, the Chancellor determined the matters in dispute, so that the court of the King might not be deficient in doing justice.54 But it is believed that the equitable jurisdiction of the Chancellor originated mainly, if
36 Code, §§ 3262-3322.
37 Code, § 3231.
38 Code, § 3243 a.
39 Code, §§ 3323-3340; 3708-3719.
40 Code, § 3455. This was a substitute for the writ of ne exeat in Equity. See Cox v. Breed- love, 2 Yerg., 516.
41 Code, §§ 3620-3635. 4i' Code, §§ 3648-3664.
" "~rie. 88 3836-3870.
44 Code, §§ 3813 a.
45 Code, §§ 3876-3885.
46 Code, §§ 3901-3906.
47 Code, §§ 3907-3908.
48 1 Sto. Eq. Jur., §§ 16-17.
49 By Me Kings reign, and princes decree justice. Proverbs, 8:15.
50 1 Pom. Eq. Jur., § 35; 1 Sto. Eq. Jur., § 21.
51 1 Pom. Eq. Jur., § 55.
52 Bisph. Pr. Eq., § 7; 1 Pom. Eq. Jur., §§ 33-37
53 i Pom. Eq. Jur., §§32-35; 1 Sto. Eq. Jur., §44.
54 1 Sto. Eq. Jur., §§ 43-44,
§ 9 ORIGIN AND EVOLUTION OP EQUITY. 6
not exclusively, from the reference to him by the King of petitions for justice and redress, as already stated. BB It is unquestionably true, however, that, had it not been for the deficiencies of the common law, the number of these petitions to the King would have been comparatively few.
When the lay Chancellors succeeded the ecclesiastics, no material changes were made in the jurisdiction of the Court. Its system of jurisprudence was, however, enlarged and made more comprehensive, precedents were more closely followed, and the decisions of the Chancellors more carefully preserved. But the equitable principles of the civil law were as fully enforced, and the peculiar proofs and practice of the Court in all things continued, the lay Chan- cellors being greatly aided herein by the Masters in Equity, who were per- manent officers of the Court.66
Thus was established the High Court of Chancery of England; and thus originated that grand system of jurisprudence known as Equity; both main- taining their existence by virtue, alone, of their inherent merits, and their won- derful fitness for the purposes of administrative justice.57 It may be well here to remark that, by an Act of the British Parliament, which went into operation in 1875, all the great Courts of England, including the High Court of Chancery, were consolidated, and a system of pleading and practice adopted similar to those in use in Chancery. The Act of Parliament also provides that "in all matters in which there is any conflict or variance between the rules of Equity and the rules of the common law, with reference to the same matter, the rules of Equity shall prevail.1' And thus in England the triumph of the righteous principles of Equity over the rules of the common law is complete, and, no doubt, final.68
55 Ibid, §§ 39-50; 1 Pom. Eq. Jur., §§ 33-35.
56 1 Spence Eq. Jur., §§ 712-713. It will be seen from this review that Equity may be de- fined to be that system of jurisprudence, based on good reason, good conscience, and the Civil Law, introduced and developed by the Chan- cellors of England, by authority of the King and acquiescence of the Parliament, to do jus- tice where justice was denied by the common
law, or to do more perfect justice than could be done through the common law.
57 And under its beneficent influence the common law has become so transfigured that it no more resembles the common law of Coke than the image of Moloch stained with the blood of butchered babes resembles the living Jesus blessing the little children of Judsea.
58 Bisph. Pr. Eq., §§ 1; 11; 1 Pom., Eq. Jur., § 12.
HISTORY OF OUR CHANCERY COURTS.
§10
ARTICLE II.
THE HISTORY OF THE CHANCERY COURTS OF TENNESSEE.
10. The Chancery Court of North Carolina.
11. Introduction of Courts of Equity into
Tennessee.
12. Development of our Chancery Courts.
§ 13. How our Chancery Courts were Finally- Established.
§ 14. Growth of the Court in Public Favor.
§ 15. Equity Jurisprudence, Pleadings, and Practice, in Other States.
§ 10. The Chancery Court of North Carolina. — "When North Carolina was colonized by the English, they brought with them, as part of their jurispru- dence, the principles and practice of the English Court of Chancery, and incor- porated them into their judicial system. As early as 1713, we find a Court of Chancery in existence in North Carolina; and it is safe to say that this Court was coeval with the first legal institutions of the colony. The Court of Chan- cery is referred to in the Acts of 1720, ch. 6 ; of 1723, ch. 10 ; of 1746, ch. 2 ; of 1748, ch. 2 ; and of 1762, ch. 5. The court thus established by the Lords Pro- prietors of North Carolina, under the general power given them by the Charter of King Charles II, was similar to the Chancery Court, of England, and was. held by the Governor and Council.1
This court continued until the outbreak of the American Revolution ; but no provision having been made for its re-establishment under the State authority, it ceased to exist, for a few years — the struggle for Independence and the con- flict of armies absorbing public attention. The people of North Carolina, how- ever, in their Constitution of 1776, expressly provided for Courts of Equity,2 and thus recognized the jurisprudence administered by the Chancery Court as a fundamental part of the law of the new State. Although no Court of Chancery was established, equitable rights continued to exist, notwithstand- ing;3 and in 1782 the people discovered, and through their Legislature sol- emnly declared, that "the Courts of law were not equal to the redress of all kinds of injuries, that many innocent men were withheld of their rights, and some de- prived of them, altogether, for want of a Court or Courts of Equity."* It was
1 Griffin v. Graham, 1 Hawks N. C. Rep. 97, 132; Green v. Allen, 5 Hum., 235. The decree in the case of William Duckinfleld v. John Ar- derne's heirs, pronounced May 13, 1713, is prob- ably the most ancient memorial of the Chan- cery Court of North Carolina in existence. 2 Rev. Stats, of N. C. (by Iredell & Battle,) 528. This decree was confirmed in August, 1720, by the Provincial Legislature. Iredell's Laws of N. C. 36. In Locke's Fundamental Constitu- tions of North Carolina, made in 1669, it was provided that: "§35, The Chancellor's Court, consisting of one of the Proprietors and his six councellors, who shall be called vice-Chan- cellors, shall have the custody of the seal of the Palatine. * * To this Court, also, belong all invasions of conscience." Iredell & Battle's Rev. Stats, of N. C, 454.
2 Const, of North Carolina, §§13; 21; 29. The meaning of the term "Equity" was not defined. The Constitution assumed that it was known, as in case of other words used without defini- tion; and we are, therefore, to look to the ju- risprudence then in existence for a proper un- derstanding of the term. Franklin v. Armfield, 2 Sneed. 353.
3 Griffin v. Graham, 1 Hawks, 132.
i Acts of 1782, ch. 11, § 1. The 1st and 2nd sections of this Act are as follows: I. "Whereas the Courts of Law as at present
established, are not equal to the redress of all kinds of injuries, but many innocent men are withheld of their rights, and some deprived of them altogether, for want of a Court or Courts of Equity.
II. "Be it enacted by the General Assembly of the State of North Carolina, and it is hereby enacted by the authority of the same, that from and after the expiration of the present session of the General Assembly, each Superior Court of Law in this State shall also be, and act as, a Court of Equity for the same district, and possess all the powers and authorities, within the same, that the Court of Chancery which was formerly held in this State under the late Government used and exercised, and that are properly and rightfully incident to such a court, agreeable to the laws in force in this State, and not in- consistent with our present Constitution." This statute also made the Courts of Equity courts of record. Hayw. & Cobb, 173.
It will thus be seen that the Courts of Equity of North Carolina, established in 1782, were Courts of general Equity jurisdiction. This was not only so declared by the statute re- ferred to, but was also a necessary implication from the language of the Constitution itself. And from the date of that Act down to the ces- sion of Tennessee to the United States, the powers and jurisdiction of the Courts of Equity
§11
HISTORY OF OUR CHANCERY COURTS.
8
accordingly enacted in that year by the Legislature of North Carolina that each of the Superior Courts of Law should also be Courts of Equity, and possess all the powers and authorities formerly held by the Court of Chancery under the Colonial government, and that were properly and rightfully incident to such a Court, and not inconsistent with the laws and Constitution of the State.5
This Act prescribed a procedure for the Court, and granted subpcena, and such process to enforce decrees as belonged to Courts of Chancery. All mat- ters of fact were triable by jury, as in suits at Law; costs were to be paid by either party at the discretion of the Court ; the proceedings of the Court were to be kept distinct from those of the Law Court ; and it was expressly declared that the Court should be " a Court of record. ' '6 The English Court of Chancery was not a Court of record, and the statement in some of our reports that "by our Acts of 1787 and 1801, our Court of Equity is a Court of record,"7 while true, ignores the previous Act of 1782.
§ 11. Introduction of Courts of Equity into Tennes&ee. — When counties were created in the territory now Tennessee, by the Legislature of North Car- olina, they were at first made parts of adjoining Judicial Districts in that State ; but in 1784, the counties of Washington, Sullivan, Greene and Davidson were constituted a separate Judicial District, and named the District of Wash- ington. This District covered the whole of the territory now Tennessee ; but, in the following year, Davidson county was given a separate Court. The Courts thus established in this territory by North Carolina, were vested with general jurisdiction in Law and Equity.8
• In 1787, the two-fold Court of Law and Equity was divided, and it was en- acted that the Chancery branch of the Court should be styled the "Court of Equity;" and a "Clerk and Master in Equity" was appointed for each Court of Equity. But both Courts continued to be held by the same Judge. This Act authorized publication as to non-resident and absconding defendants; and provided that executions to enforce money decrees might issue as at law, instead of the then mode of enforcing money decrees by "attachment, habeas corpus, attachment with proclamation, and commissions of rebellion."9*
In 1790,. the territory now Tennessee was deeded to the United States by North Carolina; and the Act and Deed of Cession provided that "the laws of North Carolina should continue in full force within the territory until repealed, or otherwise altered, by the legislative authority of the territory."
In 1793, by an ordinance of William Blount, Territorial Governor, the coun- ties of Knox and Jefferson were formed into a Judicial District, called the District of Hamilton, and the Courts of Law and Equity therein were ordered lo be held at Knoxville.10 The first session of the 1st Territorial Legislature met in Knoxville in 1794; and the first Act passed by it declared that the North Carolina Act giving Equity jurisdiction to the Superior Courts of Law should be in full force and effect.11 This same Legislature created the Judicial Districts of Washington, Hamilton and Mero, and vested in the Courts thereof the general Equity jurisdiction conferred by the Act of 1782; and thus the peculiar powers, pleadings, proofs and practice of the Chancery Court were formally made a part of the jurisprudence of the new Territory.12
§ 12. The Development of our- Chancery Courts. — In 1796, this system of Equity jurisprudence was incorporated into the Constitution of the new State,13 and thus imbedded in the very foundations of the government. In 1801, an Act was passed to regulate the proceedings of the Court of Equity: this Act pre-
of North Carolina were, in and for their re- spective districts, identical in kind and com- mensurate in extent with the powers and ju- risdiction of the English Court of Chancery at the time of the American Revolution.
5 1 Scott's Rev., 261.
6 1 Scott's Rev., 264.
7 Carson v. Richardson, 3 Hay., 231.
8 1 Scott's Rev., 328; 350.
9 1 Scott's Rev., 389.
10 1 Scott's Rev., 454.
n 1 Scott's Rev., 484. The North Carolina statute referred to was the famous Act of 1782, (Ch. 11.) above mentioned, establishing Courts of Equity.
12 1 Scott's Rev., 457-484.
13 Art. V, §§ 1, 2.
9
HISTORY OF OUR CHANCERY COURTS.
§ 13
scribesj in detail, the practice of the court; and a large proportion of the provisions of the Act are in force today. Among the changes made in the prac- tice by this Act was the power conferred on the Chancery Court to divest title to land, instead of requiring parties to convey, as had hitherto been the prac- tice.14
In 1809, the Superior Courts of Law and Equity were abolished, and Circuit Courts established in their stead, and invested with all of their powers and jurisdiction both at common law and in Equity.15 A Supreme Court of Errors and Appeals was created by the same statute, to be composed of two Supreme Judges and one of the Circuit Judges. By the Act of 1811, 10 this Supreme Court was given "exclusive jurisdiction in all Equity causes arising in the Circuit Courts," and either party was given the right to take depositions. Pre- vious to this Act, the evidence in Equity suits was generally oral. The Act of 1811, repealed so much of the Act of 1809 as authorized Circuit Judges to sit with the Supreme Judges.17
In 1813, the Circuit Judges were given concurrent jurisdiction with the Supreme Court in all Equity causes, and the Circuit clerks were made Clerks find Masters in Equity.18
In 1817, it was provided that Equity causes, wherein a Circuit Judge was incompetent, might be adjourned to the Supreme Court, and there heard on the original papers, as though brought there originally.19
In 1819, the old practice allowing witnesses to give oral evidence in Chancery suits, and the law compelling their attendance, were repealed; and it was enacted that depositions should be taken in all Chancery cases.20 In this Act, the Circuit Courts sitting in Equity causes, are styled ".Courts of Chancery. "21
In 1822, it was enacted that the Chancery Courts should be held by one of the Judges of the Supreme Court ; and in 1824, a Chancery Court was required to be held twice a year in each circuit. Finally in 1827, the laws giving the Supreme Judges original Chancery jtirisdiction were repealed, and two Chan- cellors were appointed to hold the Chancery Courts. At the same time the State was laid off into two Chancery Divisions, the Eastern and the Western, with one Chancellor for each. The Chancellors were declared to be Chancellors for the State, and were given authority to interchange.22
§ 13. How our Chancery Courts were Finally Established. — In 1834, a new Constitution was formed, which recognized "the several Courts of Equity" as part of the judicial power of the State, and authorized the establishment of Courts of Chancery, and the appointment of Chancellors and Clerks and Mas- ters.23 This Constitution continued all laws and ordinances then in force and use, until altered or repealed.24 The first Legislature under this Constitution increased the number of Chancellors to three, and vested them with "the same powers, privileges and jurisdiction in all respects that the Chancellors then had by existing laws, and that were properly and rightfully incident to a Court of Chancery, agreeably to the laws then in force in the State, not incon- sistent with the Constitution."26 This statute, in substance, re-enacts the North Carolina Act of 1782; and is in force today.26
The number of Chancellors was increased to three by the same statute, and a Middle Division established. The Act required Chancellors to make rules ' ' with a view to the attainment of the following improvements in the practice :
14 1 Scott's Rev., 685; Dibrell v. Eastland, 3 Yerg., 534.
is 1 Scott's Rev., 1148.
10 Ch. 72, § 4.
17 2 Scott's Rev., 36.
is 2 Scott's Rev., 146.
19 Ibid, 361. And we learn from Dibrell v. Eastland, 3 Yerg., 535, that, in 1832, this law was then in force. By the Act of 1822, ch. 14, on an appeal to the Supreme Court, in a Chan- cery cause, the original papers, including the depositions, were filed in the supreme Court,
instead of a transcript as now. Car. & Nich., 220.
20 2 Scott's Rev., 485; Hardin v. Stanly, 3 Yerg., 381.
21 2 Scott's Rev., 485.
22 1 Hay & Cobb, 175.
23 Art. VI, §§ 3, 13.
24 Art. XI, § 1.
25 Acts of 1835, ch. 4.
20 Code, § 4279. Whenever the Code is re- ferred to, the Code of 1858 is meant, unless otherwise stated.
§ 14 HISTORY OF OUR CHANCERY COURTS. 10
1st, the abbreviating of bills and answers and other proceedings ; 2d, the expe- diting of the decision of causes; 3d, the diminishing of costs; and, 4th, the remedying of such abuses and imperfections as may be found to exist in the practice."27 Bach Chancery Division was subdivided into Districts, each Dis- trict composed of from one to four counties, and the Court was held at some one place in each District.
The number of Chancellors and the number of Chancery Divisions have been increased from time to time down to the present ; but no further changes were made in the status of the Chancery Courts, until 1870, when the present Consti- tution was adopted. By it the Chancery Courts are made Constitutional Courts, and thus put beyond the reach of the Legislature.28 In 1877, the jurisdiction of the Chancery Courts was so enlarged as to " include all civil causes of action triable in the Circuit Courts, except for injuries to person, property or char- acter, involving unliquidated damages."29 The far-reaching effect of this statute is hardly yet fully comprehended; but the Courts are giving it that liberal construction evidently intended by the Legislature, and the result is not only a great increase in the power of the Chancery Courts to do full justice, legal as well as equitable ; but a great increase in their prestige and popularity.
§ 14. Growth of the Court in Public Favor. — The Chancery Court has been struggling, for over five hundred years, to justify its existence, and to vindicate the superiority of its jurisprudence. Having had a foreign origin when origi- nally established in England, and its jurisdiction interfering with the common law, these circumstances naturally created a prejudice against the Court. The fact that its proceedings were out of sight of the people, that it had no juries, that no witnesses were examined before it, and that its decrees were pro- nounced by a single Judge, all tended to strengthen this prejudice. The Court, too, laid a heavy hand on great and rich men, and exposed and righted the wrongs committed by designing and crafty men, and required guardians, trus- tees and even husbands and fathers to do right towards those depending on them ; and above all, was quick to detect and correct frauds and unconscientious conduct. Wicked men, thus thwarted in their schemes of wrong-doing, endea- vored to justify themselves by abusing the "one man" Court. But, notwith- standing these adverse influences, the Chancery Court of England continued to grow in power and popularity as the English people grew in civilization and intelligence, until now its principles are supreme in all the Courts of that country.30
As in England, so in Tennessee, the Chancery Court has had its adversaries, and has had its triumphs. Its history, as already briefly shown, demonstrates the fact of its constant growth in popular favor, from the beginning of our ex- istence as a State down to the present. By various Acts of the Legislature, its jurisdiction has been greatly increased,31 its powers have been much enlarged, its practice has been simplified and improved, and its process made more effica- cious. In the language of Judge Freeman, "The Chancery Court has been steadily advancing and widening the boundaries of its jurisdiction from its earliest history to the present day."32 In Tennessee, these extensions of the boundaries of the Court have been made by the people, through their legisla- tures, thus giving conclusive evidence of the growth of the Court in public favor. And now, by the Constitution of 1870, it is made a Constitutional Court, and by the Act of 1877, it has been given jurisdiction of all civil actions triable in the Circuit Court except actions for injuries to person, property or character, involving unliquidated damages, thus making its vindication complete, and its triumph perfect and permanent.
