THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 ipi 
 
 ^VrttHiixniOir.
 
 LETTER 
 
 TO 
 
 JOHN WILLIAMS, ESQ. M.P. 
 
 IN REPLY 
 TO HIS OBSERVATIONS UPON 
 
 THE ABUSES 
 
 OF 
 
 THE COURT OF CHANCERY. 
 
 BY 
 
 EDWARD B. SUGDEN, Esq. 
 
 LONDON: 
 PRINTED FOR J. & W- T. CLARKE, 
 PORTUGAL-STREET, LINCOLn's-INN. 
 
 AND 
 MESSRS. HATCHARD & SON, 187, PICCADILLY. 
 
 1825.
 
 Luke Hansard & Sons, 
 near Lincoln's-Inn-Fields.
 
 50 
 
 LETTER, 
 
 ^c. 
 
 SIR. 
 
 A S a practising Barrister in the Court of 
 Chancery, I may, I hope, be allowed to 
 address a few cursory observations to you 
 upon your last statements, which I have just 
 read, in regard to the jurisdiction of that 
 court, and the delays and abuses of which 
 you complain. In the outset, I heartily re- 
 joice to find that there are no abuses in the 
 court where you practise. To that I may 
 resort with pleasure when the Court of 
 Chancery is swept away from amongst the 
 cherished institutions of the country. There 
 
 -^.f'wr' O"
 
 I shall find jjerfect rules of evidence, no pro- 
 lixity in pleading, no sham pleas or other 
 dilatories, no hurried decisions at nisi prius 
 slowly corrected in the court above, no 
 jurisdiction assumed upon fictitious grounds. 
 Justice is there administered at httle cost, no 
 doubt ; and time, that great innovator, has 
 only ripened the rules of that court into per- 
 fection, whilst it has corroded and withered 
 the maxims of the Court of Chancery. It is 
 not my intention to excuse any abuses of the 
 Court of Chancery by recriminating upon the 
 Court of King's Bench ; but as you are ignorant 
 of the rules of equity, and well informed of 
 the rules of law, I am sure that you would 
 first apply yourself to the correction of the 
 abuses of the court in which you act, if there 
 were any, before you ventured to approach 
 the Court of Chancery. 
 
 I know that there are many defects in the 
 practice of the Court of Chancery, which have 
 crept in with time; and I heliene there are 
 not less in the courts of common law. I^- 
 who desire to practise with comfort what 
 you call the trade of the law, but which 
 I fondly believe is a science of a high
 
 3 
 
 class and an honourable and a distinguished 
 profession, wish that all abuses in all the 
 courts should be remedied ; and I think 
 that they may be reformed without the 
 courts being revolutionized. Reverence for 
 the laws is the distinguishing feature of an 
 Englishman's character, and his reverence is 
 founded upon no idle superstition, but upon 
 the well-founded confidence that thexules of 
 law are adapted to the general institutions of 
 the country, and are faithfully and uprightly 
 administered by the Judges of the land. Tlie 
 law of a court of equity has now been admi- 
 nistered for centuries, and, notwithstanding 
 the mirth of Selden, depends upon the length 
 o-f no man's foot, but is regulated by rules as 
 binding and settled as the most fixed rule of 
 common law. The property of thousands at 
 this moment depends upon the decision of 
 courts of equity, and the haste of the re- 
 former cannot at once annihilate those courts. 
 Reflect then calmly, I beseech you, upon the 
 incalculable mischief which must be occa- 
 sioned by inspiring the people of England 
 with a belief, that the Court of Chancery " is 
 a disgrace to the country ;" " an odious dun- 
 geon, from which, when a man is once im-
 
 mured in it, he seldom escapes without loss 
 of comfort, fortune, and life/' Will not such 
 declarations from a gentleman of your station 
 in life disgust the people with the general ad- 
 ministration of the law ? Can you believe, 
 that at common law right succeeds so inva- 
 riably, and at so little cost, that men will dis- 
 tinguish between the administration of the 
 two jurisdictions? One great object in ad- 
 ministering the law is to satisfy the failing 
 party that justice has been duly dispensed. 
 What man, who does not succeed in equity, 
 will believe that the scales of justice have 
 been held evenly, if your doctrines are to 
 gain ground ? And as frauds and breaches 
 of trust are cognizable in equity only, we 
 may expect long and loud complaints from 
 all persons, whose frauds are exposed and 
 punished, of the iniquity of the court which 
 has exhibited their fraudulent conduct, and 
 compelled them to refund their plunder. 
 They will be your ardent disciples, for the 
 common law could not reach their offences. 
 
