576.

tween the respective claims of the parties. But that the executor was a mere trustee for the if brought bona fide, the jurisdiction does not legatee; and this has been extended to almost lapse because the master reports a balance less every variety of case where the validity of a than $50. Washburn v. Washburn, 23 Vt. legacy or devise, or its effect, was brought in question. Holmes v. Holmes, 36 Vt. 538. 2. A motion to dismiss a suit in chancery 9. Forfeiture. Whenever a forfeiture is on the ground that the matter in controversy taken advantage of which works a hardship, and does not exceed fifty dollars, if not made in the full compensation can be made, equity genercourt of chancery, will not be considered in the ally relieves against the forfeiture upon making Supreme Court. Washburn v. Dewey, 17 Vt. such compensation. So done in this case. Hagar v. Buck, 44 Vt. 285.

92.

10. It is altogether outside the province and functions of a court of equity to set up and enforce a forfeiture. Vt. Copper Mining Co. v. Ormsby, 47 Vt. 709.

3. Marriage contract. A court of chancery, under its common equity jurisdiction, may rescind or relieve against a marriage contract, or annul a contract solemnized before a magistrate or a minister of the gospel, if ob- 11. In all cases of bills for relief against fortained by force, fraud or imposition, or under feitures, the question is upon the restoration of a mistake as to the legal effect of such solem - the old contract; not, whether the court will nization by one party, if the other knew the substitute a new one for it as by substituting legal effect and also knew that the party was the periodical payment of a specified sum of under such mistake, where such ceremony has money in lieu of services and support covenantnot been followed by consummation, or cohabi-ed to be supplied. The legitimate power of a tation; so decreed. Clark v. Field, 13 Vt. court thus to interfere with men's contracts may well be doubted. Dunklee v. Adams, 20 Vt. 415.

460.

4. Sureties. The subject of equitable relief in behalf of sureties is one of original juris- 12. Contracts of the weak-minded. Chandiction in a court of chancery, and, although cery will not set aside a conveyance which is the liability of sureties has come to be governed perfectly fair, and where no undue advantage by the same principles at law as in equity, the has been taken, provided the grantor had suffijurisdiction of the court of chancery is not af- cient understanding to know the nature and fected thereby; and it is not in the power of a consequences of his act at the time. Day v. creditor, by first commencing proceedings at Seely, 17 Vt. 542. law, to deprive the surety from seeking his re

13. That the intellectual capacity of a party

lief in chancery, controlling the proceedings at is below that of the average of mankind does law. Viele v. Hoag, 24 Vt. 46. not alone furnish sufficient ground for setting 5. Tenants in common. In matters of ac-aside his contract. Mann v. Betterly, 21 Vt. count between tenants in common, courts of 326. chancery have an original jurisdiction, not depending on the need of discovery; and, since the statutes giving a jurisdiction to courts of law, the jurisdiction by bill is concurrent with the jurisdiction by action of account. Leach v. Beatties, 33 Vt. 195.

6. It is a proper exercise of equity jurisdiction to apportion among parties having a common use of a water-power, and a common duty to keep up the dam by which the power is created, the burden of maintaining it. Sanborn v. Braley, 47 Vt. 170.

14. Inadequacy of consideration. Mere inadequacy of consideration furnishes no sufficient ground for the interference of a court of equity to set aside a deed, or contract; but inadequacy of consideration, coupled with such a degree of weakness and imbecility of intellect as would justify the inference that such weakness had been taken advantage of, would afford sufficient ground for such interference. Ib.

