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When there is one general right to be established against a great number of persons; as, where one person claims or defends against many, or where many claim or defend a right against one. Chancery in such cases interferes for the purpose of avoiding a multiplicity of suits ; but as the plaintiff's claim is founded upon a legal right, that must first be tried at law in an individual case, and a verdict obtained by the plaintiff in order to induce a court of equity to grant a perpetual injunction, and this being ascertained, the courts of equity will call all the parties before them and make a final decree binding upon all the parties.122 An example to illustrate this may be found in the case of a party who has possession and claims a right of fishery for a considerable distance on a river, and the riparian owners set up several adverse rights, he may have

a bill of peace against them all for the purpose of quieting his right and establishing his possession.123

The second class in which bills of peace may be brought is when the plaintiff has, after repeated trials, established his right at law. When the disuse of real actions which were final became general, and ejectments became common, as this last action was not final, it was usual to bring one action after another, and by that means harass the defendant. To remedy this evil, after the right had been repeatedly tried in ejectment and the result had been the same, the courts of equity, upon a bill of peace being filed, would grant a perpetual injunction.124

3822. Bills of interpleader form the fourth or last class of peculiar remedies administered by courts of equity. A bill of interpleader may be defined to be one by which the complainant claims no relief against either of the plaintiffs or defendants, but desires to pay the money or deliver the property to the one to whom it justly, legally, or equitably belongs, and that he may be protected from the danger of loss or damage from the claim of both or either of them.123

It is a remedy concurrent with the interpleader at law, and is formed in some measure upon it, but it is extended in equity to cases in which it is not afforded at law. At law, parties are made to interplead only in favor of a defendant who is sued in two different actions; as, upon a bailment of goods to such defendant, in respect of which the plaintiff in one action brings detinue and the plaintiff in the other action brings trover, but the bailment must have been made by consent of both claimants. 126 In equity, where two or more persons claim the same thing by different titles, and another person is in danger of injury from ignorance of the real title to the subject in dispute, courts of equity will assume a jurisdiction to protect him. The bill exhibited for this purpose is termed a bill of interpleader; its object is to compel the claimants to interplead, so that the court may adjudge to whom the property belongs and the plaintiff may be indemnified. The courts of equity extend the remedy beyond that given at law, and let it embrace all cases to which in conscience it ought to extend; and having the means of bringing all parties before them and investigating their respective claims, they will give to the parties that measure of justice which they ought severally to attain, when they have legal claims, as if by circuity of action they were to proceed at law.127

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Jeremy, Eq. Jur. 343. See also Poor v. Clark, 2 Atk. Ch. 515; Corporation v. Wilson, 13 Ves. Ch. 279; Norfolk v. Myers, 4 Madd. Ch. 50.

Mayor of York v. Pilkinton, 1 Atk. Ch. 382. 14 Earl of Bath v. Sherwin, 4 Brown, Parl. Cas. 373; Prec. Chanc. 261. See Dalton v. Dalton, Sel. Ch. Cas. 13; Huntingdon v. Nicoll, 3 Johns. N. Y. 566; Leighton v. Leighton, 1 P. Will. Ch. 671 ; Jeremy, Eq. Jur. 346.

125 Bedell v. Hoffman, 2 Paige, Ch. N. Y. 199. 126 2 D'Anvers, Abr. 779, 782; 3 Reeves, Hist. Eng. Com. Law, 448. 197 Jeremy, Eq. Jur. 346, 347 ; Mitford, Eq. Plead. 125. See 2 Story, Eq. Jur. 82 800 to 824.

