tion at law on equitable grounds. *We have already adverted to the power which the court has [*70] assumed of preventing persons from proceeding at law contrary to Restraint of ac- equity and good conscience; this is done by injunction. (465) The court has always declined laying down precise rules as to the limits within which it will keep in exercising the power of granting injunctions, but such limits may now usually be determined with 2 Story's C. C. 100; Grigsby v. Breckenridge, 2 Bush (Ky.), 480; 2 Story's Eq. Jur., § 943, note. The unauthorized publication will be restrained by an injunction. Ib. The bringing out and representation upon the stage of a dramatic composition is not such a dedication of it to the public as will authorize others to print and publish it without the author's permission. The manuscript and the right of the author therein are still within the protection of the law, the same as if they had never been communicated to the public in any form. Palmer v. De Witt, 47 N. Y. (2 Sick.) 532; S. C., 7 Am. Rep. 480. See Keene v. Kimball, 16 Gray (Mass.), 545; Keene v. Clark, 5 Rob. 38; Keene v. Wheatley, 9 Am. Law Reg. 33. The adoption by any person of a trade-mark which will mislead the public, or cause his goods to bear the same name in the market as those of his rival, will be enjoined. Bradley v. Norton, 33 Conn. 157; McCartney v. Garnhart, 45 Mo. 593; Newman v. Alvord, 51 N. Y. (6 Sick.) 189; S. C., 10 Am. Rep. 588. And the principle upon which trade-marks are protected is not confined to personal property. It applies to a name applied or appropriated to real property, as to a public hotel. Howard v. Henriques, 3 Sandf. 725. So in the law of trade-marks there is held to be no distinction between artificial products and those which are natural and spontaneous. Congress and Empire Spring Co. v. High Rock Congress Spring Co., 45 N. Y. (6 Hand) 291; S. C., 10 Abb. N. S. 348; Newman v. Alvord, 51 N. Y. (6 Sick.) 189; S. C., 10 Am. Rep. 588; Spring Co. v. Spring Co., 4 Brewst. (Penn.) 398. A purchaser of all the partnership property of a firm, on their dissolution, does not thereby acquire the right to use the firm name as a label on his goods, or to advertise himself as the successor of such firm, and will be restrained in so doing. Reeves v. Denicke, 12 Abb. N. S. 92. See Colton v. Thomas, 7 Phila. (Penn.) 257; S. C., 2 Brewst. (Penn.) 308. (465) Courts of equity may, and often do, interpose to stay proceedings at law while pending, to stay judgment after a verdict, and to stay execution after a judgment; or, if execution has taken place, to stay the money in the hands of the sheriff; and it is laid down as a general rule which governs the exercise of these powers, that whenever a party, by fraud, accident, or otherwise, has an advantage in proceeding in a court of ordinary jurisdiction, which must necessarily make that court an instrument of injustice, a court of equity, to prevent a manifest wrong, will interpose by restraining the party whose conscience is thus bound from using the advantage he has improperly gained. See Hibbard v. Eastman, 47 N. H. 507; Sperry v. Gibson, 3 W. Va. 522; Mar. Ins. Co. v. Hodgson, 7 Cranch, 332; Duncan v. Lyon, 3 Johns. Ch. 356; Foster v. Wood, 6 id. 90; Miller v. McCarr, 6 Paige, 451; Taylor v. Gilman, 25 Vt. 411; Bibend v. Kreutz, 20 Cal. 109; Kent v. Ricards, 3 Md. Ch. Dec. 352; Kenyon v. Clarke, 2 R. I. 67. But the court has no right to grant an injunction against a person who is not a party to the suit (Schalk v. Schmidt, 1 McCarter [N. J.], 268), except where such person is the mere servant or agent of the party. Nor will courts of equity interfere to stay proceedings in any cases not strictly of a civil nature. See Columbia County v. Bryson, 13 Fla. 281. So equity will not enjoin the United States government from prosecuting a suit at law, since the government is not liable to be sued except by its own consent given by law. United States v. McLemore, 4 How. 286; Hill v. United States, 9 id. 386. And where the defense might have been made at law, equity will grant no relief against a judgment. George v. Tutt, 36 Mo. 141; Harris v. Galbraith, 43 Ill. 309; Agard v. Valencia, 39 Cal. 292; Menifee v. Meyers, 33 Tex. 690. It is otherwise, however, if the complainant was prevented from making his defense by fraud or surprise. Wingate v. Haywood, 40 N. H. 437; Devoll v. Scales, 49 Me. 320; Seymour v. Miller, 32 Conn. 402. Irregularity is no ground for relief (Eyster's Appeal, 65 Penn. St. 473); and generally, want of jurisdiction is not sufficient ground for relief. Comstock v. Clemens, 19 Cal. 77; Winterfield v. Strauss, 24 Wis. 394. But see Washington v. Barnes, 41 Ga. 307; Ricketts v. Hitchins, 34 Ind. 348. sufficient accuracy by reference to precedents, a very vast number of which are contained in the reports (i). Another species of suit, the reason for which very much arises from the power of giving peculiar relief possessed by the court is, where the court, at