15. An exchange of lands was set aside in equity in behalf of the heirs of a very weakminded man, though not non compos, where 7. Trustees. All accounting between trus- there was great inequality of consideration, of tees and their cestuis is a proper head of original capacity in the contracting parties, and of knowequity jurisdiction, and comes within ordinary ledge of the properties. Holden v. Crawford, chancery jurisdiction, except where jurisdiction 1 Aik. 390.

of certain particular species of trust is given by 16. It is not uncommon for a court of chanstatute to the probate court; and in such cases, cery to refuse to lend its aid to enforce a conif, by reason of the limited power of the probate tract by reason of inadequacy in the consideracourt or its peculiar mode of proceeding, it can- tion; but it is well settled that mere inadequacy, not give relief, resort may be had to a court of independent of and unconnected with other cirequity. French v. Winsor, 36 Vt. 412. cumstances, is not sufficient per se to rescind a

8. Legacy. Courts of equity have always contract, unless its grossness amount to fraud; been regarded as the appropriate tribunals to but where such inadequacy is connected with enforce payment of legacies, on the ground other circumstances of suspicion, this may fur

nish satisfactory ground for relief. Howard v. incurred.

450.

Glastenbury v. McDonald, 44 Vt.

Edgell, 17 Vt. 9. 17. To restrain proceedings at law. It 22. Instance of restraining a partition of is a general principle of equity jurisprudence, lands at law according to the legal import of that a court of chancery will not entertain a bill the deeds, and ordering partition in chancery, to impeach a judgment at law for mere irregu- so as to protect the orator's equitable rights, larity in the proceedings, but will leave such Piper v. Farr, 47 Vt. 721.

questions, arising in legal proceedings, to the 23. Where the relief sought is exclusively exclusive jurisdiction of courts of law. It will of an equitable character, such relief is not connot, upon the testimony of witnesses, try the cluded by a judgment at law; since one may truth of the return of a sworn officer made in a proceeding at law, and grant relief upon falsifying the record. Wardsboro v. Whitingham, 45 Vt. 450.

have a claim against an estate which could not be resisted at law, but upon which, nevertheless, he is not in equity entitled to a dividend. West v. Bank of Rutland, 19 Vt. 403.

18. Equity will not postpone an earlier to a 24. The equitable assignee of a chose in aclater attachment, because of a formal and tech- tion, with notice to the debtor, brought his acnical defect in the first proceedings-as, because tion at law thereon in the name of the assignor, the first writ was made returnable to a wrong when the defendant procured a release from term; or because the judgment in that case, was the assignor, and set it up in defense and obentered and an execution issued against all the tained judgment, the course of decisions at members of a firm, upon a confession of judg- that time being that, at law, that was a defense, ment by one of them; but will leave the parties and that the plaintiff's claim was only of equity to courts of laws for the assertion of mere tech- jurisdiction. Afterwards the plaintiff brought nical rights. Shedd v. Bank of Brattleboro, 32 his bill in equity to enjoin that judgment, and Vt. 709. to enforce his original claim. Held, that the

19. Where a purchaser of land had knowl- judgment at law was not conclusive as a deedge of an incumbrance upon it, and the mat-fense, although, according to the course of later ter was mutually settled between him and the decisions, the orator's equitable right would be vendor, and the vendor gave a deed containing protected at law,—the matter being of original a covenant against incumbrances, but with the equity jurisdiction, and the rule at law being understanding that no claim should be made different then, and now. Dana v. Nelson, 1 on such covenant, and the grantee afterwards Aik. 252. S. C., 2 Aik. 381. brought an action at law on such covenant ;- 25. A obtained judgment against B, under Held, that this was a fraudulent use of the cov- a rule "that certain sums of money specified anant, and that equity would enjoin him from in receipts signed by A should be deducted such use of it. Suit enjoined. Taylor v. Gil from said damages." B neglected or refused man, 25 Vt. 411. to produce the receipts to the clerk, and A took 20. The plaintiff in a suit at law was res- his execution for the full judgment, but collecttrained by injunction from the prosecution of ed only a part. About seven years afterwards, that or any other suit for the same matter, al- and after such receipts were lost, A brought a though the defendant therein had a good de- new suit on said judgment, refusing to apply fense at law to the suit brought, but where, if the amount of such receipts, and obtained a he succeeded, he would still be subject to other vexatious suits. Morse v. Morse, 44 Vt. 84.

second judgment for the apparent balance. On bill brought by B, an application of the amount 21. M brought a suit at law against the town of said receipts was decreed, and an injunction of G, upon a town order payable to him, or against enforcing the judgment to that amount; bearer, which he had obtained by fraud. On but no costs were allowed to either party.

