a court of equity in New York to create duties to convey New Jersey land, to-day when a duty to convey land, specifically enforceable in equity, in effect, and very generally in theory involves an equitable ownership capable of assertion against the whole world, unless and until cut off by conveyance to a purchaser for value without notice, the result is to allow one state through its courts to create real rights in land in another state and if it may do so by its courts, why not through its legislature? 4. RESTRAINING ACTIONS IN OTHER JURISDICTIONS Others have called attention to a recent tendency to exercise more freely the jurisdiction to enjoin legal proceedings abroad.31 Examples of this tendency may be seen in Weaver v. Alabama R. Co.32 and Culp v. Butler,33 while the older and, as it seems, better view is set forth in Wells Lumber Co. v. Menominee River Boom Co.34 Much of the difficulty in such cases arises from the ambiguity of the term "jurisdiction" and from not distinguishing between the rules determining jurisdiction and the principles governing the exercise of jurisdiction. Three questions have to be asked: (1) Has the sovereign jurisdiction through any of his courts - that is, has he the power actually to coerce the person or act upon the res? (2) If he has, has his court of equity jurisdiction, that is, is the was a plaintiff's right equitable only, or if it is legal, is the legal remedy therefor adequate? (3) If equity has jurisdiction, should that jurisdiction be exercised in the present case? At one time there tendency, chiefly in American state courts, to confuse the second and the third and to turn the principles governing exercise of the chancellor's jurisdiction into rules limiting that jurisdiction. Instead of inquiring whether the remedy at law was adequate under the particular facts and whether, if it was not, under the principles governing exercise of equity jurisdiction the case called for equitable relief, many courts sought to dispose of equity cases by referring them to certain abstract categories: Was the contract one calling for continuous performance, was it a building contract, was it a contract for the sale of a chose in action, was it a contract 31 33 HARV. L. REV. 92. 32 76 So. (Ala.) 364 (1917). 33 122 N. E. (Ind. App.) 684 (1919). for personal service? This unfortunate tendency has spent itself. But a similar confusion of the second and third with the first is appearing. Undoubtedly a state may coerce its citizens not to sue abroad. It does not follow, however, that its courts of equity have jurisdiction to do so in every case, or that they ought to exercise such jurisdiction in every case where it exists. We have to ask: What are the legal rights of the plaintiff in equity, defendant abroad, and are the legal remedies which are open to him adequate to maintain those rights? We have then to ask, is the injustice and hardship upon the plaintiff such as to make it expedient for equity to act, in view of the delicate considerations involved in interference with legal proceedings in other states? Three types of case may be distinguished in which courts have enjoined litigation in foreign jurisdictions. In one the foreign court had no jurisdiction, but the threatened foreign judgment would embarrass plaintiff in the assertion of his rights, the legal remedy of collateral attack on the judgment when set up against plaintiff involved danger of impairment of the evidence by which its invalidity could be made to appear, and to compel plaintiff to go to the foreign state to defend or attack the threatened judgment directly involved compelling him to litigate abroad with a wrongdoer whom he could reach at home.35 In a second type concurrent litigation between the same parties over the same subject matter was in progress or was threatened. In some of the cases of this type there was simply a vexatious multiplicity of actions.36 Here courts were cautious about interposing.37 In others, one court was not in as good a position to do complete justice as another.38 others, the defendant was seeking to obtain an inequitable advantage over other creditors by means of concurrent litigation abroad.39 In a third type there was an attempt of domestic creditors to reach exempt property of a domestic debtor by means of an action 35 E. g., Kempson v. Kempson, 58 N. J. Eq. 94, 43 Atl. 97 (1899). 36 E. g., French v. Hay, 22 Wall. (U. S.) 250 (1874). In still 37 "If this court has the power, it must be a very special case which will induce it to break over the rule of comity, and of policy, which forbids the granting of an injunction to stay the proceedings in a suit, which has already been commenced, in a court of competent jurisdiction in a sister state." Walworth, C., in Burgess v. Smith, 2 Barb. Ch. (N. Y.) 276, 280 (1847). 38 See what is said on this point in Harris v. Pullman, 84 Ill. 20 (1876). 39 Cole v. Cunningham, 133 U. S. 107 (1890); Sercomb v. Catlin, 128 Ill. 556, 21 N. E. 606 (1889). outside of the state.40 To these some courts are adding a fourth: Cases where the foreign court has jurisdiction, in which there is no concurrent litigation or vexatious multiplicity of actions, and in which there is no attempt to reach anything which the policy of the local legislation seeks to secure to the plaintiff, but in which a domestic creditor seeks to sue a domestic debtor, as he has full legal power to do, in another state, where the latter has property, because of more favorable procedure or more favorable views as to what is a defense in the latter jurisdiction. In these cases it cannot be said that plaintiff (in equity) has a legal right only to be sued at home, nor may he claim a legal interest in the procedure or substantive law of his domicile. Doctrines of Conflict of Laws may sometimes require the court in the other state to judge the cause by the laws of the jurisdiction where the parties are domiciled. But that is a matter for that court to consider and does not give to the latter jurisdiction any claim to exclusive cognizance of the cause nor to its citizens any legal claim to make their defense solely at their domicile. As between a plaintiff and a defendant, each seeking the tribunal more favorable to him, why should not equity leave the matter to the law? The only consideration which may be urged in such cases is the expense involved in litigating abroad what might well be litigated at home. This expense falls on both alike, and the Michigan court says aptly: "The only situation which would seem to justify a court of one state in stopping, by its writ of injunction, the prosecution of a case pending in a court of a sister state, would be where the equitable considerations are plain and compelling, and the aggrieved party, through poverty, is utterly unable to present his equities to the foreign court." 