the instance of the plaintiff, sets aside a completed transaction. (466) If there be good grounds for treating a conveyance of property or other deed or instrument as an improper transaction, and for setting it aside, a court of equity alone has the power to accomplish that result in a direct manner. A court of law is either powerless to deal with the case at all, or at the most possesses inadequate powers. The grounds for setting aside a completed transaction, which usually are some species of fraud, may be pleaded in a court of law; but a plea can only arise as a defence to an action of some kind, and no procedure at law is applicable for commencing proceedings to avoid the effect of a deed upon the ground of fraud. But a bill may be filed praying that a deed of conveyance or other instrument obtained in some improper manner may be set aside, and the rights of parties restored to the state in which they would have been had such deed or other instrument never been executed (k). The general doctrines of equity, of course, govern the decision in such suits. * [*71] Until recently, there was a numerous class of suits called interpleader suits, or suits for relief from adverse claims. Where a man in the possession of certain goods or money not his own finds himself exposed to the adverse claims of several persons, it often happens that he can Interpleader. (i) For an early statement of the doctrines adopted by the court, see Lord Ellesmere's judgment in the Earl of Oxford's Case, 1 Ch. Rep. 1; and see the cases cited in the notes to that case in White and Tudor's Leading Cases in Equity. being paid, he retains a lien on the land enforceable in this court against the vendee and persons claiming as volunteers, even though the deed contains a receipt for the money. Mackreth v. Symmons, 15 Ves. 329; S. C. 1 Wh. & Tudor, 235. (k) Where a vendor conveys, the price not (466) The classes of cases in which courts of equity have jurisdiction to set aside agreements and other instruments, where they are voidable, and not merely void, have been thus enumerated: "First, where there is actual fraud in the party defendant, in which the party plaintiff has not participated. Secondly, where there is a constructive fraud against public policy, and the party plaintiff has not participated therein. Thirdly, where there is a fraud against public policy, and the party plaintiff has participated therein, but public policy would be defeated by allowing it to stand. And lastly, where there is a constructive fraud by both parties, but they are not in pari delicto." 1 Story's Eq. Jur., § 695. And see Seymour v. Delancy, 3 Cow. 445; Thompson v. Graham, 1 Paige, 384. See Eastman v. Plumer, 46 N. H. 464. The exercise of this jurisdiction is in the sound discretion of the court, depending upon the special circumstances of each case; and it is held immaterial, upon the question of jurisdiction, that the party seeking the relief has a defense at law to the instrument of which he prays the surrender and cancellation. McHenry v. Hazard, 45 N. Y. (6 Hand) 580. See Insurance Co. v. Bailey, 13 Wall. 616. As to cases of relief granted on the ground of undue influence, etc., see Perkins v. Scott, 23 Iowa, 237; Hartly v. Estis, Phill. (N. C.) 167; Seeley v. Price, 14 Mich 551; Highberger v. Stiffler, 21 Md 338; Sims v. Ferrill, 45 Ga. 585; Knelkamp v. Hidding, 31 Wis. 503; Walker v. McCoy, 3 Head. (Tenn.) 103; Hightower v. Nuber, 26 Ark. 604. In the cases following, relief was denied: Thompson v. Gossit, 23 Ark. 175; Harshaw v. McCombs, 63 N. C. 75; Hetrick's Appeal, 58 Penn. St. 477. See Bryan v. Hitchcock, 43 Mo. 527. As to the delivery up and cancellation of deeds and other solemn instruments, which are utterly void, and not merely voidable, see Peirsoll v. Elliott, 6 Peters, 95, 98; Thigpen v. Pitt, 1 Jones' Eq. (N. C.) 49; Hamilton v. Cummings, 1 Johns. Ch. 520; Mawhorter v. Armstrong, 16 Ohio, 188; Fonda v. Sage, 48 N. Y. (3 Sick.) 173. VOL. II.-10 not safely take a discharge from any of them, since it is doubtful which of them is properly entitled to claim. In such cases the court gives relief by requiring the several claimants, when brought before it in a suit instituted for the purpose, to interplead, that is, bring their claims to an issue, so as to be decided upon. Formerly, this remedy in equity was alone available for the purpose, but since similar remedies have been given to courts of law (7), interpleader suits are less common, being usually confined to cases where the claims are of an equitable nature. (467) Partition. We have seen (m) that the Court of Chancery had, as part of its common law jurisdiction, cognisance of a writ of partition in certain cases; and in other cases the old writ of partition issued out of chancery, but was returnable at common law; this writ was originally only applicable to the case of coparceners; it was, in the reign of Hen. VIII, extended to all cases of joint tenancy and tenancy in common, and continued to be occasionally