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well as the pleadings, may be resorted to. (Blake v. Krom, 128 N. Y. 64). The controversy at General Term is that which governs; unless that be $500 or more, there is no appeal, though more was at issue on the first trial. (Davidson v. Alfaro, 80 N. Y. 660).

Where the plaintiff appeals, in an action not founded on contract, the sum for which the complaint demands judgment is deemed the amount in controversy. Thus in an action for conversion of chattels, the complaint alleged that the property was worth $500. Plaintiff's evidence, however, was to the effect that the value was only $300. Nevertheless, the case was held appealable. (Zoeller v. Riley, 98 N. Y. 668). But where the defendant appeals in an action of this kind, the amount of the judgment appealed from, exclusive of costs, is the amount in controversy. (Graville v. N. Y. C. R. Co., 104 N. Y. 674).

If a counterclaim is pleaded by the defendant, but is of such a nature that it is not a permissible counterclaim, so that no proof of it will be admissible, it is not considered in determining jurisdiction as governed by the amount. Sulzer, 138 N. Y. 468).

(Societa v.

The $500 limit does not apply to actions or special proceedings "affecting the title to real property or an interest therein." An action to recover possession of realty, or to set aside or compel a conveyance thereof, or for partition, is appealable, without regard to amount, as affecting title. But an action for an injury to the land, or to foreclose a mechanics' lien thereon, or to foreclose a mortgage, or to vacate an assessment, etc., does not affect the title or an interest

therein, and is, therefore, not appealable, unless at least $500 be in controversy. (Nichols v. Voorhis, 74 N. Y. 28; Wheeler v. Scofield, 67 N. Y. 311; Trevett v. Barnes, 110 N. Y. 500).

§ 194. The Court of Appeals does not lose its jurisdiction over the case, until remittitur has been filed in the court below and that court has taken some action thereon. (People v. Village, 79 N. Y. 638).

§ 217. "It is provided by the Constitution that the Supreme Court shall have general jurisdiction in law and equity. It follows that its jurisdiction cannot be limited either by the legislature or by any power conferred by it upon the court itself. Its functions are to be exercised by its judges, sitting in General Terms, or at the Circuit, or Oyer and Terminer, or Special Terms. The Constitution also provides that each judge may hold special terms in any county, and neither in that instrument nor in any statute do we find that one Special Term, or one judge at Special Term, has or can have more authority or power than another." (People v. Nichols, 79 N. Y. 582, 590; see also Syracuse Bk. v. Syracuse R. Co., 88 N.Y. 110).

§ 263, subd. 5. This provision, so far as it limits the jurisdiction of these courts to actions upon their own judgments, is unconstitutional and void. (Popfinger v. Yutte, 102 N. Y. 38).

266. Notwithstanding a general appearance in one of these courts, the defendant may set up by answer its defect of jurisdiction over the person, by reason of the place of service of the summons. (Wheelock v. Lee, 74 N. Y. 495; see Popfinger v. Yutte, 102 N. Y. 38).

SENIOR NOTES TO BISPHAM'S PRINCIPLES OF EQUITY.

BY PROFESSOR ROBERT D. PETTY.

§ 235. Green v. Roworth, 113 N. Y. 462, 479; Collins v. Collins, 45 N. J. Eq. 813; Mackall v. Mackall, 135 U. S. 167; Jones v. Jones, 120 N. Y. 590, 599.

§ 237. Achilles v. Achilles, 28 N. E. R. 45; Meldrum v. Meldrum, 11 L. R. An. 6; (Col).

§ 240. Means v. Dowd, 128 U. S. 273. § 249. White v. Kinitz, 107 N. Y. 518; Cleveland v. Richardson, 132, U. S. 318. § 263. Jones v. Van Doren, 130 U. S. 684; Bush v. Roberts, 111 N. Y. 278.

§ 266. Taylor v. Russell, [1891] 1 Ch. 8, 27; Clark v. McNeal, 114 N. Y. 287; 102 Mo. 581.

§ 268. When notice to agent is notice to the principal. 111 N. Y. 604; 118 N. Y. 543; L. R. 12 Appeal Cases, 531; 21 Q. B. D. 144.

§ 270. No presumption arises that one has notice of an instrument which is recorded when it is not proper to record it. 138 N. Y. 291.

§ 274. The common law rule requiring purchasers of certain kinds of property at their peril to take notice of the pendency of suits in courts of justice affecting the property they are about to purchase, although it is nearly impossible that they should actually know that such suits have been commenced, has always been considered a hard rule. The stringency of the rule has led to legislation resulting in most material statutory modifications and restrictions. Usually there is a provision that a pending suit in regard to real property will not affect a purchaser for

value without express notice unless a notice of lis pendens has been filed in compliance with the statutory directions. 47 Ohio St. 117, 126; 48 N. Y. 585; 57 N. Y. 632; 119 U. S. 680, 692; N. Y. Code C. P. §§ 1670-4; N. J. R. S. p. 114, § 57; N. J. Laws 1888, p. 427.

