rence, 16 How. (U. S.) 251, and Greenleaf v. Goodrich, 101 U. S. 278, to the effect that in tariff acts popular terms should receive their common meaning. See also the title REVENUE LAWS.

1. In Will. (See also the title WILLS. ·

A bequest of all my linen and clothes was held to pass body linen only. Hunt v. Hort, 3 Bro. Ch. 311.

In Dean v. Gibson, L. R. 3 Eq. 713, it was said: "Now, as regards personal estate, it is to be observed that, at all times, a disposition by will, in general words, of my personal estate,' has been held to pass the property of which a testator was possessed at his death; and of course, since the Wills Act, the same rule applies to real estate. Before the Act, however, every devise was regarded as a conveyance, and the presumed intention of the testator was to pass no more of the real estate than he was seized of at the date of the will. The tendency has always been to narrow the construction of a devise of realty. But, as to personal estate, it has always been presumed to have been the intention of the testator to pass whatever he might be possessed of at the date of his death. In the present instance, suppose the testatrix, at her death, had been possessed of nothing but money and clothes. I apprehend that, before the Wills Act, the gift in the will would not have been a specific gift of the identical money and clothes at the date of the will, and nothing more; since the passing of the statute (7 Will. IV. and I Vict., c. 26), enacting that every will shall be construed to speak from the death of the testator, such a contention, indeed, cannot arise. There is a case, if I remember right, before Vice-Chancellor Sir L. Shadwell, resembling the present. Ellis v. Selby, 7 Sim. 352. The question also is touched upon in Mr. Roper's book on legacies, under the chapter entitled 'Rights of Specific Legatees.' A case of Bridges v. Bridges, 8 Vin. Abr. 295, is there cited, where a testator bequeathed the remainder of his estate, viz. his bank stock,

India stock, and South Sea annuities;' and Lord King held that not those particular funds only, but the whole residuary estate, passed; the specification not being added in a restrictive sense, but as an enumeration of the chief particulars of which the estate consisted. Then the reader is referred to Chalmers v. Storil, 2 V. & B. 222, in which Sir W. Grant followed Lord King's decision. In this case there is reason, stronger perhaps than in any that has been cited, to say that the whole estate passed. The clause in question is the whole will; there is no other bequest. I am not infringing the rule which says that you are to look at the words in order to find out the intention of a testator, when I say you are to look also at all the circumstances of the case. When a person is found making her will (although it is true she does not appoint executors), and the only bequest she makes is a gift of her personal property, consisting of money and clothes,' the strong presumption is, that she did not intend only to do that which she might have effectually done by giving her money and clothes' simply. It appears to me there is no falsa demonstratio here, there is simply an imperfect enumeration. The testatrix was a markswoman, and not very cognizant of the force of particular expressions. She attempted to enumerate the items of which her personal estate consisted, and failed to mention them all; just as in the case of Bridges v. Bridges, 8 Vin. Abr. 295, where three kinds of stock only were enumerated, the court nevertheless held that the whole of the property passed." And in this case it was held that the whole of the property passed. Ready-made Clothing. — On a note made payable in ready-made clothing, the clothing may be called for in parcels, but the payee has no right to call for a garment made for a customer at a stipulated price. There must be a demand and refusal before action can be brought. Vance v. Bloomer, 20 Wend. (N. Y.) 196. Larceny. See the title LARCENY.

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for light, air, or heat from or across the land of another;" it was held that a right to use an iron pipe through which water necessary to the use of a mill was conducted, including the right to the water itself, was real property, and that an adverse claim to said water pipe and water would constitute a cloud upon the title thereof. Standart v. Round Valley Water Co., 77 Cal. 399.

Use of Spring. In Lyon v. Ross, I Bibb (Ky.) 466, a decree establishing the complainant's right to the quiet enjoyment of the use in common with the defendant of a spring through which the dividing line of the land belonging to the parties passed, the defendant having claimed the exclusive right thereto, was affirmed.

