General Principles. law, wherever the right is of a legal nature. | payment of the notes. D died intestate, and A Ibid. 58. In the present case, a bill was brought by A against the representatives of his deceased partner B, and it appearing that B, without the knowledge and consent of A, appropriated certain partnership funds to the purchase of real estate, upon which there was a certain mortgage, it was held that a decree be rendered in favour of the plaintiff, and the real estate be sold under a master, and the proceeds be applied, first to the discharge of the mortgage, and the residue to the discharge of the debt due From B to the partnership. Ibid. 59. Where A and B held certain valid claims for services during fifteen years against the estate of the intestate, and his administrator gave notes therefor, with the understanding that the notes should only be good for the amount allowed by the judge of probate, and the administrator credited himself with the amount of the note given, as money paid, and the claims were fully allowed by the probate judge, and the plaintiffs being heirs, and having received their portions of the estate, after nineteen years brought this bill to set aside the allowance as fraudulently obtained, it was held that the proceedings of the administrator were wholly unjustifiable, but that the plaintiffs had been guilty of gross laches in not bringing their suit before, and as the parties making the original claim were dead, and as the evidence on which the court had proceeded was wholly gone, that the judgment was to be presumed as founded upon a valid claim, although personal notice had not been served upon the plaintiff. Gould v. Gould, 3 Story's C. C. R. 376. 60. This court possesses full jurisdiction in equity in all cases of fraud, including fraud in obtaining judgments and decrees in other courts, excepting fraud in obtaining a will of real and personal estate; and has concurrent jurisdiction with the state courts in all such cases. Ibid. 61. A court of equity will never entertain a bill for relief, even in cases of asserted fraud, when the plaintiff has been guilty of gross laches and unreasonable delay. Ibid. 62. To found a claim for relief in equity, it is not sufficient for the plaintiff to raise suspicion of bad faith, but he must establish it beyond reasonable doubt. Ibid. 63. Lapse of time is a sufficient bar to a bill in equity, to rescind a sale on account of fraud, where the plaintiff might have acquainted himself, at the time of the sale, with the facts, and especially if the circumstances be greatly changed, and the evidence be lost or obscured. Veazie v. Williams, 3 Story's C. C. R. 612. 64. Certain timber land was purchased by A of X and Z, A agreeing to pay therefor at the rate of one dollar per thousand feet for all the good pine timber, to be ascertained by certain persons appointed by all parties, who were accordingly appointed, and made the estimate; A subsequently conveyed to D, D agreeing with X to pay therefor one fourth of the price in money, and the remainder in notes, and they giving a bond to convey to him the land on full became his administrator, and agreed with X and Z in his behalf to surrender the bond for the notes, which was done. The present bill was afterwards brought by A as administrator of D, and charged that there was a gross error in the original appraisement, unknown to him, (A), by which D had been induced to make the said bargain, and prayed that the bargain should be set aside, and the purchase-money paid by D should be refunded. But A made no personal claim for relief. It was held, first, that the bill was objectionable for multifariousness, in mixing up the independent claims which A had personally, and which he had as administrator. Second. That it set forth no case for cancelling the original agreement. Third. That even if it had, it was too defective and loose to support such a claim, in not bringing the proper parties before the court, and in alleging a mere mistake, without fraud, as a ground of relief, which, under the circumstances, was not suffi cient. Carter v. Treadwell, 3 Story's C. C. R. 52. 65. Where the legislature of Massachusetts passed a resolve, authorizing the county commissioners of Bristol to examine the claims of the plaintiff against the county, and to make him proper allowances therefor; and also to refer his claims to the determination of arbitrators, mutually chosen by themselves and the plaintiff, which determination should be final; and afterwards, accordingly, the plaintiff presented his petition to the county commissioners, praying them to refer all his claims to arbitrators, and they passed an order to refer certain of his claims, but not all; to which the plaintiff declined to accede, and brought the present bill to compel the commissioners to refer the whole of his claims, and to agree upon arbitrators selected from the schedule of persons offered by the plaintiff. It was held, that the commissioners had no authority under the resolve, to submit a part of the plaintiff's claims without submitting all; that the act of the commissioners, in executing the authority under the resolve, was not founded in a contract, but was an exercise of judicial functions; but that, were it otherwise, a court of equity would not enforce an agree ment to submit a question to arbitration; and that the present case was not one in which a specific performance could be decreed, since such a decree might be both impracticable and inequitable; and that the proper remedy of the plaintiff against the defendant for a refusal to act judicially under the resolve, was by mandamus. Tobey v. The County of Bristol, 3 Story's C. C. R. 800. 