Episcopal Church.-Equity. General Principles.

General Principles.

States of Louisiana, against upwards of two hundred defendants, some of the defendants appeared, and an affidavit was made, that in consequence of an epidemic in New Orleans and at Lafayette, and the absence of many of the defendants, it had been impossible for the defendants to prepare for their defence, and they prayed time for the same. The circuit court allowed the defendants until the following term. By the court:-The allowance was strictly conformable to the practice and principles of a court of equity. Ex parte Poultney v. The City of Lafayette et al., 12 Peters, 472.

was a necessary prerequisite to such a sale; and it not having been given, the sale was void. Whether the omission was accidental or not, it could not be treated as a mistake or accident remediable in a court of equity. Bright v. Boyd, 1 Story's C. C. R. 478.

10. Although courts of equity may afford relief against the defective execution of a power created by a party, yet they cannot afford relief against the defective execution of a power created by law. Nor can they dispense with all the necessary formalities; yet there may be exceptions to this rule. Ibid.

11. Where certain real estate was sold for the taxes, and subsequently passed through various persons by intermediate conveyances; it was held, that the right of redemption was against the very person possessed of the title at the time of the redemption. The tax title having been purchased while the suit was pending, it was held, that a title so obtained did not, by the local decisions, constitute any defence to the acIt tion of law. lbid.

5. The complainants in their bill allege, that a conveyance of her real estate was made by a daughter to her father for a nominal consideration. The answer denied the matter stated in the bill, and the defendants gave evidence of the transfer of stock, to the value of two thousand dollars, on the day the conveyance was made, claiming that this was also the consideration in the deed. Held, that this evidence was admissible without an amendment of the answer. rebutted the allegation in the bill that the deed was made wholly without consideration. Jenkins et al. v. Pye, 12 Peters, 241.

6. Where the defect of title to lands sold was discovered by the vendee after his purchase, and he proceeded to perfect the title in himself, and thus defeat the right of the vendor to the land, and he claimed a rescission of the contract of purchaser, and the repayment of the sum paid by him for the land, it was held that he could not avail himself of the defect of title while standing in the relation of purchaser, to defeat his agreement to make the purchase; he could, under the most favourable circumstances, only have the contract reformed, and the amount advanced, to perfect the title, deducted from the unpaid purchase money. A court of equity will not rescind such a contract of purchase, and will, on a bill filed by him to have such a contract rescinded, decline giving its aid against the vendors to obtain the expenses of perfecting the title. Calloway v. Finley, 12 Peters, 264.

7. It is an established rule in equity, that when the vendor of land has not the power to make a title, the vendee may, before the time of performance, enjoy the payment of the purchase-money, until the ability to comply with the agreement is shown, but then the court will give a reasonable time to procure the title, if it appears probable that it may be procured. Ibid. 8. In reforming a contract for the sale of lands, equity treats the purchaser as a trustee for the vendor, because he holds under the vendor; and acts done to benefit the title by the vendor, when in possession of the lands, enure to the benefit of him under whom the possession was obtained, and through whom the knowledge that a defect in the title existed, was derived. The vendor and vendee shared in the relation of landlord and tenant; the vendee cannot disavow the vendor's title. Ibid.

9. Where an administrator, not having previously given the proper bond, with sureties, and had it approved by the judge of probate, sold certain real estate; it was held, that the bond

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12. Yet relief will be granted by way of injunction in equity, where the tenant has, pendente lite, acquired a title paramount to that of the demandant, if he cannot avail himself of it as a defence to the original suit at law, or cannot, after recovery, maintain an action to regain the possession. Ibid.

13. The statute of Maine, of the 27th of June, 1820, ch. 47, commonly called the betterment act, applies only where the tenant has been in actual possession of the land for six years or more before the action brought, by virtue of a possession and improvement; which term had not elapsed when the writ of entry was brought in this case. Ibid.

