and the public necessity and expediency of using this power was a question confided by the legislature to the judgment of the defendants; and, consequently, that another corporation, injured in its land by the new dam, could not maintain an action at common law, but must adopt the remedy provided by the charter of the defendants. Sudbury, &c. v. Middlesex, &c., xxiii. 36. 2. A. and B. contracted with the defendants, a canal corporation, to construct the canal on the line upon which it had been duly located under the charter, to find all the materials, and pay all damages for land taken for the canal. It was further agreed, that, by consent of the defendants, the line of the canal might be altered. A. and B., with others, for the purpose of a land speculation, agreed with the demandant for leave to make the canal through his homestead, in a different line from the location; in consideration of which, he was to have the right of retaining his title, claiming no damages, or within a certain time to convey his homestead to them for a fixed price. A canal was made over his land, and afterwards the contract rescinded, in order to reinstate the parties where they would be, if it had never been made. The defendants afterwards used this part of the canal. In a writ of entry against them, they plead a special non-tenure and disclaimer, by way of a grant from the demandant of the right to excavate, construct, and use their canal and embankments over his land, an actual entry, excavation, &c., and a right thus acquired, to occupy, use, and improve the canal over the demanded premises; and conclude by alleging, that saving these rights they do not claim, &c. Held, the demandant's agreement with A. and B. &c., was only a personal license to them, and that the evidence did not sustain the plea. Cobb v. Hampshire, &c., xviii. 340. Certiorari. 1. Where the record of a court below is brought up on certiorari, no other evidence of the proceedings in the case is admissible. Rutland v. County, &c., xx. 71. 2. A petitioner for certiorari cannot contradict the record or prove the proceedings erroneous by extrinsic evidence. But, the petition being addressed to the discretion of the Court, the respondent may show by such evidence, that substantial justice has been done, or that the petition ought not to be granted; and the petitioner may then introduce rebutting evidence of the same nature. Ibid. 3. Even where the record of the court below is defective or informal, a certiorari ought not to be granted, if substantial justice has been done, or if ruinous or very injurious consequences would result from quashing the proceedings, and the parties cannot be placed in statu quo. — Ibid. 4. Petition for certiorari to a justice of the peace, by whom the petitioner had been fined. It appeared, that illegal evidence was received, that points in the case were erroneously decided, and that the opinions were founded upon improper grounds; but still, that justice had been done. Held, the petition should not be granted. — Gleason v. Sloper, xxiv. 181. 5. Where parties, interested in the alteration of a street or highway, had actual notice of the proceedings, attended and were heard concerning them, and have acquiesced therein for many years; a writ of certiorari will not be granted to remove those proceedings, merely because it does not appear that the parties were officially notified according to law; nor because one of them was non compos, and had no guardian. - Hancock v. City, &c., 1 Met. 122. 6. Where a town has due notice of the application of individuals to the county commissioners for the alteration of a road within the town, (the application and all the subsequent proceedings alleging it to be a highway,) and also of the proceedings of the commissioners in directing specific repairs upon such road, and does not object that it is a town-way instead of a highway, until after the commissioners have caused such repairs to be made, upon the town's neglecting to make them as directed, and after the town has been notified to show cause, why a warrant of distress should not issue against the inhabitants of the town for its proportion of the expense of such repairs; a writ of certiorari will not be granted to remove the records of the commissioners, on the ground that the road was a town-way, and, therefore, they had no jurisdiction; nor a writ of prohibition, to restrain the commissioners from issuing such warrant. - Inhabitants, &c. v. County, &c. Ibid. 336. Chancery. A. General chancery jurisdiction. B. Chancery jurisdiction of trusts. C. Chancery jurisdiction in cases of account. D. Chancery jurisdiction for discovery of secreted prop erty. 起 E. Chancery jurisdiction to enforce specific performance. F. Chancery jurisdiction for redemption of mortgages. G. Chancery jurisdiction to compel contribution. H. Chancery pleading, evidence and practice. 1. Parties in chancery. A. General chancery jurisdiction. 1. A party cannot first litigate a question in Equity, and afterwards, upon failing of success, try the same question at law. Mills v. Gore, xx. 28. 2. Thus, if a deed, alleged by the grantor not to have been delivered, is deposited, by agreement between the grantor and grantee, with a third person, under the confidence that he will do nothing to prejudice the rights of either party, and, upon a bill in equity by the grantee against the grantor and such depositary to recover the deed as delivered, the grantor's answer and other evidence show that it never was delivered; the Court will not grant partial relief by placing the parties where they stood before the deposit, leaving them to litigate at law, but will definitely decide the case upon the merits, as thus disclosed.. Ibid. 3. The Supreme Court does not possess, as a distinct branch of equity jurisdiction, the general power of reforming contracts. Babcock v. Smith, xxii. 61. 4. An action for damages against an insolvent person is not a plain, adequate, and complete remedy at law, which deprives the Court of equity jurisdiction. Clark v. Flint, xxii. 231. 5. After the filing of an answer and general replication, and after testimony has been taken, and the case come on for a hearing, the defendant cannot except to the Court's jurisdiction, on the ground of an adequate remedy at law, provided the Court has power to grant relief, and jurisdiction of the subject matter. Ibid. 6. A defendant in equity, after answering, cannot object, that there is a plain and adequate remedy at law. - Congregational, &c. v. Trustees, &c., xxiii. 