The court may, in a proper case, set off allowances that have already been made against the claim for reimbursement. New Orleans v. Gaines, 15 Wall. 624, .21: 215 McCullough v. East Tennessee, V. & G. R. Co. 106 Ga. 279, 32 S. E. 97-Ogilvie v. Copeland, 145 III. 113, 33 N. E. 1085-Pierce v. Wanett, 32 N. C. (10 Ired. L.) 452-Lenoir v. South, 32 N. C. (10 Ired. L. 242-Lewis v. Childers, 13 W. Va. 10. 99. In an action of ejectment for known mineral land by the holder of a patent of 103. When an order of the court in ejectthe United States, the occupant cannot suc- ment indicates a general finding for the cessfully set up a claim to improvements plaintiff as to part only of the land involved, made thereon under a statute of Dakota al-a judgment for the recovery of such part lowing such claim in favor of one holding only is proper, if plaintiff fails to show adversely under color of title in good faith, title to the remainder. Morgan v. Eggers, since there can be no color of title in an 127 U. S. 63, 8 Sup. Ct. Rep. 1041, 32: 56 occupant of land who does not hold under Cited in Roby v. Eggers, 130 Ind. 422, 29 N. an instrument or proceeding, or law purporting to transfer the title or to give the right of possession. Nor can good faith be affirmed of a party in holding adversely, where he knows that he has no title and that under the law he can acquire none. Deffeback v. Hawke, 115 U. S. 392, 6 Sup. Ct. Rep. 95, 29: 423 Cited in Pendo v. Beakey, 15 S. D. 357, 89 N. W. 655-State v. Portsmouth Sav. Bank, 106 Ind. 460, 7 N. E. 379-Litchfield v. Sewell, 97 Iowa, 251, 66 N. W. 104-Lindt v. Uihlein, 116 Iowa, 55, 89 N. W. 214. 100. Under the statutes of Texas making provision for an allowance for improvements in actions to try title to land, if the plaintiff who recovers does not within the time required pay the defendant compensation for his improvements, the latter may, within the time prescribed, pay to the plaintiff the value of the land without the improvements and retain the same, and if defendant does not elect to take the land at such value, the plaintiff will recover the land without paying for the improvements. Cox v. Hart, 145 U. S. 376, 12 Sup. Ct. Rep. 962, 36: 741 Cited in Cooke v. Avery, 147 U. S. 394, 37 L. ed. 216, 13 Sup. Ct. Rep. 340. 101. In Texas in actions of trespass to try title, defendant, in order to recover for the value of improvements on the land, must have entered and claim under color of title. Cooke v. Avery, 147 U. S. 375, 13 Sup. Ct. Rep. 340, 37: 209 VIII. Judgment; Verdict. Reformation of, see also Judgment, 1209. Mode of Reviewing Judgment, see Appeal and Error, 668. First Objecting as to, on Appeal, see Appeal As Evidence, see Evidence, 1261. 1139. Directing Verdict, see Trial, 522. E. 365. 104. A local statute permitting a recovery in ejectment against the defendants or either of them, of the whole of the premises in controversy or any part thereof or any interest therein, according to the rights of the parties recognized as applicable in the circuit court of the United States. Morgan 104a. On a declaration claiming a term of .14: 936 108. A judgment for plaintiff in ejectment is good, although it does not find for or against all the parties mentioned in the different counts of the declaration, if the finding conforms to some of the counts. Armstrong v. Morrill, 14 Wall. 120, 20: 765 108a. Mesne profits cannot be allowed on a bill to determine the right of possession of property, where