14. Query, Whether the maxim, “Qui tacet, consentire videtur; qui potest et debet vetare, jubet, si non vetat ;" is applicable to minors, who stand by and make no objection and discover no adverse title, having a reasonable discretion, from their age, to understand and act on the subject; and whether the guardian is bound to disclose his ward's title, and how far the ward is bound by his silence or negligence; and whether there is any distinction between minors living within the state and without the state. Ibid.

15. Where the owner of an estate, after a recovery thereof at law from a bona fide possessor for a valuable consideration without notice, seeks an account in equity, as plaintiff, against such possessor for the rents and profits, courts of equity will allow him to deduct therefrom all the meliorations and improvements made beneficially by him on the estate, and thus enable him to recoup them from the rents and profits. The same doctrine holds in cases where the owner of an estate has only an equitable title thereto. The Roman law also allows compensa. tion for all beneficial expenditures; and if a bona fide holder of real estate pay money to discharge any existing encumbrance or charge upon it, without notice of the informality of his title, he is entitled to reimbursement, pro tanto. Ibid.

16. When a sale of real estate is made jointly

General Principles.

by persons having independent interests, in the absence of other counteracting circumstances, the purchase-money is to be divided according to their respective interests. Foster v. Hilliard, 1 Story's C. C. R. 77.

17. In the case of a tenant for life, remainder in fee, of lands under mortgage, the parties contribute to discharge the encumbrance according to the relative value of their respective interests, calculated according to the value of the estate of the tenant for life by the common tables. Ibid.

18. The same principle applies where a mortgagee devises the mortgaged estate to one for life, remainder over in fee. Ibid.

17. A court of equity will decline to interfere in adversum to change real estate, by a sale, into personal estate, without imposing conditions by which the proceeds shall retain throughout the character of the original fund; yet it would have been different, if there had been a voluntary sale by the parties. Ibid.

20. Certain real estate was devised to A. for life, remainder to certain minors in fee. A., with the consent of the guardian of the minors, sold the land, but died before receiving the whole of the purchase-money, and the residue was received by his executors. Held, That the rights of the parties were absolutely fixed at the very time of the sale; and that the executors of the deceased and the remainder-men were entitled to share in the proceeds according to the interests of A. and the remainder-men at that time. Ibid.

21. Held, also, that the interest of the tenant for life was to be determined, not by the time when he actually died, but by the value of his life, as ascertained by the common tables, at the time of the sale. And although he died within four years from the time of the sale, yet his interest was to be calculated for about twenty years, as that was the duration of his life, as ascertained by the common tables. Ibid.

22. Where an interrogatory, pertinent to a charge in a bill in equity, requires the defendant to answer "as to his knowledge, remembrance, information, and belief;" and the answer stated "that the defendant had no knowledge, information, and belief that it was not true;" and an exception was filed by the plaintiffs, on the ground "that the answer did not state whether the defendant believed it to be true." It was held that the exception was well founded, and it was accordingly allowed. Brooks v. Byam, 1 Story's C. C. R. 296.

23. An exception to an answer for insufficiency should state the charges in the bill, the interrogatory applicable thereto, to which the answer is responsive, and the terms of the answer, verbatim, so that the court may see whether it is sufficient or not. Ibid.

24. Whenever the defendant does not directly deny any particular allegation of fact, stated in the bill, but states his belief thereof, he either admits that it is true, or that he does not mean to controvert it. But a mere statement by the defendant, in his answer, that he has no knowledge that the fact is as stated, without any an

swer as to his belief concerning it, is not such an admission as is to be received as evidence of the fact. lbid.

25. The defendant in equity is bound to answer in direct and unequivocal terms, as to the state of his mind, as to every fact stated in the bill, to which he is interrogated; either that he does believe the matter inquired of, or that he cannot form any belief, or has none, concerning it; and, according as the answer may be, he must state that he calls on the plaintiff for proof, or that he admits the particular fact, or that he waives all controversy concerning it. Ibid.