66. This court as a court of equity, possesses no revisory powers over the state courts, in the exercise of their jurisdiction. Ibid. 67. An agreement to submit a question to arbitration will not be enforced in equity, but must depend on the good faith and honour of the parties; but an award under such an agree ment will be enforced. Ibid. 68. Courts of equity never enforce the specific performance of any agreement, where the decree would be a vain and imperfect act, or where the General Principles. specific performance might be productive of in- | that the date of the agreement between the plainjustice to the parties. Ibid. 69. An agreement to submit a matter to arbitration, is, both at law and in equity, revocable before the award is given, but not afterwards; and it cannot be made irrevocable by any agreement of the parties. Ibid. 70. The specific performance of an agreement is not a matter of right, which a party can demand from a court of equity, but is merely a matter resting in the sound discretion of the court. Ibid. 71. This court has ample power to entertain a cause over which the state court has jurisdiction, provided this court have full concurrent jurisdiction. Ibid. 72. A bill in the nature of a bill of review lies only after a final decree, and not upon an interlocutory decree. Jenkins v. Eldridge, 3 Story's C. C. R. 300. 73. Rehearings in equity are only allowed in this court where some plain omission or mistake has been made, or where something material to the decree is brought to the notice of the court, which had been before overlooked. Ibid. 74. Where the petition prayed for leave to file a supplemental bill to bring forward new evidence, and for a rehearing in the cause when such supplemental bill should be ready, it was held, that the new evidence could not be brought forward by a mere order on the petition, but could only be admitted in a supplemental bill, where testimony could be taken on both sides. Ibid. 75. On a rehearing, no evidence is admissible but that which was used in the case at the original hearing, or was taken, and might then have been used. But where there is a document, which, by mistake, has either not been proved, or not been properly proved, leave will be granted, under special circumstances, to exhibit an interrogatory for that purpose. Ibid. 76. The same doctrine also applies to cases where there is a petition for leave to file a supplemental bill to bring forward new evidence. Ibid. 77. Witnesses who have been already examined in a cause, cannot be again examined by a master without a special order of the court, and then only in respect to facts not before testified to by them, and not then in issue. Ibid. 78. New oral testimony, tending merely to corroborate evidence on the one side, or to contradict evidence on the other, on the points in issue, is not a sufficient foundation for a supplemental bill. Ibid. 79. No new evidence is a sufficient foundation for a supplemental bill, unless it be of such a nature that it would, if unanswered, require a reversal of the decree. Ibid. 80. After an interlocutory decree, a 'supplemental bill to admit new evidence is never granted, where the party might, by due diligence, have introduced such evidence originally in the cause, or where he had full means of knowledge within his reach. Ibid. 81. Where the new evidence offered to support a supplemental bill was: 1st. To establish VOL. I.-52 tiff and the defendant, was after the time fixed in the interlocutory decree in the suit between the plaintiff and Deblois: 2d. To impeach some of the plaintiff's witnesses: 3d. To establish that the decree was not by consent, but in adversum : 4th. That the value of the original property was far below what it was estimated; it was held, that as all of these points were in issue in the original cause, and were elaborately argued ; and as the evidence was then within the reach of the defendant, and might, by ordinary diligence, have been produced, and also, as they would not materially influence the opinion of the court if they were established, that they were not a sufficient foundation for a supplemental bill. Ibid. 82. Held, also, that under the circumstances of the case, the dismissal of the bill in equity by the plaintiff against Deblois, was not on the merits, and could only have been justified by the consent of the parties, and was therefore no bar to the present suit; but that, had it beer: without consent, nevertheless, as it was not or the merits, it was no bar. Ibid. 83. Where an attempt was made to overturn. the testimony of one of the plaintiff's