This is technically called the doctrine of cy pres. But the mistakes relieved against are chiefly in matters of fact; for chancery seldom relieves against mistakes at law. 5. Chancery will not relieve a person who has mistaken or lost his defence at law, whether it be from negligence or ignorance; it never aids negligence, and seldom ignorance. These rules sufficiently illustrate the limits of chancery jurisdiction over accidents and mistakes. Perhaps they may all be reduced to this one general principle, that chancery will always relieve a person against the consequences of any accident or mistake, not occasioned by his own fault, when such relief will not do injustice to third persons.

19. Fraud. (a) Fraud signifies any kind of artifice, surprise, trick, cunning, dissembling, or misrepresentation, by which another is cheated or deceived, to his pecuniary damage. The law, as before observed, abhors fraud as much as equity does; but chancery possesses by far the most efficient means of detecting and relieving against it. Both its preventive and searching powers are often beneficially exerted for this purpose; and I shall refer to the leading rules established on this subject. 1. Chancery takes special cognizance of all persons in confidential relations, as trustees, guardians, executors, and the like; and prevents them from taking advantage of those whose interests are committed to their keeping. 2. When a person has a right liable to be controverted by different persons in different actions; or where there have been repeated attempts to litigate the same question, as in ejectment, chancery will take jurisdiction, and effect a final adjustment. The bill filed in such case is called a bill of peace; (b) which may always be resorted to in order to avoid a multiplicity of suits. 3. When two or more persons claim the same debt or duty from a third, and the latter knows not to which of them he ought to render it, chancery will compel the claimants to have their respective rights determined by judicial decision, and the bill filed in such case is called a bill of interpleader. (c) The case of a stake-holder furnishes a familiar illustration. 4. When a person is apprehensive. of being subjected to future inconvenience, by the neglect, inadvertence, or culpability of another, he may resort to chancery to have his apprehensions quieted. The bill filed in such case is called a bill quia timet. (d) The case of a bill to prevent the executor of a deceased debtor from misapplying the assets, is a familiar illustration. 5. Where one creditor has a debt secured by two distinct funds, and another creditor of the same debtor can resort to only one of these funds, chancery will compel the former to resort first to the fund which the latter cannot touch. This is called marshalling securities. (e) The foregoing rules sufficiently illus

(a) 1 Story on Equity chap. 6, 7, ante, § 177.
(b) See 2 Story on Equity, chap. 22.
(c) See 2 Story on Equity, chap. 20.

(d) See 2 Story on Equity, chap. 21.

(e) Fassett v. Traber, 20 Ohio, 540; Doyle v. Murphy, 22 Ill. 502.

trate the power of chancery to prevent fraud. There are others designed to relieve against it when committed. Thus, if an award, verdict, judgment, or decree be fraudulently obtained, chancery will always set it aside; for the doctrine is, that fraud shall have no sure asylum, even in the most solemn determinations known to the law. But fraud most frequently occurs in contracts; and there the general rule is, that fraud vitiates everything it touches. We have already examined the statute for the prevention of frauds; but chancery will relieve against many contracts which do not necessarily infringe that statute; and the following rules apply to such cases: 1. It makes no difference whether the fraud affects the whole contract or only a part. Chancery will not undertake to apportion fraud; the contract will not be sustained in part, and set aside in part. It must stand or fall together. This is the language commonly used; but I see no good reason why in chancery a contract may not be upheld in part and rescinded in part. In law, there is a technical reason; but a decree can rise above technicality. 2. It makes no difference whether the fraud arise from a suppression of truth or assertion of falsehood. If an unfair advantage be obtained in either way, chancery will relieve against it. 3. Chancery will sometimes relieve a party who was ignorant of his rights at the time of contracting, though no fraud was intended by the other party. But mere mental imbecility, whether resulting from old age or intoxication, will not be sufficient to set aside a contract, without some proof of actual imposition. On this point, however, there is some doubt. 4. When one person stands silently by, and sees another purchasing or improving property under a mistaken belief of title, which he might correct, this very silence will be treated as a fraud. (a) 5. Mere inadequacy of consideration will not be proof of fraud. It must either be so palpably gross as to create a violent presumption of imposition, or there must be proof of actual imposition. But, as against creditors and subsequent purchasers, a total want of consideration will avoid any contract. 6. When a contract contains a stipulation by way of penalty or forfeiture for non-performance, chancery will relieve against it by confining the other party to reasonable damages. But if the stipulation, though in form a penalty, be in fact an agreed liquidation of damages between the parties, chancery will not interfere. Formerly, the only relief in such cases was in chancery; but we have seen that our statute furnishes a complete remedy at law upon all penal contracts, by allowing the party, while he takes judgment for the entire penalty, to have execution for only so much as a jury shall find in their verdict. 7. In sales at auction, where all the bidders except the purchaser are merely puffers employed to enhance the price, the sale will be set aside as fraudulent against the buyer; but if there be real bidders in competition, the mere

(a) Blake v. Davis, 20 Ohio, 231; ante, p. 442, note (a)

fact of employing a puffer will not render the sale fraudulent. Also when the bidders enter into a combination not to bid against each other, in order to buy cheap and share the profits, the sale will be treated as fraudulent against the seller. The design of a sale at public auction is to produce fair competition, that property may bring what it is worth; and whatever tends to prevent such competition is treated as a fraud.

