will grant relief by injunction. So courts of equity will enjoin suits upon contracts given without consideration which were agreed to be surrendered upon conditions which have been performed, or where the attempt to enforce them is merely an attempt to extort money to buy peace.2 So courts of equity will restrain, by injunction, the violation of contracts not to exercise one's trade or profession, within a reasonable distance of a particular point, as in this case twelve miles.3

§ 959 m. The questions connected with the contract of public works, such as canals, railways, and telegraphy, have been extensively examined by us in another place, and the cases, and especially the later ones, very fully considered and presented, much more so than would be consistent with the scope of this work.*]

1 Tainter v. Morristown, 4 C. E. Green, 46.

v. Stephenson, L. R. 14 Eq. 322. But an injunction against an action by the secre

2 Metler v. Metler's Estate, 4 C. E. tary of a corporation against a shareGreen, 457.

8 M'Clung's Appeal, 58 Penn. St. 51. 4 2 Redfield on Railw. § 205–224. See also Blatchford v. Ross, 54 Barb. 42. The following cases indicate some of the later ruling on injunctions. An injunction was granted against intimidation of workmen, in Springhead Spinning Co. v. Riley, L. R. 6 Eq. 551. A guardian was restrained by injunction from bringing up children in a religion different from that of the father. In re Newberry, L. R. 1 Ch. App. 263. Equity will not restrain a sale under a trust-deed on ground that the time is unfavorable, and will result in a sacrifice. Caperton v. Landcraft, 3 W. Va. 540. Otherwise where the trustdeed is to secure purchase-money, and there is a cloud on the title, which would produce a sacrifice. Faulkner v. Davis, 18 Gratt. (Va.) 651; Martin v. Jones, 59 Mo. 181. Injunctions against Corporate Acts, ultra rires, &c.— Private Corporations, at suit of Stockholders. It seems a corporation may be enjoined from expending its funds in prosecuting a suit not brought by it, though brought by a stockholder suing for the protection of corporate interests. Kernaghan v. Williams, L. R. 6 Eq. 228. So the English directors of a Turkish company were enjoined from paying the costs of prosecuting for libel a person who had been secretary to a committee of the company. Pickering

EQ. JUR. VOL. II.

holder, sought on the ground that the secretary was maintained in the suit by the company, was refused. See Elborough v. Ayres, L. R. 10 Eq. 367. In Mills v. Northern R. of B. A. Co., L. R. 5 Ch. App. 621, an injunction was refused against recouping the income account from the capital. In Ex parte Hartridge and Allender, L. R. 5 Ch. App. 671, an injunction against directors promoting an application to parliament was discharged by the Court of Appeal. See Telford v. Metropolitan Board of Works, L. R. 13 Eq. 574; Steele v. North Met. R. Co., L. R. 2 Ch. App. 237; Story v. Jersey City, &c. Co., 1 C. E. Green, 13. An injunction was refused against accepting the resignation of an agent of a limited company, whose services had been made a prominent feature in the prospectus, and had been provided for by the articles. Mair v. Himalaya Tea Co., L. R. 1 Eq. 411. A lawful reduction of capital of a corporation will not be en joined at suit of stockholder, who fears its insolvency, and increase of his personal liability for its debts. Joslyn v. Pacific Mail St. Co., 12 Abb. (N. Y.) Pr. N. s. 329. For injunctions against purchase of controlling interest in another road, see Central R.R. Co. v. Collins, 40 Geo. 582. Carrying funds out of the State. Matthews v. The Trustees, 7 Phila. R. 270; 2 Brewst. 541. And see 11

[* § 960. Exclusive jurisdiction. Trusts and remedial process.

§ 961. Trusts include most of the exclusive equitable jurisdiction.

§ 962, 963. And are generally administered only in courts of equity.

§ 964. Trusts are equitable rights, and require definition, subject, and object. § 965. This jurisdiction derived from the Roman civil law.

§ 966. History of trusts in the Roman law.

§ 967. Uses and trusts have a similar origin.

§ 968. Lord Coke's definition of uses and trusts.

§ 969. They have an extensive and highly beneficial operation.

§ 970. The statute of uses transfers the use to possession.

§ 971. Uses, by parol, at common law, now created by deed.

§ 972. Statute of frauds requires trusts as to lands to be declared by writing except resulting trusts.

§ 973. Equity will only execute trusts founded on valuable consideration.

§ 974. Equitable estates partake of the incidents of legal estates.

§ 974 a. Trusts alienable by contract and by operation of law.

§ 975. Trusts follow the analogy of the law as to remedies.

§ 975 a. Courts of equity generally hold exclusive control of trusts.

§ 976. Equity compels the party holding the legal title to act as trustee for equitable interests.

§ 977. Such equity is not defeated by alienation except to a bonâ fide purchaser.

§ 977 a. Grounds upon which the purchaser may be affected by trust.

978. The powers of trustees depend upon the nature of the trust.

§ 979. Cestui que trust may sometimes demand the conveyance of legal title.

§ 979 a, 979 b. Trusts may wholly fail from uncertainty.

§ 980. Definition of express and implied trusts.

§ 981. Specification of express trust, from which many implied trusts arise. § 982 a. Summary of late American cases.]