Equity, founded upon the eternal verities of right, justice and morality,
27 Acts of 1835. ch. 4. 20 Acts of 1877, oh. 97.
28 Const, of 1870, Art. VI, § 1; Halsey f>. 30 Ante, §9.
Gaines, 2 Lea, 319; Jackson v. Nimmo, 3 Lea, 31 Nolen v. Woods, 12 Lea, 615.
597. 32 Jackson v. Nimmo, 3 Lea, 604.
11 HISTORY OF OUR CHANCERY COURTS. § 15
rather than upon arbitrary customs and rigid dogmas, and acting according to the dictates of reason and good conscience, rather than unadjustible formulas, has the capability to reach and cover every civil case which can possibly arise out of the transactions of mankind, its doctrines and rules furnishing a sure means of accurately and justly determining the rights and duties of all the parties, and its flexible remedies inherent and statutory, adjusting and adapt- ing themselves to all the intricacies of every emergency ;33 so that in oiir Courts of Chancery there is now absolutely nothing wanting that man can devise for the perfect administration of complete equity; and there can never be any failure to do adequate justice, in any suit, unless the proof fails to disclose the real facts and circumstances of the transaction, or the Chancellor fails to com- prehend the doctrine, or apply the remedy, applicable to the case.
§ 15. Equity Jurisprudence, Pleadings, and Practice, in Other States.— The jurisprudence of Equity, and its pleadings and practice prevail in all the States of the Union ; and in many of the States have completely supplanted the pleadings and practice of the common law. There is an opinion, somewhat prevalent, .that there is no Equity jurisprudence in those States of the Union which have abolished Chancery Courts. This is a gross misconception. The doctrines, principles and remedies of the Chancery Court are in full force in every State ; and while, in many of the States, there are no separate Chancery Courts, in all of them the jurisprudence of Equity is, nevertheless, recognized and administered as fully as though special courts of Equity were in existence, in those States that have adopted the "code practice," or "reformed proced- ure," as it is variously termed, instead of the principles, pleadings, practice and remedies of the Chancery Court being abolished, in fact the common law practice pleadings and remedies have been abolished, or greatly conformed to those in Chancery. Under the so-called ' ' code practice, ' ' the principal plead- ings are : 1, The petition or complaint, which is identical with a bill in Chan- cery ; 2, A special demurrer, and 3, An answer, which are the same in form and substance as the like pleadings in Chancery. In short, those States that have adopted the ' ' code practice, ' ' have, in effect, by statute substituted the simple and pliable pleadings of Chancery for the stiff and cumbrous forms of the common law. And so, although in many of the States there are no separate Chancery Courts, yet in those very States the pleadings, practice and principles of Chancery are prevalent, and well nigh supreme, although to some extent under new names.34 And in the Federal Courts the principles, pleading and practice of Equity remain wholly unimpaired.
33 1 Pom. Eq. Jur., §59. I Si Ibid, §§282-288.
§16
JURISDICTION OF THE CHANCERY COURT.
12
CHAPTER II.
JURISDICTION OF THE CHANCERY COURT.
Article I. Jurisdiction of the Chancery Courts Generally Considered. Article II. Equitable or Inherent Jurisdiction of the Chancery Court. Article III. Statutory Jurisdiction of the Chancery Court.
ARTICLE I.
JURISDICTION OF THE CHANCERY COURTS GENERALLY CONSIDERED.
§ 20. Statutory Changes in the Powers and Jurisdiction of the Court.
Effect of the Act of 1877, Generally Considered.
Classification of Matters of Equitable Jurisdiction.
21.
22.
§ 16. Jurisdiction of the Chancery Courts of North Carolina.
§ 17. Jurisdiction of the Chancery Courts of Tennessee.
§ 18. Our Chancery Practice Founded on that of England.
§ 19. Powers and Jurisdiction of the Chan- cery Courts.
§ 16. Jurisdiction of the Chancery Courts of North Carolina. — The Article devoted to the History of the Chancery Courts of Tennessee plainly indicates the character and extent of their jurisdiction. The Act of 17821 vested the Courts of Equity in North Carolina with ' ' all the powers and authorities within their respective districts that the Court of Chancery, formerly held under the Colonial government, used and exercised, and that were properly and rightfully incident to such a Court."2 This Act was continued in force in Tennessee by the Deed of Cession ;3 by the Territorial Legislature ;4 bv the Constitution of 1 796 ;5 by the Constitution of 1834 ;6 by the Act of 1835 ;7 by the Code of 1858 :8 and by the Constitution of 1870. 9
The question then arises : "What were the ' ' powers and authorities used and exercised by the Chancery Court of North Carolina" at the time of the American Revolution? This question can be answered only with approximate accuracy, no records, ordinances or statutes defining the jurisdiction of that Court being in existence, so far as known.10 The Court was established by the Lords Pro- prietors under the general power given them by the Great Charter of .King Charles II. : it was held by the Governor and his Council, and there can be no doubt that its model was the Court of Chancery in England.11 The Supreme Court of North Carolina held, in the case of Griffin v. Graham,12 that the Equity system of England was a part of the common law of North Carolina in force and use within its territory at the time of the American Revolution, which common law was, in 1778, declared by the legislature of North Carolina to be in "full force within the State."13 Chancellor Kent, in Manning v. Manning,
l Chap. 11.
■i 1 Scott's Rev., 261.
3 Ibid, 438.
i Acts of 1794, Ch. 1,
5 Art. X, § 2.
e Art. XI, § 1.
i Chap. 4.
8 Code, § 4279.
§ 77; 1 Scott's Rev., 457.
!) Art. XI. § 1.
io Green v. Allen, 5 Hum., 205. See also, Griffin v. Graham, 1 Hawks, (N. C) 97; 132.
ii See Judge Gaston's argument in Griffin v Graham, 1 Hawks, (N. C.) 103.
12 Ibid.
13 Acts of 1778, ch. 5, § 1; 1 Scott's Rev., 226.
13
JURISDICTION OF THE) CHANCERY COURT.
§17
held that the English system of Equity jurisprudence at the commencement of the Revolution ' ' formed an important and very essential branch of the common law."14
§ 17. Jurisdiction of the Chancery Courts of Tennessee. — The same conclu- sion was reached by Judges Turley and White, in the great case of Green v. Allen,15 Judge White holding that the powers of our Chancery Courts "are no doubt as ample as those of the Chancery Court of England, with no other differ- ence except that which grows out of the difference of our institutions. ' ' Judge Green in Oakley v. Long,18 concedes to our Chancery Courts "the jurisdiction which was exercised by the Chancery Court of England as a Court of Equity ; ' ' and in Dickson v. Montgomery,17 he states that "our Court of Chancery has jurisdiction in all cases where, in England, the Lord Chancellor in the exercise of his extraordinary jurisdiction,18 could have afforded relief." And Judge Cooper, in Lake v. McDavitt,19 says: "The Chancery Court is vested with "all the powers, privileges and jurisdiction incident to a Court of Equity by existing laws, ' that is, by the statutory and common law of the State. It is a Superior Court as contra-distinguished from a Court of peculiar, special and limited jurisdiction. It possesses, except where changed by statute, the jurisdiction which was exercised by the Lord Chancellor of England as an Equity Judge, denominated his extraordinary jurisdiction." In this case Judge Cooper rec- ognizes the Equity jurisprudence as a part of the "common law of the State," thus concurring with the Judges heretofore cited on this point.
§ 18. Our Chancery Practice Founded on that of England. — Not only are the principles and doctrines of the English Chancery Court in force in the Chancery Courts of this State, but, before the passage of the Act of 1801, we were governed by the English rules in Chancery practice almost exclusively, and our Equity proceedings had the force and effect of proceedings in the Eng- lish Court.20 And as late as 1822, the Rules adopted by the Supreme Court for the regulation of the practice of the Chancery Court provided that "in all cases where the Rules prescribed by Act of Assembly, or those Rules heretofore adopted, do not apply, the practice of the Courts of Chancery shall be regulated by the practice of the High Court of Chancery in England."21 The U. S. Cir- cuit Courts in this State, in their Equity proceedings, are also governed by the practice of the English Chancery, as it existed in 1842.22
In Tennessee, while the pleadings and practice, in the main, conform to the pleadings and practice of the English Court of Chancery prior to 1875, there are, nevertheless, many material modifications, all of which will appear in their appropriate places in this treatise.23
§ 19. Powers and Jurisdiction of the Chancery Courts. — It will thus be seen that both the jurisprudence and the practice of the English Chancery
14 1 Johns. Ch., 531. The "common law" of the English colonies in America embraced the whole body of the laws the colonists brought with them from England, including the Chan- cery Court and its jurisprudence. See note 19, infra.
15 5 Hum., 206; 239. 10 10 Hum., 259.
IT 1 Swan, 361.
18 This "extraordinary Jurisdiction" was the Equity jurisdiction. Lake v. McDavitt, 13 Lea, 30; Pom. Eq. Jur., §§ 33-35. This extraordinary jurisdiction embraces the whole field of Equity treated of in Story's Equity Jurisprudence.
19 13 Lea, 30. See note 14, supra.
20 Dibrell v. Eastland, 3 Yerg., 535.
21 Cooke, (Appendix,) 444.
22 Rules of Practice. U. S. Courts of Equity, § 90; see also, Cooke, 392; 415.
23 The practice in the Chancery Courts of Tennessee is a modified practice, partaking of the code features to a considerable extent. See Code §§ 4305-4494. And in Tennessee, as in oth- er States, there has been a struggle between the two systems of pleading — between the stat-
utory system and the preceding system; and our Supreme Court rulings on the subject have oscillated between the two, sometimes conform- ing to the requirements and spirit of the stat- utes; and, at other times, ignoring the statutes, and reasserting the supremacy of the ancient rules, according as the judges have been in- spired with admiration for the new or venera- tion for the old.
As a result of our statutory enactments on the subjects of pleading and practice, the text books that treat of Chancery Practice and Pleading, while in the main valuable guides, are, nevertheless, liable at times to mislead in matters wherein, by direct enactment or by necessary imnlication, the former practice has been repealed or modified. And one of the main purnoses of this book is to give so much of the old practice as is in force, and to sub- stitute the new practice for so much of the old as is no longer in force, thus presenting to the practitioner the whole of the practice, old and new, now prevailing in our Chancery Courts, and omitting so much of the old practice as has become obsolete, or has been repealed or- modified by statute.
§20
JURISDICTION OP THE CHANCERY COURT.
14
Court are in force in our State, except in so far as changed by our Statutes and Rules. So that, in summarizing the "powers, privileges and jurisdiction" conferred on our Chancery Courts by the Code,24 it may be safely stated that the powers and jurisdiction of the Chancery Courts of Tennessee, in and for their respective districts, are, except as changed by statute, identical in kind, and commensurate in extent, with the Equity powers and jurisdiction of the High Court of Chancery in England at the time of the American Revolution.25 And it may be added, the statutory changes in the powers and jurisdiction of our Chancery Courts have greatly enlarged those powers and jurisdiction, and proportionately increased their efficiency and beneficence.
§ 20. Statutory Changes in the Powers and Jurisdiction of the Court. — As has been already stated, the statutory changes in the powers and jurisdiction of the Chancery Courts have mainly been additions, and not limitations. "Juris- diction" means the authority possessed by a Court to determine a controversy; and the "powers" of a Court are its right and ability to enforce its deter- minations.
1. The Principal Additions to the Powers of the Court are the following, given in order of time :
1. Power to order a bill to be taken for confessed.26
2. Power to issue an execution to enforce a money decree.27
3. Power to bring defendants before the Court by publication.28
4. Power to divest and vest title to property by decree.29
5. Power to issue attachments to impound property.30
6. Power to appoint a commissioner to execute a conveyance, release or acquittance, in the name of either the parties or of himself.31
7. Power to appoint administrators ad litem when necessary in the progress of a cause.32
2. The Principal Additions to the Jurisdiction of the Court are the following, given in chronological order :
1. Jurisdiction to empanel a jury to try an issue of fact.33
2. Jurisdiction to proceed against non-resident and absconding defendants, by publication.34
3. Jurisdiction to decree a divorce and alimony.35
4. Jurisdiction to proceed in rem against the estates of non-residents by attachment and publication.36
5. Jurisdiction to proceed against the real and personal property of non- resident defendants.37
6. Jurisdiction to proceed by attachment and publication against the estates and persons of non-resident absconding debtors.38
7. Jurisdiction to appoint an administrator, and wind up his intestate's estate.39
8. Jurisdiction to keep corporations in the line of their duties, and to decree a forfeiture of their charters.40
9. Jurisdiction over the persons and estates of idiots, lunatics and persons of unsound mind.41
10. Jurisdiction to consent to, and decree, a sale of the property of infants
24 Code, § 4279. All references to Code sec- tions are to the sections in the Code of 1858.
25 See cases cited in the preceding sections. See also. 1 Pom. Bq. Jur., §§ 282-288: 1 Sto. Eq. Jur., § 57.
26 Acts of 1782, ch. 11.
27 Acts of 1787, ch. 22; Deaderick v. Smith, 6 Hum., 146.
28 Acts of 1787, ch. 22.
29 Acts of 1801, ch. 6; Dibrell v. Eastland, 3 Terg., 534.
30 Acts of 1801, ch. 6, § 3.
31 Acts of 1838, ch. 176.
32 Acts of 1889, ch. 137. S3 Acts of 1782, ch. 11
34 Acts of 1787, ch. 22
35 Acts of 1799, ch. 19.
36 Acts of 1801, ch. 6.
37 Acts of 1801, ch. 6.
38 Acts of 1836, ch. 43.
39 Acts of 1842, ch. 177.
40 Acts of 1846, ch. 57
trlssA7tHe°L185413352' ^ 163; FentreSS * Fen"
15
JURISDICTION OF THE CHANCERY COURT.
§21
and married women. If the Court had inherent jurisdiction42 to do this, the statute certainly settled all doubts and enlarged that jurisdiction.43
11. Jurisdiction to prevent the usurpation of office, and to declare an office forfeited.44
12. Jurisdiction of all civil causes of action triable in the Circuit Court, except for injuries to person, property or character, involving unliquidated damages.45
§ 21. Effect of the Act of 1877 generally Considered.— In 1801, it was enacted that ' ' after answer filed and no plea in abatement to the local jurisdic- tion of the Court, no exception for want of jurisdiction shall ever afterwards be made."46 It has been uniformly held ever since the passage of this Act, that on failure of the defendant to object to the jurisdiction of the Court before answering, the Court had the right, and it was its duty, to determine the con- troversy, unless the matter was unfit for a Court of Equity. Under the opera- tion of this holding, the Chancery Court had, for seventy-five years, been in the habit of entertaining demands, and causes of action, purely legal in their nature. The Act of 1877 is only one step further than the law was before, as Judge Freeman, in Jackson v. Nimmo,47 very conclusively shows. The Chan- cery Court has long had jurisdiction, in attachment cases, of "debts or demands of a purely legal nature, except causes of actions founded on torts."48 Thus, it will be seen, the Act of 1877 is by no means as revolutionary as was at first supposed. Every enlargement of the Chancery jurisdiction for five hundred years, in England and America, has been the signal for an alarm; but the enlargements have continued, until, both in England and a majority of the American States, the Chancery methods of pleading and the principles of the Chancery jurisprudence have, in a large measure, superseded, the unbending formalities and the harsh doctrines of the common law.49
The Act of 1877 goes far to settle the ancient controversy, between the Chancery and the Common Law Courts, with respect to the boundary line between their respective jurisdictions; and it includes not only the disputed territory, but also all the territory adjacent thereto, within the concurrent jurisdiction of the Chancery Court.50
In the English Judicature Act, passed in 1873, it is provided that ' ' generally, in all matters in which there is any conflict or variance, between the rules of Equity and the rules of the common law with reference to the same matter,
42 Brown, ex parte, 8 Hum. 200; Mason v. Tinsley, 1 Tenn. Chy. 154; Greenlaw v. Green- law, 16 Lea, 435; Williams v. Williams, 10 Heisk. 570.
43 Code of 1858, § 3323.
44 Code of 1858, § 3409.
45 Acts of 1877, ch. 97.
40 .Acts of 1801. ch. 6, § 16; 1 Scott's Rev., 688.
47 3 Lea, 597, 610.
48 Code, § 3461.
49 In those States which have what is termed the "Code Practice," the procedure is based largely on the ordinary Chancery Practice; and although the names of their Courts have been changed, the substance of the Equity jurispru- dence and procedure remain, while common law forms and procedures have, in the main, been abrogated.
50 It is safe to say, that the Act of 1877, ch. 97, gave to the Chancery Courts a practically supreme sovereignty over all the really debata- ble territory that formerly existed on the com- mon law frontiers; and forever terminated the disputations, with which our Courts had re- sounded, for a hundred years, as to where the elastic domain of Equity really ended, and where the rigid realm of Law inviolably began.