26. Rehearings in equity, after a decree, are not a matter of right; but rest in the sound discretion of the court. Daniel v. Mitchell, 1 Story's C. C. R. 198.

27. Where a rehearing is applied for on the ground of newly discovered evidence, the application is mainly governed by the same considertions as apply to cases where leave is asked to file a supplemental bill after the publication of the testimony taken on a cause, and before the hearing, in order to bring newly discovered evidence before the court; or where leave is asked, after a decree, to file a bill of review upon the ground of the like evidence. Ibid.

28. Query, Whether the court will grant any such application after a decree, where the newly discovered evidence consists wholly of confes sions made by the plaintiff since the decree, and affecting the merits of the original bill. Ibid.

29. If the court will grant any such applica tion, it will grant it only when the confessions are of the most full and direct character, and are proved by disinterested testimony, and are not susceptible of different interpretations. Ibid.

30. A fortiori, the application will be more difficult to be maintained (if it can be maintained at all) where the supposed confessions made by the plaintiff are directly contradictory to the answer of the plaintiff to a cross-bill, filed in the same cause for the very purpose of obtaining an admission of the same facts as the confessions purport to state, and are also contradicted by the plaintiff by his affidavit, filed upon the application for the rehearing. Ibid.

31. Where a bill in equity was brought by an administrator de bonis non, for an account of the intestate's estate, after the lapse of from twenty to twenty-five years, and the defendant pleaded the statute of limitations, and filed a general answer to the whole bill; it was held, that the plea should, in itself, contain averments, negativing such special matters stated in the bill as would, if true, avoid the operation of the statute; and that it was not sufficient that such matters were negatived in the answer. Stearns v. Page, 1 Story's C. C. R. 204.

32. Held, also, that when an answer contains more than is strictly applicable to the support of the plea, it overrules the plea. Ibid.

33. Where a bill in equity is brought after a great lapse of time, it is incumbent on the plaintiff to state the reasons why it was not brought before, in order to repel the presumption of laches or improper delay; and if fraud, mistake, &c., are charged, distinct and definite averments

General Principles.

should be made in regard to the time, occasion, and subject-matter of such fraud or mistake. Ibid.

34. Where a bill in equity charged the defendant with digging and sinking a deep well and fountain, and thereby occasioning a diversion of the water from a certain spring and watercourse on the meadow-land of the plaintiff, so as to render the same dry during a portion of the year, and prayed for an injunction and relief therefrom; and the answer denied the facts stated in the bill, alleging that the diminution of water was occasioned by other and natural causes; it was held, that if the facts were as alleged in the bill, the plaintiff was entitled to the relief sought. But, in consideration of the contradictory nature of a great mass of testimony, relating merely to the matter of fact, and dependent upon the credibility of the witnesses, the court proposed that the following questions should be submitted to a jury, to aid it in its decision-1st. Whether there was any such diversion of the water as that alleged in the bill. 2d. If so, what damages have been sustained thereby. 3d. What is the permanent diminution or loss in value of the plaintiff's meadow-land, occasioned thereby. Dexter v. The Providence Aqueduct Co., 1 Story's C. C. R.

387.

40. A contract was made by certain parties, wherein it was agreed that one party should sell and the other should purchase a certain tract of timber-land in the state of Maine; and if, upon an exploration, it did not contain sixty millions of pine timber, and there was not a stream running through it, which would, with an ordinary freshet, carry logs from the tract to the Kennebec river, without difficulty, the agreement should be void. The parties procured an exploration, and, upon a favourable report of their agent, purchased the tract, taking a deed of the same, and making the stipulated payments. It subsequently appeared that there was a gross mistake in the estimation of the quantity of timber; that the exploration was not made entirely upon the tract in question, but partly upon an adjacent one; and that the pine timber did not, in fact, exceed five millions. Under these circumstances, a bill in equity was brought by one of the purchasers to rescind the contract, and praying for general relief. Held, (1.) That the original contract must be set aside, as founded in gross mistake. (2.) That the conveyance to the plaintiff must be rescinded, and the purchase-money restored. (3.) That the agent of the owners, who had effected the sale in his own name, having received the purchase-money, was primarily liable to repay it; and in his aid, such of the other defendants for whom he acted as agent, and such as had received any part thereof, with a full knowledge of all the circumstances, must repay the proportion thereof respectively received by them. Ibid.

