administered in the modes and according to the forms which appertain to it in England; that is, as a branch of jurisprudence separate and distinct from the remedial justice of Courts of Common Law.1 [Chancery jurisdiction is conferred on the courts of the United States with the limitation "that suits in equity shall not be sustained in either of the courts of the United States, in any case where plain, adequate and complete remedy may be had at law." The rules of the High Court of Chancery of England have been adopted by the courts of the United States. And there is no other limitation to the exercise of a chancery jurisdiction by these courts, except the value of the matter in controversy, the residence or character of the parties, or a claim which arises under a law of the United States, which has been decided against in a State court.

In exercising this jurisdiction, the courts of the Union are not limited by the chancery system adopted by any State, and they exercise their functions in a State where no court of chancery has been established. The usages of the High Court of Chancery in England, whenever the jurisdiction is exercised, govern the proceedings. This may be said to be the common law of chancery, and since the organization of government, it has been observed.

The jurisdiction of the courts of the United States, sitting in equity, cannot be controlled by the laws of the States or the decisions of the State courts, except that the courts of the United States, sitting in equity, may enforce new rights of an equitable nature created by such laws.

Sec. 16 of the Judiciary Act of 1789, 1 Stat. 82, ch. 20, with reference to the equity jurisdiction of courts of the United States, is merely declaratory, making no alteration whatever in the rule of equity on the subject of legal remedies, but only expressive of the law which has governed proceedings in equity ever since their adoption in the courts of England. The term "speedy" as used in the demurrer, is embraced by the terms "complete" in the statute.

3

It is a mistake to suppose that for the determination of equities and equitable rights we must look only to the statutes of Congress.

1 Fonbl. on Eq. by Laussat (edit. 1831), pp. 13 to 20; 7 Dane's Abridg. ch. 225, art. 1, 2.

2 State of Pennsylvania v. Wheeling Bridge Co., 54 U. S. 563, 14 L. Ed. 249; Vattier v. Hinde, 32 U. S. 274, 8 L. Ed. 675; Fenn v. Holme, 62 U. S. 484, 16 L. Ed. 198.

3 Rich v. Brexton, 158 U. S. 405, 39 L. Ed. 1022, 15 S. Ct. Rep. 1006; Whitehead v. Shattuck, 138 U. S. 150, 34 L. Ed. 873, 11 S. Ct. Rep. 276.

The principles of equity exist independently of and anterior to all congressional legislation, and the statutes are either annunciations of these principles or limitations upon their application in particular cases.1] In Pennsylvania it was formerly administered through the forms, remedies, and proceedings of the common law; and was thus mixed up with legal rights and titles in a manner not easily comprehensible elsewhere. This anomaly has been in a considerable degree removed by some recent legislative enactments. In some of the States in the Union distinct Courts of Equity are established; in others the powers are exercised concurrently with the Common Law Jurisdiction by the same tribunal, being at once a Court of Law and a Court of Equity, somewhat analogous to the case of the Court of Exchequer in England. In others again no general equity powers exist; but a few specified heads of Equity Jurisprudence are confided to the ordinary Courts of Law, and constitute a limited statutable jurisdiction.3

1 United States v. Detroit Lumber Co., 200 U. S. 339, 50 L. Ed. 499, 26 S. Ct. Rep. 282.

2 Id. 18 to 20.

Mr. Chancellor Kent, in a note to his Commentaries, has given a brief statement of the actual organization of Equity Jurisdiction in all the States; to which I gladly refer the learned reader. 4 Kent, Comm. Lect. 58, p. 163, note (d). A fuller account may be found in the Preface to Campbell and Cambreleng's American Chancery Digest (edit. 1828), in Mr. Laussat's edition of Fonblanque on Equity, vol. 1, pp. 11 to 20 (edit. 1831); and in Mr. Laussat's Essay on Equity in Pennsylvania, App. (1826). As the systems of the different States are in many cases subject to legislative authority, which is frequently engaged in introducing modifications, a more minute detail would scarcely be of any permanent importance to the profession. The article on Chancery Jurisdiction, in the first volume of the American Jurist, p. 314, contains many very valuable suggestions on this subject; and exhibits in a striking manner the importance of Equity Jurisprudence. See also 7 Dane's Abridg. ch. 225, arts. 1, 2.