What struggles the Chancery records dis- close, over attempts to get the Court to detei- mine cases, in which the jurisdiction was de- batable! what contrariety of rulings on demur- rers in such cases! what subtle dialectical dis- tinctions were drawn, sometimes to sustain.
and sometimes to defeat, the jurisdiction! what clamors were raised against interfering with the jurisdiction of the common law Courts, and the sacred right of trial by jury! what invoca- tions of Magna Charta, and the inviolable Bill of Rights! what appeals to the Chancellor to stretch forth the strong right arm of his ben- eficent power, and take jurisdiction, that Equity might be administered, and iniquity overcome! what references to the Master, re- ports, exceptions, recommittals, and decrees in the lower Court; and what appeals, writs of error, remandments, and reversals, to and by, the Supreme Court! And then, perhaps, the complainant, thus Anally denied justice in a Court of Equity, went to the Circuit Court for redress, and there, after ■ multitudinous mo- tions, demurrers, pleas, continuances, trials, new trials, bills of exceptions, appeals, rever- sals and more trials, and perhaps more appeals and reversals, he was at last informed by a new set of Judges, that the suit was one that should have been brought in the Chancery ■ Court! All such unseemly and costly contro- versies over questions of disputed jurisdiction, and the consequent scandal on the Courts of Justice, are happily and forever ended by the beneficent Act of 1877. And no more will Jus- tice weep in her own temple to see her suitors torn to pieces by her own ministers contending for the jurisdiction over them. See Hay v. Marshall, 3 Hum., 6*23; Hale v. Hale, 4 Hum., 183; and Taylor «. Tompkins, 2 Heisk., 89.
§22
JURISDICTION OF THE CHANCERY COURT.
16
the rules of Equity shall prevail." The effect of this provision is to make the rules of Equity supreme, in all litigation, in all the Courts of England. It is believed the Tennessee Act of 1877 has the same effect in all common law rights of action sought to be enforced in Chancery. When the jurisdiction of a Court is enlarged, the new subjects of jurisdiction should not be treated as aliens, and discriminated against; nor should the parties to such suits be held in dis- favor, or denied any equitable right, benefit or privilege, accorded by the Court in the ordinary exercise of its jurisdiction. The Act of 1877 was mani- festly intended to enlarge the jurisdiction of the Chancery Court as a Court of Equity, and not to make it, as to this enlargement, a mere 'Common Law Court;51 and hence, in all suits brought under the Act of 1877, the pleadings, practice and principles, of Equity jurisprudence will control.52
§ 22. Classification of Matters of Equitable Jurisdiction. — The importance formerly attached to a proper classification of the subjects of Equity jurisdic- tion no longer exists in this State, and it is now immaterial whether the matter In controversy is within the equitable or the statutory jurisdiction of the Court ; and if within the equitable, it is unimportant whether the jurisdiction be exclu- sive or concurrent. As a result, all the abstruse learning in the books on the lines of demarcation between the different grounds of jurisdiction has ceased to be of much practical value. The legal niceties, the complex technicalities and the dialectical discriminations on the subject of jurisdiction, with which the great jurists of England and America wrestled in the last five centuries, no longer perplex either the student or the practitioner in this State.
For convenience of consideration, the jurisdiction of our Chancery Courts, as now constituted, may be divided into : 1, The Equitable, or Inherent, and 2, The Statutory :
1. The Equitable, or Inherent, to include all of those matters, whether purely equitable in their nature or having characteristics both equitable and legal, jurisdiction over which is derived exclusively or chiefly from their inherent powers as Courts of Equity ; and
2. The Statutory, to include all of those matters, whether equitable in their characteristics or purely legal in their nature, jurisdiction over which is derived exclusively or chiefly from our statutes.
si Lenoir v. Mining Co., 4 Pick, 168. In this case it was decided that when a suit based on claims purely legal is tried in the Chancery Court the maxims and principles of Equity will be applied.
5:2 The Chancery Court in Tennessee is now equipped with full power to do complete and speedy justice in all suits within its juris- diction, however numerous the parties, or complicated their rights and duties. It is vested with authority to so shape and mould its decrees as to meet every exigency required either by Law or Equity, and to adjust all mat- ters in controversy, legal as well as equitable, so as to give each party his exact rights, and to require of each party his exact duties,
whether such party be complainant or defend- ant, and whether the obligations be between complainants and defendants, or between co- complainants or between co-defendants. And it has been clothed with unlimited power to use any kind of process, legal or equitable, to enforce its orders and decrees ; and if an emer- gency should arise necessitating a process not hitherto used, the Court would, when abso- lutely necessary to prevent a failure of sub- stantial justice, so modify one of the cus- tomary legal or equitable processes as to adapt it to the exigencies of the emergency. The Act of 1877 is liberally construed, Simmons ». Leon- ni'd, 5 Pick., 622.
I'/
THE EQUITABLE, OR INHERENT JURISDICTION.
§23
AKTICLE II.
THE EQUITABLE, OR INHERENT, JURISDICTION OF THE CHANCERY COURT.
§ 23. The Equitable, or Inherent Jurisdiction of the Chancery Court Generally Con- sidered.
§ 24. The Equitable, or Inherent Jurisdiction Generally Stated.
§ 25. The Equitable, or Inherent Jurisdiction Specially Stated.
§ 23. The Equitable, or Inherent, Jurisdiction of the Chancery Court gen- erally Considered. — The jurisprudence and procedure of the Chancery Court constituted a part of the law our ancestors brought with them from England, when they founded the Colony of North Carolina. When that Colony became a State, this jurisprudence was recognized, and its administration provided for, in its Constitution ; and in 1782, its Legislature conferred this jurisdiction upon the Courts. Tennessee being then a part of North Carolina, that jurisprudence ' became a part of our law; and, when we became a State, both the Deed of Cession and the Act of Admission by Congress, made the laws of North Carolina our laws, until we saw fit to change them. In our first, and in all subsequent, Constitutions, the jurisprudence and procedure of the Chancery Court were fully recognized, and their administration abundantly provided for. While the procedure has been modernized, simplified and improved, in many particulars, as already fully shown, the jurisprudence has in no particular been changed, except in so far as it has been extended and enlarged on the lines of its legiti- mate development.1
This original jurisdiction, thus derived, through the Colony and State of North Carolina, from the Equity Jurisprudence of England, is called the inherent jurisdiction of the Court, to contradistinguish it from the statutory jurisdiction ; and it is to this original and inherent- jurisdiction that our statute refers when it says : ' ' The Chancery Courts shall continue to have all the powers, privileges and jurisdiction, properly and rightfully incident to a Court of Equity, by existing laws."2
The inherent powers, privileges and jurisdiction of our Chancery Courts, within their respective local and personal jurisdictions, are identical in kind and commensurate in extent, with the Equity powers, privileges and jurisdic- tion of the High Court of Chancery in England, at the time of the American Revolution.3
The Chancery Court is a Superior Court4 of general original jurisdiction of
1 See Article on the History of the Chancery Courts of Tennessee, ante, §§ 10-14. The Chan- cery Court, under its inherent jurisdiction, deals only with property and the rights and duties of parties incident thereto; and every affirmative decree either affects the property of some party, or some right or duty of some party in reference to property. Its juris- diction over infants, non compotes, and married women arises out of their property and prop- erty rights. Its jurisdiction in suits for di- vorce, mandamus, habeas corpus and other suits formerly triable exclusively in Courts of Law, is oureiy statutory. As to what property is. and what are rights of property, see post, § 56.
2 Code, § 4279. In some cases the statute has • given the Court jurisdiction of matters over which it had inherent jurisdiction already, as (1) in case of partition. Hopper v Fisher, 2 Head. 254; (2) in proceedings to sell the lands of infants, Gray v. Barnard, 1 Tenn. Ch., 298;
(3) to appoint and remove trustees, Code, §§ 3648-3664; Watkins v. Specht, 7 Cold., 594; I Perry on Trusts, §§ 280-282; and (4) to aid a judgment creditor after a return of nulla bona. Code, §§ 4282-4285.
3 See the following Article; also, Lake v. Mc- Davitt, 13 Lea, 30.
4 Hopper v. Fisher, 2 Head, 254; Lake v. Mc- Davitt, 13 Lea, 30. The rule of jurisdiction is, that nothing shall be intended to be out of the jurisdiction of a Superior Court but that which specially appears to be so; and, on the contrary, nothing shall be intended to be with- in the jurisdiction of an Inferior Court but that which is so expressly alleged. Kilcrease v. Blythe, 6 Hum., 378. The Chancery Court is a Superior Court within the sense and mean- ing of the term as contradistinguished from an Inferior Court. Hopper v. Fisher, 2 Head, 253; Robertson v. Winchester, 1 Pick., 187.
§24
THE EQUITABLE, OR INHERENT JURISDICTION.
18
all cases of an equitable nature, where the debt or demand exceeds fifty dollars ; and every matter of equitable cognizance above said amount is presumed to be within its inherent jurisdiction as a Court of Equity.5
§ 24. The Equitable, or Inherent, Jurisdiction generally Stated. — The whole inherent jurisdiction of the Chancery Court, aside from its injunctive powers, may be briefly summed up in these four propositions.
1. If a lawful and equitable contract be the subject matter of the suit, all the Court can do is (1) to equitably enforce the contract, or (2) to award com- pensation for its breach, or (3) to require the party in default to do such act relative thereto as he, in good reason and good conscience, ought to have done without suit.8
2. If there be no contract, or the contract be inequitable, and the parties disagree as to their rights and duties, all the Court can do is (1) to require the party in default to do, or refrain from doing, what good reason and good conscience require, or (2) where injury has been done, to make the defendant atone therefor.
3. If any of the parties are under disability, and (1) their interests will be promoted by a sale of their property, or by a conversion of their money into other property, or by using a portion or all of the corpus of their estate for their maintenance, education or support; or (2) if their rights need protection or enforcement ; on the application of a guardian, or next friend, the Court will (1) by decree do for them what they in reason and conscience would themselves have done if under no disability, or (2) will require the parties who are sui juris to do to or for those under disability, what in good reason and good •conscience, they should have done without suit.
4. If the parties are sui juris, whatever they consent to during the progress •of the suit will, if violative of no law, be binding on the Court ; and if it is to the interest of an infant or lunatic party to join in any lawful consent, and the state of the pleadings permit, the Court can consent for such infant or lunatic. And, generally, where there is consent, the parties bind the Court ;7 and where there is no consent, the Court binds the parties.
§ 25. The Equitable, or Inherent, Jurisdiction, Specially Stated. — The equitable or inherent jurisdiction of the Chancery Court includes all cases of an equitable nature, where the debt or demand exceeds fifty dollars.8 These cases include the following :
1. All suits resulting from accidents and mistakes.
2. All suits resulting from frauds, actual, and constructive.
3. All suits resulting from trusts, express, constructive, and resulting.
4. All suits for the specific performance of contracts.
5. All suits for the reformation, re-execution, rescission, and surrender of written instruments.
6. All suits for an accounting, and for surcharging and falsifying accounts.
7. All suits between partners, and to wind up an insolvent partnership.
8. All suits for the administration and marshaling of assets.
9. All suits for subrogation and substitution.
10. All suits for the enforcement of liens created by mortgages, deeds of trust, sales of land on credit, or other equitable considerations.
11. All suits by married women against their husbands, except for divorce.9
12. All suits against married women and minors in reference to their estates, not cognizable at law.
13. All suits by wards against guardians, executors, administrators and
5 Code, §§ 4279-4281. As to the fifty dollar limit, see § 26, post, note 5.
a Equity compels a defendant to do that which an upright and conscientious man would have done without compulsion. White, J., In Perkins v. Hays, Cooke, 166. Equity delights in placing parties in the situation they ought
in reason and conscience to occupy. Hancock v. Bryant, 2 Yerg., 478.
T And so the maxims declare: Consensus faeit legem. Conventio vindt legem.
8 Code, § 4280. See post, § 26.
» Suits for divorce are brought under the statutory jurisdiction of the Court.
19 THE EQUITABLE, OR INHERENT JURISDICTION. § 25
others, where an accounting, or surcharging or falsifying an account, is necessary.
14. All suits for an apportionment and contribution.
15. All suits for the marshaling of securities.
16. All suits for relief against forfeitures and penalties.
17. All suits for the redemption of land or other property.
18. All suits to have absolute deeds or bills of sale declared to be mortgages.
19. All suits for the construction and enforcement of wills and trusts.
20. All suits to obtain a set-off against a judgment in favor of a non-resident or insolvent.
21. All suits for the discovery and perpetuation of testimony.
22. All suits to compel claimants to interplead.
23. All suits for equitable attachments and receivers.
24. All suits where a ne exeat republica is sought.
25. All suits where an injunction is a substantial part of the relief sought.
26. All suits to remove clouds and quiet titles.
27. All suits for the establishment and execution of charities.
28. All suits for a new trial after a judgment at law.
29. All suits to have void judgments so declared, and to avoid voidable judgments.
30. All suits to execute decrees, and to impeach decrees and judgments.
31. All suits to prevent the doing of an illegal or inequitable act to the injury of complainant's property rights, or interests, quia timet.
32. All suits for the exoneration or protection of sureties.
33. All other suits where the defendant has done, or is doing, or is threaten- ing to do, some inequitable act to the injury of the complainant, and there is no adequate remedy therefor in any other court.
§26
STATUTORY JURISDICTION.
20
ARTICLE III.
STATUTORY JURISDICTION OF THE CHANCERY COURTS.
26. Statutory Jurisdiction of the Court
generally Considered.
27. Jurisdiction Concurrent with the Coun-
ty Courts.
§ 28. Jurisdiction Concurrent with the Cir- cuit Courts.
§ 29. The Act of 1877 Specially Considered.
§ 30. Exclusive Statutory Jurisdiction of the Chancery Courts.
§ 26. Statutory Jurisdiction of the Court generally Considered. — With per- haps the single exception of the Act prohibiting interlocutory injunctions against the collection of State taxes,1 all of the statutes now in existence rela- tive to the powers, privileges and jurisdiction, of the Chancery Court are either declaratory or augmentative, as has been shown in a preceding Article. The Statute declares that the Court has all the powers, privileges and jurisdiction properly and rightfully incident to a Court of Equity, by existing laws.2 The effect of this statute is to make the inherent jurisdiction of the Court, in a sense, also statutory. The statute further declares that the Court has exclusive original jurisdiction of all cases of an equitable nature, where the debt or demand exceeds fifty dollars, unless otherwise provided by the statute.3 The Court has no jurisdiction of any debt or demand of less value than fifty dollars,4 except upon an ejectment bill to recover land, or on a replevin or detinue bill, or on a bill to aid a judgment creditor,5 or on a bill to enforce the statutory rights of a purchaser of realty at a tax sale.6 The Court cannot enforce a vendor's lien when the amount of the demand is less than fifty dollars.7
The statutory jurisdiction, while including matters also belonging to the inherent jurisdiction, may for convenience be divided into : 1, Jurisdiction concurrent with the County Court ; 2, Jurisdiction concurrent with the Circuit Court ; and 3, Jurisdiction exclusive of all other Courts.
§ 27. Jurisdiction Concurrent with the County Courts. — The Chancery Court has jurisdiction concurrent with the County Court :
1. Of the persons and estates of idiots, lunatics, and other persons of un- sound mind.8
1 Acts of 1873, ch. 44.
2 Code, § 4279. See preceding Article, §§ 16-22.
3 Code, § 4280. What is meant by "cases of an equitable nature" is the whole body of Equity Jurisprudence as a remedial system. Pomeroy and Story are authors of works on Equity Jurisprudence recognized by our Su- preme Court; and their treatises have been largely used in the compilation of this book.
4 Code, §§ 4280-4281.
5 The Court has jurisdiction in a mandamus suit where the amount in controversy is under fifty dollars; State, ex rel., v. Alexander, 7 Cates, 156; and in suits to recover land which is of less value than fifty dollars. Frazier v. Browning, 11 Lea, 253. The Chancery Courts have jurisdiction, also to aid a judgment cred- itor after a return of nulla bona, when the amount of his judgment is less than fifty dol- lars; Putnam v. Bentley, 8 Bax., 84; State v. Covington, 4 Lea, 58; but they have no juris- diction to enforce a vendor's lien when the amount is less than fifty dollars. Malone r. Dean, 9 Lea, 336. If the debt or demand as set forth in the bill exceeds fifty dollars, the Court prima facte has jurisdiction; and if the
defendant, without pleading in abatement, an- swers the bill, he cannot, at the hearin,, re- sist a decree on the mere ground that the amount of the debt, as ascertained by the proof, is less than fifty dollars. Spurlock r. Fulks, I Swan, 289; Birmingham v. Tapscott, 4 Heisk., 382; Wagstaff v. Braden, 1 Bax,, 304; Smets v. Williams, 4 Paige (N. T.) 364. o Acts of 1903, ch. 258, § 78.
7 Malone v. Dean, 9 Lea, 336. After this de- cision, the Legislature clothed the County Courts with jurisdiction to enforce vendors' liens when the amount is under fifty dollars. Acts of 1887, ch. 141. Why the jurisdiction was not conferred on the Chancery Courts, it is hard to understand, inasmuch as the rules of practice and pleading in the Chancery Court are required to be followed in tne County Court in such cases, and the costs in the two Courts in such cases are precisely the same I The pro- ceedings in the County Courts in suits to sell lands are often so inartificial as to be unintelli- gible, and often so defective as to convey no title to the purchaser.
8 Code, § 4298.
21
STATUTORY JURISDICTION.