used until abolished by the statute 3 & 4 Will. 4, c. 27, s. 36; but there were many inconveniences attending it, from the inability of courts of law to compel discovery, and to make compensation for inequality in the division of property, which obviously would often be necessary. These reasons led to the adoption of a concurrent jurisdiction by courts of equity, the practical convenience of which led to the disuse and abolition of the writ. (468) * The method of procedure adopted by the Court of Chancery is by [* 72] issue of a commission to make the partition and adjust the rights of the parties by giving compensation, or owelty, as it is called, where the divided portions of the land cannot be accurately made proportionate to the shares of the several owners; liberty is, however, usually given to the parties themselves (7) 1 & 2 Will. 4, c. 58; 1 & 2 Vict. c. 45; 7 & 8 Vict. c. 96; 9 & 10 Vict. c. 95. (m) Ante, p. 33. (467) The nature of the allegations in every bill of interpleader are, 1. That two or more persons have preferred a claim against the complainant; 2. That they claim the same thing; 3. That the complainant has no beneficial interest in the thing claimed; and 4. That he cannot determine without hazard to himself to which of the defendants the thing of right belongs. Atkinson v. Manks, 1 Cow. 691, 703. See Bedell v. Hoffman, 2 Paige, 200. That the complainant would be indirectly benefited by the success of the parties to the bill of interpleader is not an objection to the bill. Oppenheim v. Wolf, 3 Sandf. Ch. 571. An interpleader suit is proper where a reward has been publicly offered to any one who will furnish evidence to secure the conviction of an offender, and several persons claim to have furnished the evidence, and to be entitled to the sum offered. Fargo v. Arthur, 43 How. 193. Under the New York Code of Procedure, § 122, courts of law may direct an interpleader to settle the rights of conflicting claims to the same property, in such cases as the courts of equity will allow an interpleader bill. See Hornby v. Gordon, 9 Bosw. 656; Dreyer v. Rauch, 42 How. 22; McHenry v. Hazard, 45 Barb. 657. And see, as to similar statutory provisions in other States, Bates v. Lilly, 65 N. C. 232; Nelson v. Goree, 34 Ala. 565; Rohrer v. Turrill, 4 Minn. 407; Barker v. Swain, 4 Jones (N. C.), 220. man v. (468) A court of equity will not entertain a bill for a partition when the legal title is disputed or doubtful, because a court of law is the proper tribunal to determine such questions. The bill may, however, be retained to give opportunity to try the title at law. HoffBeard, 22 Mich. 59; Hassam v. Day, 39 Miss. 392; Hosford v. Marvin, 5 Barb. 51; Daniel v. Green, 42 Ill. 471; Hay v. Estell, 3 C. E. Green (N. J.), 251. But see Burleson v Burleson, 28 Texas, 383; Gourley v. Woodbury, 42 Vt. 395; Morenhout v. Hignera, 32 Cal. 289; Oliver v. Jernigan, 46 Ala. 41. A tenant by the curtesy initiate has sufficient title to support the bill. Riker v. Darke, 4 Edw. Ch. 668. to make proposals for the partition, and the court gives its consideration to Bills of peace. founded upon the same general private right, each of which actions must be separately tried and disposed of, whether such right is a right claimed in favour or against a number of persons, equity will interfere, in order to avoid multiplicity of suits, or to prevent oppressive litigation. (470) Thus, where the amount of a general fine, payable by all the copyhold tenants of a manor, is in dispute (o), or where the rights of common to which the tenants are entitled are not entertained (†), equity will entertain a suit on behalf of all the copyhold tenants. Another instance of such interference is where the court will restrain a man from continuing to invade a legal right by a series of separate acts, each of which gives rise to an action, but the damages in each case are trivial; thus equity will restrain the infringement of an ancient ferry (q). (471) As an instance of the interference of the court to prevent oppressive litigation, we may mention [* 73] a recent case where the reservoir of a waterworks company burst, thereby causing damage to a very large number of people; a large number of claims was made against the company, all founded upon similar grounds. The company instituted a suit against some of them, for the purpose of determining, once for all, a question which had arisen, upon which turned the validity of the claims. The court entertained the bill as of the nature of a bill of peace, though, perhaps, not strictly so, since the claims were not absolutely identical (r). * The last head of jurisdiction, founded upon the character of the relief which the court gives, which we will mention, is the perpetuation of testimony. (472) (n) See 31 & 32 Vict. c. 40. (0) Story, Eq. Jur. § 856. (p) Phillips v. Hudson, L. R. 2 Ch. 243. (g) See Vin. Abr. tit. Nuisance, G. 4; Huzzey v. Field, 2 C. M. & R. 432; Att.