$960. HAVING taken the general survey of equity jurisprudence in cases of concurrent jurisdiction, we shall, in the next place, proceed to the consideration of another head proposed in these commentaries, that of EXCLUSIVE JURISDICTION. And this again, like the former head, is divisible into two branches: the one dependent upon the subject-matter, the other upon the nature of the remedy to be administered. The former compre

Owens, 42 Mis. 512; Flemingsburg v. Wilson, 1 Bush (Ky.), 203. The right to public office or franchise cannot be determined on an original bill for injunction. Cochran v. McCleary, 22 Ia. 75.

Equity will not enjoin the publication of a libel as slander. Prudential Ass. Co. v. Knott, L. R. 10 Ch. App. 142; Fisher v. Apollinaris, &c., L. R. 10 Ch. App. 297.]

hends TRUSTS, in the largest and most general sense of the word, whether they are express or implied, direct or constructive, created by the parties, or resulting by operation of law. The latter comprehends all those processes or remedies, which are peculiar and exclusive in courts of equity, and through the instrumentality of which they endeavor to reach the purposes of justice in a manner unknown or unattainable at law.

§ 961. And, in the first place, let us examine the nature and extent of the jurisdiction of courts of equity in matters of trust, which will be found directly or remotely to embrace most of the subjects of their exclusive jurisdiction. It has been well observed, that the principles of law, which guide the decisions of the courts of common law, were principally formed in times when the necessities of men were few, and their ingenuity was little exercised to supply their wants. Hence, it has happened, that there are many rights, according to the principles of natural and universal justice, for injuries to which the law, as administered by those courts, has provided no remedy. This is particularly the case in matters of trust and confidence, of which the ordinary courts of law, in a vast variety of instances, take no cognizance. The positive law being silent on the subject, courts of equity, considering the conscience of the party intrusted, as bound to perform the trust, have, to prevent a total failure of justice, interfered to compel the performance of it.1 And, as they will compel the performance of the trust, so, on the other hand, they will assist the trustees, and protect them in the due performance of the trust, whenever they seek the aid and direction of the court as to the establishment, the management, or the execution of it.2

§ 962. For the most part, indeed, matters of trust and confidence are exclusively cognizable in courts of equity; there being few cases, except bailments, and rights founded in contract, and remedial by an action of assumpsit, and especially by an action for money had and received, in which a remedy can be administered in the courts of law.3 Thus, for example, a debt, or chose in action, is not generally assignable at law, except in cases of negotiable instruments. And, hence, the assignee is ordinarily

1 Mitf. Eq. Pl. by Jeremy, 4; id. 133. 2 Id. 134.

3 Cooper on Eq. Pl. Introd. p. 27; 3 Black. Comm. 432; 2 Fonbl. Eq. B. 2,

ch. 1, § 1, note (a); Sturt v. Mellish, Atk. 610; Co. Litt. 290 b; Butler's note, 246, § xv.

4 Post, § 1039.

compellable to seek redress against the assignor and the debtor solely in courts of equity.1

§ 963. It is not within the design of these commentaries to enter upon a minute examination of the nature and peculiarities of trusts, as known to English jurisprudence, or to attempt, by any development of the history of their rise and progress, to ascertain the exact boundaries of the jurisdiction at present exercised over them. In general, it may be said, that trusts constitute a very important and comprehensive branch of equity jurisprudence; and that, when the remedy in regard to them ends at law, then the exclusive jurisdiction in equity, for the most part, begins.

§ 964. A trust in the most enlarged sense in which that term is used in English jurisprudence, may be defined to be an equitable right, title, or interest in property, real or personal, distinct from the legal ownership thereof. In other words, the legal owner holds the direct and absolute dominion over the property in the view of the law; but the income, profits, or benefits thereof in his hands, belong wholly, or in part, to others. The legal estate in the property is thus made subservient to certain uses, benefits, or charges in favor of others; and these uses, benefits, or charges constitute the trusts, which courts of equity will compel the legal owner, as trustee, to perform in favor of the cestui que trust, or beneficiary. Three things are said to be indispensable to constitute a valid trust: first, sufficient words to raise it; secondly, a definite subject; and thirdly, a certain or ascertained object.3

§ 965. It is in the highest degree probable, that those trusts, which are exclusively cognizable in courts of equity, were, in their origin, derived from the Roman law, being very similar, in their nature, to the fidei commissa of that law. As the jurisdiction of a peculiar prætor was created for the express purpose of protecting property fidei commissum, so the jurisdiction of our courts of equity, if not created, was soon extended, for the purpose of protecting and enforcing the execution of trusts. Indeed, it is impossible to suppose, that, in a country professing to have an enlightened jurisprudence, obligations and trusts in regard to property, binding in conscience and duty, and which ex æquo et bono, the party ought

1 Com. Dig. Assignment, C. 1; Com. Dig. Chancery, 2 H.; post, § 1057.

2 Lord Hardwicke, in Sturt v. Mellish (2 Atk. 612), said: "A trust is, where there is such a confidence between parties, that no action at law will lie; but is

merely a case for the consideration of this court."

8 Cruwys v. Colman, 9 Ves. 323. 42 Fonbl. Eq. B. 1, ch. 1, § 1, note (a); 2 Black. Comm. 327, 328.