1. Personalty. See Springport v. Teutonia Sav. Bank, 75 N. Y. 397; Lewen v. Stone, 3 Ala. 485.

Chattel Mortgage. - A bill in equity was filed by the assignees of a corporation, praying for a decree that a recorded mortgage of personal property, held forth by the respondent as having been made to him by the corporation, might be declared void, and alleging that a sale of the property by the assignees while the title to it should remain so in dispute would be detrimental to the creditors. The court said: "There is a cloud upon their title which seriously affects its value. The mortgage is upon record, and it is evident that they cannot sell the property with any prospect of obtaining its fair value, because the purchaser would know that he exposes himself to an action, if the defendant's claim is well founded." And, quoting 2 Story's Eq., § 694, which sets forth the doctrine that "whenever a deed or other instrument exists which may be vexatiously or injuriously used against a party after the evidence to impeach or invalidate it is lost, or which may throw a cloud or suspicion over his title or interest, and he cannot immediately protect or maintain his right by any course of proceedings at law, a court of equity will afford relief by directing the instrument to be delivered up and canceled, or by making any other decree which justice and the rights of the parties may require," the court further said: "This statement of the principle is precisely applicable to the case at bar." Sherman v. Fitch, 98 Mass. 59.

Spurious Certificates of Stock. In New York, etc., R. Co. v. Schuyler, 17 N. Y. 592, spurious certificates of stock in a corporation, issued by the officer having apparent authority to do so, undistinguishable upon their face from the

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certificates of genuine stock, and outstanding in the hands of numerous holders as evidence of interests in the property of the corporation, were held to be clouds upon the title of the genuine stockholders which a court of equity would remove. The court said: "In order to evolve the principle of this controversy, we may suppose that a natural person is clothed with the legal title to, and is in possession of, an extensive line of railroad, receiving the gross earnings for the purpose of dividing the net profits amongst a large class of individuals, whose right, in certain fixed proportions, is evidenced by a certificate or declaration of trust, which each one holds, signed by the legal owner or his authorized agent. If, then, a new class of individuals should come forward claiming the same rights, and presenting, as the evidence thereof, instruments of the same kind in all respects, bearing on their face all the appearances of genuineness and authority, but in fact unauthorized and spurious, what would be the rights and the duty of the legal owner in that exigency? Upon the settled principles of equity, it would be his right and his duty to call the false claimants into court, in order to remove the cloud upon the equitable interests of those whom he represented. There is no head of equity jurisdiction more firmly established than that which embraces the cancellation of instruments which are capable of a vexatious use after the means of defense at law may become impaired or lost, or when they are calculated to throw a cloud upon the title or interest of the party seeking relief. These shares of stock are a description of property as much entitled to invoke the protective remedies peculiar to courts of equity as any other. In applying these remedies to any other kind of property thus clouded and depressed by a written instrument professing to be, and on its face actually being, an incumbrance upon it, no doubt, it seems to me, would arise. It is difficult to separate, even in abstract contemplation, the rights and interests of a corporation from those of the shareholders. * If, therefore, I have been successful in showing that the fraudulent certificates of stock are instruments of such annoyance and vexation, in depressing values and disturbing the fair enjoyment of rights, that they ought not to be allowed to stand, then this suit by the corporation rests firmly upon that branch of equity jurisdiction which includes the cancellation of such instruments."

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3

1. Grounds of Equitable Cognizance. 2 Story's Eq. Juris. (13th ed.), § 694; Marston v. Rowe, 39 Ala. 722; Martin v. Hewitt, 44 Ala. 418; Lehman v. Shook, 69 Ala. 486; Sale v. McLean, 29 Ark. 612; Brooks v. Howland, 58 N. H. 98; Field v. Holbrook, 14 How. Pr. (N. Y. Super. Ct.) 105; Byerly v. Humphrey, 95 N. Car. 151; Eckman v. Eckman, 55 Pa. St. 269; Drill's Appeal, 113 Pa. St. 510; Anderson v. Talbot, Heisk. (Tenn.) 407. See also the cases cited throughout this title. And see the title EQUITY.