§ 284. The nature of equitable estoppel Drexel v. Burney, 122 U. S. 242, 253; 118 N. Y. 634; 137 N. Y. 332; (1891) 3 Ch. 82, 101, 111; 130 N. Y. 537. "Estoppels of this character as distinguished from estoppels by record or by deed, are called equitable estoppels. It is not meant thereby that they are cognizable only in courts of equity, for they are commonly enforced in actions at law. But it does not follow, because equitable estoppels may originate legal, as distinguished from equitable rights, that it may not be necessary in particular cases to resort to a court of equity in order to make them available. All that can be properly said is, that in order to justify a resort to a court of equity, it is necessary to show some ground of equity other than the estoppel itself, whereby the party entitled to the benefit of it is prevented from making it available in a court of law. In other words, the case shown must be one where the forms of the law are used to defeat that which, in equity, constitutes the right; such a case is one for equitable interposition." Drexel v. Burney, supra.

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whether there has been an equitable conversion of real estate into personalty? This question like other questions in regard to the effect of a will depends upon what was the testator's intention. The rule is that in equity the property will be treated as being already what it was intended to become. King v. King, 13 R. I. 501, 506. (1.) Did the testator intend to have his real estate converted "out and out" into personalty? If he did, the court will give his intention effect by treating the real as personal property from the time of his decease. Dutton v. Pugh, 45 N. J. Eq. 426; 152 Pa. 56. Where executors or trustees are clothed with the power to sell a testator's real estate and distribute the proceeds in the manner provided by the will, in order to work a conversion, the direction to convert must be positive and explicit irrespective of all contingencies and independent of all discretion on the part of the executor. Underwood v. Curtis, 127 N. Y. 523, 532. (2). Or did he intend to have it converted for certain purposes only? When a testator authorizes his executors or trustees to sell and convert into money all or a part of his realty for a specific purpose, which fails or is accomplished without a conversion, the power is extinguished and the land cannot be sold by virtue of it or treated as money, but it descends to the heirs unless it is devised. Sweeney v. Warren, 127 N. Y. 426, 431; Parker v. Linden, 113 N. Y. 28; Matter of Bingham, 127 N. Y. 296, 314; Read v. Williams, 125 N. Y. 560, 571; King v. King, supra. (3.) Or did he intend simply to give the executors or trustees under his will a power to convert, leaving it discretionary with them to convert or not? If so, the conversion will depend on the will or dis

cretion of the executors or trustees, and will not be regarded as consummated in law until it is consummated in fact. King v. King, supra; Cliff v. Moses, 116 N. Y. 144, 158.

§ 314. There are many instances in which it is very important to determine whether there has been an equitable conversion: A provision in a will may be void as being in contravention of a statute as to the suspension of the absolute ownership if a conversion has taken place, valid if there is no conversion. Greenland v. Waddell, 116 N. Y. 234. It may be sometimes necessary that the testator directed that real estate be converted into personalty in order that an alien may take. See Parker v. Linden, 113 N. Y. 28.

§ 317. Parker v. Linden, supra; Read v. Williams, supra.

§ 322. When can a person elect to take property in its unconverted form? Hetzel v. Barber, 69 N. Y. 1; Greenland v. Waddell, 116 N. Y. 234; Morse v. Hackensack Savings Bank, 12 Lawyers' R. An. 62, 64 (N. J. Eq.), 122 U. S. 241.

§ 327. In equity the right to a set-off does not depend upon the statute, but upon the equities existing in each particular case. Rothschild v. Mack, 115 N. Y.1, 8. In general the rule regulating the right of set-off is the same both at law and in equity, and yet there are many cases where set-off is not permissible at law but may be enforced in equity. While as a general rule in equity as well as in law there can be no set-off of joint debts against separate debts, yet sometimes a new equity will justify it. Such an equity may arise under circumstances of fraud; or when the party seeking relief is only a surety for a debt really separate; or where there are a series of transactions in which joint credit is given

with reference to the separate debt. Equity will look through the form of the transaction and adjust the equities of the parties with a view to its substance, rather than its form so long as no superior equities of third persons will be affected by such adjustment. Drexel v. Burney, 122 U. S. 241, 254; 124 N. Y. 108; 87 Ala. 453; 49 N. W. Rep. 416. While it is a general rule in the adminstration of the estate of an insolvent, that equality among creditors is equity, it has never been decided either under the statute of set-off or by courts of equity in applying the doctrine of equitable set-off that the rule of equality among creditors requires courts to ignore the principle that only the balance, in case of mutual debts, is the real sum owing by or to the insolvent. Although the debt due to the insolvent may not be due, the creditor may waive the credit and a court of equity will then apply it upon the debt from the insolvent, if that has matured. 136 N. Y. 163. A customer of a national bank who in good faith borrows money of the bank, gives his note therefor due at a future day, and deposits the amount borrowed to be drawn against, any balance to be applied to the payment of the note when due, has an equitable-but not a legal-right in case of the insolvency and dissolution of the bank and the appointment of a receiver before the maturity of the note, to have the balance to his credit at the time of the insolvency applied to the payment of his

indebtedness on the note. 146 U. S. 449.