there is no claim for their Sufficiency of Special Verdict, see Trial, 910. allowance in the bill, and the proofs do not See also Cotenancy, 17. show that the defendants derived such profits from the property as to make their allowance proper. Bouldin v. Alexander, 103 102. The plaintiff, upon the proof of title to a part of the premises sued for in eject-U. S. 330, ment, is not by law entitled to a general verdict for the whole of the premises. M’Arthur v. Porter, 6 Pet. 205, 8: 371 Cited in Baker v. Chastang, 18 Ala. 421 26: 308 109. Where the issue to be tried is whether defendant unlawfully withheld from the plaintiff the premises described in the dec laration, a verdict that the land was claimed | in the second; where it must depend upon by defendant is sufficient under a statute requiring the verdict to be against such as are in possession or claim title. Collins v. Riley, 104 U. S. 322, 26: 752 110. A finding which is in form a special verdict, stating the facts, and praying the advice of the court thereon as to a certain part of land claimed, does not raise the inquiry whether the facts stated prevent the court from entering judgment, but whether they affirmatively established the plaintiff's right to judgment for such part. Collins v. Riley, 104 U. S. 322, 26: 752 111. In an action of ejectment in Florida a verdict for the plaintiff, not stating the quantity of the estate or describing the land, will not sustain a judgment for him. Pensacola Ice Co. v. Perry, 120 U. S. 318, 7 Sup. Ct. Rep. 576, 30: 663 Cited in Bennett v. Harkrader, 158 U. S. 447, 39 L. ed. 1048, 15 Sup. Ct. Rep. 863--Gray V. First Nat. Bank, 31 Fla. 594, 12 So. 215. Editorial note. [Extent of recovery in ejectment by tenants in common against stranger. 6 L.R.A. N.S.) 710.] some interest or right of action which has become vested in him by purchase or descent, from the person claiming the land in the former suit. It does not apply to a case where a suit is first brought in the name of a stranger to the estate. Griffin, 6 Pet. 151, Henderson v. 8: 79 114. The right to a second trial in an action of ejectment, which exists in Illinois, extends to an action commenced in a state court and for good cause removed to a court of the United States. Smale v. Mitchell, 143 U. S. 99, 12 Sup. Ct. Rep. 353, 36: 90 115.. The statute of Illinois confers a right to a new trial in ejectment, not only when the judgment is rendered upon default or verdict, but also where it is entered upon the mandate of an appellate court. Smale v. Mitchell, 143 U. S. 99, 12 Sup. Ct. Rep. 353, 36: 90 Editorial note. [Effect of prior decision on new trial in. 40 L.R.A. 825.] IX. Successive Suits. Conformity of Federal Courts to State Propriety of Suit in Equity by Unsuccessful Holder of Legal Title, see Equity, 110. Injunction as Proper Relief against, see Injunction, 68. Conclusiveness of Judgment in Prior Suit, see Judgment, 609-626. 112. The provisions of the Colorado statute, that "neither party shall have but one new trial in any case, as of right, without showing cause," impliedly gives to each party in ejectment against whom judgment is rendered a right to one new trial without showing cause. Equator Min. & Smelting Co. v. Hall, 106 U. S. 86, 1 Sup. Ct. Rep. 128, 27: 114 Cited in Campbell v. Iron Silver Min. Co. 56 Fed. 135-Iron Silver Min. Co. v. Campbell, 10 C. C. A. 175, 27 U. S. App. 65, 61 Fed. 935. 