witnesses, by showing, that his testimony before the master contradicted the statements in his original examination, it was held, that as his examination before the master as to matters previously testified to by him without a special order from the court, was improper, it could not be admitted. Ibid. 84. It was held, that the defendants should pay all ordinary costs. Ibid. 85. The plaintiff (J.) purchased at auction from D. a certain lot of land, and on the failure of J. to comply with the terms of the sale, D. entered and took possession, but on application by J. was enjoined in equity from making a sale thereof. A new arrangement was then made, by which D. placed a warranty deed in the hands of P. in escrow, agreeing that it should be surrendered to J. on a certain day, provided that by such day J. had complied with certain terms of payment, J. making a deposit of one thousand dollars as forfeit money. J. then proceeded to build on the said land, but failing in his means, was unable to comply with his agreement. D. then threatened to sell the premises, and J. filed a second bill in equity to restrain the sale, and an injunction was granted, and an interlocutory decree was passed, that if J. should perform his agreement before a certain time, the injunction should stand continued, but otherwise should be dismissed. J. failed to perform his agreement, and the bill was accordingly dismis sed. In the intermediate time, however, between decree and the dismissal of the bill, J. having expended large sums on the building, and exhausted his resources, applied to E. (the defendant) for his aid to raise money to complete the building and discharge the debts. And it was arranged between them, that an absolute conveyance of the premises should be made by D. to E., which was done, and on the same day J. executed a release of all interest to E. to complete the title, excluding in terms "all claims General Principles. 86. In the courts of equity in this country, evidence as to confessions and statements by the defendant, not charged in the bill, are equally admissible in equity as at law; with this qualification, that if one party keep back evidence, which the other might explain, and thereby take him by surprise, the court will allow the party to be affected by it to controvert it. Ibid. 88. It is a fraud for an agent to avail himself of his confidential relations to drive a bargain, or to create an interest adverse to that of his principal in the transaction, and that frand creates a trust, even when the agency must be proved only by parol. Ibid. 89. The present bill was brought during the pendency of a suit in the supreme court of the state against both the parties to the present bill to enforce a claim in respect to these premises; and it was held, that as the parties, the objects, and the equities were different, and the relief prayed for proceeded upon different grounds and involved a different decree, that it constituted no bar to the present suit. Ibid. and demands made by, through, or on account | to foreclose his rights and order a sale on appliof J., and also excepting any claim or demands cation by the defendant. Jenkins v. Eldredge, arising out of any contract made by or with J.," 3 Story's C. C. R. 183. and admitting that he (J.) had no legal or equitable right in the same. E. then assumed the ostensible ownership of the property, and J. was employed in superintending the erection of the building, and procured securities to assist in raising funds, and procuring work to be done on his own account. E. afterwards sold the premises to K., one of the defendants. In this state of things, the present bill was brought by J. against E. and K., setting forth, that at the time 87. In case of a joint purchase, where each of making the absolute conveyance to E., al-purchaser is to have an interest in proportion to though no paper to such effect was executed, his advances, parol evidence is admissible to yet that it was understood between E. and J. establish the trust, as well as to rebut, control, that the premises were to be held by E. in trust or vary it. Ibid. for the benefit of J., and that the conveyance was made absolute solely for the purpose of freeing the premises from all claims by or through J., and that E. was only to receive a remuneration for any services which he might perform, and indemnification for his expenses, and then to reconvey the estate to J.; and also, that K. was not a bona fide purchaser for a valuable consideration without notice. It was held : first, That the circumstances showed no sufficient motive on the part of J. to induce him to make an absolute and unrestricted conveyance, but that they were perfectly consistent with the parol trust, as set up by the bill. Secondly, That as the decree in the equity suit was not a dismissal upon the merits, it did not constitute 90. An agreement for a lease of certain prean absolute bar to a future suit. Thirdly, That mises was made by the plaintiff to the defendant the release by J., although absolute in its terms, K. on the 1st of January, 1839; and, subsequentwas indispensable to guard the property against