20. Trusts. The nature of trusts, and of the chancery jurisdiction exercised over them, has already been sufficiently discussed in the lecture on equitable estates. Had we time to go back to the history of uses and trusts, we should find that in the early struggle between law and chancery jurisdiction, the latter sustained itself more on account of its salutary power over trusts than for all other reasons put together. I recur to the subject here merely for the purpose of filling up the enumeration of the subjects of jurisdiction. The proceedings must of course be as various as the nature and objects of the trust may require. The general principle, however, is, that courts of law have no power to superintend the execution of trusts; but all persons acting in the capacity of trustees are amenable to courts of chancery at the instance of any person aggrieved; and it makes no difference whether the trust is express or implied; both being equally and exclusively the subjects of chancery jurisdiction.

21. Personal Relations. As a general rule, courts of chancery in this country have very little concern with personal relations, as will be obvious from the view heretofore taken of these relations. There are, however, some exceptions, with respect to infants, idiots, and lunatics, married women, apprentices, and slaves, on account of the comparatively helpless condition in which they are placed either by nature or by law, and the peculiarly confidential relations which they sustain towards other persons; though probably all the occasions of chancery interference, where these relations exist, may be referred to one of the three heads of injunction, fraud, or trust. And the same may be said with respect to the jurisdiction which chancery exercises over corporations, particularly of a charitable kind. I shall not, therefore, take up time. with repeating what has been sufficiently explained under preceding heads. Here, then, terminates our view of chancery proceedings. My object has been to place before your minds a general but distinct outline of these proceedings, without perplexing your memory with details. If I have succeeded in this attempt, you are probably ready to concur with me in the remarks with which I commenced, as to the immense superiority of these proceedings over proceedings at law. Not only are they so much more simple, that they may be understood in perhaps one-tenth part of the time required by the latter, but the remedies they furnish are more convenient and efficient, in about the same proportion. What an admirable system of remedial law might, therefore, be formed, by an amalgamation of the two systems to

gether, so as to apply the forms of chancery procedure to the principles of law and equity combined!

LECTURE XXXIX.

ADMIRALTY PROCEEDINGS. (a)

§ 228. Subject of Admiralty Jurisdiction. In my lecture on the judicial department, I stated that admiralty jurisdiction, so far as locality is concerned, now embraces not only all tide-waters, but also all public navigable rivers and lakes within the United States, without reference to the ebb and flow of tides. (b) And in this lecture I propose, first, to speak of the subjects of admiralty jurisdiction, and then to present a very brief outline of the modes of proceeding.

We have seen that the language of the constitution is very comprehensive: "To all cases of admiralty and maritime jurisdiction." And as "admiralty" and "maritime " are nearly synonymous, and mean whatever appertains to the sea; or, as now construed, to any public navigable waters, whether salt or fresh, the language of the constitution is broad enough to include all cases, civil and criminal, appertaining to navigable waters. But the practical construction has not been quite so broad as this; and the precise extent of admiralty jurisdiction, as to subjects, is still involved in much doubt.

Criminal Jurisdiction. (c) It is well settled, as we have seen, that the federal courts have no common-law jurisdiction as to crimes, but only such as is specially conferred by Congress; and that the trial in all criminal cases must be by jury. There is, then, no criminal jurisdiction in admiralty as such; but only a statutory criminal jurisdiction apportioned between the district and circuit courts, as has been elsewhere described.

Civil Jurisdiction. (d) This includes contracts and torts.

As

(a) See on the subject of this lecture, the treatises of Clerke (by Hall), Dunlap, Betts, Benedict, Conkling; Curtis's Admiralty Digest; Curtis on the Rights and Duties of Merchant Seamen; Abbott on Shipping (by Story); Flanders on Maritime Law; Flanders on Shipping; Parsons on Maritime Law; English Admiralty Reports, in nine volumes, published by Little, Brown, & Co., Boston.

(b) Ante, p. 117.

(c) See ante, § 49; 9th section of the Judiciary Act of 1789, 1 Stat. at Large, 73; Lindo v. Rodney, Doug. 613, n.; Jennings v. Carson, 1 Peters, Ad. R. 1; Glass v. The Betsy, 3 Dallas, 6; U. S. v. M'Gill, 4 Dallas, 426; U. S. v. Coolidge, 1 Gallison, 488, and 1 Wheaton, 415; U. S. v. Bevans, 3 id. 336. See the act of Congress of March 3, 1857, which provides for the punishment of manslaughter within the admiralty jurisdiction of the United States, and the elaborately considered case of The People v. Tyler, 7 Mich. 161.