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3823. Bills of interpleader are in general brought by agents, auctioneers, factors, and the like, who have no interest in the matter in controversy, and where they have no adequate remedy to defend themselves at law from the vexatious suits of different claimants. The object of this bill is to discharge the plaintiff from paying what he owes more than once, and for the purpose of ascertaining who is the true creditor or person entitled to the subject matter in dispute. If the party praying for an interpleader himself claims an interest in the subject matter as well as the other parties, the bill will not be entertained, for then he has other appropriate remedies. 128

But this must be understood with this qualification, that the party applying for an interpleader must have no interest in the matter in dispute, yet he may have an interest connected with it; a bill in the nature of a bill of interpleader will lie where he has some interest distinct from that of the contending claimants. For example, if a mortgagor wishes to redeem the mortgaged estate, and there are conflicting claims of different persons as to the title to the mortgage money, he may bring them before the court to ascertain their rights, for the purpose of having a decree of redemption and be made safe in his payment. In such case, it is true, the plaintiff seeks relief for himself, but he has no interest in the matter in dispute between the several claimants. 129

3824. A bill of interpleader will only lie where the claims are legal, or where at least one is of that nature; and in such case it is not necessary that a suit or action should have been commenced upon it, a claim being a sufficient ground for such an application, although it is requisite that the plaintiff should admit the right in each party to institute proceedings against him.130

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Angel v. Hadden, 15 Ves. Ch. 244; Langston v. Boylston, 2 id. 108; Cornish v. Tanner, 1 Younge & J. Exch. 333; Atkinson v. Mauks, 1 Cow. N. Y. 691 ; Moore v. Usher, 7 Sim. Ch. 383; Bedell v. Hoffman, 2 Paige, Ch. N. Y. 200; Marvin v. Ellwood, 11 id. 365; Lincoln v. Rutland, etc., R. R., 24 Vt. 639. The practice of interpleader in equity has been compared to the intervention of the civil law. Gilb. For. Rom. 47. There is this marked difference between them: the party to an interpleader, who claims to be relieved from vexatious litigation, and from liability to pay the debt or perform his obligation more than once, in consequence of the uncertainty of the rights of the several claimants, differs materially from the tertius inter veniens, or intervener of the civil law, who is one claiming an interest in the subject matter or thing in dispute, and claims to act with the plaintiff, and to be joined with him, and to recover the matter in dispute, because he has an interest in it; or to join the defendant, and with him to oppose the claim of the plaintiff, which it is his interest to defeat. Domat, Lois Civiles, tome 2, liv. 4, tit. 3; Poth. Procédure Civile, prèm. partie, c. 2, s 6, & 3. See Eden, Inj. 394, note (a); 2 Story, Eg. Jur. & 806, note 1; Merlin, Repert, Intervention ; Code of Pract. of Louisiana, art. 389; Brown v. Saul, 4 Mart. N. 8. La. 437; Gasquet v. Johnson, 1 La. 431; Thompson v. Chauveaux, 7 Mart. N. S. La. 334; Dalloz, Dict. de Jur.

129 See Bedell v. Hoffman, 2 Paige, Ch. N. Y. 199; Mitchell v. Hayne, 2 Sim. & S. Ch. 63; Goodrick v. Shotbolt, Prec. Chanc. 333; Jeremy, Eq. Jur. 348.

Morgan v. Marsack, 2 Mer. Ch. 110; Stevenson v. Anderson, 2 Ves. & B. Ch. Ir. 407; Langston v. Boylston, 2 Ves. Ch. 107.

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CHAPTER IV.

THE GENERAL REMEDIES.

3826–3830. Accidents.
3827-3829. When courts of equity will relieve from accidents.

3828. Relief from the accidental loss of proof of title.
3829. Relief from accidents not affecting the proof of plaintiff's title.

3830. When courts of equity will not relieve from accidents. 3831-3837. Mistakes.

3832. Mistakes in matters of law.

3834. Mistakes in matters of fact. 3838-3878. Fraud.

3839. Classification of frauds.
3840-3852. Actual frauds.
3841-3844. Suggestio falsi or misrepresentation.

3842. The representation must have been material.
3843. The representation must have been false.
3844. The party deceived must have had a right to rely upon the representation.

3845. Suppressio veri or concealment of the truth. 3850-3852. Frauds arising from other causes.

3851. Frauds arising from the incapacity of the parties.

3852. Unconscionable bargains.
3853–3878. Constructive frauds.
3854–3861. Contracts against public policy.

3855. Contracts founded on immoral consideration.
3858. Contracts in violation of public trust,
3859. Contracts in restraint of trade.
3860. Contracts in restraint of marriage.