Different views when the debt owing by the insolvent is not yet due. 135 N. Y. 223, 230; 91 Tenn. 336, 341.

§ 329. 110 N. Y. 64.

§ 331. Merwin v. Austin, 58 Conn. 22,

34; New Orleans v. Gaines Administrator, 138 U. S. 595, 599.

§ 332. (1893.) 2 Ch. 206; 1 N. Y. R. S. 749, § 4.

§ 335. In order to entitle one to avail himself of the doctrine of subrogation, he must show: (1.) That he has paid the creditor in full (Graff & Co.'s Estate, 139 Pa. St. 69, 76). (2.) That he must have done this under some necessity to save himself from loss which might arise or accrue to him by the enforcement of the debt in the hands of the original creditor. The doctrine of subrogation is not applied for the mere stranger or volunteer, who has paid the debt of another, without any assignment or agreement for subrogation, without being under any legal obligation to make the payment, and without being compelled to do so for the preservation of any rights or property of his own. Etna Life Ins. Co. v. Middleport, 124 U. S. 534. 131 N. Y. 262, 272. Subrogation is not assignment. The most that can be said is that the subrogated creditor by operation of law represents the person to whose right he is subrogated. New Orleans v. Gaines Administrator, 138 U. S. 595, 606. The remedy of subrogation is no longer limited to sureties and quasi sureties, but includes so wide a range of subjects that it has been called the mode which equity adopts to compel the ultimate payment of a debt by one who in justice, equity and good conscience ought to pay. Arnold v. Green, 116 N. Y. 566; Castellian v. Preston, 112 B. D. 386; 52 N. W. Rep. 31.

One who furnishes money to a wife living apart from her husband for justifiable cause, which she expends for necessaries, cannot recover therefor from the husband, on the principle of subrogation, as there never was any liability on the part of the

husband to those furnishing the necessaries, they having been sold to the wife and paid for by her. 34 N. E. Rep. (Mass.) 692.

§ 336. 48 Ohio State 75; 33 N. E. Rep. (0.) 716; 54 N. E. Rep. 694; 155 Mass. 451; 148 Pa. 194; 148 U. S. 573. § 342. But see (1893) 2 Ch. 72, 73. § 343. People v. Remington, 121 N. Y. 328.

§ 345. As to rights of creditors where there is a direction in a will for the continuance of a business by the executor, after the death of the testator. Willis v. Shark, 115 N. Y., 396.

§ 364. 154 Mass. 92.

§ 366. 82 Va. 890.

§ 368. Enforcement of contracts to sell shares of the stock of a corporation. Bumgardner v. Leavitt, 12 Lawyers' Reports An. 776; Johnson v. Brooks, 93 N. Y. 387. A court of equity will specifically enforce an agreement to assign a patent. 153 Pa. 592; 149 U. S. 315.

§ 369. Gloucester V. C. Co. v. Russia Cement Co., 27 N. E. R. 1005, 1007 (Mass.).

§ 375. 154 Pa. 206.

376. A decree for specific performance is not a matter of course, but rests in the sound discretion of a chancellor. It is not sufficient that the legal obligation may be perfect. Even when the agreement is perfectly good, the price adequate and no blame attaches to the purchase, if the transaction be inequitable and unjust in itself, or rendered so by matters subsequently occurring, specific performance may be denied and the parties turned over to their remedy in damAn unconsionable price, laches, a ages. clouded title, any circumstances of over

reaching, misrepresentation, suppression of the truth, suggestion of the false, fraud of any kind, breach of confidential relation, and many other similar causes will induce the courts to refuse specific performance. 152 Pa. 529; 149 U. S. 315; 156 Mass. 189; 138 N. Y. 345, 351; 148 Pa. 387; 48 N. J. Eq. 637; 26 At. Rep. 1082.

§ 377. A court of chancery cannot decree specific performance of an agreement to convey property which has no existence. or to which the defendant has no title. A bill by a vendee against a vendor for specific performance which does not show any title in the defendant is demurable. And if it appears by the bill or otherwise, that the want of title even if caused by the defendant's own act, ás by his conveyance to a bona-fide purchaser, was known to the plaintiff at the time of beginning the suit, the bill will not be retained for assessment of damages, but must be dismissed and the plaintiff left to his remedy at law. Kennedy v. Hazelton, 128 U. S. 667, 671. The vendee in a contract for the sale of land is not ordinarily entitled, upon breach, on failure to convey, to recover of the vendor damages measured by the goodness of his bargain or the financial benefit which would result from performance, and it is only when the vendor is for some reason chargeable with bad faith in the matter, that recovery beyond nominal damages on that account can be had. If the vendee has paid any of the purchase money he may recover that back, and he may also recover such expenses as he has reasonably incurred in the examination of the title to property. Northridge v. Moore, 118 N. Y. 419, 422.

§ 378. What constitutes a marketable

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