ly, E., on the 18th of January, 1841, in pursuJ.'s creditors, so as to induce capitalists to ad- ance thereof, agreed to lease the same to the vance funds, and therefore was not inconsistent said K. and to W. for ten years from the 1st of with a parol trust; and that the evidence was June, 1841, the annual rent being fixed by the irreconcilable with any other supposition, then award of referees made in virtue of the said last that E. was acting throughout as the agent of J. agreement, at four thousand six hundred and Fourthly, That if E., knowing that J. only in- fifty dollars. K. then took possession, and occutended that he should act as agent, did, never-pied the premises upon these terms until Detheless, intend to act for his own benefit solely, the concealment of such a design from J. was a fraud in equity. Fifthly, That this was a case of parol trust resulting from agency, and resting upon honorary obligations, and as such a court of equity would enforce it. Sixthly, That it is not within the statute of frauds: because, 1st. It is a resulting trust as to the plaintiff, and a trust as to Eldredge merely for his liabilities, compensations, and expenditures. 2d. It is a case of agency. 3d. It is a case of constructive fraud. 4th. It is a case of part performance. 5th. That the circumstances did not show that K. was a bona fide purchaser without notice, since even if he had no notice of the actual state of the title and the claim of the plaintiff, he had sufficient notice of the claim and controversy to be put upon enquiry, which was sufficient notice in equity. 6th. That although the plaintiff may never have been able to comply with his agreement with the defendant, by discharging the incumbrances and remunerating the defendant, yet that furnishes no ground upon which a court of equity can say that the plaintiff's rights are extinguished, though it might furnish a ground cember 14th, 1842. E., then claiming to be the owner, conveyed the premises to K. on March 1st, 1842. On March 7th the plaintiff filed with K. of his claim thereto, and subsequently K., as owner, agreed with himself and W., as proprietors of the Boston Museum, to reduce the rent to three thousand dollars and taxes. The present bill in equity having been filed by the plaintiff against K., the matter was referred to a master, who reported, first, that the agreement by E. was a present demise; second, that K. was liable for the full rent of four thousand six hundred and fifty dollars; third, that the evidence did not justify a reduction of the rent by K.; fourth, that the interest was properly charged upon the rent; fifth, that K. was not entitled to commissions as trustee for the plaintiff. The court approved the first ruling on the ground that as no further act of demise was contemplated, and K. having taken possession under the agreement, it was a present demise for ten years. The court approved the second ruling on the ground that any reduction by K. of the rent originally fixed by referees after notice of the plaintiff's claim, and without his consent, was an act which, not General Principles. being for the plaintiff's benefit, would, in the when there has been an omission of the proof event of the establishment of his claim, be un-in due season, and they are applicable to the authorized. The third and fourth rulings were merits. Ibid. assumed as necessary consequences of the second. The fifth ruling was overruled on the ground, that as K. held the premises as trustee of the plaintiff, and had not been guilty of gross misconduct, he was entitled to his commissions, although he was not an open and express trustee. Jenkins v. Eldredge, 3 Story's C. C. R. 325. 91. It was also held, that the defendant should pay all ordinary costs of the suit. Ibid. 92. If an owner stands by, and knowingly suffers an innocent person to be misled by his silence, and to purchase his property without giving him notice of his title, a court of equity will treat it as a fraud upon the purchaser, and grant an injunction against the future assertion of that title by the owner. The Brig Sarah Ann, 2 Sumner's C. C. R. 206. 93. A court of equity will not enforce a specific performance of a contract, as between the original parties, unless its terms are clear, definite, and positive; and à fortiori where the specific performance is sought against an assignee. Kendall v. Almy, 2 Sumner's C. C. R. 278. 94. A party to entitle himself to a specific performance of a contract, must show that he has always been ready to perform his part of it. Ibid. 95. "It is further agreed that if Law and Fenner should redeem their one-half of the aforesaid contract, by the payment of the drafts drawn on them by R. Hazard & Co., on account thereof, to return half of the aforesaid five thousand dollars to said S. Almy, he relinquishing to said Law and Fenner, all claim upon the aforesaid one-half of the said contract." Held, that Law and Fenner, in order to derive benefit under the preceding clause, should have proceeded forthwith, or within a reasonable time, to make the redemption specified. Ibid. 96. The general rule of equity proceedings is, that after publication of the testimony, no new witnesses can be examined, and no new evidence can be taken, unless where the judge himself, upon or after the hearing, entertains a doubt, or when some additional fact or inquiry is indispensable to enable him to make a satisfactory decree. Wood v. Mann, 2 Sumner's C. C. R. 316. 