41 Otherwise: "the only satisfactory doctrine, because the only doctrine compatible with the dignity of the courts of the country and the orderly administration of justice everywhere, would be to hold the court in which the objectionable suit was commenced, and that court only, entitled, at the instance of the aggrieved party to refuse to proceed further with the suit, where it appears the object of the plaintiff was to evade the law of the state of his residence, and, upon view of the facts and the laws of 40 E. g., Snook v. Snetzer, 25 Ohio St. 516 (1874). 41 Wells Lumber Co. v. Menominee River Boom Co., 168 N. W. (Mich.) 1011, 1016 (1918). the state of the residence of the parties applicable thereto, the court is convinced the prosecution of the suit pending before it to judgment or decree would result in giving the plaintiff an unconscionable advantage. >> 42 II RECOVERY OF SPECIFIC CHATTELS In Rawll v. Baker-Vawter Co.43 an employee had deposited with the employer company two bonds of the employer as security for his performance of the terms of the employment. The bonds were of the par value of $1,000 each and were part of an issue of $250,000. They were "not listed upon any exchange or curb market." It appeared that there had been some sales at par within three or four months, and at 80 within a year. There were some two hundred and fifty holders. It was held, two judges dissenting, that a suit in equity would not lie to recover the bonds in specie. The majority rely upon a series of decisions as to specific performance of contracts for the sale of securities.44 But it should be noted that in those cases the plaintiff was not an owner whose property was detained wrongfully by a bailee, but a purchaser who claimed a contract right to have the specific securities transferred to him. Is it adequate protection of the rights of an owner of specific securities to say to him, you can't get the securities themselves from the wrongdoer who detains them, but through an action of trover you may obtain what a jury finds them to be worth, on the basis of some recent sales, and endeavor with the money to buy at that price, if you can, from some one of two hundred and fifty holders who may be willing to sell? One may feel also that the language, at least, of some New York cases as to contracts to sell securities 42 See supra, note 41. Compare Turner, L. J., in Pennell v. Roy, 3 DeG., M. & G. 126, 139 (1853): "If we were to maintain this injunction we should, as it seems to me, be assuming a jurisdiction in this Court to prescribe the Courts in which parties should bring their suits, without there being anything to affect the consciences of the parties, upon the simple ground that the suits were such as, in the opinion of this Court, ought not to be maintained, and thus we should be bringing under the decision of this Court the question whether suits in other Courts could be maintained, a question which it is for those Courts and not for this Court, to decide. To assume such a jurisdiction would, I think, be to exercise a legislative and not merely a judicial power." 43 176 N. Y. Supp. (Misc.) 189 (1919). Butler v. Wright, 186 N. Y. 259, 78 N. E. 1002 (1906); Clements v. SherwoodDunn, 108 App. Div. 327, 95' N. Y. Supp. 766 (1905), 187 N. Y. 521, 79 N. E. 1102 (1907); Waddle v. Cabana, 220 N. Y. 18, 114 N. E. 1054 (1917). 45 is somewhat narrow. It is interesting to note that in this case the statute of limitations had run against the actions of trover and replevin, which were said to afford an adequate remedy at law, but not against a suit in equity, so that relief was only possible in equity. Could plaintiff claim to be legal owner and invoke the concurrent jurisdiction of equity to maintain that ownership by a more adequate remedy after the legal remedies of trover and replevin were barred? Or must the statute of limitations, in jurisdictions where it applies to suits in equity, have run also upon the concurrent equitable remedy, if any? III SPECIFIC PERFORMANCE I. INSOLVENCY OF VENDOR 46 In four cases the courts had or took occasion to consider the effect of insolvency of the defendant. In two of them the contract did not entitle the plaintiff to call for a specific res, one being a contract for the delivery of so much corn generally, the other a like general contract for the delivery of so much machine-mined coal.47 In the former the court said rightly that insolvency was no basis for relief. In the latter the court refused relief in the absence of showing of insolvency. In two other cases,48 in which plaintiff was asserting a claim to a specific res, the court said that the remedy of damages against an insolvent would not be adequate. But in both it was equally inadequate as against a solvent defendant. Here again the source of disagreement is in not distinguishing between a ground of jurisdiction and an important circumstance in determining the exercise of jurisdiction. If plaintiff has no right to exact a specific thing, the insolvency of the defendant can not give him greater rights than his contract gives him. But if he has a right to a specific thing, the chancellor may still think, if money damages will enable him to get not the exact thing but something substantially as good, that the extraordinary interposi45 In Waddle v. Cabana, supra, the court points out that the two prior cases turn largely on practice and indicates a more liberal view. "Union Co-operative Co. v. Adolfson, 171 N. W. (Neb.) 902 (1919). 47 48 Consolidated Fuel Co. v. St. Louis R. Co. (C. C. A.), 250 Fed. 395 (1918). Crawford v. Williams, 99 S. E. (Ga.) 378 (1919); Doty v. Doty, 171 N. Y. Supp. (Misc.) 852 (1918). |