to the owner below who, nevertheless, secures an injunction. The offence exists independent of any damage done and requires a remedy lest it may lead to the acquirement of rights from which injury may possibly result later.

Limitations of Common Law. In the development of the Common Law, it came about that the remedy was commonly the award of money damages, although in some cases property, real or personal, was restored to the owner. The forms of action were also limited. It was further true that in some cases the legal title to property rested in one person, while the real beneficial interest rested in another; that certain rights existed which needed protection and which the Common Law did not at all recognize.

Origin of Equity Jurisdiction. In earlier days, it became the custom, after a time, when the Common Law failed to meet the case, to address a petition to the King who was recognized as the fountain of justice; a residuum of justice not secured by the Common Law was assumed to rest in him. The procedure was to have these petitions referred to the Privy Council, where they were settled by the Lord Chancellor. Later a Court of Chancery or Equity performed these duties and the foundation of Equity jurisprudence became established. This differed materially from that of the Common Law. In the final outcome courts of Law and of Equity existed side by side, with no substantial overlapping of action or jurisdiction.

Kind of Relief Granted. The relief granted by the court of Equity in certain classes of cases was intended to put the person wronged (or imminently liable to suffer a wrong) in the same position he was before the wrong was committed (or in a position he was entitled to, by preventing the wrong from occurring). The court was invested with power to command things to be done (or not to be done), and in this way to remedy defects in the Common Law. Thus was created the important remedy of injunction, a command not to do some improper act; and the similar remedy of mandamus, which positively directs some act to be done.

Equitable Rights. It has been seen that certain, but not all, wrongs were recognized by the Common Law as torts. In a similar way certain specific, but legally incomplete, rights were found to be worthy and capable of protection. These rights or interests did not rest on a complete legal title, so that the Common Law failed to reach them; some of these were connected with trusts. They came to be recognized as "equitable rights."

System of Equity Jurisprudence. The two important functions of Equity are the recognition of titles and of rights not known to the Common Law, and the application of remedies not provided by the Common Law. Under the system of Equity jurisprudence which has grown up, certain rights are recognized which are outside the sphere of action of a court of

Law; certain offences are especially recognized as justifying jurisdiction by a court of Equity; and in many cases the relief granted by a court of Law is so inadequate that the court of Equity is sought because it has power to grant relief in forms not exercised by courts of Law. It is not often that a court of Equity will take action contrary to that which a court of Law would take in the same case. It is largely true that any specific wrong must seek its appropriate remedy in one court or the other, but usually without any choice as to which it shall be.

Flexibility of Remedies. Among the features which mark the difference between Law and Equity, the greater flexibility in the remedy is probably of the greatest importance; specific performance of contract, and injunction to prevent wrong or require right action, are particular examples. While a case at Common Law is a two-sided controversy, Equity takes care of cases where there are numerous parties, each with distinct interests. The award of a court of Equity is in the form of a decree directing what shall be done, not always by one of the parties, but often by his opponent also, or by several when many interests are involved. There is thus afforded opportunity for a more even balance of justice than in a court of Law where there is simply an award either of money or of specific property to one or the other of the two parties to the controversy.

Procedure. The procedure in Equity differs materially from that at Common Law. In Equity the statement of the plaintiff's cause of action, which is called a "bill," is filed in court, and thereupon a subpoena is issued for the defendant to appear and answer. The defendant puts in an 99 answer which is sometimes under oath, and such an answer under oath is taken to be true to an extent such that if disputed, it can be overcome only by the testimony of two witnesses, or of one witness and corroborating circumstances.

Evidence. The rules of evidence in Equity are the same as in Law, but the method of taking it is different; in Equity it is reduced to writing, and forms a part of the record of the case. The function of evidence, however, is different in the two cases; in Law, evidence is directly the means by which a jury determines the issues raised in the pleadings; in Equity it is the machinery by which the facts in the case are brought before the judge, whose duty it is, in Equity procedure, to determine the facts.

Juries Sometimes Used. In some cases issues of fact are framed by consent of the court, to be determined by a jury. Whether a jury is used to find such issues of fact is not a matter of right but is within the discretion of the judge. Where a jury is not used the probability of unwise or unfair action is lessened since it is confined to errors of the judge, and these, if made, are more readily corrected if an appeal is made to a higher court for review.

Engineers' Relations to Pleadings. It is perhaps more important in Equity than in Law that the evidence available should be known to the lawyer who draws up the papers either for the plaintiff or the defendant; the drawing of the papers, the pleadings, is a more critical matter in Equity than in Law, and it is important that the engineer should read these papers carefully and ask questions if need be, certainly before he signs or swears to them, not only as to facts asserted but also as to whether the remedy asked for is as complete and adequate as it should be. Any intelligent man may in that way be a valuable check upon almost any lawyer.

