Juridical Equity - Charles Phelps

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CORNELL UNIVERSITY LIBRARY

3 1924 085 500 928

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Cornell University Library

The

original of this

book

is in

the Cornell University Library.

There are no known copyright

restrictionstext.

in

the United States on the use of the

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Juridical EquityABRIDGED,

FOR THE USE OF STUDENTS.

PARTFAESEKTIITG

I

AN OUTLINE OF EQUITY PKOCBDTJKB, AS USED IN THE COUBTB OP THE United States and of the State or Maryland.

PART

II

BEINQ lilHITED TO THE FlEST PRINCIPLES OV EQUITY JURISPEUDBNCE, Historically and Practically Illustrated.

BYCl^arlejsi

C. pi^elpsi^and Associate

Professor of Jmrldical Equity i/n the University of Maryland, Judge of the Supreme Bench of Baltimore.

M.

BALTIMORE: CURLANDER,1894.

Law

Bookseller, Publisher and Importer.

Copyright,

1894,

BYCHARI.B5 E, Phelps.

PRESS OF QUQQENHEIMER, WEIL & CO. BALTIMOHE, MO.

TO The I/AW GRADUATES OP THE

UNIVERSITY OF MARYLAND,AI,READY PAMII,IA.R WITH

"THESE PRESENTS,"; AND SOMEWHAT RESPONSIBLEFOR THEIR EXISTENCE, TH3 SAME ARE NATURAI,I,VDEDICATED.

*

*

*

"JVot soto

much

to

endeavor to

facft tliege things fully to

you, as

them for yourselves to point out what you are to Iodic for, and how you are to find It. It raust depend upon yourselves whether youto induce

you

Uam

wUl

look for

it,

whether you will find

it,

and what

uses you,

vAU make of

the

information."

Judge

Curtis, Lect. Jwrisd.

V.

S. Courts, 3.

"Most

of

aU

is

needed a disposition in the profession, not to take things on

tnat, but for every

man

to

look and see fob himself."Preface.

Bishop, Crim.

Lam,

PEEFAOE,The scope of, this work is sufficiently indicated by its title. Upon the voluminous subjects of equity procedure and equity jurisprudence it does not profess to be an exhaustive treatise. It does not offer to compete with any existing work. It may be calleda horn-book, nothing more. It has not been prepared by contract. It is the gradual outgrowth of many years experience and reflection in the work of practical instruction.

There are two ways of teaching equity. One is to take up in succession, with more or less of technical detail, the practical topics treated in some approved text-book, until the time limited for that department expires. The other method is more elementary. It assumes that what the young lawyer especially wants is the faculty and the habit of original investigation.

Give him that, and he will have no trouble in finding what he wants in the books, as occasion requires. aims to put the student in complete possession of those few central principles which command the whole field. Thorough mastery of those princi'ples is given by historical explanation,It therefore

by copious

illustration

and by systematic

drill.

Ti

PREFACE.

"

Some

fruitful, that

of these principles are so comprehensive and one who has grasped them in their

fulness of conception has already mastered the system of equity. All else is the application of these

grand truths to particular circumstances."feroy.)

(Pom-

The more elementary methodin these pages.

is

the one reflected

main reliance The student is, of course, upon adjudged cases. should be frequently called on to state from memoryFor theillustration of principle the

their substance in connection with propositions illus-

This exercise in the presence of a class gives accuracy of thought, clearness of statement, selfconfidence. It is a discipline to prepare the candidate for his profession, not simply for his examinatrated.tion.

learner

In order to apprehend with ease decided cases, the must first be made familiar with the mould For that reason, or form in which they are cast. and also because the distinction between law and equity grows mainly out of the essential difference of procedure, that subject is first presented in brief outline, preceded by a chapter on courts. The effort here has been to avoid as much of technical detail as is not inextricably involved with a fair outline ofprocedure.jurisprudence,

Passing thence to the complex subject of equity its master principles are reached by two stages. The more fundamental ones, those upon

PREFACE.

Vll

the grounddefinition,

floor, so to

speak, are grouped into a

and afterwards maxims are considered with their illustrations. The definition is simply a piece of temporary scaffolding to aid the student while he is building up a fuller conception for himself, after which he will have no further use for it except to refresh his memory and c. Jennings, 241.

Arnd

Alabama198.V.

State

Bank

v.

Barnes,

V.

Little

Rock,

61.

Albert, 288.63. 282. Alexander v. Leakin, 260. D. Ghiselin, 282, 329. V. Walter, 341. Allcard v. Skinner, 364. Allen V. Buchanan, 308. V. Pullman, 79, 259. V. Withrow, 286. Allore V. Jewell, 358. Ambler c. Choteau, 76. Am. C. I. Co. V. Simpson, 185. Amelung v. Seekamp, 27, 133. American o. Heft, 63. Ames V. Richardson, 295. . Oockey, 359, 360. Amis 0. Myers, 259. Anderson v. Dunn, 153. V. R. R. Co., 62.