(d) 1 Kent, Com. lec. 17; Curtis on Merch. Seamen, 252; U. S. v. Grush, 5 Mason, 290; The Harriet, 1 Story, 259; Thomas v. Lane, 2 Sumner, 1; De Lovio v. Boit, 2 Gallison, 398; New Jersey Co. v. Merch. Bank, 6 Howard, 344; U. S.

to the classes of contracts, cognizable in admiralty, by reason of their reference to navigable waters, although there is still much controversy, I think the following may safely be set down: contracts between part-owners, charter-parties, affreightments, bottomry, respondentia, insurance, (a) supply of materials, wages, salvage, average, jettison, and pilotage. There may be others, but I have little doubt of these.

As to torts, if committed upon navigable waters, I am not aware of any exception to the admiralty jurisdiction, although there is, of course, a concurrent State jurisdiction, when committed within the body of a county. Of these torts, that which occupies the largest space in the books, is collision. (b) At common law, there can be no apportionment of the damages resulting from a collision, under any circumstances. The sufferer must recover the whole or none. And in order to recover, he must show that the fault which caused the collision was in no part his, but wholly that of the other party. Whereas in admiralty, at least in this country, if there was no fault on either side, or was fault on both sides, or

v. New Bedford, 1 Woodbury & M. 401; Steele v. Thatcher, 1 Ware, 91; Case v. Woolley, 6 Dana, 21; Brittan v. Barnaby, 21 How. 527. The jurisdiction of admiralty extends to cases of collision upon navigable waters, although it occurred within the body of a county, and above the flux and reflux of the tide. Jackson v. Steamboat Magnolia, 20 How. 296. It extends to petitory as well as to mere possessory actions. Ward v. Peck, 18 How. 267. Contracts of affreightment are a lien on the vessel, but contracts for its future employment are not. Vandewater v. Mills, 19 id. 82; Schooner Freeman v. Buckingham, 18 id. 182. Nor have builders of the vessel a lien for work done and materials found in its construction. People's Ferry Co. v. Beers, 20 id. 393.

(a) It was for some time a question whether insurance was a maritime contract so as to be a subject of admiralty jurisdiction. It is now settled that it is, and this whenever the vessel insured navigates any of the navigable waters of the United States, or bordering thereon, whether landlocked or open, salt or fresh. Insurance Co. v. Dunham, 11 Wall. 1.

(b) Story on Bailments, 609-11; 3 Kent, Com. 231; Handaysyde v. Wilson, 3 Carr. & Payne, 528; Luxford v. Large, 5 id. 421; Pluckwell v. Wilson, 5 id. 375; Woolf v. Beard, 8 id. 373; Lane v. Crombie, 12 Pick. 177; Butterfield v. Forrester, 11 East, 61; Harlow v. Humiston, 6 Cowen, 191; Smith v. Smith, 2 Pick. 621; Clapp v. Young, 6 Law Reporter, 111; New Haven v. Vanderbilt, 16 Conn. 420; Sills v. Brown, 9 Carr. & Payne, 601; The Scioto, Daveis, Rep. 359; Flanders on Mar. Law, 296, 298. As to the rule of damages, see Smith v. Condry, 1 Howard, 28; Boyd v. Brown, 17 Pick. 453; New Haven v. Vanderbilt, 16 Conn. 420; The Anna Maria, 2 Wheat. 327; The Amiable Nancy, 3 id. 546: The Amistad, 5 id. 385; Bell & Cunningham, 3 Peters, 69; Conard v. The Pacific, 6 Peters, 262. Vessels propelled by steam, being more under control than others, are required to exercise caution to avoid collisions with sailing vessels. They are liable for injuries to sailing vessels occasioned by not keeping a trustworthy and constant look-out, and exercising other proper precautions, while traversing waters in which the latter are often met with. The general rule is for a sailing vessel in meeting a steamer to keep its course, while the steamer takes the necessary means to avoid a collision. The steamer is not in fault where the sailing vessel could not with proper effort be seen in time to enable her to change her course. St. John v. Paine, 10 How. 557; Propeller Genesee Chief v. Fitzhugh, 12 id. 443; Peck v. Sanderson, 17 id. 178; Steamboat N. Y. v. Rea, 18 id. 223; Steamer Oregon v. Rocca, 18 id. 570; Crockett v. Steamboat Isaac Newton, 18 id. 581; Ure v. Coffman, 19 id. 56; Rogers v. Steamer St. Charles, 19 id. 108; N. Y. & Va. Steamship Co. v. Calderwood, 19 id. 241; N. Y. & Liverpool U. S. Mail Steamship Co. v. Rumball, 21 id. 372; Steamer Louisiana v. Fisher, 21 id. 1. By the act of Congress of 1851 (9 Stat. at Large, 635), the liability of shipowners in cases of collision, as well as in cases of injury to cargo, is limited to their interest in the ship or vessel, and her freight then pending. Norwich Co. v. Wright, 13 Wall. 104.