Lynde v. Wright, 1 Aik. 383.

a bill in equity by the town to enjoin the suit at law, and that the order be delivered up to be 26. If a judgment be rendered in pursuance cancelled;-Held, that in the exercise of a sound of an agreement of the parties which directs a discretion, the special circumstances of the case particular mode of satisfying it, equity regards warranted the granting of the relief sought; this as the act of the parties, and not of the -these were, that the evidence left the fact of court, and will not permit it to be enforced in fraud in no doubt; that the negotiable charac-any way inconsistent with the agreement. ter of the instrument, although overdue, might| Nason v. Smalley, 8 Vt. 118. lead to embarrassment of the town, as would, | 27. Arbitrators awarded that the orator also, a payment of it by the town treasurer, in should pay the defendant a certain sum, in adcase the bill was dismissed; also, that the ques-dition to what he had already paid, and that tion of jurisdiction was not raised by demurrer, the defendant should, at the same time, execute but by the answer, and only brought to the atten- to the orator a deed of certain lands. The detion of the court on final hearing after all the fendant duly tendered the deed which the ortestimony nad been taken and all this expense ator refused to accept. The defendant after

35. Where a statute made the officers of a wards, in an action on the award, recovered of the orator judgment for the sum so awarded to corporation personally liable, in an action foundbe paid, and costs. Afterwards the defendant ed on the statute, for certain debts;-Held, sold and conveyed the lands to a third person that the remedy being complete at law upon for their value; and afterwards, on his claim- the statute, the liability could not be enforced ing to enforce the judgment, the orator brought in chancery. Bassett v. St. Albans Hotel Co., his bill for relief. The court, by decree, en- 47 Vt. 313.

joined the defendant from enforcing the judg- 36. A cross-bill was dismissed with costs of ment, and ordered him to repay the sun paid defense to it, although the original bill was disby the orator towards the land before the arbi- missed with costs, where the matter of the tration, with the orator's costs after deducting cross-bill was equally available as a defense to the defendant's costs in the suit at law. Pres- the original bill, and where, as to the further ton v. Whitcomb, 17 Vt. 183. relief sought by the cross-bill, there was an ade28. Chancery will not relieve against a judg-quate remedy at law. Sprague v. Waldo, 38 ment at law, for matters which constituted a Vt. 139.

defense to the action at law, where the orator 37. The bill set forth a good cause of action was fully apprised of the facts necessary to his at law for a past diversion of water from the defense, or could have ascertained them. Briggs orator's mill; also that the parties were in conv. Shaw, 15 Vt. 78. troversy about their respective rights to the 29. Resort to chancery must be seasonably water, and asked to have these rights ascermade, when the ground and occasion for it are tained and established. Held, on demurrer, seasonably known, or relief will be refused. that these facts did not furnish sufficient ground Thus, where a suit at law was suffered to go to for equitable interference. The bill also prayed final judgment, where the facts showing the for an injunction to restrain the defendant's use necessity of a resort to chancery were season- of the water except in a certain way, and alably known, the judgment at law was held a bar to equitable relief. St. Johnsbury v. Bagley, 48 Vt. 75.

2. Limitation by legal remedy.

leged that the defendant claimed some of the water belonging to the orator and was using it according to such claim, and threatened to increase the use; but did not allege that such use as then made, or increased as threatened, could not be fully compensated for in damages at 30. It is not optional with a party whether law; nor that any application had been made he will proceed at law or in chancery. He can- to the defendant to desist; nor that repeated not resort to chancery where his remedy at law and vexatious suits at law would be or were beis adequate. Currier v. Rosebrooks, 48 Vt.