§28
2. Of the persons and estates of infants, and of the appointment and re- moval of guardians.9
3. Of suits for the partition,10 or sale, of estates, by heirs or tenants in common.11
4. Of suits for the sale of a decedent's land at the instance of his personal representatives or creditors, if the personal property is insufficient to satisfy the debts of the estate.12
5. Of suits for the allotment of dower.13
6. Of suits for the appointment of an administrator of a decedent's estate, when six months have elapsed since his death, and no person will apply to the County Court, or can be procured, to administer in the usual way,14 and
7. Of suits to enforce the payment of legacies and distributive shares.15
§ 28. Jurisdiction Concurrent with the Circuit Courts. — The Chancery Court has jurisdiction concurrent with the Circuit Court in the following cases :16
1. Of suits for divorce and alimony.17
2. Of suits for the partition, or sale, of estates by heirs or tenants in common.18
3. Of suits for the sale of a decedent's land at the instance of his personal representatives or creditors, if the personal property is insufficient to satisfy the debts of the estate.19
4. • Of suits for the allotment of dower.20
5. Of arbitration and agreed cases.21
6. Of suits for the abatement and recovery of usury.22
7. Of suits to enforce the payment of legacies and distributive shares.23 And, under the Act of 1877, the Chancery Court has jurisdiction, concurrent
with the Circuit Court, in the following cases:24
8. Of all suits to recover money due for work or labor done, or services rendered, or for the hire, rent, use, price or value of property, real or personal.25
9. Of all suits to recover money expended for the defendant's use and bene- fit, or at his instance and request.
10. Of all suits to recover money the defendant has received from or for the complainant, without the right to retain it against him.
11. Of all suits to recover money agreed, or adjudged, to be paid.
12. Of all suits to recover money due on any contract, express or implied; or due on any judgment or award ; or lost at gaming.
13. Of all suits to recover penalties,26 or liquidated damages, or damages liquidated or unliquidated, for breaches of contracts, expressed or implied; or for breaches of any obligation or legal duty.27
14. Of all suits to recover damages in all other cases,28 except damages for injuries to person, property or character, involving unliquidated damages.
9 Code, § 4299. The Code following the North Carolina Act of 1762, ch. 5, expressly provides that the powers of the Chancery over the es- tates of infants are not to be abridged by the concurrent jurisdiction conferred on the Coun- ty Court, § 2493. As to the power of the Chan- cery Court to appoint guardians for infants, see Lake v. McDavitt, 13 Lea, 26.
10 The Chancery Court has inherent jurisdic- tion of partition. Hopper v. Fisher, 2 Head, 253.
11 Code, §§ 4302; 4201; 3266.
12 Connell v. Walker, 6 Lea, 709; Burgner v. Burgner, 11 Heisk., 729; Kindell v. Titus, » Heisk.. 727.
13 Code, §§ 2407; 4302.
14 Code, §§ 4304, 2209-2219. See Article on this subject, post, §§ 985-987.
15 Code, § 2312; Stewart *. Glenn, 3 Heisk., 581.
16 For cases at law where the Chancery Court has no jurisdiction, see post, §§ 290-298.
ir Code, §§4301; 2451. See Chapter on Di- vorce and Alimony.
18 Code, § 3266.
19 Code, §§ 2233; 2267.
20 Code, §§ 4302; 4233.
21 Code, §§ 4303; 3432-3454.
22 Code, § 4300.
23 Code, § 2312.
24 Acts of 1877, ch. 97.
25 Even if the property has been tortiously converted, the tort may be waived and the value of the property sued for in Chancery. Baker v. Huddleston, 3 Bax., 1. And the suit may be brought against the administrator of the tortious converter. Elrod v. Alexander, 4 Heisk., 342.
26 McCreary v. .First National Bank, 1 Cates, 128.
27 Damages for breach of warranty. Wil- liams v. Burg, 9 Lea, 455; or for breach of a bond, Glenn v. Moore, 11 Lea, 256.
28 Such as for negligence, Kirkeys v. Cran- dall, 6 Pick., 532, and fraudulent conduct.
§ 29 STATUTORY JURISDICTION. 22
15. Of all suits to recover land, or any interest therein, or any rent or profit thereof.
16. Of all suits to recover specific personal property.
17. Of all such "special actions and proceedings"29 as ejectment,30 forcible entry and detainer, replevin,31 detinue, mandamus,32 habeas corpus,33 sum- mary proceedings by motion, and proceedings to change names, and to legiti- mate and adopt children; and
18. Of all other civil causes of action triable in the Circuit Court, except for injuries to person, property or character, involving unliquidated damages.34
The Chancery and Circuit Courts have also concurrent jurisdiction :
19. Of all suits in the name of the State against corporations, and to pre- vent the usurpation of office;35 and
20. Of all suits commenced by attachment against the property of the de- fendant.38
21. Of all suits to enforce mechanics' liens,37 landlords' and furnishers' liens,38 liens on boats,39 liens of cotton sellers,40 liens for wharfage,41 liens of employes of corporations and partnerships,42 liens of farm laborers,43 liens of contractors and laborers on railroads,44 and liens on personal property.45
22. Of all suits brought in the name of the State or County to enforce liens for taxes,46 and
23. Of all appeals from the judgment of the County Court on an account stated by the County Court Clerk with an administrator, or executor.47
§ 29. Act of 1877, Specially Considered.— The Act of 1877, ch. 97, was at first regarded with disfavor by the Courts and the Bar, and even its constitu- tionality questioned. When recognized at all, it was done grudgingly, and attempts were made by both Judges and Solicitors to limit its application, and construe it as though it made a law Court out of the Chancery Court. But the Act gained steadily in favor ; its constitutionality was recognized, and its wis-
29 They are so denominated in the Code. See "Title 2, of Special Actions and Proceedings," between § 3228 and § 3229.
30 Even when the land is worth less than fifty dolars. Frazier v. Browning, 11 Lea, 253; Smith v. Taylor, 11 Lea, 743.
31 See Womack v. Smith, 11 Hum., 478; Lee i>. Cone, 4 Cold., 392; Chesney v. Rodgers, 10 Heisk., 542.
32 Hawkins v. Kercheval, 10 Lea, 542.
33 The Chancery Court is given jurisdiction of habeas corpus suits by the Act of 1877, ch. 97; but it would seem that this Act does not give the Chancellor the powers of the Circuit Judge in habeas corpus cases at chambers. The habeas corpus "cases of equitable cognizance," referred to in the Code, § 3723, include only cases where a party has been committed by the Chancery Court, or Chancellor, for some contempt. See Code, §§4108-4109; 4482-4483, and the Article on Contempt, post, §§ 203; 922.
34 Acts of 1877, ch. 97. The scope of this Act is broader than has sometimes been thought. By it the Chancery Court is given jurisdiction "of all civil causes of action triable in the Cir- cuit Court, except for injuries to the person, property or character, involving unliquidated damages." The exception is confined to "inju- ries to person, property or character, involving unliquidated damages." Hence, these three elements must co-exist in the suit to bring it
within the exception. 1st, the suit must be for an injury; 2nd, the injury must be to person, prop- erty or character; and 3d, the injury must in- volve unliquidated damages. If a civil cause of action does not cover all three of these ele- ments, then the suit may be brought in the Chancery Court. Nearly all of the excepted cases are included in the following three classes :
1. "Injuries to person involving unliquidated damages" include, (1) assault, (2) battery, (3) false arrest, (4) false imprisonment, (5) injury to the person from negligence, nuisances, se- duction, and malpractice, and (6) malicious prosecution involving an arrest.
2. "Injuries to property, involving unliquidated damages" include injuries to property, real or personal, arising from trespasses, vi et armis, nuisances, negligence, and torts.
3. "Injuries to character involving unliquidated damages" include (1) slander, (2) libel, and (3) malicious prosecution: the last is often for in- juries to both person and character.
By the 2nd Section of the Act of 1877, no de- murrer for want of jurisdiction of the cause of action shall be sustained in the Chancery Court, except in cases of unliquidated damages for injuries to person, property or character.
Liquidated damages are (1) such as are agreed upon by the parties either before or niter the breach. Bouv. L. Die, "Liquidated Damages;" Winters v. Fleece, 4 Lea, 550; or (2) such as are definitely fixed by some rule of law. See Glenn v. Moore, 11 Lea, 256; State v. Keller, 11 Lea, 399; Williams v. Burg, 9 Lea, 460. But the Chancery Court in a suit to enjoin injuries to property will go further and award damages for the injury done. See §§ 36; 38.
35 Code, § 3411. See Article on these suits, post, §§ 1081-1083.
36 Code, §§3455; 3460; 3461. See Chapter on Attachment Suits.
37 Code, §§ 1987; 3543; Acts of 1S73, ch. 19; Acts of 1889, ch. 103, § 2.
38 Code. § 3541; Sharp v. Fields, 1 Heisk., 571. Any attachment suit, except for torts, may be brought in Chancery. Code, §§ 3455; 3461; 3507- 3508.
30 Code, § 3550; Casey v. Weatherly, 13 Pick., 297.
*o M. & V.'s Code, § 2762.
41 Code, § 1993. '
42 M. & V.'s Code, § 2769.
43 M. & V.'s Code, § 2772.
44 M. & V.'s Code, § 2776; Acts of 1877, ch. 97,
45 Acts of 1889, ch. 12.
40 Acts of 1887, ch. 2, § 64; Grundy County v. Tenn. Coal Co., 10 Pick., 297. 47 Code, §§ 2302-2304.
23
STATUTORY JURISDICTION.
§30
dom and usefulness appreciated. It is being more and more liberally construed, its far-reaching and beneficent effects are more and more fully understood, and its extensions of remedial powers and processes more and more generally appreciated and applied.
This Act places at the disposal of the Chancery Court all the powers and jurisdiction of the Circuit Court, in civil causes of action, except a few involv- ing unliquidated damages ; so that when a suit is being tried in Chancery, the Chancellor has at his disposal all the weapons and machinery of justice con- tained in the armories of the common law as well as those in the armories of Equity, thus enabling him to do full, complete and adequate justice in the suit before him, unhampered by the formalities and technicalities of the com- mon law, and unhindered by the former statutes conferring exclusive jurisdic- tion of common law matters upon the Circuit Courts. The Act of 1877 did not carry the Chancellor into a Law Court to try the lawsuit, but carried the lawsuit into the Chancery Court to be heard by the Chancellor, and clothed him with all of the powers of the Circuit Court in addition to those of the Chancery Court, so as to enable him not only to administer the law applicable to the case, but at the same time, to apply any powers or principles of Equity necessary to deter- mine all the questions involved in the controversy,48 and render any further litigation not only unnecessary but improper.
While the maxim, When Chancery has jurisdiction for one purpose it will take jurisdiction for all purposes, has always been a favorite one, nevertheless the Court was formerly so hampered by not having a jury of its own to deter- mine a controlling question of fact when the evidence was conflicting and the credit of witnesses to be weighed, or to assess unliquidated damages, that it often, perhaps too often, after deciding the equitable matters in controversy, refused to go further and remitted the complainant to the Courts of law in order to obtain the remainder of the redress he was entitled to. But now, clothed with law powers by the Act of 1877, and having full power to empannei a jury of its own, our Chancery Court can give full effect to the said maxim, and. in one and the same suit determine every question of Equity, law or fact in- volved, including unliquidated damages where such damages are incidental to the main object of the suit.49
§ 30. Exclusive Statutory Jurisdiction of the Chancery Court. — The Chan- cery Court has exclusive statutory jurisdiction of the following suits, some of which, however, belong, also, to its inherent jurisdiction :
1. Of all suits to aid judgment creditors, when the property of the defend- ant cannot be reached by execution.50
2. Of all suits to set aside fraudulent conveyances, and subject the property so conveyed to the satisfaction of complainant's debt.51
3. Of all suits to subject the property of ' corporations to the payment of their debts, when the corporate franchises are not used, or have been granted to others, in whole or in part.52
4. Of all suits relating to controversies between the State and incorporated companies, their stockholders and creditors, growing out of the internal im- provement laws of the State.53
5. Of all suits to enforce foreign judgments against the property of the non- resident defendant when the creditor has exhausted his legal remedy.54
6. Of all suits to sell the property of infants and married women, for their support, education and maintenance, and when manifestly for their interest.55
7. Of all suits to partition, sell and re-invest the property of lunatics, when for the manifest interest of the lunatic or his family.56
48 Lenoir v. Mining- Co., 4 Pick., 168.
49 See post, § 36, where this maxim is fully considered.
50 Code, §§ 4282-4286.
51 Code, §§ 4288-4293.
52 Code, §§ 4294-4295.
53 Code, § 4296.
54 Code, § 4297.
55 Code, §§ 3323-3340. 5G Code, § 3708-3719.
§ 30 STATUTORY JURISDICTION. 24
8. Of all suits of an equitable nature, where the debt or demand exceeds fifty dollars, unless otherwise provided by the Code of 1858.57
Each of these suits is considered at large, under appropriate headings, in subsequent sections.58
57 Code, § 4280. I ss See Index, and Table of Contents.
25
MAXIMS AND PRINCIPLES OP JURISDICTION.
§31
CHAPTER III.
MAXIMS AND PRINCIPLES OP EQUITY.
Article I. Maxims and Principles of Jurisdiction. Article II. Maxims and Principles of Adjudication.
Article III. Maxims Applicable to the Court, and to its Practice, and to Pleadings.
ARTICLE I.
MAXIMS AND PRINCIPLES OF JURISDICTION.
§ 37. Chancery never Loses its Jurisdiction by Implication.
§ 38. Equity Delights to do Complete Justice, and Not by Halves.
§ 39. He who Seeks Equity must Do Equity.
§ 40. Courts of Equity will not Tolerate any Interference with their Officers, Pro- cess or Decrees, by the Courts of Law.
§ 31. Maxims generally Considered.
§ 32. Equity Acts upon the Person.
§ 33. Equity will not Suffer a Wrong Without a Remedy.
§ 34. Equity Acts Specifically, and Not by Way of Compensation.
§ 35. When Parties are Disabled to Act Chancery will Act for Them.
§ 36. When Chancery has Jurisdiction for One Purpose, it will Take Jurisdic- tion for' All Purposes.
§ 31. Maxims generally Considered. — There are certain great underlying principles, often called Maxims,1 which are the fruitful sources of a vast num- ber of particular rules concerning both rights and remedies. These principles are a component part of Equity jurisprudence.2 They lie at the foundation of universal justice ; are the sources of municipal law ; and have been worthily and aptly called 'legum leges — the laws of the laws.3 These maxims are, in the strictest sense, the principia/ the beginnings, out of which has been developed the entire system of Equity jurisprudence, by a process of natural evolution. The student who has made these principles a part of his mental habit, who has, as it were, incorporated them into his very intellectual being, has already mastered the essence of Equity ; and has made the acquisition of its particular rules an easy task.5
1 Maxim ita dicta quia maxima est ejus dignitas et certissima auctoritas atque quod maxime omnibus probetur. Co. Lit., 11. (A maxim is so called because its dignity is maximum and its author- ity the most certain, and because approved at the maximum by all.)
2 1 Pom. Eq. Jur., § 120.
3 2 Kent's Com., 553. So fundamental are these maxims that he who disputes their au- thority is regarded as beyond the reach of reason. Contra negantem principia non est dis- putandum. Coke says, "Maxims of law arenolden tor law." Coke, Litt, 11, 67; and Bacon says, "They are the fountains of justice from which flow all civil laws." In Box v. T,anier, 4 Cates, 409, Beard, Ch. J., says, "Maxims have their foundation in universal law; they are embodied in the common law, and are an essential part of its warp and woof."
4 Principia prooant, non prooantur. (Maxims are proof, and need no proving.)
5 1 Pom. Eq. Jur., §§ 121; 360. So vast is the number and variety of suits in Chancery, that it is impossible for a Solicitor to find a prece-
dent for every case, even if it existed; but he who has -the maxims mastered is saved much of the drudgery of hunting precedents. Out of the twenty-six letters of the alphabet, by per- mutations and combinations, are made the countless multitudes of words and sentences written by earth's millions since writing was invented. So, out of a few fundamental max- ims can be deduced the rules which, by proper application, will determine the, equities of the vast proportion of equitable suits instituted in Chancery. Melius eH petere fontes quam sectari rivulos. (It is better to seek the fountains [the maxims of the law] than to follow the rivers [hunt for adjudications based on maxims.]
The maxims and principles contained in this Chapter are not all strictly maxims and prin- ciples of Equity; many of them are maxims and principles of the common law. Neverthe- less, they have all been adopted into the fam- ily of equitable doctrines and are constantly used and applied by our Chancery Courts. The author has long been convinced that no one can master the jurisprudence of Equity who
§32 MAXIMS AND PRINCIPLES OP JURISDICTION. 26
§ 32. Equity Acts upon the Person.6 — "When the Chancellors first began to exercise judicial functions, they refrained from using common law, or statutory processes, probably to avoid conflicts with the common law Courts, which were jealous of the extraordinary powers exercised by the Chancery Court. 1, Instead of commanding the Sheriff to make the money, decreed the complain- ant, out of the defendant 's property, the Chancellor commanded the defendant to pay the money ; 2, Instead of empowering the Master to divest the title to land out of the defendant, and vest it in the complainant, or the purchaser, the Chancellor required the defendant to execute a deed to the complainant, or to the purchaser; 3, Instead of forbidding a Court of law to proceed in a suit, or to enforce its judgment in a given case, the Chancellor forbade the plaintiff from proceeding in the suit, or doing any act towards obtaining an execution; and, 4, In general, the decrees of the Chancery Court were enforced through the personal act of the party himself.7 If the party failed or refused, to do what the Chancellor by his decree required him to do, compulsory process was issued. But no compulsory process issued until the party had been served with a mandate, commanding him to do what the Court required of him.8 If he then disobeyed, he was adjudged in contempt, and was committed to prison until he complied with the orders of the Court. If he still refused, his property, real and personal, was sequestered and applied to the satisfaction of the decree.
This was formerly the practice in North Carolina and Tennessee ; but in 1 787, in consequence of the then mode of ' ' carrying into effect the decrees of the Court of Equity by attachments, habeas corpus, attachments by proclama- tion and commissions of rebellion being in many cases dilatory, oppressive and inadequate," the Legislature of North Carolina authorized executions to issue on Chancery decrees, as at law ; and in 1801, the Legislature of Tennessee en- acted that "instead of decreeing parties to convey lands, as theretofore prac- ticed in equity," the Court was given power by decree to divest the title out of the person against whom the decree was pronounced.9 Since the passage of these two acts, our Courts of Chancery have not acted, ordinarily, in personam. The vast majority of Chancery decrees are now enforced by execu- tions, attachments of property, writs of possession, divestiture of title, and orders of sale ; so that it may now be said that our Courts of Chancery do not act, ordinarily, in personam.