 Your objection at this day to the rise of 
 the jurisdiction of the Court of Chancery is 
 somewhat amusing. Nearly all the commer-
 
 cial law of the country lias, to the great be- 
 nefit of the people, been created by the Judges 
 in the last half century. 
 
 The jurisdiction of equity was founded 
 upon the confined views of the common 
 law. The common law was so rigid that no 
 such settlements could be made of property 
 as prevail at this day. For these — and they 
 are a real benefit to the country — we are 
 indebted to courts of equity. The common 
 law would not look at a trust, and therefore, 
 if by any circumstance the legal title in my 
 property became vested in another, he was 
 absolutely entitled to it, and I was without a 
 remedy. This remedy equity supplied, and 
 in that followed strictly the civil law. If 
 one had for a trifling consideration, obtained 
 a conveyance from a son in his father's life- 
 time, of the family estate, there was no 
 relief at law. Equity established it, and 
 relieved against frauds generally, which the 
 common law could not reach. If men had 
 mutual dealings and long accounts depend- 
 ing between them, a court of law^ attempted 
 to settle them, and an action of account 
 might be brought : but the remedy was im-
 
 6 
 
 perfect (as it still is in Scotland), because the 
 court had no responsible officers before whom 
 the accounts could be taken. Equity, with the 
 assistance of it's masters, took such accounts 
 satisfactorily, and no man now resorts to law 
 although the right of action is not taken 
 away. The like relief is given where the 
 propert}^ of a deceased person is adminis- 
 tered. You propose to abolish all this relief 
 in courts of equity, but you cannot in this 
 enlightened age, refuse to the people of 
 Eno:land the remedies which I have noticed. 
 Would you deny to them the improvements 
 of ages, and confine them to the sort of 
 justice to which alone they would be entitled 
 if courts of equity were abolished. If you 
 did, they would quickly require at your 
 hands a restoration of the wholesome juris- 
 diction of those courts. Sons watchins; for 
 their father's property', fraudulent purchasers, 
 trustees, executors, would, no doubt, raptu- 
 rously applau-d your efforts ! But as you 
 complain of the division of the courts, you 
 would, no doubt, transfer to the courts of 
 common law the present jurisdiction of equity. 
 Juries are the fit tribunal to decide questions 
 of trust, intricate frauds depending on dark
 
 and intangled transactions, matters of ac- 
 count, and the administration and marshall- 
 ing of assets ! But this is too ludicrous ! Courts 
 of equity sprung from the inability of courts 
 of law to administer equitable relief; and 
 now, that the jurisdiction and rules of equity 
 are perfectly established, would you throw 
 upon incompetent courts the jurisdiction in 
 equitable cases ? Whether it was originally 
 desirable that the jurisdictions should have 
 been divided is not the question, but whe- 
 ther now, that both jurisdictions are defined 
 and ascertained by known boundaries, they 
 should be blended? No man who under- 
 stands the bearing of the question would 
 venture to attempt the task. If you did 
 blend them, or if you established a new juris- 
 diction, you would be compelled to have 
 new courts and additional judges, who must 
 fint learn the present rules of equity, or how 
 establish better than the successive expe- 
 rience of ages — of Bacon, Nottingham, Hard- 
 wicke, Thurlow, Eldon, assisted in all times 
 hy the Judges of England — have given to us : 
 you would supply them doubtless with 
 masters, or clerks, or accountants, or call 
 them what you please, to investigate the
 
 8 
 
 accounts and matters, which from their 
 nature cannot be settled at a heat — hke a 
 sweepstakes— but require much time to inves- 
 tigate. When all this is accomplished what 
 will the nation gain ? 
 