35. Where an interlocutory decree was made, referring it to a master to ascertain and report to the court the amount of a claim, which the defendant had against certain real estate, which was conveyed to him as a security for such claim; it was held, that the master was not 41. An agreement having been made between bound by the statement of that claim in the de- the defendants, by which they mutually agreed, fendant's answer, but was at liberty to inquire upon the division of the notes taken for the purby all the evidence in the cause, and other evi-chase-money among them according to their dence brought before him, what was the true extent and just amount of the claim, whether that evidence was in support of, or was contradictory to the answer. Chickering v. Hatch, 1 Story, C. C. R. 516.

respective interests, that they would bear their respective proportions of any losses which might arise from any inability of the purchasers to pay the same; it was held, that the plaintiff could not, in equity, have any benefit from this agree36. The statement of the title or ownershipment, so as to avail himself of it, in case he was of a vessel in the custom-house documents, what- not able, from the parties directly liable to him, ever may be its effect between the parties to to obtain back the purchase-money decreed to those documents, is not conclusive upon third him. Ibid. persons, who have an adverse interest; but they 42. A bill in equity will be sustained to set are at liberty to show the real title to be different aside a judgment upon a policy of insurance, from what is stated therein. Ibid. upon the ground of such newly discovered evi37. The rule in equity is, that an answer, re-dence of fraud and felony on the part of the sponsive to the allegations and charges made in the bill, and containing clear and positive denials thereof, must prevail, unless it is overcome by the testimony of two witnesses, or by oue witness and other attendant circumstances, supplying the want of another witness. Daniell v. Mitchell, 1 Story, C. C. R. 172.

38. A bargain, founded upon material misrepresentations of matters of fact, even though they were inadvertently made through the mutual mistake of the parties, or by the mistake of the grantors alone, will be annulled in equity. Ibid.

39. In equity, mistake as well as fraud, in any representation of a fact, material to the contract, furnishes a sufficient ground to set it aside, and to declare it a nullity. Ibid

original plaintiff, as would, if pleaded, have been a perfect defence to the previous action; especially, if the felony were committed by a British subject in a British vessel, on British waters: for the offence is not, in such case, punishable by the criminal law of this country. Ocean Insurance Company v. Field, 2 Story's C. C. R. 59.

43. A bill in equity, although it charge a felony, may be sustained by proof; but the defendant is not bound to make a discovery thereof. Ibid.

44. Although a court of equity will not ordinarily grant relief, in cases after trial, where mere cumulative evidence of fraud or of any other fact is discovered, yet it will, wherever the defence was not originally made out from the want of distinct proof, which is afterwards dis

General Principles.

covered; although there were circumstances of | proper. Alfonso v. United States, 2 Story's C. C. suspicion. Ibid.

45. Under a bill in equity, proof is not admissible with respect to matters not alleged in the bill or answer; and, therefore, one of the parties, who claimed to be a purchaser for a valuable consideration, without notice, not having so stated in his answer; it was held, that evidence with regard to the fact was not admissible. Barque Chusan, 2 Story's C. C. R. 456.

46. Where a bill in equity was brought by A as assignee of B, no waste being charged therein, and the subject-matter was referred to a master to report thereon, who was not authorised to report upon the question of waste, but who nevertheless did, with the consent of the parties, report thereupon; it was held, that waste committed before the assignment could not be inquired into by an assignee; that all of the reports pertaining to waste should be stricken out; that even, if such matter had been charged in the bill, the master not being directly authorised thereto, could not acquire any authority beyond his commission by consent of parties. Gordon v. Hobart, 2 Story's C. C. R. 243.