Nevertheless, the maxim that Courts of Equity operate on the person, is true; and most important results follow from the maxim; and although in practice, our Chancery Court acts ordinarily on the property of the party, yet it has all of its original authority to act on the person of the party, as will be seen by inspecting the Code, §§ 4478-4488 ; and as will be more fully shown hereafter.10
The principal cases in which Equity now operates on the person in Tennessee are the following :
1. Where the Parties Beside within the Jurisdiction of the Court, but the land, or other subject matter in controversy, is not. In such case, if Equity so require, the Court may, by attachment, compel one party to convey the* land to the other.11 Hence, a specific performance will be decreed as to lands in a foreign country ; so, a trust will be declared and enforced, or a mortgage foreclosed or redeemed, or a fraudulent judgment overhauled, and even the sales under such a judgment, when the lands, or the judgment, are in a foreign country.12 But
has not thoroughly comprehended that subtle alchemy in its maxims whereby the most dif- ficult problems are readily solved; and, so be- lieving, no little space has been devoted to them. These principles and maxims constitute a system of jurisprudence based on good rea- son and good conscience; and are designed to enable the Courts of Equity to do complete justice between all the parties in any litiga- tion, however novel, abstruse, complicated or numerous, the questions involved may be.
6 JEquttas agit in personam. Code, § 430.j.
7 1 Pom, Eq. Jur., § 428.
s 2 Dan. Ch. Pr., 1043. o 1 Scott's Rev., 389; 692.
10 See Chapter on the Enforcement of De- crees.
11 Miller v. Birdsong, 7 Bax., 537. It is not enough that a subpoena to answer was served on the defendant: he must be an actual resi- dent within the territorial jurisdiction of the Court. Wicks v. Caruthers, 13 Lea, 353.
12 Sto. Eq. Jur., §§ 1291-1294. In general the fact that the property is not within the jurisdiction constitutes no bar to a proceeding in a Court of Equity, if the person is within
27
MAXIMS AND PRINCIPLES OF JURISDICTION.
§33
where, in order to give the relief sought, it is necessary to deal directly with the land itself, without the agency of the parties, then the fact that the land is out- side of the jurisdiction of the Court would debar the Court from granting the relief, because the Court will not make a decree that it cannot enforce by its own authority.13 Thus, a bill cannot be brought for a partition of land outside of the jurisdiction, for the Court cannot send commissioners there ; but a bill may be maintained for rents and profits of land outside of the jurisdiction.14
2. Where a Discovery of Facts, or of Property,isor the delivery of documents, or the surrender of personal property, or trust funds, is commanded.16
§ 33. Equity will not Suffer a Wrong Without a Remedy. — This maxim, and the maxim that "Equity operates upon the Person," are two of the prin- ciples most active in originating and moulding the Chancery jurisprudence. The King, as the "fountain of justice," with an oath resting upon his con- science to see that right was done to all his subjects,17 and believing that he had the prerogative power, as the Supreme Judge of England, to do what- soever he deemed was right and just as between man and man, without refer- ence to laws, customs, statutes, precedents or Courts ; and prompted, no doubt, by his ecclesiastical Chancellors, was not willing to see a wrong done to a sub- ject, and to be told that there was no power in his kingdom to right that wrong, that the common law furnished no remedy therefor ; and that, as a consequence, the wrong-doer, in that particular, was superior to law, and mightier than the King.
Hence was it, that the King, deeming such a state of facts derogatory to himself, disparaging to his prerogative, disgraceful to his kingdom and a dere- liction of duty under his oath, took personal cognizance of such matters when petitioned to so do ; and when petitions became too numerous for his personal attention, he referred them to his Chancellors, who were the "keepers of his conscience," with authority to do whatever good conscience and good reason required in the premises.
The common law had a maxim, Ubi jus, ibi remedium, (Wherever there is a right there is a remedy for the violation of that right ;) but the maxim was too general to be true. Had it been true, there would have been no need for a Chancery Court. To support this maxim it was held that if there was no remedy then there was no right, which was the same as saying that the right depended on the remedy ; and, unfortunately for the common law, this was true. For, under the common law, every cause of action had to be adapted to some one of its technical and arbitrary forms of suit, and if this could not be done, then the suit could not be brought ; so that, at common law, the right had to be adapted to the remedy, thus violating at the same time, both reason and justice. In the Chancery Court, the opposite rule was adopted and enforced, and the remedy was adapted to the right, and thus made to assume any form the right required.
This maxim, or, as it is sometimes expressed, Equity will not suffer a right to be without a remedy, is the original source of the entire equitable jurisdiction
the jurisdiction; for a Court of Equity acts uoon the person; or, to use the appropriate phrase, Mquitas agit in personam. But ques- tions may arise under a hill respecting funds, or other things, in a foreign country, so purely local, that a Court of Equity in another coun- try might very properly decline to interfere, and remit it to the domestic forum. Sto. Eq. PI., I 489. See also Johnson v. Kimbro, 3 Head, 557.
13 Extra territorium jus dicenti non paretur im- pune. (The decree of a Judge who undertakes to exercise jurisdiction beyond his State may be disobeyed without punishment). Telegraph Co. v. Railroad, 8 Bax., 61.
14 2 Sto. Eq. Jur.. §§ 1292-1300.
15 Code, §§ 4283-4285.
16 On the jurisdiction of the Chancery Court to act in personam, see Pom. Eq. Jur., §5 135; 170; 1317-1318.
17 The Constitution of our State, which may be called our "fountain of justice," provides that "every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay." Const. Tenn., Art. I, § 17. For every injury, the Constitution declares there shall be a remedy; and the Chancery Court has had. from its foundation, the inherent right to provide, or adopt, a remedy for any case or injury wherefor no remedy clearly appears. 1 Pom. Eq. Jur., 8,8. 21-20; Bisph. Pr. Eq., 88 6-7; 1 Sto. Eq. Jur., §§ 39-44.
§ 33 MAXIMS AND PRINCIPLES OP JURISDICTION. 28
of the Chancery Court, exclusive, concurrent and auxiliary; and a full expla- nation of the scope and meaning of this maxim would require a discussion of the whole system of Equity.18 And now that the jurisdiction of the Chancery Courts has been so greatly enlarged by statutes in Tennessee, the force of the maxim and its beneficence have been proportionately enlarged.
The wrong that Equity will not suffer to be without a remedy, must be a civil injury to the complainant's rights or interests, legal or equitable. There are some duties Equity does not attempt judicially to enforce, such as charity, gratitude and kindness ; and some wrongs with which Equity does not interfere, such as violations of honor, or of truth, or of morals, involving no question of property, and no question of pecuniary liability ; but any wrong done to a legal or equitable right will be redressed in Equity, unless some other Court has ex- clusive jurisdiction.
This maxim was originally intended to mean that, in all civil cases within the scope of judicial action, where a wrong had been done, or was threatened to be done, and a full, complete, adequate and certain remedy could not be had in the common law Courts, a remedy would be provided, and enforced, in the Chancery Court ; and all jurisdiction assumed necessary for that purpose. And, in order to enable the Court to adequately exercise this jurisdiction, and to make its remedies effective, without coming into conflict with the powers or processes of the common law Courts, the plan was devised of compelling the defendant himself to execute the decree of the Court of Chancery by impris- oning him, if necessary, until he did so. Hence, the maxim, Equity acts upon the person ; and it might be said that on these two maxims hang all Equity.
In pursuance of these two maxims, the Court of Chancery has devised, or adopted, from the Roman, or civil law, the following remedies, none of which existed at common law: (1) Specific performance of contracts; (2) Injunctions to restrain the violation of rights, to stay unjust proceedings at law, to quiet title, and prevent wrongs; (3) The re-execution of instruments lost or de- stroyed ; (4) the re-formation of deeds, or contracts, erroneously drawn by ac- cident, or mistake; (5) The rescission and cancellation of agreements and con- veyances obtained under circumstances of surprise, fraud or mistake; (6) the re-opening of settlements, and adjudication of complicated accounts; (7) The method of winding up all the affairs of a partnership; (8) The marshaling of securities; (9) The redemption and foreclosure of mortgages; (10) The parti- tion of land between tenants in common; (11) The enforcement of trusts and fiduciary obligations; (12) The exoneration, contribution and subrogation of sureties; (13), The administration of estates; (14) The winding up of the (states of insolvent debtors, and insolvent corporations; (15) The enforcement of liens; (16) The protection of the persons and estates of infants; (17) The establishment of a wife's equity; (18) The remedy by interpleader; (19) The perpetuation of testimony ; and (20) A discovery in aid. of legal proceedings.
Thus, upon these two maxims, Equity will not suffer a wrong without a remedy, and Equity operates upon the person, was builded that grand struc- ture of jurisprudence called Equity ; and although by means of the improve- ments in the processes of the Courts, aided largely by wise legislation, remedies for every civil wrong known to the Courts, have been devised, and enforced, j et if, in the progress of civilization, if, in the complicated net-work of mercan- tile business, if, through the ingenuity and subtlety of the human mind bent on schemes of personal or pecuniary advantages, or intent on devices for aggrandizement, new remedies should be required to circumvent circumvention and to overcome the insidiousness of any sort of machiavelism, the Court of Chancery, operating in obedience to this maxim, will devise a remedy adeqiiate to the emergency, and vindicate the beneficence and capacity of its inherent powers to do justice in any case, and to right every wrong, however intricate
18 1 Pom. Eq. Jur., § 423.
29 MAXIMS AND PRINCIPLES OF JURISDICTION. § 34
the ease, however great the wrong, or however powerful the wrong-doer.19 The powers that lie dormant in this potent maxim will awaken, as the necessi- ties for their action arise; and they will be found commensurate with every necessity.
It must not be forgotten, however, that this remedy may be forfeited or lost by the party wronged: forfeited, (1) by some fraudulent, illegal, or unconscien- tious conduct in connection with the wrong he complains of, whereby his hands have become stained with iniquity; or (2) by having, through his fault or neg- ligence, occasioned, or contributed to, the loss complained of ; for, when one of two persons must suffer, the loss must be borne by him whose act caused it.20 Or the remedy may be lost, (1)' by the fact that the adverse party has an equal, or a superior, equity; or (2) by laches, or acquiescence; or (3) by subsequent contract, or estoppel.
§ 34. Equity Acts Specifically, and Not by Way of Compensation.2011 — This principle runs through the whole system of Chancery jurisprudence. Equity aims at putting the parties exactly in the position they ought to occupy, giving them in specie what they are entitled to enjoy; and putting a stop to injuries which are being inflicted. Thus, Equity decrees the specific performance of a contract, instead of giving damages for its breach. So, Equity restrains the commission of a trespass, instead of compensating the aggrieved party by dam- ages. In some cases, also, a party will be compelled to specifically make good his representations by which another has been misled.21 So, Equity will declare a person who has knowingly acquired trust property, a trustee ; and will make property purchased in his own name by a fiduciary with trust funds, trust property; will construe and enforce wills and other express trusts; and will set up lost or destroyed instruments and records; and will cancel fraudulent deeds, and remove clouds on title, and will, by injunction, protect a party in his rights, or restrain a party in his wrongs. In all the foregoing cases, the common law either gave no remedy, or else merely allowed damages for the wrong, the latter remedy when allowed being often wholly inadequate, and sometimes, from the poverty of the defendant, wholly worthless.
§ 35. When Parties are Disabled to Act the Chancery Court will Act for Them.21a — Persons of unsound mind are disabled to act for themselves by nature; infants are disabled both by nature and by law, and married women ;ire disabled by law alone. As a rule, none of these three classes can of them- selves enter into any important contract, especially contracts relative to lands. But it is often of great importance to their welfare, to convert their property into another form, or to expend it for their urgent necessities; and the law would be greatly defective in this important matter if it furnished no remedy for such emergencies. The Chancery Court gives this remedy, and has full jurisdiction to do everything necessary for the welfare of persons under disa- bility : it may sell,lease or exchange, their lands ; convert personality into realty, or realty into personality; order the expenditure of any part of the principal of their estates for their education, or maintenance; and, in general, do any act indispensable to their welfare, the Court at all times having in view the best interests of the parties; and acting as would a prudent and considerate parent.22
19 Chancery has been the handmaid of all courts in affording process to meet exigencies. She has done so in the face of tyranny, to break loose the iron hand of power when grasping against conscience. Peck, J., in Cox v. Breedlove, 2 Yerg., 499; 520. Before the establishment of the Chancery Court in Eng- land it might have been often said, Be legibus non curat maasimus.
20 1 Sto. Eq. Jur., § 387. 20a Snell's Pr. Eq., 47.
21 Bisph. Pr. Eq., § 51.
2ia while this is not a maxim, it is never- theless a fundamental principle of Equity.
22 Ridley v. Halliday, 22 Pick., 607. It is the peculiar province of Courts of Equity to give all needed and appropriate relief in case of in- fants whose rights have been sacrificed. Couy v. Roane Iron Co., 21 Pick., 515. The Chan- cery Court acts as guardian for all persons under disability; and, on proper application, will protect them from the cupidity of faithless guardians and relatives, and the rapacity of unscrupulous strangers. But while accorded full protection they are not entitled to have technicalities strained in their behalf, especi- ally against a stranger guilty of no uncon- scientious conduct.
§36
MAXIMS AND PRINCIPLES OP JURISDICTION.
30
§ 36. When Chancery has Jurisdiction for One Purpose, it will Take Juris- diction for All Purposes. — This maxim is not always so broadly stated in the reports and text books, but in the light of the Act of 1877, extending the common law jurisdiction of the Chancery Courts, there can be no doubt about the correctness of the rule as given. Pomeroy states the rule thus: "Where a Court of Equity has obtained jurisdiction over some portion or feature of a controversy, it may, and will in general, proceed to decide the whole issues, and to award complete relief, although the rights of the parties are strictly legal, and the final remedy granted is of the kind which might be conferred by a Court of law. ' '23 The reason of the rule is, the duty of Courts to prevent a multiplicity of suits ; and Courts of Equity delight to do complete justice, and not by halves. Our Chancery Court acted in accordance with this rule prior to the Act of 1877 ;24 and it may now be considered as an invaluable rule, and one attended with very beneficent results.25
Where suits are brought to enjoin the further prosecution of a pending action at law, or the enforcement of a judgment recovered at law, either on the ground of some equitable defense not cognizable by the law Courts, or on the ground of some fraud, mistake, accident, or other incident of the trial at law, which ren- dered the legal judgment inequitable, in such cases a Court of Equity, having obtained jurisdiction for the purpose of an injunction, will decide the whole controversy, and render a final decree, even though the issues are legal in their nature, and capable of being tried by a court of law; and the legal remedies, therefore, are adequate. This rule is general in its operation, and extends to all suits brought to obtain the special relief of injunction, and is not confined to suits for the purpose of enjoining actions, or judgments, at law. It may be stated as a general proposition, that wherever the Chancery Court has jurisdic- tion to grant the remedy of injunction for some special purpose, even though the injunction covers only a portion of the controversy, it may go on and decide all the issues, and make a final decree, granting full relief in the same manner as could a Court of law, decreeing damages for the wrongs enjoined when proper.26
Particular instances of the operation of this general rule concerning the remedy of injunction may be seen in cases' of waste, of private nuisance, and of continuous or irreparable trespasses, where, the Chancery Court having ob- tained jurisdiction by injunction, will complete the relief the complainant is entitled to, by decreeing him damages for the injuries done.27
If the Chancery Court obtains jurisdiction of a suit for the purpose of grant- ing some distinctively equitable relief, such, for example, as a discovery, or the specific performance of a contract, or the rescission, or cancellation, of some instrument, and it appears from facts disclosed on the hearing, but 'not mown to the complainant when he brought his suit, that the special relief prayed for has become impracticable, and the complainant is entitled to the only alternate relief possible, that of damages, the Court then will, instead of compelling the complainant to incur the double expense and trouble of an action at law, retain the cause, decide all the issues involved, and decree the payment of compensatory damages.28
It is a fundamental rule of Equity jurisprudence, that the Court of Chancery, in any cause coming before it for decision, if the circumstances of the case permit, and all the parties in interest are or can be brought before it, will
23 1 Pom. Eq. Jur., § 231.
24 Almony v. Hicks, 3 Head, 41 ; Johnson v. Cooper, 2 Yerg., 524; Jones v. Perry, 10 Yerg., 59.
25 1 Sto. Eq. Jur., § 64 ft; MoHaney v. Caw- thorne, 4 Heisk., 508; Hudgins v. Fanning, 4 Bax., 574; Smith v. Taylor, 11 Lea, 744.
26 1 Pom. Eq. Jur., § 181. See post, § 826.
27 1 Pom. Eq. Jur., § 181.
28 Rich! v. Chattanooga Brewing Co., 21
Pick., 705; Pearl v. Nashville, 10 Yere 179- 1 ?,?m- F%AUT- JS 224-228; 236-237; 1 Sto. Eq. Jur., § 64 ft. Equity will not decree a suit where it may decree a remedy. Fran. Max., i. T.he ™axim, Equity delights to do com- plete justice and not by halves, is similar in £L°,Fe£at*10<n 1° thf maxim above treated, and much that is found under tt-a head might have been pertinently incorporated here. See post.