113. The case contemplated in the South Carolina act of 1744, by which a plaintiff or any other person claiming under one who had brought an ejectment for land, which suit had failed by verdict and judgment against him, or by nonsuit or discontinuance, is empowered to commence his action for the recovery of such lands de novo, is clearly a case where the right of the plaintiff in the first suit passes to the plaintiff 1. In General. 1. The doctrine of election means that where two inconsistent rights are presented to the choice of a party, by a person who manifests a clear intention that he should not enjoy both, he must accept or reject one or the other; and so one cannot take a benefit under an instrument and then repudiate it. Peters v. Bain, 133 U. S. 670, 10 Sup. Ct. Rep. 354, 33: 696 2. One who joins with another in purchasing land with the understanding that they are to pay and share equally is not entitled to claim the whole property on discovering that he had been deceived as to the purchase price, and that all that has been paid is the money which he has furnished for his share of the payment, but his remedy is by an accounting. Dickson v. Patterson, 160 U. S. 584, 16 Sup. Ct. Rep. 373, 40: 543 Cited in Green v. Bogue, 158 U. S. 503, 39 L. ed. 1070, 15 Sup. Ct. Rep. 975-Robb v. Roelker, 66 Fed. 26-First Nat. Bank V. Radford Trust Co. 26 C. C. A. 11, 47 U. S. App. 692, 80 Fed. 578-Re Curtis, 36 C. C. A. 431, 94 Fed. 632-Whalen v. Gordon, 37 C. C. A. 79, 95 Fed. 314-National Foundry & Pipe Works v. Oconto City Water Supply Co. 51 C C. A. 475, 113 Fed. 803-McEwen v. Harriman Land Co. 71 C. C. A. 174, 138 Fed. 808-Lynch v. Smyth, 25 Colo. 112, 54 Pac. 634-Smith v. Gilmore, 7 App. D. C. 198-John V. Farwell Co. v. Garrett, 88 Ill. App. 184-Garrett v. John V. Farwell Co. 102 Ill. App. 36-Clark v. Hall, 54 Neb. 485, 74 N. W. 856-Noyes v. Edgerly, 71 N. H. 504, 53 Atl. 511-Detroit Heating & L. Co. v. Stevens, 20 Utah, 248, 58 Pac. 193Smeesters v. Schroeder, 123 Wis. 119, 101 N. W. 363. 4. A suit to enforce a mechanics' lien by the vendor against the vendee of personal property is an election to treat the title to the property as in the vendee. Van Winkle v. Crowell, 146 U. S. 42, 13 Sup. Ct. Rep. 18, 36: 880 5. An action to recover damages for fraudulent misrepresentation of the value of property at the time of a trade is in effect an action for part of the purchase price, and, while it is pending, constitutes an elec. tion to ratify the trade, so as to preclude the remedy by rescission. Stuart v. Hayden, 169 U. S. 1, 18 Sup. Ct. Rep. 274, 42: 639, 1204 6-7. A claim for a balance on a land transaction in which the parties had jointly engaged, made by one upon the other without knowledge that a conveyance by the latter to a third party was fraudulent, will not constitute such an election by the former as to preclude him, on discovering all the facts, from suing to set aside such transfer and asserting his rights in the property itself. Dickson v. Patterson, 160 U. S. 584, 16 Sup. Ct. Rep. 373, 40: 543 Cited in Richardson v. Olivier, 53 L.R.A. 116, 44 C. C. A. 473, 105 Fed. 283. III. Choice of Remedies. Form of Remedy, see Action or Suit, II. In Admiralty Cases, see Admiralty, 63a, 73, 81. Between Assumpsit and Covenant, see Assumpsit, 8. Between Assumpsit and Account Stated, see Assumpsit, 37. Between Action for Damages for Illegal Levy and Proceedings for Restitution or Equitable Relief, see Courts, 1073, 1074. Between Judgment on Plea in Abatement or -Discontinuance of Former Suit, see Dismissal and Discontinuance, 13. Suing out Execution against Person as Discharging Liability of His Estate, see Execution, 95-99. For False Imprisonment, see False Imprison ment, 6. For Unauthorized Use of Patent, see Patents, 1081, 1091. In Salvage Case, see Salvage, 81. For Recovery of Taxes Paid, see Taxes, 613-615. For Collection of Tax, see Taxes, 619-622. 