3861. Contracts to influence persons in authority.
3862-3869. Contracts in violation of trusts and fiduciary relations.

3863. Frauds between parent and child.
3864. Frauds between guardian and ward.
3865. Frauds between trustee and cestui que trust.
3866. Frauds between client and attorney.
3868. Frauds between principal and agent.

3869. Frauds between creditor and surety. 3870–3878. Frauds against third persons.

3871. Catching bargains.
3875. Bargains with sailors for their wages.
3876. Agreements to delay or defraud creditors.
3877. Purchase with notice of prior title.

3825. In the preceding chapter having considered the peculiar means employed by courts of equity, first, to secure justice, and, secondly, to prevent injustice, we naturally come to the general causes for relief which are not peculiar to courts of equity, but are recognized in courts of law as requiring interposition to secure justice. These relate to accidents, mistakes, frauds, and to certain remedies peculiarly appropriate in equity and inappropriate at law.

3826. In the course of human affairs accidents are constantly happening, and the courts are required to supply a remedy to relieve those who may be subject to them as far as it is in their power. Many of these accidents are remedied in the courts of law; as, the loss of deeds, mistakes in receipts and accounts, wrong payments, death, which makes it impossible to perform conditions literally, and a multitude of other contingencies. Courts of equity, having more extensive powers, and a more enlarged jurisdiction, relieve from accidents in many cases where the courts of law cannot afford an adequate remedy. Possessing these means of investigation, when a court of equity can satisfy itself that natural justice requires its interference, it will, in some instances, exert its means of distributing equity where subsequent accident would render the application of the rules of law injurious or oppressive. It will perform this equitable task by dispensing with the observance of formalities, or by presuming that they have been complied with, and then give redress, or relieve the party from responsibility or loss, as justice and equity require.

But there are some accidents which are not relievable even in courts of equity, as if by accident a recovery be ill suffered, a devise ill executed, a contingent remainder destroyed, or a power of leasing omitted in a family settlement.?

The general meaning of the term accident is the happening of an event without the concurrence of the will of the person by whose agency it is caused, or the happening of an event without any human agency. The burning of a house in consequence of a fire being made for the ordinary purpose of cooking or of warming the house is an accident of the first kind; the burning of a house by lightning is an accident of the second kind. The term accident in chancery practice has a different meaning; it signifies such unforeseen events, misfortunes, losses, acts, or omissions, as are not the result of any negligence or misconduct of the party. We shall consider the cases of accident where relief will be granted, and, subsequently, those where it will not be granted.

3827. The cases where courts of equity will relieve from accidents may be divided into two classes ; included in the first are those cases in which a party seeking the establishment of a legal right is unable to produce evidence of his title, and, in the second, those in which by a mere casualty, not affecting the proof of the plaintiff's title, he would unquestionably be subjected to injury.

3828. The jurisdiction of courts of law and courts of equity being concurrent, the latter courts will entertain jurisdiction only, first, when a court of law cannot grant suitable relief; and, secondly, when the party has a conscientious or equitable title of relief, both must concur in a given case, for otherwise a court of equity cannot grant the relief.

Formerly, courts of law did not interfere to grant relief in many cases where now such relief may be obtained at law. At that time courts of equity interfered to prevent injustice, and although the courts of law, with more liberality, now afford relief in such cases, yet courts of equity, having once obtained jurisdiction, now retain it as a concurrent remedy with the courts of law, it being considered that the latter courts are not competent, by their own act, to oust or repeal a jurisdiction already rightfully attached in equity.

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13 Blackstone, Comm. 431.

2 3 Sharswood, Blackst. Comm. 431. $ 1 Story, Eq. Jur. & 78.

1 Fonblanque, Eq. 374; 375, note. 6 Mitford, Eq. Plead. 104-106; 1 Fonblanque, Eq. B. 1, c. 1, s. 3, note (f); Cooper, Eq. Plead. 129; Jeremy, Eq. Jur. 359, 360; 1 Story, Eq. Jur. & 80; Ex parte Greenway, 6 Ves. Ch. 812; East India Co. v. Boddam, 9 Ves. Ch. 466; Ludlow v. Simmond, 2 Caines, Cas. N. Y. 1; King v. Baldwin, 17 Johns. N. Y. 384. This jurisdiction attaches in such cases not merely on account of a defect of proof in law, but also because the equitable forms of relief by annexation of conditions, etc., are capable of securing more perfect justice between the parties. See Hansard v. Robinson, 7 Barnew. & C. 90; Fales v. Russell, 16 Pick. Mass. 315; Almy v. Reed, 10 Cush. Mass. 421 ; Smith v. Rockwell, 2 Hill, N. Y. 482.

