existence for the purpose of enabling a party secondarily liable, but who has paid the debt, to reap the benefit of any securities which the creditor may hold against the principal debtor, and by the use of which the party paying may thus be made whole. Thus a surety who pays a debt which has been reduced to judg ment is entitled to have the judgment kept alive for his benefit, and to enjoy, as against the principal debtor, the advantages which could have been claimed by the judgment creditor.

None of these equities are founded upon contract, but upon general principles of equity, and being all rights of a purely equitable nature, they are subject to the general qualification by which the exercise of all such rights is controlled, viz., that they must not be asserted in such a way, or under such circumstances, as to do violence to the rights and equities of other parties.

The doctrine of marshalling grows out of the principle that a party having two funds to satisfy his demand shall not, by his election, disappoint a party who has only one fund. Thus a person who has a mortgage on two parcels of land, ought not, in fairness, to resort in the first instance to one of them, upon which there also happens to be a junior mortgage which is not otherwise secured; for in so doing the junior mortgagee might be altogether cut out. Equity, however, is loath to interfere with the rights of a creditor to enforce payment out of any of his securities, and therefore the remedy usually afforded to the junior disappointed mortgagee is to substitute him to the rights of the paramount mortgagee as against the other property.

The doctrine of marshalling is applied in the administration of estates of debtors both during their lifetime and after their death; although in this country the necessity for its application to the estates of decedents has been very much lessened by the numerous legislative enactments whereby the distribution of the assets of a deceased debtor are regulated and controlled.

28. The last equitable rights which will be noticed are Liens. A lien is a right at common law; but it is a right which is inseparable from the possession of the article on which the lien is claimed to exist.

In equity, however, a lien may exist wholly independently of possession, and under circumstances which would give the party

no common law right at all. There are several of these equitable liens, one of the most important of them being the vendor's lien upon real estate for unpaid purchase-money. This lien constitutes a charge upon the estate in the hands of the vendor, but it does not come into actual existence until a bill is filed to assert it. It is recognized in many of the United States; in others, however, it has never existed, or has been abolished or circumscribed by statute.

29. The next general division of chancery jurisdiction is that of Equitable Remedies; and the first, and one of the most important of these, is Specific Performance.

At common law the general rule was that all injuries were to be redressed by damages; and relief by a restoration of the injured party to the actual enjoyment of the thing or right of which he had been unjustly deprived, was never afforded except in the two cases of detinue and replevin. In equity, however, the rule is just the other way. A chancellor always aims at restoring the injured party to the exact position which he ought to have occupied if the wrong had never taken place. One of the means by which this object is attained is the equitable remedy by specific performance, which is, perhaps, most frequently used for the purpose of enforcing contracts for the sale of real estate, although it may be and is applied to other cases in which the common law remedy is insufficient, by reason of the inadequacy of pecuniary damages, or from the impossibility of estimating them. This equitable remedy, however, is not applied except under certain restrictions and within certain limits.

Thus it is a fundamental principle that specific performance will not be decreed unless the contract sought to be enforced is based on a valuable consideration, for the obvious reason that as the inadequacy of damages is the ground for equitable interference, there can be no such inadequacy where there is no damage sustained, as is the case with a mere volunteer.

Again, the complainant must show either that no damages could be recovered at law, or that the damages which might be recovered would fall short of affording complete redress. The reason for this rule is the obvious one that if money would operate as a full measure of redress, there is no ground whatever for the interference of a chancellor, as the complainant can get

all he wants at law. It must, moreover, be observed that the jurisdiction to decree specific performance is always exercised subject to general equitable considerations; and that therefore a court of equity will not aid a complainant if he has been guilty of laches and negligence, or if equitable considerations interpose upon the other side-such as that the contract is hard and oppressive, or that the condition of things has materially changed, or the like.

Equity will not enforce a contract within the statute of frauds (e. g., an agreement to sell real estate), unless it is reduced to writing; but to this rule there are some exceptions. Thus parol contracts may be enforced where there has been a sufficient part performance of the contract, or where its reduction to writing has been prevented by fraud, or where the contract is admitted by the defendant's answer, and the statute is not set up as a defence.

Equity, also, in applying this equitable remedy, will sometimes call into play subordinate equities, by decreeing specific performance with compensation for defects, and by giving time to make out a title beyond the day fixed in the contract.