97. A witness may be examined to the mere credit of the other witnesses, whose depositions have already been taken and published in the cause, but he will not be allowed to be examined to prove or disprove any fact material to the merits of the case. Ibid. 98. The time for publication will be enlarged, or more properly the time for taking the testimony will be enlarged, after publication has passed, though not in fact made, according to the rules of the court, provided some good cause therefor is shown upon affidavit, as surprise, accident, or other circumstances which repels any imputation of laches. The affidavit is indispensable, except in a case of fraud practised by the other party. Ibid. 99. Exhibits in the cause may be proved after publication, and even viva voce at the hearing, 100. Fresh interrogatories and a re-examination have been permitted after publication, where depositions have been suppressed from the interrogatories being leading, or for irregularity, or where it has been discovered that a proper release has not been given to make a witness competent. Ibid. 101. Semble, that new testimony may be taken after publication to facts and conversations occurring after the original cause is at issue, and publication has passed. Ibid. 102. The court may, in the exercise of a sound discretion, allow the introduction of newly discovered evidence of witnesses to facts in issue in the cause, after publication and knowledge of the former testimony, and even after the hearing. But it will not exercise this discretion to let in merely cumulative testimony. Ibid. 103. The same rule holds in cases of bills of review, and supplementary bills in the nature of bills of review. Ibid. 104. Semble, that the rule ought to be confined to cases of the discovery of new evidence of a documentary nature, and the testimony of witnesses, necessary to substantiate this. Ibid. 105. Upon a bill of revivor the sole questions before the court are, the competency of the parties, and the correctness of the frame of the bill to revive. Bettes v. Dana, 2 Sumner's C. C. R. 383. 106. General objections to the original bill, grounded on its not showing a proper case for the interference of a court of equity, should be reserved till after the revivor of the bill. Ibid. 107. The administratrix of the defendant in the original bill, and his infant son and sole heir, are proper parties against whom a bill of revivor may be exhibited. Ibid. 108. The equity jurisdiction of the courts of the United States is independent of the local law of any state, and is the same in nature and extent as the equity jurisdiction of England, from which it is derived. Therefore, it is no objection to this jurisdiction that there is a remedy under the local law. Gordon v. Hobart, 2 Sumner's C. C. R. 401. 109. Matters may be inquired into under a bill in equity, notwithstanding they are open at law, where the bill is brought for other purposes, as for a discovery, an injunction to stay proceedings at law, and for other general relief upon the merits, which a court of law is incompetent to administer. Gass v. Stinson, 2 Sumner's C. C. R. 454. 110. On or about June 13th, 1823, Samuel Frye, as guardian of his minor children, under a license of court, conveyed certain premises in Lowell, called the Paddy Camp lands, to Luther Richardson, in fee. On the 14th of May, 1825, Luther Richardson conveyed these premises, being already subject to encumbrances, to his brother, Prentiss Richardson, by a deed of quitclaim, and upon a secret parol trust for the benefit of Luther. On the 6th of May, 1826, Luther Richardson and his wife, and Prentiss Richard General Principles. son, executed a deed of quitclaim of the premi- | son must be deemed the lawful owner of the ses to Walker and Fisher, for the consideration premises.-That the defendant, Mann, deriving of two thousand dollars, (as stated in the deed ;) and on the same day, Walker and Fisher executed a bond for ten thousand dollars to Luther Richardson alone, which recites that "the abovenamed Luther Richardson has, by a deed of quitclaim, bearing even date herewith, conveyed to the above bounden Walker and Fisher all his ight, title, &c. ;" and then provides that the obligees shall reconvey the premises to Luther Richardson, whenever, within five years from date, he shall repay them such sums of money as they shall expend in discharging encumbrances, and making improvements on the land. At the same time, Walker and Fisher executed to Luther Richardson a lease of a part of the premises for five years, upon the annual rent of one cent during the term, unless the premises should be previously redeemed, according to the provisions of the bond. On or before the 13th of May, 1831, a claim was set up to these pre-conveyed to Walker and Fisher, taking from mises by the heirs