As to the legislation of the States on the subject, see Bispham, Equity, pp. 16-23.

CHAPTER III

GENERAL VIEW OF EQUITY JURISDICTION

§ 59. General View. — Having traced out the nature and history of Equity Jurisprudence, we are naturally led to the consideration of the various subjects which it embraces and the measure and extent of its jurisdiction. Courts of Equity in the exercise of their jurisdiction may in a general sense be said to differ from Courts of Common Law in the modes of trial, in the modes of proof, and in the modes of relief. One or more of these elements will be found essentially to enter as an ingredient into every subject over which they exert their authority. Lord Coke has in his summary manner stated that three things are to be judged of in the Court of Conscience or Equity, — covin, accident, and breach of confidence;1 or, as we should now say, matters of fraud, accident, and trust. Mr. Justice Blackstone has also said that Courts of Equity are established "to detect latent frauds and concealments which the process of the Courts of Law is not adapted to reach; to enforce the execution of such matters of trust and confidence as are binding in conscience, though not cognizable in a Court of Law; to deliver from such dangers as are owing to misfortune or oversight; and to give a more specific relief, and more adapted to the circumstances of the case than can always be obtained by the generality of the rules of the positive or common law.'

§ 60. Equity Will Not Interfere in All Cases.-These, as general descriptions, are well enough; but they are far too loose and inexact to subserve the purposes of those who seek an accurate knowledge of the actual or supposed boundaries of Equity Jurisdiction.

14 Inst. 84; Com. Dig. Chancery, Z.; 3 Black. Comm. 431; 1 Eq. Abr. Courts, B. § 4, p. 130; 1 Dane's Abridg. ch. 9, art. 1, § 3; Earl of Bath v. Sherwin, Prec. Ch. 261; s. c. 1 Bro. Parl. Cas. 266; Rex v. Hare & Mann, 1 Str. 149, 150, Yorke, arguendo; 1 Wooddes. Lect. vii. pp. 208, 209; Bac. Abridg. Court of Chancery, C.

23 Black. Comm. 92; and see 3 Black. Comm. 429 to 432.

Thus, for example, although fraud, accident, and trust are proper objects of Courts of Equity, it is by no means true that they are exclusively cognizable therein. On the contrary, fraud is in many cases cognizable in a Court of Law. Thus, for example, reading a deed falsely to an illiterate person, whether it be so read by the grantee or by a stranger, avoids it as to the other party at law.1 And sometimes fraud, such as fraud in obtaining a will, or devise of lands, is exclusively cognizable there.2 Many cases of accident are remediable at law, such as losses of deeds, mistakes in accounts and receipts, impossibilities in the strict performance of conditions, and other like cases. And even trusts, though in general of a peculiar and exclusive jurisdiction in equity, are sometimes cognizable at law; as, for instance, cases of bailments, and that larger class of cases where the action for money had and received for another's use is maintained ex æquo et bono.3

1 Thoroughgood's Case, 2 Co. 9 a; Hobart, R. 296; Id. 126, 330, 426; Shutter's Case, 12 Co. R. 90; Jenkins' Cent. 166; Hayes v. Railroad, 143 N. C. 125, 55 S. E. 437.

21 Hovenden on Frauds, Introd. p. 16; Id. ch. 10, p. 252; 1 Dane, Abridg. ch. 9, art. 1, § 3; 3 Wooddes. Lect. lvi. p. 477.

33 Black. Comm. 431, 432; 1 Wooddes. Lect. vii. pp. 208, 209. While the action of assumpsit was at law, it was equitable in its nature. Comrs. v. Fry, 127 N. C. 262, 37 S. E. 259.

Where one party has received money to which another is entitled, the law presumes a contract if it is necessary to do so to enable the party entitled to recover the same. This enables the party having the right to the money, to an action of debt, indebitatus assumpsit, which, though an action at law, was equitable in its nature. It has been styled as "equiDavidson v. Land Co., 126

table action on the law side of the docket."

N. C. 709, 36 S. E. 162.

Where holder of bond for title to purchase land, contracted to pay in wheat, and the quantity of bushels has been delivered, and the owner now informs him that his title to the land is defective, the proposed purchaser may recover in assumpsit for the value of the wheat. Ankeny v. Clark, 123 U. S. 392, 37 L. Ed. 475, 8 S. Ct. Rep. 221.