"The jurisdiction takes its rise in the doctrines of quia timet, in order to give repose and peace to the party in possession, by virtue of a rightful claim or title against him who might vex and harass with suits after the right had been fairly tested in a court of law, or against a deed or other evidence of title which had been fraudulently obtained, and which might be set up after the evidence which could manifest its true character had become obscure or had passed away." Huntington v. Allen, 44 Miss. 654.

2. Small Charge on Land. — In Patch v. Morrisett, (Va. 1895) 22 S. E. Rep. 173, the existence of a lien for a small paving tax was held to be not such a cloud on the title as to warrant the enjoining of a sale under a deed of trust given for the price thereof, because the trustee could be compelled to pay the tax out of the purchase money, and it was further held that a sale of land under a trust deed for the price of the land conveyed thereby would not be enjoined because upon a part of the same tract, other than that conveyed by the trust deed, a family burying ground was reserved by a previous grantee, there being sufficient land remaining in the seller, the beneficiary of the trust deed, to afford ingress to the burying ground and egress therefrom without touching the land conveyed by the trust deed. The court said: There is no reason to suppose that if it was an existing incumbrance upon the property for which the appellees were liable, the trustees would not have made a proper application of the purchase money. They could, without doubt, have been compelled to do so, and it is scarcely possible that so small a charge could seriously have affected the sale of the property; nor do we think that the reservation of the burial lot constitutes any substantial objection to the title.'

3. Lease. To illustrate, suppose the defendant's claim was a lease from the plaintiff; such lease would be a rightful claim, which might greatly lessen the market value of the property, yet no one would contend that an action quia timet would lie in such case.

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in order to maintain the action, it should appear that the claim of title or right was hostile to the title of the plaintiff." Campbell v. Disney, 93 Ky. 41.

Conveyances Not in Conflict. - The owner of land conveyed an undivided third thereof, the consideration therefor being an agreement by the grantee to prosecute the claim of the grantor to the land before the board of land commissioners and the courts of the United States, the title, however, resting absolutely in the grantee, his agreement not constituting the condition upon a breach of which the title would revest in the grantor. Such grantee failed to perform his agreement. A subsequent deed by the grantor contained two descriptions, the first of which described the interest in the land thereby conveyed as the undivided one-third theretofore conveyed as aforesaid, the second description being of " all the undivided one-third part of the land, without designating what third. It was held that, the second description controlling, the conveyances were not in conflict and could exist as valid titles independently of each other, and that the first conveyance therefore could not in any event be a cloud on the interest of the grantee under the second. Hartman v. Reed, 50 Cal. 485.

A deed of the grantor's now remaining " interest in certain lands does not defeat a prior unrecorded conveyance because it is not a second conveyance of anything previously conveyed; the deeds may stand together. Eaton v. Trowbridge, 38 Mich. 454.

Mortgage by Co-tenant. A mortgage executed by a tenant in common in exclusive possession, but claiming no greater interest than an undivided half, is not a cloud on the title of

his co-tenant. Ward v. Dewey, 16 N. Y. 519. 4. Market Value Affected— United States. Lyon v. Alley, 130 U. S. 177.

Alabama. - Anderson v. Hooks, 9 Ala. 704; Marston . Rowe, 39 Ala. 722; Martin v. Hewitt, 44 Ala. 418.

Georgia. Dart v. Orme, 41 Ga. 376. Illinois. - Reed v. Tyler, 56 Ill. 288; Hodgen v. Guttery, 58 Ill. 431; Ames v. Sankey, 128 Ill. 523. Kansas.

Douglass v. Nuzum, 16 Kan. 516. Maryland. - Holland v. Baltimore, 11 Md. 186, 69 Am. Dec. 195.

Michigan. — King v. Carpenter, 37 Mich. 363.