8. An employee wrongfully discharged may elect to recover the entire damages for the breach of the contract in a single action, and thus avoid the embarrassment and annoyance of repeated litigation. Pierce v. Tennessee Coal, Iron & R. Co. 173 U. S. 1, 43: 591 19 Sup. Ct. Rep. 335, Cited in Roehm v. Horst, 178 U. S. 15, 44 L. ed. 959, 20 Sup. Ct. Rep. 780-Re Stern, 54 C. C. A. 63, 116 Fed. 607-Northrop v. Mercantile Trust & D. Co. 119 Fed. 973Barker & S. Lumber Co. v. Edward Hines Lumber Co. 137 Fed. 308-Allen v. Field, 65 C. C. A. 31, 130 Fed. 653-Marx v. Miller, 134 Ala. 352, 32 So. 765-Lee v. Dow, 71 N. H. 328, 51 Atl. 1072-Mowbray v. Gould, 83 App. Div. 257. 82 N. Y. Supp. 102Parker v. McKannon Bros. 76 Vt. 102, 56 Atl. 536. 9. Where converted property has assumed altered forms by successive investments, the owner may follow it as far as he can trace it, and sue at law for the substituted property; or he may hold the wrongdoers liable for appropriate damages. May v. Le Claire, cited in United States v. State Nat. Bank, 96 11 Wall. 217, 20:50 U. S. 35, 24 L. ed. 648- -Hutchinson v. Le Roy. 51 C. C. A. 164, 113 Fed. 207-Mooney v. Byrne, 163 N. Y. 96, 57 N. E. 163. 10. The remedy, when a covenant to build a railroad through land granted to a company is broken by changing the route be fore building the road, or by abandoning afterward, is by an action for damages. Hoard v. Chesapeake & O. R. Co. 123 U. S. 222, 8 Sup. Ct. Rep. 74, 31: 130 Distinguished in Interstate Commerce Commission v. Western N. Y. & P. R. Co. 82 Fed. 194, 28 Pittsb. N. J. N. S. 45-Lusby V. C. C. A. 30, 99 Fed. 653-Vickrey v. Sioux City, 104 Fed. 166-Brown v. Maplewood Cemetery Asso. 85 Minn. 512, 89 N. W. 872. 14. The cancelation of the guaranty of negotiable bonds which may otherwise pass into the hands of bona fide purchasers, and the restraint of suits upon the guaranty because of facts not appearing upon its face, can be had only in a court of equity. LouisKansas City, M. & B. R. Co. 73 Miss. 375, ville, N. A. & C. R. Co. v. Louisville T. Co. 174 U. S. 552, 19 Sup. Ct. Rep. 817, 36 L.R.A. 516, 19 So. 239. Law and equity. Distinction between Actions at Law and Equity, see Action or Suit, 13, 14. Federal Question as to, see Appeal and Error, 1605. To Enforce Liability of Stockholder, see Banks, 290-294; Corporations, 609-617. Effect of Remedy at Law to Prevent Seizure by State Officer in Violation of See also Patents, 1081. 11. A debtor's remedy against a supposed agent of his creditor whom he has paid, but who has failed to pay over to the creditor, is at law, not in equity. Reily v. Lamar, 2 Cranch, 344, 2: 300 12. The creditor of a partnership may, at his option, proceed at law against the surviving partner, or go in the first instance into equity against the representatives of the deceased partner. Nelson v. Hill, 5 How. 127, 12: 81 Cited in Lewis v. United States, 92 U. S. 622, 23 L. ed. 514, 14 Nat. Bankr. Reg. 69-Re Lloyd, 15 Nat. Bankr. Reg. 261, Fed. Cas. No. 8,429-United States v. Lewis, 13 Nat. Bankr. Reg. 37. Fed. Cas. No. 15,595Fillyau v. Laverty, 3 Fla. 102--Doggett v. Dill. 108 Ill. 566, 48 Am. Rep. 565-Comins v. Culver, 35 N. J. Eq. 96-United States v. Lewis, 2 W. N. C. 35. 