title ? An agreement to make a good title is always implied in executory contracts for the sale of land, and a purchaser is never bound to accept a defective title unless he expressly stipulates to take such title knowing its defects. A good title means not merely a title marketable in fact, but a marketable title which can again be sold to a reasonable purchaser or mortgaged to a person of reasonable prudence as security for a loan of money. A purchaser will not generally be compelled to take a title where there is a defect in the record title, which can be cured by a resort to parol evidence. A title open to a reasonable doubt is not a marketable title. The court cannot make it such by passing upon an objection depending upon a disputed question of fact or a doubtful question of law, in the absence of the party in whom the outstanding right is vested. He would not be bound by the adjudication and could raise. the same question in a new proceeding. It would especially be unjust to compel a purchaser to take a title, the validity of which depended upon a question of fact where the facts presented upon the application might be changed upon a new inquiry. Irving v. Campbell, 121 N. Y. 353, 358; 135 N. Y. 590, 598; but see 26 At. Rep. (N. J.) 456.

§ 382. Goode v. Riley, 28 N. E. R. 266 (Mass.).

§383. It seems that judicial sales of real estate are not within the statute of frauds, and that they are binding upon the purchaser without any written contract or memorandum of the term of sale. By bidding, a person subjects himself to the jurisdiction of the court, and in effect becomes a party of the proceeding, and he may be compelled to complete his pur

chase, by an order of the court, and by proceedings for contempt if necessary. Andrews v. O'Mahoney, 112 N. Y. 567, 572. And it may be stated as a general rule that whenever a purchaser of real estate under a decree of a court of equity, refuses without cause to make his bid good, he may be compelled to do so by rule, order or attachment issuing out of the court under whose decree the sale was had; or he may be proceeded against in the same suit by rule (or in any other mode devised by the court which will enable him to meet the issue as to his liability) in order to make him liable for a deficiency resulting from a re-sale, caused by his refusal to make his bid good. Camden v. Mayhew, 129 U. S. 73. Also he may obtain an order where the title is void, releasing him from his bid. Pope v. Erdman, 17 S. W. R. 145.

§ 384. In order that part performance of a parol contract may be sufficient to take it out of the operation of the statute of frauds, such part performance must have been in pursuance of the contract, and referable to it. Ducie v. Ford, 138 U. S. 594; Emmel v. Hayes, 102 Mo. 186; 25 At. Rep. (Ver.) 1092.

138 N. Y. 539.

§ 385. § 391. How far is time of the essence of the contract in equity? As a general rule it is not, but time may be made of the very essence of the contract by the express stipulation of the parties, and may arise by implication from the very nature of the property, or the avowed objects of the purchaser or seller. Cheney v. Libbey, 134 U. S. 68, 78; Penrose v. Leeds, 46 N. J. Eq. 294; Deen v. Milne, 113 N. Y. 303; 144 U. S. 394; 54 N. W. Rep. 686.

$395. Where in a suit for specific performance of a contract for the sale of land, it appears that the vendor had conveyed. the land to an innocent third person and that the vendor knew that fact before he began his suit it is proper for the court to dismiss the suit altogether leaving the vendee to his remedy at law for damages. 145 Ill. 115.

§ 399. Disobedience of an injunction cannot be justified by showing that it was improvidently or erroneously granted, or irregularly served. Until the order is vacated, or the service set aside, it must be obeyed, unless it can be shown that it is absolutely void. Daly v. Amberg, 126 N. Y. 494; see also In re Ayers, 123 U. S. 443; 49 N. J. Eq. 318. But when the court has no power to issue the injunction and it is accordingly void, it may be disregarded. In re Sawyer, 124 U. S. 200.

§ 400. A mandatory injunction is similar to specific performance. Joy v. St. Louis, 138 U. S. 1, 46. Principles governing nandatory injunctions, 155 Mass. 188; 83 Wis. 426.

§ 401. 62 Conn. 366.

§ 407. A court of equity does not interfere with judgments at law unless the complainant has an equitable defence of which he could not avail himself at law, or had a good defence at law which he was prevented from availing himself of by fraud or accident annexed with negligence of himself or agent. Knox v. Harshman, Knox v. Harshman, 133 U. S. 152. Equity will not interfere to set aside proceedings in an action in another court upon charges of fraud, which could have been tried and decided in that action or where relief is open in the action to the complaining party by motion, appeal or otherwise. Sanders v. Soutter, 126 N. Y. 193; 49 N. J. Eq. 565;

see note to 43 N. J. Eq. 701; 12 So. R. 593; 13 So. R. 459.

§ 413. N. Y. C. C. P. §§ 1628, 1629. § 414. 92 Ala. 484, 487.

§ 415. 155 Mass. 88, 96; 17 N. Y. 592, 608; 12 So. R. 32.

§ 418.