Hamilton,

Aldridge

b.

Weems,

220. Asylum c. Miller, 369. Atlantic Co. v. James, 269.V. v.

Ashurst

Leman,

Maryland Co314.279.

,

Attrill

V.

Huntington,

Avory . Andrews, 135. Bacon v. Ins. Co., 355, 358,Badger, 368. Bailey v. Knapp, Baker . Kunkel,Balls, 258, 320.V.

359.

199. 320.

Dampman,. Gill, V.

Baltimore

320. 45. 358.

V.V.

Grand Lodge, Ketchum, 98.Keyser,

Amey

v.B.V.

Baymo,

133. 285. Warren, 133. AVeatherby, 136,138.

XIV

TABLE OF CASES.Beferences are to Faeres.

Baltimore

Whittington, 329. Belt Co. . Baltzell,36. v. Lee, 133. Chem. Co. b. Dobbin,.

Beard

v.

State, 232.

Bechtolds. Read, 366. Bel Air Socials. State, 23S.Bell Telephone Cases, 138. Belt . Bowie, 60, 355,

239

& DrumV.

& &

Point R. E. Pumplirey, 45. Ohio R. R. V. Can-

Beck, 318. V. Colorado Co., 312. Beecher v. Lewis, 261, 262, 318.Benefit Asso.v.

ton Co., 167,220,353,362, 364.

Parks, 215.v.

Ben. Franklin Ins. Co.let, 260, 314.

Gil-

O. B. R. v. Strauss, 358 & Ohio R. R, . Trimble, 353, 360, 361, 363 & Ohio R. R. V. Wilkens, 262. Retort Co. . Mali, 52

Beningfield . Baxter, 361, 362. Benson v. Christian, 261..

Yellott, 39, 44,109, 121.

106,

Bentley

v.

Cowman,0.

78.

Bernstein, 372.

Bauaher

v.

Bank

of

Merryman, 281. Harlem v. Bayonne,

Hableman,

286.

294, 296.

Banks . Haskie, 222, 361. Bannon . Comegys, 47, 148..

Lloyd, 320, 353, 355.Baltimore, 53.

Berry v. Convention, 363, 368. Betz V. Snyder, 283. Biays v. Roberts, 79, 355, 364. Bickerton . Walker, 333. Biddinger . Willord, 79, 259,329.

Barnes

. v.V.

Crain, 320.

Barney

Binney's Appeal,Case, 66.

327. 284.69.

37, 57, 220. . Saunders, 158. Barnum, 92, 291.

Latham,

Birchall

.

Ashton,V.

Birmingham Appeal,Black.r>.

Barrett

. V. V.

Forney, 220. Hinckley, 280. Nealon, 260.

Leson, 278.

Blaine

Cord, 284, 328. Brady, 133, 258.

Barry, 59. Bartel . Matot, 285. Barth a. Rosenfeld, 104,170, 171, 216.

131,

Bartlett

v.

Hipkins, 137.

Barton b. Barbour, 144. Basey . Gallagher, 186. Bassett . Nosworthy, 257. Basshor v. Stewart, 288. Bates . Babcock, 186.Baxter, 46. V. Moses, 260..

v. Ladd, 47. Blake v. Bank, 361. Bland y . Widmore, 302. Bleckley v. Branyan, 239. Blondheim v. Moore, 140, 141. Board . Columbia Goilege, 320. Bdlander v. Peterson, 347.

Blaisdell

Bolles, 60.

Bonaparte, 352. V. B. R. Co., 126. Bond v. Doreey, 314, 315. V. Hopkins, 195, 3S1.

Proctor, 52.Norris, 282.

Bayly, 163.

Baynard

v.

Bayne

.

State, 48, 119, 284.

Bone . Chapman, 221. Bonnard e. Perryman, 138. Boon V. Kent, 324^, 344. Boone . Chiles. 257.Co.V.

Beauclerk, 370.

Railroad, 327.

TABLE OF CASES.References are to Pages.

XV

Booream

North, 32. Booth V. Bobinson, 45, 281. V. V. S., 369. Boozer v. Teague, 360. Boswell V. Cooks, 362. Bouland . Carpin, 261.v.

Brown

.

Eeilly, 345.

V. .V.

Smoot,

320.

Stewart, 336. Sutton, 247, 863.

V. Thomas, 62, 65. Brownlee v. Martin, 216.

Boulden

v.

BowenBowie

..

Lanahan, 64. Gent> 39, 44, 52.

BrumbaughBrundige Bryant245.v..

i).

State, 62.

. V.

.V.

Lewis, 247. Berry, 300.Stonestreet, 362.

Deschler, 216. Poor, 282.

Sweetland, ,316. Wilson, 285, 313.Petty, 163.. V.