34.

31. An injunction against the erecting and use of a church upon lands claimed by the orator was refused, where his title was not clear and certain, and where he had an adequate remedy at law, and the defendants were responsible, &c. White v. Booth, 7 Vt. 131.

lieved to be necessary, in order to maintain the rights infringed upon. Held, that the court of chancery had no jurisdiction of the case, as made by the bill. Fairhaven Marble Co. v. Adams, 46 Vt. 496; and see Prentiss v. Larnard, 11 Vt. 135. Smith v. Pettingill, 15 Vt. 82.

38. Where a party is unjustly deprived of his day in court before a justice by fraud, acci32. A mere breach of contract is never re-dent or mistake, the remedy at law under G. S. strained in advance, nor redressed subsequently, c. 38 is ample, and there is no necessity nor in a court of equity, where the remedy at law warrant for resorting to chancery. Sleeper v. is adequate to the injury. Smith v. Pettingill, Croker, 48 Vt. 9. 15 Vt. 82. Washburn v. Titus, 9 Vt. 211.

39. The statute authorizing the probate 33. Chancery will never interfere to prevent court to license an executor, &c., to sell real by injunction a mere ordinary trespass, where estate fraudulently conveyed by the testator, the injury is in no sense irreparable, and where &c. (G. S. c. 52, s. 43 and seq.), does not proan adequate remedy may be found in the re-vide a remedy exclusive of chancery. Therascovery of damages at law. Injunctions against son v. Hickok, 37 Vt. 454.

trespasses to timber, ore, monuments, orna- 40. The orator's claims, although several, mental trees, coals and quarries, have been being in the nature of claims upon a particular granted, being cases where the recovery of fund upon which others had an equal claim, damages merely would be an inadequate rem- and to which another class of claimants might edy. Smith v. Pettingill. have a paramount right, and where an account

34. Bill brought to enjoin the prosecution ing might be involved, the case was held a of an action of ejectment :-Bill dismissed for proper one for chancery jurisdiction;-the the reason that the orator had a clear defense remedy at law not appearing to be clear, comat law to the action. Barrett v. Sargeant, 18 plete and adequate. Richardson v. Vt. & Mass.

Vt. 365.

R. Co., 44 Vt. 613.

3. Auxiliary jurisdiction.

41. In aid of creditor to reach equitable

48. The interference of a court of chancery estate. Where a legal claim is established by in the settlement of estates in Vermont has been judgment, and courts of law, from defect in confined within the narrowest limits, and has their process or powers, are unable to afford gone upon the ground merely of aiding the juadequate relief, the court of chancery may risdiction of the probate court in those points assist the creditor to reach property of the debt-only wherein its functions and powers are inor which cannot be taken on an execution. adequate to the purposes of perfect justice;Bigelow v. Congregational Soc'y, 11 Vt. 283. S. C., 15 Vt. 370.

42. Equity will aid a judgment creditor to reach the equitable interest of his debtor in lands, where payment of the debt cannot be obtained at law. Woods v. Scott, 14 Vt. 518.

43. It will not ordinarily do this unless the creditor has perfected his claim, so far as he can at law, by judgment and levy upon the esRice v. Barnard, 20 Vt. 479.

tate.

retaining its ancillary jurisdiction to the same extent over matters in the probate courts, which it has over those in the common law courts. Adams v. Adams, 22 Vt. 50. Boyden v. Ward, 38 Vt. 628.

49. It is no ground of equity jurisdiction for the settling of estates, that there has been unreasonable delay of proceedings in the probate court; nor that an administrator on rendering his account refused to produce the books 44. Dictum. A judgment creditor must and papers of his intestate; nor that some of levy his execution upon a specific portion of the the parties affected by the decree of the probate land, where it exceeds in value the amount of court were infants and had no proper guardians the execution, before he can resort to chancery appointed. Adams v. Adams. for aid on the ground that the conveyance of his debtor was, as to him, void. Bassett v. St. Albans Hotel Co., 47 Vt. 313.