30. The equitable remedy by Injunction may be described as in a certain sense the complement of the remedy by specific performance; as in the latter case a party is compelled to do what it is his duty to do; whereas by injunction he is restrained from doing that which he ought not to do. Injunctions, however, are sometimes of a mandatory character, in which case they compel the performance of an act, and are, therefore, equivalent to a decree for specific performance. An injunction, in its legal sense, may consequently be defined to be a writ remedial issuing by order of a court of equity, and commanding a defendant to perform some act, or restraining a defendant from the commission or continuance of some act. The writ is, therefore, either mandatory or prohibitory. Injunctions are also either interlocutory, i. e., made during the progress of the cause, or perpetual, i. e., made upon final decree. They are either ex parte or after hearing; and were, formerly, either common or special; but the common injunction is now practically out of use, and all injunctions are special—i. e., granted upon the merits as disclosed by affidavits or other proofs.

The purposes for which injunctions are issued are very numerous, and extend, in fact, over nearly the whole field of equitable jurisdiction. They may be divided into two general divisions, namely, first those cases in which the writ issues for the purpose of protecting equitable rights; and, secondly, those in which the writ issues for the purpose of protecting legal rights.

Injunctions are used for the purpose of protecting equitable rights in two ways: in the first place, by enjoining proceedings in the common law courts, whereby and wherein such rights may be violated or disregarded; and, in the second place, by interposing for the protection of such equities, when injury thereto is threatened by other means than through legal proceedings.

Under the first of these heads it is well settled that equity will interfere to restrain proceedings at law, whenever, through fraud, mistake, accident, or want of discovery, one of the parties in a suit at law obtains or is likely to obtain an unfair advantage over the other, so as to make the legal proceedings an instrument of injustice.

It is difficult, perhaps, to mark out with precision the exact limits within which a court of equity will interfere with proceedings at law; but it may be stated generally that such an injunction will be granted whenever, in the common law action, an equitable title is not recognized, or an equitable right not enforced, or where exact and complete justice would not be done between the parties by reason of the want of an equitable remedy.

A court of equity moreover frequently interferes by injunction for the purpose of preventing unnecessary or vexatious litigation; and this it does in many ways, viz., by compelling a party to elect between two remedies; by restraining a party from bringing an action in another court after a court of equity has once obtained possession of a cause; by putting a stop to repeated attempts to litigate the same question; and by interfering to protect a party who is liable to discharge some debt, duty, or obligation from vexatious suits by two or more parties severally claiming to be entitled to the benefit of such debt, duty, or obligation. Bills to restrain repeated attempts to litigate the same question are termed bills of peace, and are of two kinds, being filed either (first) to prevent the vexatious occurrence of litigation by a nume

rous class insisting upon the same right, or (second) to prevent the same individual from reiterating an unsuccessful claim. Bills to protect parties who are liable to several claimants in respect of the same debt, duty, or obligation, are called bills of interpleader, and are based upon the ground that a mere stakeholder, who claims no interest, ought not to be troubled by the actions of conflicting parties who do claim an interest. Such a bill, therefore, must show title in two claimants, and it must not show any interest in the subject-matter on the part of the party filing it.

Of the second general class of cases in which equity interferes by injunction for the purpose of protecting equitable rights, bills to restrain a trustee from committing breaches of trust, to restrain a partner from a violation of his duty as partner, or to restrain the disclosure of confidential communications or of trade secrets, may be taken as illustrations. In such cases equitable titles and rights, and not those of common law, are infringed; and hence injunctions for the purpose of protecting them fall properly under the first of the two grand classes into which these writs have been divided.

The second of these general classes is that which embraces those cases in which the injunction issues for the purpose of protecting legal rights. The occasions which most usually call for the interference of equity for this purpose are cases of waste, trespass, nuisance, patent-right, copyright, literary property, trade-marks, alienation of property pending litigation, transfer of negotiable instruments, protection of property pending litigation, breach of negative covenants, and corporations.

31. Akin to the equitable remedies of specific performance and injunction, are those of re-execution, reformation, rescission, and cancellation. All these remedies together embrace, as it were, the complete circle of equitable relief in the case of contracts and duties. Thus a party may be held to a literal compliance with his contract by a decree for its specific performance; or he may be restrained from a violation of the contract by a writ of injunction; or, finally, if the written paper, which is the evidence of the contract, be lost, a re-execution may be ordered; if the contract has been erroneously expressed, a reformation may be decreed; and if, on the other hand, it has been obtained through fraud, it may be rescinded, and the documentary evidence