148. 7. Where an insolvent makes an assignment for benefit of creditors, and various and difficult questions arise from their conflicting claims, which the assignees could not safely decide upon their own responsibility; they are not bound to wait for suits against them by creditors, but may file a bill for the purpose of obtaining instructions from the Court. Dimmock v. Bixby, xx. 368. 8. A bill in equity alleged as follows. The plaintiff's intestate, A., and the intestate of B., the defendant, owned a ship, illegally seized, in 1809, by the French. The commissioners for determining what parties should receive the indemnity provided for such ship-owners, under a treaty between France and the United States, awarded, by mistake, the whole sum due on account of the vessel in question to B., who, consequently, received A.'s share, the same being in certificates of the United States Treasurer, or having been turned into cash by B. B. refused to pay it over, surrender the certificates, or render any account thereof. The bill therefore prayed, that B. might be compelled to answer, whether he had or had not received such share in cash or certificates; if the latter, whether any thing, and how much, had been paid thereon; whether A. was part-owner of the vessel, and whether B. had, or had not, been informed by the commissioners, or any other person, and by whom, that the award was so made by mistake; and that B. might be enjoined to deliver up the certificates and all other property received for them, to a receiver. Held, as the material facts in the case might all be proved by competent evidence, and B., acting merely in a representative character, could not be supposed peculiarly to know any such facts, this suit was not necessary for the purpose of discovery; that, if the plaintiff had any remedy, he had a plain and adequate one at law, for money had and received; and that the bill could not be sustained. Law v. Thorndike, xx. 317. 9. A bill in equity alleged, that the defendant had received of C. certain notes for his indemnity as C.'s indorser, and that C., having become insolvent, assigned all his property in trust for his creditors to certain assignees, who, to close the assignment, assigned to the plaintiff; and prayed that an account might be taken, and the defendant held to pay over what should be found due from him, and deliver up the security. Held, as the original assignees had no interest in the suit, they need not be parties to the bill; that as C. would be liable to the defendant, if the defendant's security proved insufficient, C. should be a party; and that the suit would lie, upon the ground of a trust, and because, without a discovery, the account could not be properly adjusted in an action of assumpsit. Hobart v. Andrews, xxi. 526. 10. Held, that certain accounts, rendered by the defendant and settled, could not be opened, unless the bill specified the errors to be corrected; that the stating part of the bill must allege a balance due to the plaintiff; that a demand upon the defendant for the securities lodged with him should be averred, and also any condition annexed to the assignment, if written and conditional; and, in failure of the latter averment, if the condition was one which the plaintiff was bound to perform, the defendant might take advantage of the variance. - Ibid. 11. A bill in equity alleged as follows. Prior to 1827, a canal was located through a pond, and a dam constructed by the canal company, whereby water was diverted from the plaintiff's mill. The same year, the location of the canal was confirmed by the county commissioners. In 1834, the company having become insolvent, its franchise was legally sold to one A. for nine hundred and ninety-nine years, to pay its debts. At a meeting of the commissioners in September, 1836, the report of certain commissioners, appointed under the charter of the company, awarding to the plaintiffs $1416 as damages, was accepted by the former commissioners, and ordered to be recorded; which sum, the company, and A., though having notice of the facts, refused to pay. April 9, 1836, by virtue of an arrangement between the company, A., and others, a statute was passed, authorizing the company to transfer their franchise and property to a new corporation, consisting of A. and others, upon certain conditions; but providing for the satisfaction of any claims for damages, arising from the acts of the old company, only by the privilege of recovering the amount of such claims in stock of the new company, at a rate far exceeding its real value. The old company transferred their franchise and property accordingly; and the new company refused to compensate the plaintiffs, except in the above mode. Held, the plaintiffs could not maintain a bill in equity against A., or either corporation; and that, if they ever had any equitable claim, they had lost it by their own laches.- Forward v. Hampshire, &c., xxii. 462. 12. Bill in equity, alleging as follows. The defendant, A., knowing that B. was indebted to C. (the plaintiff) and others, and that they were about to attach his land for security, combined with B. to defraud the creditors, and, for this purpose, took a mortgage from B. without consideration. C. recovered a judgment against B., and, without notice of the mortgage, delivered his execution to A., a deputy sheriff, to be levied on the land. A. sold the equity at auction, and procured one D. to bid it off, which was done, by reason of A.'s misrepresentations, for a very small sum. A. returned the execution unsatisfied, except for this amount, and the balance remained due. A. had ever since been in possession of the land, managing it as his own. The bill further prayed, that A. might be required to disclose all the particulars of these transactions, and for further relief. Held, the bill could not be sustained as a bill of relief, because it charged a direct fraud, of which the Court has no jurisdiction; nor as a bill of discovery, because the plaintiff had not shown sufficient direct interest in the subject-matter, not having actually extended his execution, |