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When an action is brought upon a deed in a court of law, it is requisite that profert should be made of it in the declaration, unless it can be proved that the same is lost, or that it is in the hands of the opposite party, or that it has been destroyed by him. In chancery, on the contrary, it is held that in a case in which a profert of a deed would be required at law, if the party who claims upon it will make an affidavit of its loss, and that he knows not where it is, unless it be in the custody of the defendant, he will be assisted by its compelling a discovery of its execution from the defendant, and giving him relief also, if it shall appear that, in case the plaintiff could have made a profert at law, he would then have been entitled to a remedy. This affidavit is not required as evidence of the loss, but as an assurance of the propriety of the court exercising a jurisdiction.

Formerly these remarks would have applied to the case of bonds or other instruments under seal, and a want of profert of the instrument would have been a fatal defect; but in modern times the rule has changed; the courts of law now entertain jurisdiction, and dispense with a profert, if the loss by time or accident be stated in the declaration. This instance is one in which the courts of equity now entertain jurisdiction, because they once possessed it when courts of law would give no relief, though now the latter courts will give relief for the accident.10

The reasons for interfering in the case of a lost bond never applied to that of a promissory note or unsealed security, because no supposed inability to recover at law exists in the case of the loss of such note or unsealed agreement as exists for want of a profert of a bond at law. No profert being required, and no oyer allowed at law of such note or security, a recovery can be had there upon mere proof of loss. 11

3829. Courts of equity will relieve from another class of accidents, which, though not affecting the proof of the plaintiff's title, are nevertheless very

injurious to him. From many of these accidents a court of equity will grant both discovery and relief. Of this numerous class a few examples will be cited.

One of the earliest exercises of the jurisdiction of the court was to relieve from the forfeiture of a bond, or of a mortgage, when it was not paid at the day appointed for payment, on the ground that it was unjust for the creditor to avail himself of the penalty when an offer of full indemnity was tendered.

Equity will relieve when an inequitable loss or injury will otherwise fall upon the plaintiff from circumstances beyond his control, or from his own acts done in good faith and in the performance of a supposed duty without negli

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6 Read v. Brookman, 3 Term, 151.

Bromley v. Holland, 7 Ves. Ch. 19; Ex parte Greenway, 6 Ves. Ch. 812; 1 Story, Eq. Jur. & 82; East India Co. v. Boddam, 9 Ves. Ch. 466. 8 Read v. Brookman, 3 Term, 151; Totty v. Nesbitt, 3 Term, 153, note.

Kemp v. Pryor, 7 Ves. Ch. 249; Mayne v. Griswold, 3 Sandf. N. Y. 478; Lawrence v. Lawrence, 42 N. H. 109.

Jeremy, Eq. Jur. 361.

Glynn v. Bank of England, 2 Ves. Ch. 38, 41; but see Hansard v. Robinson, 7 Barnew. & C. 90, where the proper remedy in such case is said to be in equity, and this upon the ground that the maker of the note has a right to require it to be delivered up, at least where it has been indorsed, and to require indemnity. See also Thayer v. King, 15 Ohio, 242; Lazell v. Lazell, 12 Vt. 443; Hopkins v. Adams, 20 id. 407.

This may happen where executors make payments under certain circumstances. Edwards v. Freeman, 2 P. Will. Ch. 447; Johnson v. Johnson, 3 Bos. & P. 162; Crosse v. Smith, 7 East, 246 ; Croft's Executors v. Lyndsey, 2 Freem. Ch. 1; or where a large premium is given to teach an apprentice, and the master becomes bankrupt. Hale v. Webb, 2 Brown, Ch. 78; and in case of a fund becoming insufficient to raise an annuity provided Vol. II.-3 M

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