50. Where a creditor had become barred of his claim against an estate by neglect to present it for allowance by the commissioners ;--Held, 45. B gave G a bond for the conveyance of that chancery would not give him a decree certain land upon being paid a certain price against the estate, on the assumed ground of therefor. This purchase was really for the the continued liability of the surety and the ulbenefit of S, but this was unknown to B. Stimate liability of the estate. McCollum v. went into possession and made valuable im- Hinckley, 9 Vt. 143.

provements, when the orator attached the land 51. Where the creditors of an estate have and set off on execution against S, his interest an interest adverse to that claimed by the adtherein being more than $400. B had actual ministrator, they may come into a court of knowledge of the attachment. Afterwards G chancery for redress while the estate is in proand S sold the premises to D, surrendering to B cess of settlement in the probate court. This his bond, and B gave D a new bond for a convey-proceeding is merely ancillary to that in the ance, and, as the result of the arrangement and probate court, and after the rights of the parties after deducting from the sale price to D the are determined the case is remitted to the proamount of S's indebtedness to himself, B gave bate court for final adjustment and distribution. G his note for $400. Held, that B, with such Morse v. Slason, 13 Vt. 296. knowledge of the attachment, could not convey to any one else than G, so as to defeat the orator's claim against S and G; and the court decreed that B should pay the $400 to the orator. Woods v. Scott, 14 Vt. 518.

4. Retaining jurisdiction once attached.

52. Where a party is obliged to resort to chancery for one purpose, his case will be re46. In aid of probate court. The princi- tained until the whole matter is finally disposed pal jurisdiction of the settlement of the accounts of. Dana v. Nelson, 1 Aik. 252. Beardsley v. of administrators, executors and of trustees ap- Knight, 10 Vt. 185. 20 Vt. 278;-though it may pointed by the probate court, is in the probate be necessary to bring in new parties. 10 Vt. 185. court; and, in such cases, the jurisdiction of the 53. The general rule is, that when a bill is court of chancery is only in aid of the probate brought seeking both discovery and relief, and court. Merriam v. Hemmenway, 26 Vt. 565. material discovery is elicited, the court will 47. The executrix of a will, who was also proceed to grant the proper relief, even if the named as trustee and had been formally ap- relief were such as a court of law might grant. pointed trustee by the probate court, died. Holmes v. Holmes, 36 Vt. 525. Held, that it belonged to her administrator to As to other subjects of equity jurisdiction, settle her account as trustee, and that the trust see particular titles: as CLOUD ON TITLE; CONfund could not, in chancery, be called out of the DITION; FRAUD; HUSBAND AND WIFE; INJUNChands of her administrator by the administrator TION; INTERPLEADER; MISTAKE; MORTGAGE; be bonis non of the testator, before the settle- PARTNERSHIP; SPECIFIC PERFORMANCE; TRUSTS, ment in the probate court;—and that the juris- ETC.

II. SUIT, WHERE TO BE BROUGHT; SERVICE, | aid him to recover upon a case not made by the

ETO.

54. In what county. Bill in chancery, brought in Chittenden county to compel the conveyance of land situate in that county, was dismissed on plea that neither of the parties resided in that county. (G. S. c. 29, s. 17.) Birchard v. Cheever, 40 Vt. 94.

bill; nor can a special prayer for the specific relief to which he might be entitled upon the facts of the answer, be granted, where the stating part of the bill is not adapted to it. Thomas v. Warner, 15 Vt. 110.

61. The orator must stand on the allegations in his bill, and cannot make a different case by his evidence, and base upon it a claim for relief. Barrett v. Sargeant, 18 Vt. 365.