31 MAXIMS AND PRINCIPLES OF JURISDICTION. § 37
determine the entire controversy, and award full and final relief; and thus do complete justice to all the litigants, whatever may be the amount or nature of their interest or liability, and thus to bring all possible litigation over the subject-matter within the compass of one judicial determination. By virtue of this rule, and in order to promote justice, the Court, having obtained juris- diction of a controversy for one purpose, will extend its judicial cognizance over rights, interests, and causes of action which are- purely legal in their nature, and will award remedies which could have been adequately bestowed by a Court of law.29 All this could have been done before the Act of 1877 ; and since that act the rule herein stated has become one of the ordinary jurisdiction of the Court.
§ 37. The Chancery Court never Loses its Jurisdiction by Implication.— Exactly what effect our Constitution has, on the stability and jurisdiction of the Chancery Court, has not been determined. That this jurisdiction can be increased is certain ;30 but it is doubtful whether its equitable jurisdiction can be taken azvay, or even seriously impaired. The system of Equity jurisprudence is tacitly recognized by the Constitution as a part of the fundamental law of the land. Hence, all the stronger in Tennessee is the rule that a Court of Equity never loses its jurisdiction by implication. In all cases where the Court had, originally, jurisdiction because of some want of adequate remedy at law, that jurisdiction is not lost by the fact that the Courts of law now give a remedy. The jurisdiction of the Chancery Courts cannot be made thus to ebb and flow. Their jurisdiction must be permanent, and must remain fixed until changed by a new Constitution, or by the Legislature acting within the present Constitution.31 The common law Judges cannot diminish the in- herent jurisdiction of a Court of Equity by enlarging their own jurisdiction; and when the Legislature enlarges the jurisdiction of the common law Courts, the rule is well settled that, unless the statute shows a clear legislative intent to restrict, or abolish, the jurisdiction of the Chancery Courts, such jurisdiction will continue unabridged,32 for, ..without some positive act, the just inference is that the Legislature desires the jurisdiction in Equity to remain upon its old foundations.33
§ 38. Equity Delights to do Complete Justice, and Not by Halves. — This maxim has grown out of the desire of the Chancery Court to so completely decide every matter involved in the litigation that there will be no roots of controversy left out of which other suits may spring.34 Hence, the Court re- quires that all persons interested, either legally or beneficially, in the subject- matter of the suit shall be made parties to it, either as complainants or as de- fendants, so that there may be a decree that will bind them all. By this means, the Court is enabled to make a complete decree between all the parties inter- ested in the controversy, and thus not only to prevent future litigation by taking away the necessity of a multiplicity of suits, but to make it perfectly certain that no injustice has been done to any party interested in the subject- matter of the suit.35 This, too, is one of the purposes of the Court in enforcing the maxim, He who seeks equity must do equity; for, by giving the defendant his rights in a cause, the Court not only does justice in full and not by halves, but the defendant is relieved from the necessity of instituting a suit in his own behalf. It is the constant and zealous aim of the Chancery Court to so frame its decrees as to adjust and compose all disputes as to all matters, legal and equitable, involved in the controversy, A Court of Equity will always do
last case the paragraph on page 171, beginning with "If one," should read It is one," &c.
34 Boni judicis est lites dirimere, ne lis ex lite oriatur. (It is the duty of a good Judge to put an end to controversies, and not allow one suit to grow up out of another.) Interest reipublicce ut sit finis Utium. (The State is interested in having an end put to litigation.)
35 Sto. Eq. PI., § 72.
29 1 Pom. Eg. Jur., § 242.
30 Jackson v. Nimmo, 3 Lea, 597; Nolen ». Woods, 12 Lea, 616.
31 1 Sto. Eq. Jur., § 64 i.
32 1 Pom. Eq. Jur., §§ 278-279.
33 Womack v. Smith. 11 Hum., 482; Bright v. Newland, 4 Sneed, 442; Smith v. Taylor, 11 Lea, 744; Bedwell v. Jones. 9 Lea, 168. In this
§ 39 MAXIMS AND PRINCIPLES OP JURISDICTION. 32
directly what can be done indirectly or circuitously, and will strive to prevent a multiplicity of suits.30
Formerly the jurisdiction of the Chancery Court ended where that of the Circuit Court began, and, as a consequence, it was often unable to do complete justice ; but after doing half justice, was obliged to remit the complainant to the Circuit Court for the other half. This was especially true : »
1. On bills to remove a cloud, or recover land, the complainants after re- covering the land in the Chancery Court, were obliged to go to the Circuit Court to collect the rents and profits.
2. On bills to enjoin a nuisance, the complainants, after having the nuisance enjoined,' were remitted to the Circuit Court to recover their damages.
3. On bills for a new trial, the parties complaining, after proving their case in Chancery, were remitted to the Circuit Court, if plaintiffs there, in order to obtain a recovery.
4. On bills to set up lost deeds, notes of hand, or other contracts, the com- plainants, after having their lost instruments set up in Chancery were obliged to resort to the Circuit Court to have them enforced.
5. On bills to enjoin waste, after a perpetual injunction was had in Chan- cery, the complainants were remitted to the Circuit Court to get compensation for the waste committed.
6. On bills to reform instruments, after getting them reformed in Chancery, the complainants were obliged to go to the Circuit Court, -to obtain damages for their breach, or recover what was due on them.
7. On bills to enjoin a defendant in the Circuit Court from making an in- equitable defence, or to enjoin a plaintiff from asserting an inequitable claim, after obtaining such relief the suits in the Circuit Court were often left pending.
8. On bills to declare the defendant a usurper, the complainant was given the office, but remitted to further litigation to recover his fees.
In most of the above instances the Chancery Court now administers full jus- tice, its hand being no longer stayed by the fear of trespassing on the domains of the law Courts ;37 and the disposition of the Chancellors now is to disregard decisions and precedents absolete since the Act of 1877, and administer justice- to the full extent of their jurisdiction, and no longer remit a party to the Cir- cuit Court, or force him to institute a second suit, when all the questions in- volved in the litigation, or incidental to it, can be effectually determined in the suit pending in the Chancery Court ;3S so that partial or half justice is now very seldom administered.89
§ 39. He Who Seeks Equity Must Do Equity. — Under the operation of this maxim, Courts of Chancery are enabled to adjust the equities of the complain- ant to the equities of the defendant, and thus do complete justice between the parties. Formerly, it was the practice of the Court to refuse relief to the com- plainant, unless the complainant would acknowledge, or concede, or provide for, the rights, claims and demands justly belonging to the defendant, and growing out of, or necessarily connected with, the subject-matter of the con- troversy. The ecclesiastical Chancellors sought to enforce in their Courts the divine injunction of doing unto others as we would have others do unto us; which is only*another form of the maxim. But now, the Court of Chancery does not wait for the complainant to offer to do equity, but acts on the supposi- tion that, knowing the rule of the Court, he is willing to do whatever equity towards the defendant the Court may require of him. (1), If a borrower of money upon usury seeks the aid of the Chancery Court to have cancelled the
30 Two suits are a multiplicity. Pearl v. Nashville, 10 Yers\. 179, 185.
3T The Act of 1877 gives the Chancery Court a free hand in dealing with most matters for- merly cognizable exclusively in the Courts of Law.
38 Boni judicis est ampliare jurisdictionem. It
is the duty of a good judge to amplify his ju- risdiction, when necessary to do full justice.
30 This maxim in its operation is similar to the maxim, When Chancery has jurisdiction for one purpose, it will take jurisdiction for all purposes. See ante, § 36.
S3 MAXIMS AND PRINCIPLES OF JURISDICTION. § 40
usurious contract, the Court will require him to do equity by paying the lender what is legally due him ; (2) , If a taxpayer seeks relief from an over-assessment, le must pay what is justly due; (3), If a party seeks to have a tax-deed declared a cloud, he must pay all the taxes paid by the holder of the deed ; (4), [f a person asks for partition, he must pay his proportion of any incumbrance removed by the defendant;40 (5), If a husband seeks the aid of a Chancery 3ourt to reduce his wife's personal estate to possession, he will be required to io equity to the wife by allowing the Court to settle upon her, for the sole and separate use of herself and children, a reasonable portion of the proceeds of said estate; (6), If the owner of land allows another to make improvements thereon under the belief that he has the right, a Court of Chancery will compel «uch owner, seeking to assert his title, to pay for such improvements;41 (7), Where a complainant seeks to have a certain fund decreed to him, he will be required, if insolvent, to pay the defendant what he owes him;42 (8) Where a complainant has his deed declared a mortgage he must pay the consideration he received; (9), Where the complainant obtains the rescission of a contract, or the cancellation of an instrument he must make the defendant whole; (10), Where a married woman avoids a sale she must restore the consideration she re- ceived ; (11), A mortgagor will not be allowed to redeem, without paying an in- cumbrance discharged by the mortgagee;43 (12), A judgment will not be en- joined, unless complainant pays what he owes the judgment creditor,44 and, (13), In general, whenever a complainant seeks to recover property from which the defendant has removed an incumbrance, or to the value of which the defend- ant has added in good faith, relief will be granted the complainant only on con- dition that the defendant be reimbursed to the extent the complainant has been by him benefited.
It will thus be seen that, in giving the complainant relief, a Court of Chan- cery will require of him whatever the defendant may, in good reason and good conscience, be entitled to in reference to the subject-matter of the suit, although, this requirement may be one the Court would not otherwise enforce.45 The condition thus imposed on the complainant is, as it were, the price of the decree the Court gives him. Under this maxim, an equitable right may be secured to the defendant which could not be obtained by him in any other manner — which be could not have secured by a suit brought for that purpose. The equity the complainant is required to do must, however, be connected with the subject- matter of the suit, or grow out of the very controversy before the Court ; and conditions must not be arbitrarily imposed.46
The principle contained in this maxim enlarges the powers and jurisdiction of the Court when equities arise, in favor of the defendant, out of the subject- matter of the controversy; and hence, this might be termed a jurisdictional maxim. It, also, enables the Chancellor to determine the whole controversy in all is branches, and, if necessary, to make a sort of equitable compromise de- cree, giving to each party what, in good reason and good conscience, he ought to have ; and requiring of each what, in good reason and good conscience, he ought to do; — thus fulfilling that other maxim, Boni judicis est litcs dirimere, tie lis ex lite oriatur. (It is the duty of a good judge to so thoroughly decide a fuit that another suit will not arise out of it.) ■■*
§ 40. Courts of Equity will not Tolerate any Interference with their Officers, Process or Decrees, by the Courts of Law. — This is an old and well-settled rule, and was adopted in the infancy of the Court of Chancery as a sort of law of self-preservation. For, if the Courts of common law could ha,ve had their way, they would have throttled the Chancery Court in its cradle. In those semi-bar- barous times the beauties of Equity and Christian ethics were not appreciated ;
40 1 Sto. Eq. Jur., § 64.
41 Pom. Eq. Jur., §§ 389-390.
42 Alexander v. Wallace, 10 Yerg., lOo.
43 Wilson v. Carver, 4 Hay., 90; Wood v. Chil- coat, 1 Cold., 423.
44 Creed v. Scruggs, 1 Heisk., 590.
45 Wilson v. Carver, 4 Hay., 90.
46 1 Pom. Eq. Jur., §§386-387.
MAXIMS AND PRINCIPLES OF JURISDICTION.
34
§40
and the rude, stern, arbitrary code of the common law was deemed the perfec- tion of reason, and no higher or better law was deemed possible, or desirable.
It is manifest, that, from the necessity of the case, one Court cannot allow another Court to question its proceedings, to interfere with its process, to dis- turb its officers, or to thwart its decrees. All the authorities concur in con- sidering it as settled law that a Court of Chancery will protect its own officers against any suit brought against them for acts done under its process.47 This rule applies to Receivers, Sequestrators, and al| other officers acting under the orders of the Court ; and any interference with them will be deemed a contempt of Court, and punished as such.48 Even a stranger to the suit, who has been dis- possessed, must apply to the Court for redress, and cannot bring a forcible entry and detainer suit in another Court.49 A party wrongfully dispossessed should file a petition for a writ of restitution.50
Every Court must have an inherent power of enforcing its judgments and decrees ; and surely to no tribunal can this power more properly belong than to the Chancery Court.51 And, in general, if any person suffers any injury, in consequence of any order, or proceeding, of the Chancery Court, or by reason of anything which has occurred in the execution of its process, he must apply to that Court for redress, and not to a Court of Law. If the matter complained of involves a question of jurisdiction, or of the validity or effect of its order or process, the Chancery Court will never allow such a question to be carried for decision to a Court of Law; but will, at its discretion, either itself give redress to the party aggrieved, or permit him to proceed at Law, as justice and convenience may require.52
47 Turner v. Breeden, 2 Lea, 713.
48 2 Dan. Ch. Pr., 1056; 2 Sto. Bq. 833, a.
49 Scott u. Newsom, 4 Sneed, 456.
Jur., §
50 ntd.
51 Deaderick v. Smith, 6 Hum.,
52 Smith's Bq. Jur., 32.
146.
MAXIMS AND PRINCIPLES OP ADJUDICATION.
§41
ARTICLE II.
MAXIMS AND PRINCIPLES OF ADJUDICATION.
41. Maxims of Adjudication Generally
Considered.
42. He who Comes into Equity must Come
with Clean Hands.
43. Equity Looks to the Intent rather than
to the Form.
44. Equity Imputes an Intention to Fulfil
an Obligation.
45. Equity Regards that as Done which
Ought to be Done.
46. No Person Bound to Act for Another
can Act for Himself.
47. Equity Delights in Equality.
48. Equity will Undo What Fraud has
Done.
49. Equity Aids the Vigilant, Not Those who Sleep upon their Rights.
50. So Use your Own as Not to Injure
Another.
§ 51. No one Can Take Advantage of His own Wrong.
§ 52. Where One of Two Persons must Suf- fer a Loss, He should Suffer whose Act or Neglect Occasioned the Loss.
§ 53. Equity Follows the Law.
§ 54. Where there is Equal Equity the Law must Prevail.
§ 55. Where there are Equal Equities, the First in Order of Time shall Prevail.
§ 56. To Protect and Enforce Rights to Property the Object of Suits in Chancery.
§ 57. Equity Regards the Beneficiary as the Real Owner.
§ 58. Equity Enforces What Good Reason and Good Conscience Require.
§ 59. No One Should be Condemned With- out a Chance to be Heard.
§ 60. Stare Decisis, et Non Quieta Movere.
§ 41. Maxims of Adjudication Generally Considered. — In the adjudication f the questions that arise in Equity it is seldom that any statute is determina- ive, and not always that any decision of our Supreme Court is applicable ; and Lence the Chancellor is forced to rely on the rules of practice and pleading, and he maxims and principles of law and Equity, as his guides. These rules, max- ms and principles are generally so thoroughly incorporated into his judgment hat he uses them unconsciously in making a decision. But, if his opinion is written and analyzed, it will often be discovered that these rules, maxims and irinciples controlled the decision.
The principal maxims on which the Chancellor acts in adjudicating an equita- ile matter are the following, which might be designated as
THE TWELVE TABLES1 OP EQUITY.
1. Equity acts upon the person, (forcing him to do what conscience requires.)
2. Equity will not suffer a wrong without a remedy.
3. Equity imputes an intention to fulfil an obligation.
4. Equity acts specifically, and not by way of compensation.
5. Equity regards that as done which ought to be done.
6. Equity requires him who seeks equity to do equity.
7. Equity regards the beneficiary as the real owner.
8. Equity delights to do complete justice, and not by halves.
9. Equity acts for those disabled to act for themselves.
10. Equity looks to the intent rather than to the form.
11. Equity delights in equality.
12. Equity requires diligence, clean hands and good faith.
Some of these maxims have been considered in the preceding Article, being, ,lso, maxims of jurisdiction.
lln analogy to the Twelve Tables of the Roman Law.
§ 42 MAXIMS AND PRINCIPLES OP ADJUDICATION. 36
§ 42. He who Comes into Equity must Come with Clean HanSs.2 — This maxim declares that a complainant, who has been guilty of unconscientious conduct or bad faith, or has committed any wrong, in reference to a particular transaction, cannot have the aid of a Court of Equity in enforcing any alleged rights growing out of such transaction. The Court of Chancery was regarded by the ecclesiastical Chancellors as a Temple into which none could come except those who had "clean hands and pure hearts." In the origin of the jurispru- dence, the theory was adopted that a Court of Equity interposed only to enforce the requirements of good conscience and good reason, as to matters not equita- bly determinable in the Law Courts; and this interposition being deemed a matter of Grace, it would not be exercised in favor of a person, whose conduct, in the matter he had complained of, had been unconscientious, or in bad faith ; or who had violated any of those principles of Equity and righteous dealing, which the Court had been constituted to enforce. But the operation of the maxim is confined to misconduct connected with the particular matter in litiga- tion ; and does not extend to any misconduct, however gross, which is uncon- nected therewith, and with which the defendant is not concerned.3 Under the operation of this maxim, the complainant must show that the transaction from which his claim arises is fair and just, that there is nothing unconscientious in his conduct relative thereto, and that the relief he seeks is equitable, and not harsh or oppressive upon the defendant. Hence, a specific performance will be refused when the complainant has obtained the agreement by sharp and un- scrupulous practices, by over-reaching, by concealment of important facts, by taking undue advantage of his position, or by any unconscientious means ; or, when the contract itself is unfair, one-sided, unconscionable, or affected by any other such inequitable circumstance ; or, when the specific enforcement of the agreement would be oppressive upon the defendant, or would, in any other manner, work injustice.4 So, if a contract is affected with fraud, or has a fraud- ulent purpose, none of the parties to such fraud can have the assistance of the Court either to compel the execution of such contract, or to have it cancelled, or to have the property or interests, transferred thereunder, restored. Equity will leave such parties where they have placed themselves, and will refuse all affirmative aid to either of the fraudulent participants. It is on this principle that the door of a Court of Equity is always shut against a debtor when he seeks to recover back property he has conveyed to hinder, delay or defraud his creditors. Ex dolo malo non oritur actio. (No right of action arises out of a fraud.) Agreements and transfers, the consideration of which is based on a violation of chastity, or on compounding a felony, or on gambling, or on the commission of any crime, or on any breach of good morals, are all deemed illegal, and no participant therein can get any relief, in the Chancery Court, whether the relief sought is an enforcement of the agreement, or a rescission of it.5 In pari delicto potior est conditio defendentis. ("Where parties are equally in the wrong the condition of the defendant is the stronger.) But where the parties are not in pari delicto, and where public policy is promoted thereby, the more excusable of the two may be granted relief by the Court setting aside the agreement and restoring him to his original position. A Court of Chancery will not enforce an usurious contract even when the defence of usury is not made ; but will relieve against usurious contracts; and will also restore money or property lost upon any game or wager.0
§ 43. Equity Looks to the Intent rather than to the Form. — This maxim is
2 There are several maxims akin to this: He who hath committed iniquity shall not have equity; Ex turpi causa non oritur actio, (No right of action arises out of an immoral transaction;) In pari delicto potior est conditio rlefetiijentis, (Where both parties are equally in fault, the situation of defendant is the strong- er.)