 Probably, after making yourself master 
 of the present rules of equity, you would 
 remodel the code for your new courts. I do 
 not stop to correct your errors as to in- 
 junctions, because every one knows they can- 
 not be obtained in the way \^ou mention. If 
 the remedy is at law, and the defendant has 
 recourse to equity^ the question is " not torn 
 from a jury ^" because the resort to equity 
 admits the legal right to be clear, but upon 
 equitable grounds asks relief. In such cases, 
 if the plaintiff at law answer in time (and 
 you would surely not have the time which is 
 allowed to answer enlarged) no injunction 
 can go unless upon merits confessed in the 
 ariswer; and where the injunction is not 
 against proceedings at law, the bill must be 
 verified by affidavit, and even then the mat- 
 ter is not decided in the absence of the 
 other party, unless in cases where delay would 
 operate instant and irremediable mischief-—
 
 as where a man is about to cut down the 
 timber upon an estate without having a right 
 to it. 
 
 You seem to think that a man guilty of a 
 fraud, may defend himself in equity against 
 all summary proceeding at law. But the 
 rule is precisely the reverse. You instance 
 the case where executors have 100,000/. 
 assets, and there are no debts, and yet a 
 legatee of 1,000/. cannot have a summary 
 remedy in so plain a case. What do you 
 propose ? To pay the legacy before you 
 ascertain whether there are any debts to pay ; 
 or would you assume that no man who leaves 
 100,000/. can be indebted within a 1,000/. 
 of that amount ? Or would you consider it 
 satisfactory, that the legatee knows of no 
 debts ? Can you point out a more perfect 
 system than that which is now established ? 
 The executor is not allowed to commit any 
 fraud. He is compelled to deposit the 
 100,000/. in the Bank of England, ready to 
 answer the demands of the parties really en- 
 titled to it, and the master advertizes for 
 creditors to come in by a day named. 
 
 c
 
 10 
 
 You complain of the usurped jurisdiction 
 of equity, and yet make a grave charge 
 against it, because it does not allow a trial at 
 law upon a will of personal estate. Equity re- 
 frained from so doing, because the Ecclesias- 
 tical Court had the 5o/e jurisdiction, but as to 
 real estate, over which no such jurisdiction 
 prevailed, equity did resort to a jury, as it 
 always does upon disputed facts of import- 
 ance, for equity delights to follow the law. 
 What then becomes of this ground of charge. 
 
 The law of real property too, according to 
 your temperate and dignified mode of dis- 
 cussing the law of the land, is utterly dis- 
 graceful to the country, and affords matter of 
 perfect sarcasm, ridicule and disgust to those 
 who understand it and see how it is managed ; 
 but as they are the happy chosen few — six, 
 I think you state — they may be allowed to 
 laugh at that by which they live. You ap- 
 pear to be surprised, that a man may form a 
 judgment of a horse which he buys, but that 
 he cannot of the title to an estate. Would 
 you try a long and complicated title like a 
 horse cause? Do you propose to re-model
 
 11 
 
 the law of real property ? Whom would vou 
 employ ? Not the chosen six who alone 
 comprehend it surely ! I have studied the 
 law of real property, the page of which is 
 open to all. Its rules are clear, precise, and 
 well established, and founded upon the learn- 
 ing and experience of ages, and have (if I 
 may be allowed the expression) from time to 
 time accommodated themselves to the varying 
 changes of property occasioned by the influx 
 of commerce and wealth. Their application 
 is frequently attended with difliculty, because 
 in this free country every man can dispose of 
 his estate as he pleases, and wealthy men de- 
 light in making complicated settlements and 
 wills — unwilling in death to relinquish their 
 grasp over their property. Would you restrain 
 this power? If not, what would new rules 
 avail? It is stated, that in a particular case, 
 an abstract of a title extended over eight hun- 
 dred sheets. I can truly state, that in my 
 former practice I never saw an abstract of any 
 thing like that length. What does such a 
 singular case prove, but that the owners had 
 often changed, or had frequently mortgaged 
 or settled the estate ? Could you restrain 
 their power ? 
 
 c 2
 
 12 
 
 Bat let these laws stand upon their own 
 merits, what is the charge against the Courts 
 of Equity. They are legal rules, and followed 
 as such in equity. 'Jlie ground, indeed, upon 
 which you introduce your objections to the 
 law of real property, is, that " it is one 
 of the sources out of which the Court of 
 Chancery is fed, because it is the doubts 
 thrown upon the titles of land that filled its 
 insatiate maw with so many dainty morsels — 
 because it leads to the filing of those special 
 bills for specific performance (to use the slang 
 of the Court of Chancery) which occasions 
 such delightful pickings for the Chancery 
 lawyers.'' 
 