Payment of license fees for the privilege of carrying on trade in the Chicago River, imposed by the city of Chicago, in addition to the fees exacted by the government for coasting trade, is an interference with interstate commerce, and any fees so paid under protest may be recovered back, they not having been paid voluntarily. Harmon v. City of Chicago, 147 U. S. 396, 37 L. Ed. 219, 13 S. Ct. Rep. 306.

Whenever there is a legal liability the law creates a promise upon which an action of assumpsit will lie. Merriwether v. Bell, 22 Ky. L. Rep. 844, 58 S. W. 987.

An amount voluntarily paid to sheriff as his commissions on a mortgage sale, but which in fact was not a proper charge, may be recovered back. Sorderberg v. King County, 15 Wash. 194, 33 L. R. A. 670.

Before a third party making payment of a debt, secured by mortgage, can be subrogated to the rights of the mortgagee, he must show either that he made the payment at the request of the mortgagor, or to protect VOL. I.-5 65

§ 61. Wrongs Not Relieved Against at Law or in Equity. - On the other hand there are cases of fraud, of accident, and of trust, which neither Courts of Law nor of Equity presume to relieve or mitigate. Thus a man may most unconscientiously wage his law in an action of debt; and yet the aggrieved party will not be relieved in any Court of Law or Equity. And where the law

some interest he had of his own at the time of the payment. Norton v. Highleyman, 88 Mo. 624.

The general principle, that no one can make himself the creditor of another without his consent, or against his will, is familiar. But where one is surety for another, and pays the debt which the principal owes, the law implies that the latter requested such payment to be made, and also implies a promise to repay him. But the surety must be under some legal obligation to pay, otherwise the implication of a request to pay and promise to pay will not arise. Dawson v. Lee, 83 Ky. 53; Brown v.

Chesterville, 63 Me. 241.

11 Fonbl. Eq. B. 1, ch. 1, § 3, p. 16.

2 Subscription to stock in a corporation, upon the promise that the subscriber was to be given a lot, will not be set aside where he was a party to the contract, which he alleges was illegal. Francis, Max. Introd. 6, 7; Cardwell v. Kelley, 95 Va. 570, 40 L. R. A. 242.

The authorities almost uniformly hold that when an illegal contract has been fully executed, and the interests and differences of the parties to it adjusted and agreed upon, and the money arising therefrom deposited to the credit of one or more of the respective parties, such depositary cannot, when sued by the party or parties to whom the money is due, successfully plead the illegality of the contract or transaction through which the money was originally obtained. Overholt v. Burbridge, 28 Utah 408, 79 Pac. 563.

The courts of this State have steadfastly refused to lend their aid to enforce contracts which are directed to the accomplishment of a fraudulent purpose, or to entertain suits to recover damages for a breach thereof, and where a decedent left all of his estate to four relatives, and excluded plaintiff's assignor, and subsequently the four devisees contracted and agreed that if no contest over the will should be made, that they would agree to divide the estate into five equal portions, and assign one-fifth to Mrs. Snook, and she assigned her interest to plaintiff, and later died, it was held that he was not entitled to recover. Wyckoff v. Weaver, 66 N. J. L. 648, 52 Atl. 356; Todd v. Rafferty's Admrs., 30 N. J. Eq. 254; Hope v. Assn., 58 N. J. L. 627, 34 Atl. 1070, 55 Am. St. Rep. 614; Minzesheimer v. Doolittle, 60 N. J. Eq. 394, 45 Atl. 611; Edwards v. Goldsboro, 141 N. C. 60, 53 S. E. 652.

Neither the sale of editorial columns nor services for carrying an election are cognizable in a court of justice as ground 'of action for a recovery of compensation. King v. Railroad, 147 N. C. 266, 60 S. E. 1133.

Promise to repay loss sustained in future contract is void. Burns v. Tomlinson, 147 N. C. 647, 61 S. E. 614.

The law will not lend its aid where contract appears to have been entered into by both contracting parties for express purpose of carrying into effect that which is prohibited by law. Sheppard v. Power Co., 150 N. C. 778, 64 S. E. 894.

A contract between railroad companies by which one agrees not to