N. Y. C. C. P. § 1525.

§ 419. In order to maintain a strict bill of interpleader it is necessary to allege and show that two or more persons have preferred a claim against the plaintiff; that they claim the same thing whether debt or duty; that the plaintiff has no beneficial interest in anything claimed, and that it cannot be determined without hazard to himself to which of the defendants the money or thing belong. Such an action always supposes that the plaintiff is a mere stakeholder for one or the other of the defendants who claim the stake, and the case must be such that he can pay or deposit the money or property into court, and be absolutely discharged from all liability to the defendants, and thus pass completely out of the controversy leaving that to proceed as to the several claimants; and an action of interpleader cannot be sustained where from the plaintiff's bill or complaint it appears that one of the claimants is clearly entitled to the debt or thing claimed to the Bassett v. Leslie, exclusion of the other. 123 N. Y. 396; Crane v. McDonald, 118 N. Y. 648; Hall v. Balwin, 45 N. J. Eq. 858; DeJouch v. Garrison, 140 Pa. St. 430; 155 Mass. 417; 83 Wis. 84.

§ 456. 149 U. S. 562; 138 N. Y. 244; 140 U. S. 433; 129 N. Y. 38.

§ 462. It seems that the English courts will not extend the doctrine of Lumley v. Wagner. Whitwood Co. v. Hartur [1891], 2 ch. 416; but see Duff v. Russell, 14 N.

§ 483. The jurisdiction of a court of equity as to accounts is usually based upon three grounds: The complicated character of the accounts, the need of a discovery, and the existence of a fiduciary or trust relation. The necessity for a resort to equity upon the first two grounds now seldom exists, owing to remedies given by statute. 109 N. Y. 421, 433.

465. The scope and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the protection of rights of property. It has no jurisdiction over the prosecution, the punishment, or the pardon of crimes. In re Sawyer, 124 U. S. 200, 210; Sherry v. Perkins, 147 Mass. 212; Kansas City Co. v. Gaslight Co., 102 Mo. 501, 507; 45 Fed. R. 135; 12 L. R. 193; [1891] 2 ch. 269, 294; 157 Mass. 421.

§ 488. Rule at common law if the legal title of the parties is brought into dispute. 50 N. J. Eq. 481; 49 N. J. Eq. 322. Rule under the statutes in New York. 137 N. Y. 119, 123. It seems courts of equity have exclusive jurisdiction of suits for the partition of personal property even though the complainant's title is denied. 60 Mich. 443, 449.

§ 491. As to how far partition is a matter of right, see Keaton v. Terry, 9 So. R. 524 (Ala.).

§ 526. A judgment creditor in order to have lands fraudulently conveyed applied to the payment of his judgment, has the choice of three several proceedings. He may sell the land by execution on the judgment and leave the purchaser after the title has become perfect by a deed from the sheriff to test the validity

action of ejectment; or secondly, he may issue execution and at the same time bring an action in equity to remove the fraudulent obstruction, and await the result of the action before selling, by virtue of the execution; or thirdly, he has the right upon the return of the execution unsatisfied, to file a creditor's bill to have the conveyance adjudged fraudulent as against the judgment creditor, and the land sold by a receiver or other officer of the court, and the proceeds applied to the satisfaction of the judgment. Erickson v. Quinn, 15 Abbott, N. S. 166 (N. Y. Ct. of Appeals); White's Bank v. Farthing, 101 N. Y. 343, 346; 140 Pa. St. 35; 12 N. Y. State Rep. 119; af. 108 N. Y. 655; Chautaqua Bank v. Risley, 19 N. Y. 369; Francis v. Lawrence, 22 At. Rep. N. J. 259. The rule as to return of execution, wholly or partly unsatisfied as a condition. precedent to filing a creditor's bill, and the exceptions thereto, is illustrated in the following cases: Bank v. Wetmore, 124 N. Y. 241; Sage v. R. R. Co., 125 U. S. 361; Mellen v. Moline Iron Works, 131 U. S. 367.

8541. Mormon Church v. United States, 136 U. S. 1.

§ 548. In re Nevin [1891], 2 ch. 299. § 552. The origin and history of lunacy proceedings in this country and England is treated of in Hughes v. Jones, 116 N. Y. 67.

§ 554. Lindsley v. Case, 44 N. J. Eq. 564; Commonwealth v. Reeves, 140 Pa. St. 258.

§ 556. Townsend v. Boyd, 126 N. Y. 375; Virginia v. Hall, 9 So. Rep. (Ala.) 256; Buzzard v. Houston, 119 U. S. 347, 354.

GENERAL PRINCIPLES.