 These are well chosen terms, I admit, for 
 a temperate discussion of the jurisdiction of 
 the highest court of the kingdom. But let 
 them pass, and I will join issue with you upon 
 the jurisdiction itself, in cases I must be al- 
 lowed to call them of specific performance, 
 till your wisdom furnishes us with better 
 terms. The jurisdiction of equity in the case 
 of specific performance, is at once the most 
 ancient and useful branch of its jurisdiction. 
 It compelsthe parties literally to perform their
 
 [3 
 
 aoreement. What is the objection to this? 
 One man agrees to sell or settle an estate, 
 and another to buy or give a consideration 
 for it. Why should they not perform their 
 agreement ? If there were no court of equity, 
 the seller, for example, of an estate might • 
 refuse to convey it to the purchaser, although 
 he was ready to pay for it, and would merely 
 be liable to such damages as a jury might 
 think proper to give. This would encourage 
 men to break their solemn contracts, instead 
 of literally performing them. The jurisdic- 
 tion of equity in these cases, has accustomed 
 men for ages to look on both sides for the 
 literal performance of such contracts, and has 
 mainly contributed to the character for fair 
 dealing which Englishmen enjoy ; and equity 
 never interferes, unless where the object of 
 the contracting party cannot be accomplished 
 by the substitution of a similar subject with 
 that contracted to be sold. If equity did not 
 interfere, and a man were to purchase an 
 estate, he could not be sure that he should 
 obtain it until it was actually conveyed to 
 him, so that he might die in the uncertainty 
 whether he had the estate to leave by his will 
 or not, although the seller had a good title to
 
 14 
 
 it. So if a man before his marriage were to 
 agree to settle his estate upon his wife and 
 issue, at law he would be liable only to da- 
 mages, and might refuse to make the settle- 
 ment. This would in many such cases lead 
 to distressing actions between a father and 
 his wife and children. But equity prevents 
 the necessity of such actions, and compels 
 the father to settle the estate itself according 
 to his agreement. Such a jurisdiction is 
 founded upon the soundest principles. If every 
 man of property in England were polled upon 
 this point, I am satisfied that the votes would 
 be greatly in favour of the rule as now esta- 
 blished. 
 
 I have now considered your objections to 
 the jurisdiction of the court, and the principles 
 upon which it is guided. 
 
 You then complain of delay, and suppose 
 that the cases now before the court cannot be 
 decided in a less period than forty years from 
 this time. You appear to be entirely ignorant 
 of the number of causes, petitions, &c. which 
 are respectively decided annually upon an 
 average; and you choose to assume, that every
 
 ,) 
 
 petition will require the .same period to decide 
 as a heavy cause involving many abstruse 
 points of law, and the consideration of evi- 
 dence, whereas forty or fifty petitions (and 
 I am not speaking of consent petitions) are 
 frequently disposed of at a single sitting; 
 and frequently at a sitting, from fifteen 
 to thirty,., and more short causes, are heard 
 and disposed of ; many of them involving the 
 decision of points of law of considerable 
 nicety. Where as in an action at law, the 
 property in dispute depends upon a single 
 question, a decision may, and constantly is, 
 obtained upon it in equity as quickly as at 
 law. Not above fifty of the causes which 
 were set down for hearing as late as Hilary 
 Term 1824, remain for an original hearing 
 before the Vice-Chancellor ; and nearly 
 all the original causes at the Rolls (where 
 the pressure is, not so great) have been heard 
 up to Trinity Term 1824. It has been 
 publicly stated that an amicable suit in 
 Chancery lasted for thirty-three years. If 
 the circumstances were stated, it would, no 
 doubt, appear that the very object of the 
 suit was to secure the fund in court. It con- 
 stantly happens, where there are infants enti-
 
 16 
 
 tied to personal property, that their relations 
 do not choose to trust to the honesty of indi- 
 viduals, or are desirous to guard against their 
 deaths, or other accidents ; and, therefore, 
 file a bill for the express purpose of the fund 
 being secured in court, until the infant attains 
 twentv-one; and it sometimes happens, that be- 
 fore that time arrives, by intervening accidents, 
 over which the court has no control, other 
 persons become entitled to the fund, and the 
 court cannot distribute it until their rights are 
 ascertained. In such cases, therefore, the court 
 is censured for accomplishing the very object 
 for which alone the suit was instituted. 
 