62. Prayer. A general prayer for relief is sufficient to obtain all relief consistent with the

55. A supplemental bill, bill of revivor, bill of review, or bill to carry into effect a former decree must be brought in the same county where the original suit was brought and the general frame of the bill, Danforth v. Smith, proceedings are of record. Ferris v. Child, 1 D. Chip. 336. Cheever v. Rut. & Bur. R. Co., 39 Vt. 653.

23 Vt. 247;-all the relief which is adapted to the case, though variant from that sought by the special prayer. Eureka Marble Co. v. Windsor Mfg. Co., 47 Vt. 430.

56. Where a suit in chancery has been commenced in one county, and has proceeded to an 63. Interrogatories. A bill was held ill interlocutory or administrative decree deter-on demurrer, because it contained no interrogamining the rights and duties of the parties in tories. Shed v. Garfield, 5 Vt. 39. respect to the property in question, to be exer- 64. Orator's interest. A creditor of the cised under the order and direction of that estate of a deceased person cannot sustain a bill court, the assertion of those rights should be in chancery against a debtor of such estate, to addressed to the court decreeing them and secure payment to himself. There is no priviunder whose order and direction they are to be ty between them. The administrator is the exercised; and a bill to enforce such rights, only person who can pursue the debtors of an brought to the court of chancery for another estate. county, will not lie. Cheever v. Rut. & Bur. R. Co.

Isaacs v. Clark, 13 Vt. 657.

65. A party in chancery taking lands upon a writ of sequestration stands as an attaching 57. Service. The delivery to a defendant, creditor at law, and, before decree and levy, without the State, of a copy of a bill in chan- has no such interest in the land as authorizes cery and subpoena by an indifferent person not him to litigate by his bill the title against a specially deputed, and where there was no order levying creditor; and his remedy after levy is of court directing the mode of notice, was held insufficient, and that the defendant was not affected by it. Bank of Burlington v. Catlin, 11 Vt. 106.

at law. French v. Winsor, 36 Vt. 412. 66. Parties Assignment. A nominal party to a contract, who has assigned all his interest, is required to be joined in any proceed58. Filing bill. G. S. c. 29, s. 56, enact- ing in equity in regard to the contract only for ing that "the issuing of a subpoena attached the purpose of having the decree conclude his to a bill shall be deemed the filing of a bill," rights, and thus conclude all future litigation. does not exclude other modes of filing existing So that, in all cases where the court can see, in independently of the statute, but rather pro- the particular case, that there is no necessity vides a substitute for actually filing it in court. for such joinder on that account, it will not be A bill may be so filed without issuing a sub-required especially after the case has gone to pœna-as, for the purposes of procuring an in- a hearing. He may be a proper, but not a junction, or where the defendant is out of the necessary party. Day v. Cummings, 19 Vt. State so that a subpœna cannot be served upon 496; and see Payne v. Hathaway, 3 Vt. 212. him.

The statute does not make the bill and subpœna one process. Howe v. Willard, 40 Vt.654.

III. PLEADINGS.

1. The bill.

67. Where the assignment of a contract passes only the equitable interest therein, the assignor is properly joined as a party in a bill to enforce it. Eureka Marble Co. v. Windsor Mfg. Co., 47 Vt. 430.

68. In a bill by a general creditor in an assignment against the assignee for an account,

59. Form and substance. A bill may the preferred creditors need not be made parties well be drawn with a double aspect, so that if where the orator claims only the balance after the orator fail of establishing one ground of re-paying them. Page v. Olcott, 28 Vt. 465. covery, he may rely upon another, although 69. Where a bill was brought against the wholly or in part inconsistent with the former. McConnell v. McConnell, 11 Vt. 290.

assignee under an assignment in trust for the benefit of certain attaching creditors of the as60. The orator must stand or fall upon his signor, of whom the orator was one, but he not case as made by his bill; nor can the answer assenting to the assignment, and against the