of Samuel Frye, grounded on a supposed invalidity of the guardianship sale thereof at a former period. Shortly after, a parol agreement was entered into between the plaintiff and the defendant, Mann, to purchase, at their mutual expense and benefit, the title of Luther Richardson, and to extinguish the claims of Walker and Fisher, and of the Frye heirs, in the That the deed to Walker and Fisher, and the premises, on their equal and joint account. This bond by them to Luther Richardson, are to be agreement was never abandoned by the parties treated as parts of one and the same transaction, thereto. And on the 13th of May, 1831, Flagg and to have the same effect as if embodied in and Mann, in pursuance thereof, received a con- one instrument; and that this deed and bond, veyance of the premises by deed of quitclaim being merely an attempt to evade the strict rules from Luther Richardson, and also an assignment of law with regard to mortgages, constitute an of the bond of Walker and Fisher. On the 27th equitable mortgage to Walker and Fisher for of July, 1831, Walker and Fisher conveyed their their advances, and not a conditional purchase title in the premises to Mann alone, by a quit- by them of the premises.-That Luther Richardclaim deed. Subsequently, the Frye heirs, by son had a clear equity of redemption in the predeeds of quitclaim, conveyed all their title in the mises, at the time of his conveyance to Flagg premises to the defendant, Adams. On the 6th and Mann, sufficient, at least in the view of a of August, 1831, the defendants, Mann and court of equity, to make them tenants in comAdams, severally conveyed to each other, by mon, and to create between them a privity of quitclaim deeds, one moiety of the premises and title and estate. That the parol agreement beof their respective interests therein. On the 8th tween Flagg and Mann, for the purchase on of August, 1831, Mann conveyed, by a quitclaim joint account of the premises in question, as deed, his moiety of the premises to the defend- above recited, coupled with the deed of Richardant, Fuller, for forty thousand dollars; and Ful- son to Flagg and Mann, and the assignment to ler, on the same day, executed a mortgage-deed them of Walker and Fisher's bond, created a of the same moiety to Mann, as security for the fiduciary relation between these parties, groundpayment of four notes, each for ten thousand ed on privity of title and estate, under which a dollars, given for the purchase-money. A bill purchase of an outstanding encumbrance or adin equity was now brought by Flagg, to set aside verse title by one would be a trust for the benefit the deeds of Mann to Adams, and of Adams to of both; and on this account, the agreement, Fuller, as made in fraud of the rights of the though by parol, is extracted from the statute plaintiff, and for a reconveyance of one moiety of frauds of Massachusetts.-Semble, That the of the premises to the plaintiff, upon payment agreement, though by parol, was executed by by him of a moiety of the moneys paid in per- the passing of the deed and assignment above fecting the title, and for other relief. Held, mentioned, even if no actual title passed from That Luther Richardson has no interest in this Richardson, so as to establish a fiduciary relation suit, to render him an incompetent witness. between the parties, grounded merely on privity That the defect in Luther Richardson's original of contract, which was sufficient to make the title, on account of the alleged invalidity of the subsequent purchases of outstanding encumguardianship sale, if such really existed, can be brances in trust for the joint account, and to taken advantage of only by the Frye heirs, and extract the case from the statute of frauds.others deriving title under them; and that, until That Mann was entitled to one moiety of the the avoidance thereof by them, Luther Richard-premises, which moiety was duly conveyed to his title, together with Flagg, from the purchase of Richardson, cannot set up the outstanding adverse title of the Frye heirs, to defend the equitable rights of Flagg under the purchase on joint account, if Richardson at the time had any title in the premises.-That the agreement between Flagg and Mann being made for the purpose of protecting themselves against the claim of the Frye heirs, a court of equity will not allow Mann to violate that agreement by interposing the above claim to defeat the rights of Flagg, although the relation would not cause an estoppel at law. That the execution of the deed to Walker and Fisher, and the giving of the bond by them to Luther alone, with the assent of Prentiss, amounted to an execution of the secret trust between Luther and Prentiss, and is the same in effect as if Prentiss had first conveyed the premises to Luther, and the latter had then them the bond.-That Walker and Fisher, and all persons claiming under them, are estopped, at least in equity, by the terms of the bond of Walker and Fisher to Luther Richardson, as above recited, from denying that all which they took under the deed of Luther and his wife and Prentiss, was the right and title of Luther alone. |