13. Every person who receives money to be paid to another, or to be applied to a particular purpose to which he does not apply it, is a trustee, and may be sued either at law for money had and received, or in equity as a trustee, for breach of trust. Taylor v. Benham, 5 How. 233, 12: 130 Cited in McKee v. Lamon, 159 U. S. 322, 40 L. ed. 167, 16 Sup. Ct. Rep. 11-Colonial & U. S. Mortg. Co. v. Hutchinson Mortg. Co. 44 Fed, 221-Rufe v. Commercial Bank, 40 -43: 1081 15. Where an officer has taken goods of a third person, not subject to the execution under which he is acting, the owner may apply to the court whose process is being executed, in some appropriate mode,-such as a petition for intervention, bill in equity, motion, interpleader, or otherwise, or he may bring an action on the officer's bond, or sue the officer personally for trespass. Covell v. Heyman, 111 U. S. 176, 4 Sup. Ct. Rep. 355, 28: 390 Cited in Claflin v. Beaver, 35 Fed. 260-Claflin v. Beaver, 41 Fed. 206-Porter v. Davidson, 62 Fed. 628-St. Paul, M. & M. R. Co. v. Drake, 19 C. C. A. 255, 44 U. S. App. 271, 72 Fed. 948-Re Forsyth, 78 Fed. 303National Bank v. Rutledge, 84 Fed. 409Re Mertens, 131 Fed. 515. 16. A suit by the holder of void municithe amount received from him therefor, on pal bonds, to recover from the municipality the ground that it is bound ex æquo et bono tainable; since an action for money had to return the money it received, is not mainand received is the usual and adequate remedy in such cases, where the claim is well founded. Litchfield v. Ballou, 114 U. S. 190, 5 Sup. Ct. Rep. 820, 29: 132 Cited in Buzard v. Houston, 119 U. S. 352, 30 L. ed. 454, 7 Sup. Ct. Rep. 249-Zeringue v. Texas & P. R. Co. 34 Fed. 243-Andrews Bros. Co. v. Youngstown Coke Co. 39 Fed. 354-Paton v. Majors, 46 Fed. 211-Northern P. R. Co. v. Cannon, 46. Fed. 232Walker v. Brown, 58 Fed. 27-Alger V. Anderson, 92 Fed. 709-Southern P. R. Co. v. United States, 66 C. C. A. 585, 133 Fed. 655. Assumpsit and contract. Action to Recover on Original Debt 17. Where a contract contained in a deed has been varied or substituted by the subsequent acts or agreements of the parties, the remedies may be varied accordingly, and assumpsit brought instead of an action upFresh v. Gilson, 16 Pet. 327, on the deed. 10: 982 Cited in Ridgeway v. Toram, 2 Md. Ch. 309Hurley v. Watson, 68 Mich. 539, 36 N. W. 726-Saxton v. Texas, S. F. & N. R. Co. 4 N. M. 383, 16 Pac. 851. 18. Whenever the rights of a party founded upon a deed are dependent upon the terms and conditions of that deed, the instrument thus creating and defining those rights must be resorted to, and must regų, late, moreover, the modes by which they are to be enforced at law; and these identical rights cannot be claimed as being derived from a different and inferior source. Fresh v. Gilson, 16 Pet. 327, 10: 982 remains 19. While a special contract executory, the plaintiff must sue upon it. When it has been fully executed, and nothing remains to be done but the payment of the price, he may sue on the contract or in indebitatus assumpsit, and rely upon the common counts. In either case the contract will determine the rights of the parties. Ingle v. Jones (Dermott v. Jones) 2 Wall. 1, 17: 762 Bibb v. Allen, 149 U. S. 481, 13 Sup. Ct. Rep. 950, 37: 819 Cited in Bibb v. Allen, 149 U. S. 499, 37 L. . ed. 826, 13 Sup. Ct. Rep. 950-Seaman v. Slater, 49 Fed. 39-Huntsville Belt Line & M. S. R. Co. v. Corpening, 97 Ala. 689, 12 So. 295-Campbell v. District of Columbia, 2 MacArth. 