EQUITY JURISDICTION

Essentials of Jurisdiction. In order that a suit may be brought in a court of Equity rather than, as commonly phrased, a court of Law, it is essential that there shall be no adequate remedy at Common Law. Either the Law remedy fails to effect a full measure of justice, or the rights or titles involved are not recognized at Law. The latter condition occurs in the case of trusts, where the substantial interest lies with one party while the title rests in another; and the same is true with mortgages. In the former class are contracts; if an award in money is an adequate remedy, a court of Equity will not interfere; where "specific performance" of the contract is necessary to secure justice, a court of Equity only may assume jurisdiction. Similarly with torts, if an award in money will not effect a reasonable remedy, a court of Equity may assume jurisdiction and issue an injunction to put a stop to, or prevent the beginning of an injury; this is true as to fraud, trespass, and nuisance. When there are diverse interests involved, one of which must suffer if a Law remedy is followed, a court of Equity will sometimes appoint a receiver in an effort to protect the various interests.

Multiplicity of Suits. Resort is also had to a court of Equity in order to avoid a multiplicity of suits, which may result either from an offence recurring or from an offence in which a number of persons are involved, whether as plaintiffs or defendants. While the courts in some cases seem jealous of their rights and refuse to allow agreements to be made to dispense with a court trial, and thus "oust the jurisdiction of the court," in this case protection is given against an undue amount of litigation. The law in both cases seems wise and just.

Kind of Right to be Remedied. In order that Equity jurisdiction shall apply, the right must be one of which municipal law takes cognizance, and not merely moral law. Not only will Equity not afford relief where there has always been a full, adequate, and complete remedy at Law; but it also will not give a remedy in direct contravention of Common Law.

Titles, Rights, Remedies. The domain of Equity may be considered to embrace three important heads; equitable titles, equitable rights, and equitable remedies.

Under equitable rights are accident and mistake, fraud, notice, estoppel, election, conversion and reconversion, adjustment, liens, and unconscionable stipulations.

Under equitable remedies we find specific performance, injunctions, re-execution, reformation, rescission, cancellation, account, partition, partnership bills, creditors' bills, administration suits, discovery, receivers, protection of infants and other incompetents, and quieting title.

No attempt will be made here to cover fully the lists given above. Maxims. As a part of Equity practice there have come into existence a series of maxims :

There is no right without a remedy.

Equity follows the Law.

Equity aids the vigilant, not those who slumber on their rights.
Between equal equities, the Law will prevail.

Equality is Equity.

He who comes into Equity must come with clean hands.

He who seeks Equity must do Equity.

Equity looks upon that as done which ought to be done.
Between equal equities, priority of time will prevail.

Equity imputes an intention to fulfil an obligation.

Equity acts in personam not in rem.

Equity acts specifically.

Equity regards substance rather than form.

There is hardly opportunity for extended explanation or discussion of these maxims, whose applications and value will develop at the conference with the lawyer in case of a suit in Equity.

TRUSTS

Definitions. For one reason or another it is not uncommon for someone to put into the possession of a second party, property not intended for the latter's own use but for the benefit or use of a third party. The second party then holds the property in trust for the third party, or beneficiary, who is called the "cestui que trust" while the second party is the "trustee." Smith conveys to Jones lands and securities to be held for the benefit of Smith's minor son. Jones is to pay to Smith's son interest on the securities yearly, and when the son is of age, is to convey to him all the lands and securities. It is evident that the title and possession rest in the hands of the trustee, who, however, has no real interest in the property; the real

party in interest is Smith's son, the cestui que trust. The Common Law looks to the legal title (sometimes to possession), and the cestui que trust must go to the court of Equity if his intangible interest needs protection, as it may, if the trustee fails in any considerable degree in his duty under the trust.

Express Trusts. Trusts may be express or implied. Where a trust is to be expressly created, a lawyer should be consulted; there are sufficient technicalities involved to make such procedure not only wise, but substantially necessary, in most cases. An express trust is often created by the provisions of a will.

The subject of trusts has little interest to engineers except that anyone having important dealings with a trustee under an express trust should know the terms of the trust, as the trustee's powers are limited to those created by the deed of trust; consultation with a lawyer is often advisable. Where registered bonds, or securities in the form of stock, are transferred by a trustee, it is customary now for corporations to require the filing of a certified copy of the deed of trust, an inconvenience not always anticipated by the trustee at the time of purchase.

Trustee's Duties. A trustee under an express trust is held to high standards of conduct and performance. He cannot properly act in any transaction where his personal interests may conflict with those of the cestui que trust. In his investment of trust funds, conservative action is demanded; a somewhat recognized standard requires that securities bought by a trustee be such as are legally authorized for purchase by savings banks. This rigid standard would not always be insisted on. A trustee may be held pecuniarily responsible in case of ill-advised and unprofitable investments.

Implied Trusts. Implied trusts result when in some transactions the title and the beneficial interests rest in different parties, or where a trustee has acquired personal title contrary to his duties as trustee. This class of trusts seems not to demand special attention here.

MORTGAGES

Definition. When a person wants to borrow money, it is common to require some form of security or pledge for payment of the debt. When the security is real estate, the common procedure is for the borrower or mortgagor to make a note and also to execute a "mortgage deed" in favor of the lender or mortgagee, as security for the note. Commonly this mortgage deed is in form a deed "in fee simple " to the mortgagee, but with a stipulation that, in case the debt or loan shall be paid on a certain date specified, the mortgagor shall be entitled to a reconveyance, or release