47. Where A mortgaged certain property to B, to secure a loan of three thousand dollars, no rate of interest being therein fixed, upon the agreement that A should take from B a lease thereof at the yearly rent of two hundred and seventy dollars, which rent was paid until the mortgagee took possession: it was held, that the lease was a mode of securing usurious interest, and was, therefore, not valid; but that legal interest should be allowed in equity, upon the three thousand dollars, for the whole period. Ibid.

48. There having been various business transactions between A and B, and various notes received from A by B, no specific application of which by the mortgagor was shown; it was held, under the circumstances, that the notes were not to be applied to the payment of the three thousand dollars. Ibid.

49. Where a codicil is asserted to have been obtained by fraud, and afterwards to have been revoked, if the plaintiff mean to rely upon the codicil and its revocation, as a proof of fraud, in the defendant, and also to rely upon its either being destroyed by the defendant, or to be in his possession and suppressed; it is indispensable, that the bill should allege the execution of the codicil and its revocation, and the fraud of the defendant in obtaining it, and also that he has destroyed it, or has it in his possession, and require a discovery of the facts, and of the contents of the codicil, otherwise these points can not be used as evidence in the cause. Ibid.

R. 422.

51. Also that the agents of the claimants, having assumed, in his oath to the invoice or entry of the shipment, the position of a purchaser, he could not avail himself of the defence that he was not a purchaser, but a producer or manufacturer. Ibid.

52. Certain persons associated themselves together, under the name of the "Wilson Mill Privilege," and appointed A and B as their agents and attorneys, who took charge of their property, and erected buildings, and made improvements, and advanced money; afterwards they obtained a charter and incorporation as "The Great Works Milling and Manufacturing Company," and voted to settle all the accounts of the agents, and ratified their proceedings, and continued A as their agent; but no settlement of the agent's accounts was ever made, and the present bill being brought by their assignee, it was held, that it was a proper case for the interposition of a court of equity. Mitchell v. Great Works Milling and Manufacturing Company, 2 Story's C. C. R. 648.

53. In matters of account, courts of equity possess a concurrent jurisdiction with courts of law, in most, if not in all cases, and where the case is one, wherein a court of law could not afford an adequate redress, it is proper for the interposition of a court of equity. Ibid.

54. Where a bill in equity was brought to set aside a sale of certain timber lands seven years after the purchase thereof, during which time the agent of the purchaser had made two explo rations of the land, and had caused a large quantity of timber to be cut therefrom, it was held that the purchaser had full knowledge or means of knowledge of the condition of the lands, through their agent, which they were bound to exercise, before cutting down timber, and locating the property as their own; and that the bill was not maintainable after so great a lapse of time, particularly as it set forth no new discoveries in relation to the quantity and value of the timber, which might not have been obtained in a single year, and as the evidence was obscured as to the material points. Hough v. Richardson, 3 Story's C. C. R. 659.

55. A verdict upon an issue, ordered by a court of equity, is not final upon the facts it finds, nor binding upon the judgment of the court, unless it is sanctioned and adopted by the court upon the subsequent hearing on the merits. Allen v. Blunt, 3 Story's C. C. R. 742.

56. Where a partner fraudulently, without the consent of his copartners, applies the partnership funds to his private purposes and profit, or 50. Where a bill alleged, that certain sugars invests the same in his own name, and for his were fraudulently invoiced at a sum less than own use, his copartners may, if they can dis"actual cost and fair market value," which tinctly trace the investment, follow it, and treat question was directly put in issue by the plead-it as trust property held for the benefit of the ings, and the judge charged the jury, "that if the goods were found to be invoiced below their fair market value, with intent to defraud, &c., they should find a verdict for the government,' to which instruction exception was taken by the plaintiff; it was held, that the instruction was

firm. by the partner or by any person in whose hands it may be, except a bona fide purchaser without notice. Kelly v. Greenleaf, 3 Story's C. "C. R. 93.

57. The same rule also applies to trustees and agents, and exists not only in equity, but at