536-Cook County v. Sexton, 16 Ill. App. 112-Schwartzel v. Karnes, 2 Kan. App. 787, 44 Pac. 41-Mansur v. Botts, 80 Mo. 655-Williams v. Chicago, S. F. & C. R. Co. 112 Mo. 491, 34 Am. St. Rep. 403, 20 S. W. 631-Moore v. H. Gaus & Sons Mfg. Co. 113 Mo. 107, 20 S. W. 975-Fox v. Pullman Palace Car Co. 16 Mo. App. 127 -McDermott v. St. Wilhelminia Benev. Aid Soc. 24 R. I. 537, 54 Atl. 58-ThompsonHouston Electric Co. v. Berg, 10 Tex. Civ. App. 208, 30 S. W. 454-Jones v. Singer Mfg. Co. 38 W. Va. 153, 18 S. E. 478. Assumpsit and tort. Illegal Exaction of Duties by United As against Marshal for Wrongful Levy As to United States Receiving Benefit from Wrongful Use of Patent, see United States, 276. To Recover Proceeds of Federal Tax For Recovery Back of Taxes Paid, see Remedy for Collection of Tax, see Remedy against National Bank Taking See also Debt, 15; Insurance, 682. 22. Where a statute creates a right or liability and prescribes a remedy, that remedy is exclusive and must be strictly pursued. Fourth Nat. Bank v. Francklyn, 120 U. S. 747, 7 Sup. Ct. Rep. 757, 30: 825 Cited in Stewart v. Baltimore & O. R. Co. 168 U. S. 448, 42 L. ed. 538, 18 Sup. Ct. Rep. 105-Re Foley, 76 Fed. 396-Whitman v. National Bank, 28 C. C. A. 407, 51 U. S. App. 536, 83 Fed. 291-Dexter v. Edmands, 89 Fed. 473-Hale v. Hardon. 37 C. C. A. 260, 95 Fed. 767-Swann v. Mutual Reserve Fund Life Asso. 100 Fed. 929-Boston & M. R. Co. v. Hurd, 56 L.R.A. 207, 47 C. C. A. 619, 108 Fed. 120-Williamson v. American Bank, 115 Fed. 797-Re Remington Automobile & Motor Co. 119 Fed. 444-Watkins v. Glenn, 55 Kan. 431, 31 L.R.A. 84, 40 Pac. 316-Abbott v. Goodall, 100 Me. 235, 60 Atl. 1030- -Miners & M. Bank v. Snyder, 100 Md. 65, 68 L.R.A. 814, 108 Am. St. Rep. 390, 59 Atl. 707-Hancock Nat. Bank V. Ellis, 172 Mass. 46, 42 L.R.A. 401, 70 Am. St. Rep. 232, 51 N. E. 207-Crippen, L. & Co. v. Laighton, 69 N. H. 553, 46 L.R.A. 471, 76 Am. St. Rep. 192, 44 Atl. 538Barnes v. Wheaton, 80 Hun, 18, 29 N. Y. Supp. 830-Finney v. Guy, 106 Wis. 266, 49 L.R.A. 491, S2 N. W. 595-Harrigan v. Gilchrist, 121 Wis. 268, 99 N. W. 909. 23. Where a statute creates a new offense and denounces the penalty, or gives a new 20. If property be tortiously taken or con- right and declares the remedy, the punishverted, the injured party may waive the tortment or the remedy can be only that which the statute prescribes. Farmers' & M. Nat. Bank v. Dearing, 91 U. S. 29, 23: 196 Cited in Central Stock Yards Co. v. Louisville & N. R. Co. 112 Fed. 826- -Renfroe v. Colquitt, 74 Ga. 625-Woodstock v. Hancock, 62 Vt. 351, 19 Atl. 991. and sue in assumpsit; and judgment in such action will bar a further action ex delicto. May v. Le Claire, 11 Wall. 217, 20: 50 Distinguished in Mills v. United States, 12 L. R.A. 681, 46 Fed. 748. Cited in Farmers' Loan & T. Co. v. Toledo & S. H. R. Co. 4 C. C. A. 568, 6 U. S. App. 469, 54 Fed. 766-Libby v. Frost, 98 Me. 291, 56 Atl. 906-Noyes v. Edgerly, 71 N. H. 504, 53 Atl. 311. Contract and tort. Distinction between Action on Contract and on Tort, see Action or Suit, 15. 21. An action for breach of implied warranty may be either in contract or in tort. Dushane v. Benedict, 120 U. S. 630, 7 Sup. Ct. Rep. 696, 30: 810 Cited in Tatro v. Brower, 118 Mich. 616, 77 N. W. 274. Statutory remedies. Exclusiveness of Statutory Remedy for |