proceed at the same time at law on the note and in equity on the mortgage.128 But where a note is given for land, with right of repossession by the vendor on nonpayment of the note, he must elect between a proceeding in equity to enforce the agreement and a suit at law on the note.129 A court of equity cannot be invoked to enforce a defense which is admissible at law; • 130 e. g. to compel the surrender of a note already past due, because of alleged payment.131 And where an injunction is granted on the double ground of fraud and of payment before transfer to the plaintiff after maturity, and the injunction is dissolved on a denial of fraud and failure to prove it, the court will not retain jurisdiction upon the ground of

128 Ober v. Gallagher, 93 U. S. 199; Olds v. Cummings, 31 Ill. 188. So, the holder of a bill may proceed at the same time by attachment against the drawee and by bill in equity for return of the consideration. Leger v. Bonnaffe, 2 Barb. (N. Y.) 475. Or by action for trover and suit in equity for specific performance. Lawatsch v. Cooney, 86 Hun, 546, 33 N. Y. Supp. 775.

129 Arbuckle v. Hawks, 20 Vt. 538.

130 E. g. because of a prior action on the note and execution satisfied. Finley v. Thayer, 42 Ill. 350. Or of another action pending at law. Quebec Bank v. Weyand, 30 Ohio St. 126. Or the want of consideration which can be set up at law. Geer v. Kissam, 3 Edw. Ch. (N. Y.) 129. Or to enforce a set-off which might be pleaded. Perkins v. Clements, 1 Pat. & H. (Va.) 141. Or because the note had been paid. Fowler v. Palmer, 62 N. Y. 533; Allerton v. Belden, 49 N. Y. 373. Or at suit of the indorser, on account of payment by the maker. Williams v. Stewart, 56 Ga. 663. Or because the holder had proved the debt against the insolvent acceptor, and received a dividend and discharged the acceptor, which amounted to a legal discharge of the drawer also (the complainant). Gardner v. Lee, 11 Barb. (N. Y.) 558. Unless the matter of defense arose after judgment rendered, e. g. where there was a judgment against the maker, and a subsequent judgment against the indorser, and the indorser was afterwards discharged by dismissal of the first suit pending appeal. Lewis v. Armstrong, 47 Ga. 289.

131 Fowler v. Palmer, 62 N. Y. 533. Or to prevent a collecting agent from returning the note to his principal because of alleged fraud in its inception. Galusha v. Bank, 1 Hun (N. Y.) 573. Or to procure the cancellation of an acceptance merged in a subsequent cognovit, and afterwards transferred to the defendant with the judgment, unless the defendant (who could not recover at law) was wrongfully in possession of the bill. Jones v. Lane, 3 Younge & C. Exch. 281. But it has been held that a bill in equity will lie against the original payee of a note after its maturity to obtain specific performance of a contract to cancel and surrender it. Tuttle v. Moore, 16 Minn. 123 (Gil. 112).

the alleged payment, which is admissible as a defense at law.132 Equity will not relieve a party on the ground of a defense which might have been set up at law, and was not set up by reason of the complainant's mistake as to his right to do so.133

In other cases equitable jurisdiction is due to the character or relation of the parties; e. g. to support a creditors' bill in aid of an attachment against the note of a nonresident payee in the hands of his resident agent; 134 or by a partner (payee) to enforce a partnership note; 135 or against a corporation, which was really the maker of a note signed by directors, who omitted the corporate name by inadvertence; 136 or for contribution against several co-sureties,137 or (in case of insolvency of one co-surety) against other cosureties for more than their original proportionate share.138

And a court of equity will entertain a bill of interpleader to determine the conflicting right of an attachment creditor and an indorsee (after attachment, but before maturity) claiming as a bona fide holder. 139 A suit will also lie in equity on a bill filed by a mortgagor to settle the equities between the holders of several notes secured by a mortgage and collateral note, and will enjoin the collection of the latter.140 So, a court of equity may grant a writ of ne exeat against the maker of a note who is about to leave the state, and remove his property, without providing for the payment of the note, although no fraud is alleged, and although other parties jointly liable are not joined in the suit.141