3 1 Pom. Eq. Jur., §§ 398-399. The unclean -
ness of complainant's hands will defeat his suit whenever and however it appears Sim- mons Medicine Co. t>. Mansfield Drug Co., 9 Pick., 84. See, Horton v. Lyons, 13 Pick., 180.
4 1 Pom. Eq. Jur., § 400. Horton r. Lyons, 13 Pick., 180.
5 1 Pom. Eq. Jur., §§ 401-402.
o Code, §§ 1771; 1954; Bank v. Mann, 10 Pick.,
37
MAXIMS AND PRINCIPLES OP ADJUDICATION.
§43
connected with the one that says, Equity regards that as done which in good con- science ought to have been done; for it is only by looking at the intent, rather than at the form, of a transaction that Equity can treat as done what ought to have been done. The two maxims act together and aid each other;7 and with the further help of the maxim, that Equity imputes an intention to fulfil 'an obli- gation, a Court of Chancery will not only hold a resulting trustee, or a construc- tive trustee, liable as such, but will impute to him an intention to act as such, regardless of the form of the transfer, or conveyance.
Equity heeds not forms, but strives to reach the substance of things ; and to ascertain, uphold and enforce rights and duties which spring from the real rela- tions and the actual transactions of the parties. Looking to the intent rather than to the form, whenever a penalty is designed merely to secure the payment of a given sum of money, or the performance of some act, Equity will relieve the obligor from the penalty, upon his paying the debt, or the actual damages, resulting from his default. So, if a lease has been forfeited for non-payment of rent, or for breach of some, but not all of the covenants contained in the lease, if the lessor can be adequately compensated for the breach of the contract, Equity will regard the forfeiture clause as merely a means of securing the ob- servance of the contract, and a Court of Chancery will relieve from the for- feiture.8 So, looking at the intent rather than at the form of the contract, Equity will consider the forfeiture clauses in mortgages and trust deeds as' merely means of enforcing the payment of the money contracted to be paid, and will relieve from forfeitures incurred, upon the payment of the debt.9 Equity will, also, upon parol evidence, convert an absolute deed into a mort- gage ; and will, in general, unless prohibited by some statute, set up and enforce the real contract of the parties, regardless of the form, or of the want of form; for Equity looks not at the outward form, but to the inward substance of every transaction, recurring to principles and disregarding ceremonies,10 looking upon forms as made for justice, and not justice made for forms. Where there is substance for the Court to act on, the want of form will be disregarded, for Equity regards substance and not ceremonies. This is true not only in adjudi- cating the equities of the parties, but is true in matters of pleading, also. Thus if the bill makes out a case for relief, any want of formality, or any misnomer of the bill, or any eccentricity of phraseology, will not defeat the complainant's right to relief on the facts alleged and proved.103. So, if the necessary parties are before the Court, and a case for relief is alleged and proved, the fact that parties are made complainants who should have been made defendants, or vice versa, will not prevent the Court from decreeing according to the equities of the parties ; and this is so even when persons under disability are to be affected by the decrees. The fact that the proper facts are alleged, and the proper parties are before the Court, is substance ; the manner of alleging the facts and the position of the parties in the suit is ceremony.
No one is presumed to give something for nothing, and no one can in reason and conscience expect to receive something for nothing. Whenever a person parts with a consideration he is presumed to intend to acquire whatever that consideration pays for ; and he who acquires the legal title to property for which another's money has paid, is bound in reason and conscience to hold it subject to the orders of the person whose money went into it. Reduced to the last analysis, the property acquired by another's money is only that money in an-
7 Pom. Bq. Jur., § 378.
8 Pom. Bq. Jur., § 381.
9 Pom. Eq. Jur., § 382.
10 Bond v. Jackson, 3 Hay., 191. Equity looks beneath the veil of form, and discerns the real features of the transaction, acting on the maxim, Non quod dictum est, sed quod fac- tum est. inspicitur. Snell's Pr. Eq., 41. Equity considers the real and the substantial, and al- lows no rule of evidence at law, no fiction of Courts of law, and no acts or subterfuges of
u
parties, to tie its hands, or shackle its feet, or dim its sight, in searching for the real truth of the transaction under investigation. Courts of Equity act upon the circumstances and justice of the particular case, whereas Courts of law rather regard precedents, forms, rules of procedure and the strict letter of the law.
10* See post, §§ 139, note 19; 269; 431, note; 681; 719; 64, sub.-sec. 4.
§44
MAXIMS AND PRINCIPLES OF ADJUDICATION.
38
other form; and property conveyed without receiving another's money therefor, continues, in Equity, the property of the conveyor. Hence, it is the passing of a consideration and not the form of the contract that in Equity passes title ;u and whatever the form of the transaction, if no consideration passes, in Equity no title passes.12
§ 44. Equity Imputes an Intention to Fulfil an Obligation. — A Court of Con- science will not hastily conclude that an unconscientious act has been done, if the conduct of the actor is susceptible of a more charitable construction. The Court will presume an innocent intention, if such presumption will not hazard the equitable rights of the complainant. This maxim, therefore, is a mere state- ment of the general presumption upon which a Court of Equity acts; and it means that, whenever a duty rests upon an individual, in the absence of all evidence to the contrary, it will be presumed that he intended to do right rather than wrong ; to act conscientiously rather than in bad faith ; to perform his duty rather than to violate it.13 Thus, when a person covenants to do an act, and he afterwards does something which is capable of being considered either a total or a partial performance of that act, he will be presumed to have done it with the intention of performing his covenant, although no such intention was ex- pressed. So, whenever a trustee, or other person in a fiduciary position, acting apparently within the scope of his powers {that is, having authority to do what he does do), purchases lands, or personal property, with trust funds, and takes the title to such property in his own name, without any declaration of a trust, a trust with respect to such property at once results in favor of the beneficiary of said funds, and the purchaser becomes with respect to such property, a trus- tee. A Court of Equity assumes that the purchaser intended to do his fiduciary duty, and not to violate it ; and he will not be heard to dispute this assumption. All the evidence the Court needs to create the trust is the proof that the trust funds were actually used in the purchase.
This maxim is applied to trustees proper, to executors and administrators, to directors and managers of corporations, to guardians of infants or of persons of unsound mind, to agents using the money of their principals, to partners using partnership funds, to husbands purchasing property with the separate estate of their wives, and generally, to all persons who stand in fiduciary rela- tions to others.14 And when it is shown that such persons have used money, by them so held in trust, in the purchase of any property, real or personal, taking the title in their own name, a Court of Chancery will impute to them an inten- tion to fulfil their obligation, namely, to make the purchase for the benefit of the person entitled to the use of the consideration money; and they will be decreed to hold such property as trustees for the benefit of the parties whose funds were used in the purchase.
§ 45. Equity Regards that as Done which Ought to be Done. — In a Court of Chancery ought to be becomes is; and whatever a party ought to do, or ought to have done, in reference to the property of another, will, ordinarily, be re- garded as done; and the rights of the parties will be adjudicated as though, in fact, it had been done.15 This maxim is far-reaching in its operation, and full of beneficent consequences ; the doctrines and rules creating and defining equitable estates or interests being, in a great measure, drived from it.16
As between the party by whom, and the party for whom, an act ought, in good conscience, to be done, or to have been done, Equity will consider it as done. For the purpose of reaching exact justice, Equity will frequently consider that property has assumed certain forms with which it ought, in justice, to be
11 Solutio pretii emptionis loco habetur. (The payment of the purchase-money is equivalent to a purchase.)
12 This is the reason a purchaser without a valuable consideration has no equity. See post. §§332; 390.
13 1 Pom. Eq. Jur., § 420. The law requires
that good faith be observed in all transactions between man and man. Craddock v. Cabiness, 1 Swan, 483.
14 1 Pom. Bq. Jur., §§ 421-422.
16 Stephenson v. Tandle, 3 Hay., 115; Wavnee. Pouts, 24 Pick., 145.
is 1 Pom. Bq. Jur., § 364.
39 MAXIMS AND PRINCIPLES OF ADJUDICATION. § 45
stamped,17 or that parties have performed certain duties which they, in justice, ought to fulfill ; and will regulate the ownership of estates and interests accord- ingly.18 In such matters another maxim is sometimes invoked: Equity' regards the substance, not the forms of things. Thus, (1) the vendor of land is regarded in Equity as the owner of the purchase-money, and the vendee is looked upon as the owner of the land; (2) the purchaser of a possible interest in land becomes the equitable owner of the interest ; (3) the sale of a chattel not yet in existence, or not yet the property of the seller, becomes effective in Equity as soon as the thing comes into existence", or becomes the property of the seller ; (4) the as- signment of a thing in action gives the assignee all the rights of the assignor ; and (5) in general, whenever a party, for a valuable consideration transfers, or contracts to transfer, any interest in any property, or in any rights of property, a Court of Chancery places the assignee, or vendee, in the shoes of the vendor as to all. the interests and rights transferred, or agreed to be trans- ferred.19 So, (1) when an agent invests his principal's money in land, and takes title in his own name ; or (2) a partner uses partnership funds to buy land in his own name ; or (3) when a guardian uses his ward's funds in the purchase of property in his own name ; or (4) an executor, administrator, or any other trustee, uses trust money to buy property in his own name, in all such cases Equity will regard that as done which the purchaser ought to have done, that, is, will regard the purchaser as holding the legal title for the benefit of the party who was entitled to the purchase money, and will decree accordingly. So, when a party acquires the legal title to property by fraud, he will be decreed to hold it as trustee for his vendor. And where an act is prevented from being done, by fraud, Equity will consider the act as done, in order to avoid the effects of the fraud.20 Thus, a widow prevented by fraud from dissenting to a will, in Equity will be given all the rights she would have acquired by a dissent in due time.21 And if a son pretend to destroy deeds to enable his father to devise the lands, but destroys only copies, Equity will treat the deeds as de- stroyed.22 Equity, treating that as done which ought to have been done, will consider land as redeemed when the redeemer has done all that was required of him, and the purchaser refuses to re-convey, or to take the redemption money. This maxim is nearly allied to another maxim, No one can take advan- tage of his own wrong. To prevent a party deriving advantage from his own wrong, Equity regards that as done which, in good reason and good conscience ought to have been done. Hence, agreements based on a valuable consideration are, in Equity, considered, in the interests of the person entitled to their per- formance, as performed, and performed at the time when, and in the manner in which, they ought to have been performed.23 And the same consequences at- tach to the agreement as though it had actually been performed, so that the party in default shall not benefit by his wrong, nor the other party suffer thereby.24
So where land is ordered to be sold by a will, it is considered as personalty ; and where land devised by a will is afterwards contracted to be sold, it is deemed converted,25 and the devisee gets nothing but the naked legal title without any beneficial interest in the property.26 Money directed by a will to be invested in land is considered as land, and descends to the heirs of the origi- nal beneficiary, and not to his personal representatives ; and, on the other hand, land directed by a will to be converted into money goes to the personal repre- sentatives of the original beneficiary, or is included in the general term "per- sonal property. ' '2T
it Wheless v. Wheless, 8 Pick., 293.
18 Bisph. Pr. Bq., § 44.
19 1 Pom. Bq. Jur., §§ 368-369.
20 Townsend v. Townsend, 4 Cold., 83.
21 Smart v. Water-house, 10 Yerg., 93; 1 Sto. Bq. Jur., §§187; 256.
22 Belcher v. Belcher, 10 Yerg., 120.
23 Cook «. Cook, 3 Head, 719.
24 1 Sto. Bq. Jur., § 64 g.
25 The doctrine of equitable conversion is firmly fixed in the jurisprudence of Tennessee. Wayne v. Fouts, 24 Pick., 145.
26 But the contract of sale must be one that is enforceable. Blair v. Snodgrass, 1 Sneed 24
27 McCormick v. Cantrell; 7 Terg., 615; Green v. Davidson, 4 Bax., 488; Jones v. Kirkpatrick 2 Tenn. Ch., 696; 1 Pom. Bq. Jur., § 371; 1 sto' Eq. Jur., §§790-793; 1212-1214.
§46
MAXIMS AND PRINCIPLES OF ADJUDICATION.
40
But an administrator has no power to make a conversion ; and if he does, the money put into land will be deemed personality, at the election of those entitled to the money.28
In reference to agreements the maxim is sometimes stated thus : ' ' What is agreed to be done is considered as done,"29 and sometimes thus, "Equity treats that as done which is agreed to be done upon sufficient considerations."30 But it must be borne in mind that this maxim seeks no more than to enforce an equitable obligation. There must be a right on one side and a corresponding duty on the other side. Equity does not regard as done what might have been done, or what could have been done, but what ought, in good reason and good conscience, to have been done. Nor does this rule operate in favor of any one except him who has the equitable right to have the act performed, and those standing in his shoes ; nor does it operate against any one except him upon whom the duty has devolved, and upon those who stand in his place.31
§ 46. No Person Bound to Act for Another in any Matter can, as to that Matter, Act for Himself. — This, while not a maxim, is a fundamental doctrine of Equity, and one fruitful of many most beneficent consequences.32 In the first place, whoever undertakes to act for another 's benefit, impliedly contracts that in every matter affecting the other, he will do for him all that good reason and good conscience require. In order to avoid any possible contention, and to leave absolutely no room for casuistry, Courts of Equity lay it down as a rule, without exception, that no trustee shall in any case, or under any circumstances, directly or indirectly, acquire any personal interest or title in or to the trust property, or its proceeds, or make any personal profits out of the trust, or by means of his trust character, without the full consent of the beneficiary, given under circumstances that leave no room whatever to question the perfect fair- ness and good faith of the whole transaction. Even then, a Court of Equity acts hesitatingly in confirming such transactions ; and when they are questioned, requires conclusive evidence of the fullest good faith on the part of the trustee, and the most thorough understanding of the facts, and the most absolute free- dom of action, on the part of the beneficiary. When a relation of confidence is once shown, a Court of Chancery will presume that the dominion or influence arising therefrom was exercised.33 Of course, if the beneficiary is a minor, or person of unsound mind, he is utterly incapable of giving any such consent.
This rule is potent of consequences in matters of implied trusts, and construc- tive frauds ; and, under its operation, all trustees and quasi-trustees are kept in the strict line of their true and full duty; and when such duty is violated, Equity will, as far as possible, deal with them and their doings as though they were really intending to do their duty, and act for the beneficiary's benefit;
28 Roberts v. Jackson, 3 Yerg., 77.
29 The maxim is sometimes generalized thus: Equity looks on that as done which ought to have been done, or which has been agreed to be done, or which has been directed to be done. Snell's Pr. Eq. ; Stephenson v. Yandle, 3 Hay., 115.
so Griffey v. Northcutt, 5 Heisk., 755.
31 1 Pom. Eq. Jur., § 365.
32 Cannon v. Apperson, 14 Lea, 570-580.
33 Bayliss v. Williams, 6 Cold., 441. No per- son who undertakes or assumes to act for another's welfare in any matter, can, without violating good reason and good conscience, so act in that matter as to obtain an advantage for himself, at the expense of the person for whom he assumes to act. A party who takes advantage of the trust or confidence reposed in him by another, and thereby benefits him- self to the other's injury, is guilty of the grossest possible breach of good faith. A per- son who undertakes to act for another implied- ly contracts with him to give him the full ben- efit of his wisdom, skill and diligence; and to prefer his principal's or ward's interest to his own. A person holding a relation of trust, confidence or agency, is bound by every consid- eration of reason and conscience to loyally
discharge the duties he undertakes, with an eye single to the welfare of the party trusting him; and before he can act for himself in any matter, affecting the interests of the person trusting him, he must surrender the relation in good faith, and acquaint such person with all the facts in his possession necessary to a complete understanding of those matters.
No greater business wrong can be commit- ted, under the form of a contract, than the acquisition of the property, or taking other advantage, of a person by the betrayal of his confidence. Such an act is a sort of trea- son against good faith, and shocks the con- science of all mankind. In order to remove the temptation to such gross treachery, and there- by more effectually to prevent such wrongs, Courts of Equity consider all contracts be- tween the person trusting and the person trusted as voidable at the election of the former. This rule applies to all persons who undertake or assume to act for others, or to become their confidential advisers, and to every case where influence is acquired and abused, or confidence is reposed and betrayed. Se» Searcy «. Kirkpatrick, 1 Overton, 423; post, § 57.
41
MAXIMS AND PRINCIPLES OP ADJUDICATION.
§47
and will accordingly give the beneficiary all the benefits accruing to the trustee, or the quasi-trustee, by means of the transaction in question; will give the beneficiary the property or profits acquired, and will require the trustee, or quasi-trustee, to make good any loss caused by his conduct in the matter.
