is made when one person does work or performs a service for another. A deed or mortgage may be a contract by which property is given as security for a loan.

These liens are either liens on personal property, or articles which can be taken from place to place; or liens upon real property which consists of land, buildings on land, and rights to use land.

Obviously the value to the holder of any of these liens is that he can apply the property upon which he has the claim to the payment of the debt due him. This is accomplished by foreclosure or exercising full ownership rights. The shoemaker, for example, will not give to the owner the shoes he has repaired until his bill is paid. If his bill is not paid, he forcloses the lien by selling the shoes to some other person. The holder of a mortgage upon real property which remains in the possession of the owner until the debt is due, takes possession of the property pledged in case the debt is not paid at maturity, and either holds it for his own or sells it to satisfy the debt, any balance remaining after the sale being the property of the owner. The first procedure is called "strict foreclosure"; the second, "foreclosure by sale."

In the case of Ansonia Bank's Appeal from Commissioners, decided in 1890 by the Supreme Court of Errors of Connecticut, Chief Justice Andrews said:

Any proceeding which cuts off the mortgagor's equity of redemption in the mortgaged property beyond recall would be a foreclosure in the sense of this statute [prescribing procedure for the foreclosure of mortages]. That a decree for the sale of mortgaged property, such as was had in this case, does so cut off the mortgagor's equity of re58 Connecticut Rep., 257, 260.

I

demption in it beyond possibility of recall, is not open to question. . . . The only equitable remedies of the mortgagee for enforcing the lien of the mortgage when it has become due, are "strict foreclosure" [in which the mortgagee obtains ownership of the property] and "foreclosure by judicial sale" [in which the property mortgaged is sold and the proceeds applied to the payment of the debt]; the latter of which is by far the most common in this country.

Bills of Discovery.

A person who has a claim against another sometimes is unable to prove in court the facts on which his rights are based without the testimony of his opponent or the production of books and documents in his adversary's possession. In such cases, a bill of discovery may be brought in a court of equity to obtain such evidence before the claimant brings his action at law.

In the case of State v. Security Savings Co.,' decided in 1896 by the Supreme Court of Oregon, Chief Justice Bean said:

A bill of discovery . . . is a mere instrument of procedure in aid of the relief sought by the party in some other judicial controversy, filed for the sole purpose of proving the plaintiff's case from the defendant's own mouth, or from documents in his possession, and asking no relief in the suit except it may be a temporary stay of the proceedings in another suit to which the discovery relates. Pomeroy's Equity Jurisprudence, Sec. 191.

Bills of Peace and Quia Timet.

Courts of equity will hear and determine bills of peace, which are brought to prevent vexatious suits and to restrain evil disposed persons from unlawful acts, and 1 28 Oregon Rep., 410, 420.

bills of quia timet (because there is reason for fear) to prevent anticipated injuries to property.

In the case of Bailey v. Southwick,' decided in 1872 by the General Term of the Supreme Court of New York, Presiding Justice Potter said:

It is... claimed by the plaintiff that the complaint can be sustained as a bill of peace or of quia timet. A bill of peace is most generally brought after suit instituted, and generally to try a right that has been tried at law and seeks an injunction, though there are a few cases where they may be brought before the party is actually prosecuted. . . The cases where bills of peace can be maintained are principally limited to cases of injunctions to stay proceedings at law, to restrain vexatious suits, to restrain the alienation of property, to restrain waste, to restrain trespasses, and to prevent irreparable mischiefs. The object generally is to establish and perpetuate a right which the party claims, and which, from its nature, may be controverted by different persons at different times, and by different actions, or it may lie where separate attempts have been unsuccessfully made to overthrow the same right, and where justice requires that the party should be quieted in the right. Its obvious design is to procure repose from perpetual litigation, and it is therefore justly called a bill of peace. .

Bills of quia timet are also known in the practice of equity as bills of prevention, and are used to accomplish the ends of precautionary justice. The name of the bill is taken from the expression of the party's fears in the application. He fears some future probable injury to his rights or interests, and not because an injury has already occurred which requires relief. Its object is to secure the preservation of property to its appropriate uses where there is future or contingent danger of its being diminished or converted to other uses, or lost by gross neglect, without the inter16 Lansing (N. Y.) Rep., 356, 363.

position of the court. It generally relates to personal property, and is applicable as against executors and administrators, trustees and corporations, where there is danger of devastation, waste or collusion, by which estates may be diminished, and where the appointment of a receiver is necessary.

CHAPTER XVII

REMEDIES IN EQUITY

Injunction.

The object of a case in equity is to obtain an order called an injunction, by which the court commands to be done some act which is essential to justice or forbids to be done some act which is contrary to justice. The one is a mandatory injunction; the other is a prohibitory injunction.

In the case of Parsons v. Marye,' decided in 1885 by the U. S. Circuit Court for the Eastern District of Virginia, Circuit Judge Hughes said:

Jeremy, in his Equity Jurisdiction, says: "An injunction is a writ framed according to the circumstances of the case, commanding an act which the court regards as essential to justice, or restraining an act which it considers contrary to equity and good conscience." The mandatory injunction may be in the direct form of a command, or in the direct form of prohibiting the refusal to do an act to which another has a right.

Contempt of Court.

Courts of equity inflict punishments in the form of fines or imprisonments or both upon persons who by disregarding or disobeying injunctions are guilty of 1 23 Federal Reporter, 113, 121.

I