Equity will also take jurisdiction to enforce the holder's rights as

132 Little v. Cooper, 11 N. J. Eq. 224. And see Petty's Adm'rs v. Young (N. J. Ch.) 9 Atl. 377.

133 Dickerson v. Commissioners, 6 Ind. 128.

134 McCann v. Randall, 147 Mass. 91, 17 N. E. 75.

135 Davis v. Merrill, 51 Mich. 480, 16 N. W. 864.

136 In re Pendleton Hardware Co., 24 Or. 330, 33 Pac. 514.

137 Adams v. Hayes, 120 N. C. 383, 27 S. E. 47.

138 Fischer v. Gaither, 32 Or. 161, 51 Pac. 736.

139 Briant v. Reed, 14 N. J. Eq. 271; Fitch v. Brower, 42 N. J. Eq. 300, 11 Atl. 330. Where the complainant's liability has not become already estab lished by judgment at law against him in favor of both claimants. McKinney v. Kuhn, 59 Miss. 186. And see § 818, supra.

140 Walker v. Jones, L. R. 1 P. C. 50.

141 Fitzgerald v. Gray, 59 Ind. 254.

to a trust or lien.142 But where a firm, on its dissolution, divides its assets and liabilities, the assumption of liabilities by a partner will not fasten a trust upon the assets turned over to him.14:

So, the

mere silence of an indorser as to the fact that the maker is an infant will not amount to a breach of trust to give jurisdiction to a court of equity.144 Nor will such court relieve an indorser or surety on the ground that the holder fails to proceed with his execution against the maker,145 or that he has taken a judgment against the maker and indorsers, and has agreed to discharge another surety after partial satisfaction of his execution by a prior indorser.146 So, a court of equity will not create a liability where the law does not; e. g. to hold an indorser who has been discharged at law for want of notice of dishonor.1 147

Reform and Cancellation of Bills.

§ 1686. Equity will, in a proper case, reform a bill and correct mistakes, although made by the complainant himself.148 Thus, it

142 E. g. in favor of the holder of a draft drawn expressly against a shipment, and payable out of the proceeds, and with the warehouse receipt attached to it. Michigan State Bank v. Gardner, 15 Gray (Mass.) 362. Or for the application, in favor of a first indorser, of funds furnished to the second indorser by the maker (for whom both signed as accommodation indorsers), for the express purpose of taking up the note. Price v. Trusdell, 28 N. J. Eq. 200. Or to compel a pledgee to collect and apply proceeds. Baker v. Burkett, 75 Miss. 89, 21 South. 970.

143 Giddings v. Palmer, 107 Mass. 269.

144 People's Bank's Appeal, 93 Pa. St. 107. And, for remedies in equity against an infant maker, see § 270, supra.

145 Lenox v. Prout, 3 Wheat. 520.

140 Love v. Allison, 2 Tenn. Ch. 111.

147 Dean v. Marsteller, 2 Cranch, C. C. 121, Fed. Cas. No. 3,710.

148 Ball v. Storie, 1 Sim. & S. 210; Lee v. Percival, 85 Iowa, 639, 52 N. W. 543; Kropp v. Kropp, 97 Wis. 137, 72 N. W. 381. So, where the complainant, by mistake, signed her own name as drawer of a bill renewed by her as administratrix of the deceased drawer. Druiff v. Lord Parker, L. R. 5 Eq. 131. Or where the order of accommodation indorsements was changed, by fraud or mistake, in a renewal signed in blank without such intention. Slagle v. Rust, 4 Grat. (Va.) 274. Or where the amount was fixed by a mistaken calculation. Spinning v. Sullivan, 48 Mich. 5, 11 N. W. 758. Or to change the place of payment in a renewal, "at said bank," to that of the original note, "at the G. Bank." German Nat. Bank v. Louisville Butchers' Hide & Tallow

will compel an indorsement which has been omitted by mistake or accident.149 And it will enforce against a wife's separate estate a note made by her husband as "acting trustee," although it could not be enforced at law.1 150 Equity will in like manner decree a bill to be void ab initio, or will order its cancellation.151 So, a person whose name has been forged to a note, although he has a legal defense, may apply to a court of equity before maturity, and have the note declared void as to him.152 And it has even been held that equity will relieve a party against a mortgage securing his note at an exorbitant rate of interest.153 So, it will restrain the payee of a note for marriage brokage from transferring it.154 And it will decree the surrender of municipal bonds issued in violation of law,155 or a note that has been paid.15

Co., 97 Ky. 34, 29 S. W. 882. Or to restore and enforce a note which has been inadvertently altered. Wallace v. Tice (Or.) 51 Pac. 733; McClure v. Little, 15 Utah, 379, 49 Pac. 298. But not on conflicting evidence as to whether there was a mistake. George v. Howard, 56 Iowa, 646, 10 N. W. 212. And equity need not be invoked to supply manifest omission in filling blanks, e. g. with the word "months" or "I." Loomis v. Freer, 4 Ill. App. 447. 149 Hughes v. Nelson, 29 N. J. Eq. 547. So, it will compel indorsement by an executor after delivery by his testator without indorsement. Smith v. Pickering, Peake, 50; Hodge v. Cole, 140 Mass. 116, 2 N. E. 774. And see $$ 793, 809, supra.