The reason of the rule, that a trustee can never act for himself in any trust matter, is the necessity of absolutely removing from him any temptation to violate his full duty, and the imminent peril of allowing him to occupy a situa- tion wherein he may have occasion to doubt when he might, or might not, act for himself, and when he must, or may, act for the beneficiary or person confid- ing in him.34
In the meaning of this section, and also, wherever used in this book, the general term "trustee" denotes and includes executors, administrators, Clerks of Courts, Receivers, Special Commissioners, Sheriffs, constables, and all guardians, officers and persons who give bonds for the faithful discharge of their duties, and all other persons on whom fiduciary or trust duties are con- ferred by any instrument of writing, or by any statute, ordinance or by-law, public, corporate or private; and the term "quasi-trustee" denotes and includes husband, wife, parent, person in a parental situation, attorney, guardian ad litem, next friend, partner, agent, business manager, clerk, steward, secretary, treasurer, book-keeper, auctioneer, consignee, bailee, physician, spiritual ad- viser, the promoters, president, directors and other officers or managers of a corporation or association, vendor, creditor, principal debtor in cases of surety- ship, and, in general, all other persons who undertake, or assume, the character of confidential advisers, or managers of another 's affairs, or who occupy a posi- tion or relation that enables them to greatly influence the action of those rely- ing upon them, or who in any way acquire influence and abuse it, or possess another's confidence and betray it. The term trustee includes both trustees and quasi-trustees, and the term beneficiary denotes and includes every one who ■expressly or impliedly confides or trusts his property, business or affairs, to another, and every one for whose benefit an express or implied trust arises, or a constructive fraud can be declared.35
§ 47. Equity Delights in Equality. — This maxim is sometimes more strongly •expressed thus : Equality is Equity.36 The common law delighted in prefer- ences ; it was the law of a people fond of distinctions, distinctions in personal rank, in social positions, in forms of procedure, in evidences of debt, and in forms of actions. But the Chancery Court, early in its history, endeavored to break down these distinctions in so far as property was concerned. Joint obli- gations were made several ; liens were apportioned ; contribution was enforced among co-contractors, co-sureties and co-legatees ; and the estates of debtors were divided ratably among their creditors. These changes in the common law, thus enforced originally in Equity, have long since, by statute or other- wise, become a part of the general law of the land.
In accordance with this equitable maxim, a Court of Chancery will divide a common fund equally between those entitled ; and if the fund is not sufficient to pay all in full, a pro rata distribution will be ordered. So, when a common
34 A ■ man cannot serve two masters at the ■same time, especially in case of conflicting trusts. Denning v. Todd, 7 Pick., 427. Quit-quid ncquiritur servo acquiritur domino. (Whatever is acquired by the servant is acquired by the master.) Whatever profit a trustee makes out of trust property is the profit of the benefi- ciary. The parable of the talents well illus- trates this rule of Equity. Matt., ch. 23. v. 20.
a.-fOur legal nomenclature is deficient in sat- isfactory terms to express the relations of a general trustee and a general correlative to •such trustee. The term trustee, while a good one, has been largely appropriated to denote an express trustee, and the terms, beneficiary
and cestui que trust, inadequately express the entire class of persons, for whose benefit im- plied trusts are created, and implied frauds constructed. Inasmuch, as in almost every variety of trust there is an express or implied relation of confidence, it is with reluctance and misgivings suggested that the word con- ficlor appropriately and not inadequately de- notes and includes every one who. expressly or impliedly, confides or trusts; and the word confides equally as well denotes and includes every one in whom confidence or trust is ex- presslv or impliedlv reposed.
36 Also, thus: JEquitas est quasi (equalitas. (Equity is equality, as it were.)
§48
MAXIMS AND PRINCIPLES OF ADJUDICATION.
42
liability rests upon several persons in favor of a single claimant, as where sev- eral persons owe the same debt, a Court of Chancery will require each person, so liable, to discharge an equal proportion of the liability; or, if any one of them should pay more than his share, Equity will require the others to con- tribute enough to make good the excess.
Where an insolvent partnership, an insolvent corporation, or an insolvent estate, is wound up inChancery, the Court always proceeds upon the principle that equality is equity, and apportions the assets pro rata among all the cred- itors, preferring none unless they have prior liens. The same rule prevails, when, in any case, any creditor files a bill, on behalf of all other creditors, to wind up the business of a debtor under a general assignment. So, where there is hot enough money to pay all the legacies in full, Equity will make a pro rata deduction from each.37 And so it may be stated, in general terms, that whenever there is a common burden, it must be borne equally by all ; and when there is a common benefit, it must be shared equally by all. Of course, this maxim will not prevent parties, by contract among themselves, changing the operation of this general rule.
§ 48. Equity will Undo What Fraud has Done. — Fraud,38 in the sight of a Court of Equity, vitiates every contract or transaction into which it enters, at the election of the injured party;39 and the Court will not only undo what fraud has done, but will treat acts as done which fraud prevented from being done.
All Courts require good faith in dealings between men, and reprobate bad faith. 39a But as the Courts of common law respected forms and ceremonies, and would not look beneath a seal, nor behind a writing, nor beyond the verdict of a jury, nor allow a judgment to be questioned, fraud took advantage of these rules, and made forms, writings, seals, verdicts, and judgments its instrument- alities and agencies in effecting its nefarious schemes for the undoing of the weak, the inexperienced, the trusting and the needy. When, however, Equity established her Courts, she disregarded forms, discredited ceremonies, peered beneath the seal, looked behind writings, questioned the verdicts of juries, and did not hesitate to set aside the solemn judgments of Courts, when found to be unjust and procured by fraud. Courts of Equity set aside deeds or converted ihem into mortgages, set aside the verdicts of juries in Courts of law and awarded new trials, and forbade the enforcement of judgments, when good reason and good conscience required. Whatever fraud touched was declared to be vitiated, wherever fraud trod was declared unholy ground, and whatever fraud did was pronounced null and void. All the haunts of fraud were laid bare, all of its paths, however crooked, were sign-boarded, all of its subterfuges pointed out, all of its false coins branded, and all of its allies detected and marked with badges. Fraud has been so crippled and hedged about by the Chancery Court that its power to deceive and do evil has been much weakened, and the remedies for its rascalities much increased, but it has not yet gone out of business.
37 1 Pom. Eq. Jur., §§ 405-411. In Equity, no one gets the lion's share, unless he has supe- rior rights, or prior liens.
38 Fraus (fraud) was one of the names of Mercury, the god of speech, traffic and theft; and it is curious, if not instructive, to note how his history and offices, in -ancient myth- ology, illustrate the appropriateness of this alias. Mercury's first act was to cheat Apollo out of a herd of cattle by means of a lyre; he lulled the hundred-eyed Argus to sleep, and then murdered him; he overcame Prometheus, the wise, and bound him to Mt. Caucasus; he invented astrology, was the go-between of gods and women; the gull was his favorite bird, and he was worshiped, and prayed to for luck, by thieves and schemers. His wand was gilt at the point, blue in the middle, and black at the handle, and so his victims first felt rich,
then blue, then in black despair. He always wore a smile on his face, and curls in his hair; carried a purse in his hand, and was generally in a hurry. The metal, mercury, named for him, is very bright, but very elusive, hard to find, difficult to seize, impossible to hold; and is used by miners to gather gold, and by quacks to salivate their patients.
so Gwinther v. Girding, 3 Head., lf»7. See maxim, Equity regards that as done which ought to be done, ante, § 45.
soa The law requires good faith to be ob- served in all transactions between man and man. Craddock v. Cabiness. 1 Swan, 483. See ante, § 4; and post, 58.
In the grand temple to Jupiter on the Capi- toline Hill in ancient Rome, the statue of Fiaes stood on one side of Jupiter's and the statue of Victoria on the other, thus proclaiming that
43
MAXIMS AND PRINCIPLES OF ADJUDICATION.
§49
As physicians diagnose internal disease by certain external signs, so Courts of Chancery diagnose the existence of fraud by certain signs termed "badges of fraud," which are treated of elsewhere.40 In Courts of law it is a maxim that "Fraud is odious and not to be presumed,"41 by which is meant that before so detestable a crime can be imputed to anyone it must be proved. But Courts of Chancery, while considering fraud mpre odious than do Courts of law, they nevertheless in certain cases presume fraud; that is, certain states of fact are considered in Chancery incompatible with an honest purpose, and when proved or admitted, fraud is presumed.42 Courts of Chancery will, or- dinarily impute fraud to a party on less evidence than is required in Courts of law;43 and they allow a much greater latitude of proof in the search for fraud, and a more minute examination of witnesses.44 And whatever the shapes and disguises fraud has invented in the refinements and diversities of commerce and the progress of civilization, the Courts of Equity have, always, been able to detect and expose it, to redress the wrong done by it, and to keep it odious, regardless of the rank or wealth of the perpetrator.43
§ 49. Equity Aids the Vigilant, not Those who Sleep upon their Rights.46 —
This maxim is designed to promote diligence on the part of suitors. Equity requires a party to assert his rights in a reasonable time after he discovers that he has been wronged. A person who delays suit, not only by his negligence makes the proof of his wrongs more difficult, but induces the other party to believe that he acquiesces in the situation. Besides, if Courts allow suits to be delayed, a party may wait until an adverse witness dies, or moves away, before he brings suit. A party in the wrong may be so misled by the non-action of the party wronged as do such acts, and otherwise so change his situation, that it would embarrass the Court in granting relief. He who seeks equity must keep himself in a condition to do equity; and if, by his own delay, he is disabled from doing equity he will be debarred from receiving equity. It is bad faith for a party wronged to delay suit until the wrong cannot be righted without doing another wrong. Good conscience requires a party to do no act that will mislead another to his detriment, even though that other may have done him wrong. Hence, it has been said that "nothing can call a Court of Chancery into activity but conscience, good faith and reasonable diligence."47 In many cases, equitable relief depends upon the discretion of the Chancellor, and the laches of the complainant is often one of the most important of the elements taken into consideration when that discretion is exercised.48 This maxim is
good faith among; the people is as important in peace as is victory in war.
40 See Article on "Fraudulent Conveyances," post, §§ 1009-1017.
41 Fraus est odiosa et non prwsumenda.
42 See post, §§ 449; 1011. By "presumption" in such cases, inference is meant.
43 Ibid.
a Post, §§448; 1010.
45 Frauds are viewed with great horror and indignation by Courts of Equity, as destruct- ive of that honorable confidence necessary for human intercourse, and as constituting a sort of treason against society itself. The subtle character of these violations, the great difficul- ty in making the proof, the absolute necessity, oftentimes, for probing the conscience of the alleged offender by searching interrogatories, the discerning intelligence required to ferret out the wrong and to detect fraud in its man- ifold and cunning disguises, the strong sense of equity necessary for the correction of se- cret acts of bad faith, and the inadequacy of the common law remedies to meet the mani- fest demands of justice, made it necessary for parties who had been defrauded to apply to a Court of Conscience in order to obtain com- plete redress; and to this fact the Chancery Court largely owes its existence and its juris- diction; and the altars of this Court have al- ways been the favorite refuge of parties seek- ing relief against those who have defrauded
them. Jur., §
See 1 Sto. Bq. Jur., § 185; 1 Pom. Bq. i 31-37. The following are some of the
Maxims and Sayings Relating to Fraud:
1. Dolosus versatur in generalibus. (A person who intends to perpetuate a fraud uses gen- eral terms.)
2. Fraus et jus nunquam cohabitant. (Fraud and justice never dwell together.)
3. Fraus est celare fraudem. (It is a fraud to conceal a fraud.)
4. Dolus circuitu non purgatur. (Fraud is not purged by indirect action.)
5. Suppressio veri suggestio falsi. (The sup- pression of the truth is the suggestion of what is false.)
6. Ex dolo malo non oritur actio. (A right of action cannot arise out of a fraud.)
7. Fraus latet in generalibus. (Fraud lurks in general expressions.)
.8. Once a fraud, always a fraud.
9. Fraud poisons all it touches.
10. Fraud has the outward visible sign of honesty, but lacks the inward soiritual grace.
11. The knot that fraud ties, Equity delights to untie.
12. Fraud strives to cover-up its tracks.
46 Vigilantibus non dormientibus osquitas sub- venit.
47 Lafferty v. Turley, 3 Sneed, 177; 1 Pom. Eq. Jur., § 419.
48 Bisph. Pr. Eq., § 39; Snell's Pr. Eq., 39.
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MAXIMS AND PRINCIPLES OP ADJUDICATION.
44
constantly applied where a party delays too long before he applies for an injunction, or to be relieved against a fraud, or seeks a specific performance of a contract, or the rescission of a contract. It applies, also, to persons who do not inquire after being put upon inquiry; to purchasers at public sales vv'here there are no warranties of quality or title ; and to those whose duty it is to take necessary steps to perfect their rights by giving notice of an assign- ment to them of a non-negotiable chose in action; or by having their instruments duly registered. Equity delights in diligence, and is slow to aid the slow. It not only requires clean hands and a pure heart, but also swift feet. But if the defendant has caused the complainant to sleep he can not complain of it, tor that would be to take advantage of his own wrong.
§ 50. So Use Your Own as Not to Injure Another. — While this is a law maxim it is often applied in Equity. The Chancery Court frequently enforces this maxim by enjoining the erection, or commission, of nuisances to the complainant on the land of the defendant ; because, although a man may own the land, he has no right to so use it as to prevent his neighbors from enjoying their land. A man may be driven from his home by bad smells, noxious vapors, unbearable noises, shocking spectacles, and other intolerable nuisances upon his neighbor's land, quite as effectually as though driven away by physical force. A man cannot so divert a stream on his own land as to turn water injuriously upon a neighbor's land; and he cannot dig so near the land of his neighbor as to cause the latter 's land to cave in, or so near as to endanger his neighbor's wall; he cannot pollute a stream that flows through his neighbor's land ; nor can he so stop, or change, the current of a stream as to prevent its ordinary flow through the land of another.49
A creditor, having his choice of two funds, ought to exercise his right of election in such a manner as not to injure other creditors, who can resort to only one of these funds.50 And it may be laid down as a general rule, that no one can so exercise a right as to impair the right of another, especially if the latter right is. of equal dignity in the sight of the law. The rights of life, liberty, property and the pursuit of happiness, must all be so used and exercised as not to impair or injure the equal enjoyment of these rights by another.
The Chancery Court will, on due application, enjoin the defendant from so using his property, or so exercising a right, as to injure the property or rights of the complainant.
§ 51. No one Can Take Advantage of His Own Wrong.51 — In vain should he seek the aid of Equity who has violated equity.52 Such a person, in the sight of a Court of Chancery, has unclean hands. If a person could take advan- tage of his own wrong it would be a direct bribe to cdmmit the wrong. This maxim applies where a trustee buys property in his own name with trust funds ; where a trustee makes a profit by means of his trust; where any fiduciary obtains a good bargain by means of his position of confidence or influence; where a tenant or trespasser cuts down timber ; where a party stands by and does not object to his own goods being sold as another's; where the true owner allows a bona fide purchaser to make improvements; and where a defend- ant fraudulently conceals the cause of action from the complainant and then pleads the statute of limitation. Where a party, by his words or conduct wil- fully causes another to believe in the existence of a certain state of facts, and induces him to act on that belief, the former is concluded by his words or conduct; as also is one who negligently allows another to contract on the faith and understanding of a fact which he can contradict. In brief, this
. Jacobs, 1 Cates, 741; Cox 130. Sic utere iuo ut alienum
49 Terminal Co. v. Howell, 24 Picfo non Imthts.
so Parr v. Fumbanks, 11 Lea, 395.
si NuUus comm-odum capere potest de injuria sua propria.
52 Equity has a two-fold meaning: it means (1) that system of jurisprudence administered exclusively in Chancery, and (2) a right, or claim, recognized by a Court of Equity as just. When used in the former sense it begins with a capital.
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MAXIMS AND PRINCIPLES OP ADJUDICATION.
§52
maxim operates to estop all persons, whose words, acts or silence, have misled another to his injury.53
§ 52. Where One of Two Persons must suffer Loss He should Suffer whose Act or Neglect Occasioned the Loss. — The reason of this maxim consists in the tact that the equity of the one, whose act caused the loss, is less than the equity of the other party; for the latter is entirely without fault and wholly innocent.54 This maxim applies where a loss happens to a trust fund by the failure of a bank, or the misconduct of the trustee's agent or attorney, or the insolvency of the borrower. In such, cases, the loss must be borne by the trustee, for he deposited the money in the bank, he chose the agent or attorney, and he loaned the money. The maxim applies, also, to cases where an agent has been given apparent authority to sell goods, or do any act, and, taking advantage of this apparent authority, sells the goods, or does the act, in fraud of the principal's rights, and misapplies the proceeds.55 In such cases the loss falls not on the party who deals with the agent, but on the principal.58 So, if a fraudulent vendee sell to an innocent purchaser before the vendor take steps to disaffirm the sale, such a sale will be good, because the act of the vendor enabled the vendee to make the sale.57 Where a party signs a forged note as surety, believing the principal's signature thereto genuine, and the payee parts with value for such note, the party so signing as surety must bear the loss.58 The intrinsic equity of this maxim is similar to that of the maxim, No one can take advantage of his own wrong; and it applies to a party who stands by and allows his property to be sold as another's; to any person who, even innocently, misleads, or who innocently enables another to mislead, a third party to his detriment ; and, in general to all cases of estoppel, and to all other cases where one has innocently acted on the faith of another's acts or words.
The maxim is often expressed thus : Where one of two persons must suffer loss by the acts or fraud of a third party, he who enabled that third party to occasion the loss, or to commit the fraud, ought to be the sufferer.59
§ 53. Equity Follows the Law. — Equity follows the law in the following particulars:00 (1) In adjudicating questions affecting legal estates, rights, interests or duties, Equity applies those rules of law the Circuit Courts would apply in like cases; (2) In adjudicating questions affecting equitable estates, rights,