A tort is a private or civil wrong or injury; or in other words, the violation of a private or personal right, existing irrespective of agreement. It differs from a breach of contract because the duty which it infringes is imposed by law, not, as in the latter case, created by agreement. In both cases, however, the remedy is the same, viz.: a private action for damages. A tort differs from a crime in that the latter is an offense against the public, and is punished by a public prosecution, not by private action. In both cases, however, the duty is imposed by law. Some Some torts are also crimes, as e. g., assault and battery, false imprisonment, libel, nuisance (when both public and private); so negligence may amount to a crime, as e. g., when it causes homicide; so conversion of chattels may involve intent to steal and therefore constitute larceny; and fraud may amount to the crime of forgery, or of obtaining goods by false pretenses. When the same act is both a crime and a tort, the remedy by public prosecution does not bar the private action for damages. The English rule that a tort is merged in a felony does not prevail in this country, and therefore the private action is not postponed to the public remedy. (See N. Y. Code Civ. Pro., § 1899; Quimby v. Blackey, 63 N. H. 77). There is sometimes a right of choice

between an action of contract and an action of tort for the same injury. This occurs, for example, when there is a contract creating an employment or a special relation between persons, and then, on account of the existence of such employment and relation, the law imposes certain duties on the parties; as e. g., where a contract creates the relation of carrier and shipper, and then the law imposes the duty to carry the goods safely, injuries from the act of God and the public enemy excepted. The same principle applies to the relation of master and servant, of physician and patient, of attorney and client, of employer and skilled workman, etc. But the action in tort in such cases will bar the action in contract, and vice versa. (See Murdock v. B. & A. R. Co., 133 Mass. 15; Carroll v. Staten Island R. Co., 58 N. Y. 126).

The duty of common carriers, in respect to the transportation of persons or property, is a duty independent of contract, arising by implication of law from the fact that persons or property are received in the course of the business of such employments. (Del. L. & W. R. Co. v. Trauwein, 19 Atl. R. 178, N. J.; Nugent v. B. C. & M. R. Co., 80 Me. 62, a leading case on this question of duty).

In general, privity of contract is not needed to entitle a person to sue in tort. (Bickford v. Richards, 154 Mass. 163; Langridge v. Levy, 2 M. & W. 519). But

when the duty created by law only exists in favor of a person with whom a contract is made, any other person, who is not a party to the contract, cannot maintain a suit either ex contractu or ex delicto. (Carter v. Harden, 78 Me. 528; Curtin v. Somerset, 140 Pa. 70).

The maxim, ubi jus, ibi remedium, is fundamental in the law of torts. With reference to it, the distinction between injuria and damnum must be noticed. Injuria means the violation of a legal right, or, in other words, a legal wrong; damnum means loss, damage, detriment, not necessarily pecuniary, but still affording a basis for something more than nominal damages. As the maxim denotes that it is the violation of a legal right that gives a remedy, therefore it follows. that in cases of damnum sine injuria, i. e., loss or damage without legal wrong, there is no remedy, and it matters not how great the damnum may be. (Booth v. Rome, etc., R. Co., 35 Northeastern Reporter, 592, N. Y. Ct. App.). And, conversely, in cases of injuria sine damno, i. e., legal wrong without loss or damage, there must be a remedy; as when there is a trespass on land by merely walking over it, or a stream which a land owner makes no use of is diverted from its natural channel through his lands. (N. Y. Rubber Co. v. Rothery, 132 N. Y. 293; Clark v. Railroad Co., 145 Pa. 438). A leading case is Ashby v. White, where a man's right to vote at an election of burgesses for Parliament was maliciously refused by the inspectors of election. (2 Ld. Raym. 954). Only nominal damages are commonly recoverable in these cases, at least where the tort affects only property rights, but it may be important to sue to establish the claim of legal right; but when a

trespass or other injury is wanton or aggravated, exemplary damages may be given; and when such important rights as those of liberty and reputation are violated, substantial damages may be recovered. (See Huckle v. Money, 2 Wills, 205; Hartman v. Morning Journal Assn., 19 N. Y. Supp. 398).

It is sometimes said that there can be no remedy for tort unless there be both injuria and damnum, but as it is further said, by those who lay down this proposition, that when there is fact no damnum it is implied, the truth is recognized that damnum is in reality not necessary. It seems more in accord with the maxim, ubi jus, ibi remedium, to say that damnum is in fact not requisite. Usually there are both injuria and damnum, but the remedy is then based upon the injuria, while the damnum serves as the basis of the award of compensatory damages.

There are some torts in which damnum is essential to give a cause of action, or in other words, there must be damnum that there may be injuria; as in cases of slander with special damage, fraud, negligence, etc. Damnum must be alleged and proved in such cases as essential to recovery.

P. 68. When damage is to be proved, it must be shown to be the proximate, not the remote result of the wrongful act done. (See Ehrgott v. Mayor of N. Y., 96 N. Y. 264; Sharp v. Powell, L. R. 7 C. P. 253; Ashley v. Harrison, 1 Esp. 49). The general test is whether the consequences are such as may be regarded the natural and probable consequences of the act, and such as were within the scope of a reasonable anticipation.

The malicious procurement of a breach of contract, whereby injury results to the