150 Baker v. Gregory, 28 Ala. 544.

151 Bishop of Winchester v. Fournier, 2 Ves. Sr. 445, 7 Ves. 413, and 2 Ves. & B. 302; Mackworth v. Marshall, 3 Sim. 368. Especially if in the hands of the payee. Breath wit v. Rogers, 32 Ark. 758. So, of a negotiable note given by the maker as a donatio causa mortis. Smith v. Smith, 30 N. J. Eq. 564. Or a nonnegotiable note obtained by fraud aud in the hands of a holder mala ide, the holder being, in such case, the only necessary party, and the intermediate bona fide indorser unnecessarily joined as defendant not being liable, therefore, for costs. Campodonico v. Grossini, 66 Cal. 358, 5 Pac. 609. But it will not enjoin the payment of bonds unlawfully issued for a valid debt. Scott v. Twombly, 20 App. Div. 652, 46 N. Y. Supp. 1084.

152 Huston v. Roosa. 43 Ind. 517.

153 Brown v. Hall, 14 R. I. 249. Or against a note reserving legal interest until maturity, and usurious interest afterwards. Bang v. Windmill Co., 96 Tenn. 361, 34 S. W. 516.

154 Smith v. Haytwell, 1 Amb. 66.

155 Merchants' Exch. Nat. Bank v. Bergen Co., 115 U. S. 384, 6 Sup. Ct. 88. 156 Fitzmaurice v. Mosier, 116 Ind. 363, 16 N. E. 175, and 19 N. E. 180.

In like manner, equity may require the reform 157 or cancellation 158 of a bill for fraud. So, it will require the surrender of a note given by the complainant to suppress a prosecution for cheating at cards.159 And even where a note has been made by a husband for the purpose of depriving his wife of her interest in his estate, with a condition for its redelivery to him on his return from a proposed journey, a court of equity will interfere in his favor with a perpetual injunction, or an order for its surrender.160

And where the jurisdiction is invoked on the ground of fraud or conspiracy, and the complainant fails to prove such facts, equity may still declare the transfer to be void on the ground of surprise coupled with evidence of mental weakness.161 But it has been held that a bill in equity will not lie for the cancellation of a note given by the complainant to compound a felony; 162 or on the ground of a fraud or forgery, which was made possible by the maker's own negligence in executing the paper.163 But the fact that the complainant has failed in an action of trover for the note will not oust a court of equity of jurisdiction on a bill for its surrender.164 But the surrender of a bill will be decreed only where its detention by the defendant is inequitable.165

Injunction against Issue or Transfer.

§ 1687. A court of equity will restrain the issue of municipal bonds in violation of the statute,166 even though the illegality could be set up as a defense against all holders.167 So, it will restrain the negotiation of a bill which has been obtained by fraud, because the

157 Graham v. Guinn (Tenn. Ch. App.) 43 S. W. 749.

158 Salter v. Krueger, 65 Wis. 217, 26 N. W. 544; Mangus v. McClelland, 93 Va. 786, 22 S. E. 364.

159 Osbaldiston v. Simpson, 13 Sim. 513.

160 Metler v. Metler's Adm'r, 19 N. J. Eq. 457, affirming 18 N. J. Eq. 270.

161 Hoagland v. Titus, 16 N. J. Eq. 44.

162 Atwood v. Fisk, 101 Mass. 363. And see § 503, supra.

163 Hardy v. Brier, 91 Ind. 91.

164 Byles, Bills, 413; Lisle v. Liddle, 3 Anstr. 649.

165 Jones v. Lane, 3 Younge & C. Exch. 281.

166 Scotland Co. v. Hill, 112 U. S. 183, 5 Sup. Ct. 93; Reineman v. Railroad

Co., 7 Neb. 310; George v. Cleveland (Neb.) 74 N. W. 266.

167 Lynchburg & R. St. Ry. Co. v. Dameron, 95 Va. 545, 28 S. E. 951.