-Gen. v. Richards, 2 Anst. 616; Cory v. Yarmouth, &c. Railway (r) Sheffield Waterworks v. Yeomans, L. R. (469) In most of the United States there are statutes authorizing a sale. See McCall's Appeal, 56 Penn. St. 363; Hickenbotham v. Blackledge, 54 Ill. 816; Wilson v. Duncan, 44 Miss. 642; Thurston v. Minke, 32 Md. 571; Pockman v. Meatt, 49 Mo. 344; Loyd v. Loyd, 23 La. Ann. 231; Welsh v. Freeman, 21 Ohio St. 402; Graham v. Graham, 8 Bush (Ky.), 334. See subject of partition generally, 5 Wait's Pr. 24, et seq. (470) A bill of peace, to prevent litigation at law, is allowed only in case the plaintiff has satisfactorily established his right at law, or where the persons who controvert the right are so numerous as to render an issue, under the direction of the court, necessary to bring in all the parties concerned, and to prevent a multiplicity of suits. Eldridge v. Hill, 2 Johns. Ch. 281. See Alexander v. Pendleton, 8 Cranch (U. S.), 462, 468; Polk v. Rose, 25 Md. 153; Marmaduke v. Hannibal, etc., R. R. Co., 30 Mo. 545. (471) See McRoberts v. Washburne, 10 Minn. 23. (472) The object of this sort of equitable relief is to preserve and perpetuate testimony, where it is in danger of being lost, before the matter to which it relates can be made the subject of judicial investigation. 2 Story's Eq. Jur., § 1505. 1 Perpetuation of testimony. Courts of common law only permit the examination of witnesses when an action is at issue, and the evidence must be confined to the issue in such action. It sometimes happens that there is a reasonable certainty of litigation at a future time, yet, from the circumstances of the case, the right to be claimed or defended in such litigation cannot, or does not, form the subject of present proceedings. To take a single instance, a person may be in possession of an estate under a title depending upon a marriage, the validity of which he may have reasonable cause to fear will be disputed, and to support which, if litigation should ensue, the evidence of certain witnesses would be necessary. Now, clearly he, being in possession, can take no proceedings against a possible claimant who does not come forward; if, therefore, he had no means of preserving the evidence in question, there might result a failure of justice, because the other might await the deaths of the witnesses, and then press his claim. It is easy to suggest numerous similar instances. For all these the Court of Chancery has provided a remedy by allowing a bill to be * filed to perpetuate the testimony (s). Nevertheless, it takes every [*74] care that this right shall not be abused, as it is obviously not unattended with danger, because witnesses, whose evidence is not to be published until a period which may be subsequent to their decease (t), are, under some temptation, to give interested evidence. If, therefore, by any means the issue can be tried at once, such a suit will not be allowed (u). When the evidence has been taken, it is sealed up until the time comes to use it, and the suit is at an end, for, of course, it never comes to a hearing, and the plaintiff pays the costs. A modern act (v) has extended the benefit of this proceeding to a case not previously admitted by the court, viz., where a person would, under the circumstances which he alleges to exist, become entitled, upon the happening of some future event, to any honour, title, dignity, or office, or any estate or interest in any property, the title to which cannot be brought to trial before the happening of the event in question. It enables him to file a bill in chancery to perpetuate any testimony which may be material to support his claim. In any such suit, if the crown is interested, the attorney-general is to be made a party in respect of such interest, and in any proceedings in which the evidence taken in the suit is used, no objection shall be taken that the crown was not a party to the suit. We have hitherto been exhibiting that part of the jurisdiction of the court which, having for its origin the ancient assumptions of power on the part of the early chancellors, although modified or enlarged by subsequent legislation, may be described as its inherent jurisdiction, depending as we see partly upon doctrines of equity, and partly upon the nature of the relief. We have *sufficiently illustrated the various points which the subject presents [* 75 ] to enable the reader to form a correct notion of the court's action, and its general extent and character. Those who would trace with greater precision the boundary of the field, must consult more extensive treatises than (8) See Consolidated Orders, ix. r. 6. (t) If the witnesses are alive, and in this country, when the issue is actually raised, the evidence taken in the suit is not allowed to be read. (u) Lord North v. Gray, 1 Dick. 14; Parry v. Rogers, 1 Ven. 441; Pawlett v. Ingrey, 1 Ves. 308; see the recent case of Ellice v. Roupell, 32 Beav. 299, 308, 318, where the practice upon these bills was very much discussed. (v) 5 & 6 Vict. c. 69; and 10 Cl. & Fin. 305. |