 A gentleman of great eminence in the 
 mercantile world has stated, as a grievance, 
 a Case in which, upon the advice of his soli- 
 citor, he sacrificed 500/. rather than go into 
 a court of equity, as his costs, if he succeeded, 
 would exceed that sum in amount. If this is 
 meant as a statement that every successful 
 party in equity has 500/. costs to pay, of 
 course it is altogether fallacious. I have 
 some reason to believe, that in the case alluded 
 to, very heavy accounts must have been in- 
 vestigated to ascertain the amount of the sum
 
 17 
 
 due, which ch'cumstance led in effect to a 
 compromise. The law besides was, I believe? 
 against the claim of the gentleman referred 
 to, for whoever buys a bond, takes subject to 
 the account between the original debtor and 
 creditor. Observe the equity of the claimant: 
 A. holds a bond from B. for 4,500/. A. 
 deposits it with C. to secure the like sum, and 
 C does not inquire from jB. what is owing on 
 the bond, and when he finds that B. has 
 already paid 500/. to A. thinks himself un- 
 justly treated, because B. will not pay that 
 500 /. over again. The same gentleman 
 alluded to another case, where a matter of 
 business had been converted by the defendant 
 into a suit in Chancery, that had lasted twen- 
 ty-three years, when a gentleman named (like 
 Sir Charles Grandison, for such tales have 
 not even the recommendation of novelty,) sat 
 down to unravel the accounts, and in three 
 hours put into order that which the Court of 
 Chancery had failed to do in twenty-three 
 years ! And it is upon statements like these 
 that the people of England are no longer to 
 have equitable relief administered to them. 
 
 Even in cases of accounts, and the like, 
 
 D
 
 j8 
 
 time is necessarily consumed in examining the 
 accounts, which in many cases extend over 
 many years. How would delay be avoided, 
 by abolishing courts of equity, and referring 
 the matter to a new tribunal? Would you 
 approve of Mr. Ellice's proposal, that the 
 Court of Chancery should in matters of 
 account adopt the practice of the Ecclesias- 
 tical Court, where matters are referred to the 
 registrar, assisted by mercantile characters, 
 who sit once and continuously till they make 
 their report ? The registrar stands in the 
 place of the master, and, therefore, that is no 
 improvement ; and mercaniile men could, of 
 course, readily be found to sit with a m.aster 
 upon all the accounts of all the trust estates 
 in the kingdom, once and continuously, till 
 they made their report ; of course in the 
 character of assistant masters, but without 
 emolument. Kind heaven protect us from a 
 jurisdiction so constituted ! When accounts 
 are referred to arbitration, experience has 
 shown that nothing is ever saved in point of 
 time, and the parties are invariably dissatis- 
 fied with the decision of a domestic forum, 
 although they may have agreed to the refe- 
 rence.
 
 1.0 
 
 It is said to be allowed, thai, under some 
 circumstances, it may cost l.,500/. to recover 
 3,000/. in equity. Indeed ! It is no doubt 
 to be lamented, that in many complicated 
 cases the expenses do not bear any propor- 
 tion to the value of the property, so that it 
 may cost a large sum to recover in one case a 
 small property, and in another but a small 
 sum to recover a lar^e property. How can 
 this be avoided ? In a late case at law a new 
 trial was granted upon the applicant's paying 
 the costs of the former trial, and the costs 
 came to 3,000/. 
 
 The prison of the Fleet is said to contain 
 within its walls many victims of the Court of 
 Chancery, but in such cases the court has no 
 jurisdictioji to release them. Why do not 
 they, who desire to relieve such persons, 
 bring a bill into parliament to alter the 
 law. Some of such persons undoubtedly 
 are victims of their own obstinacy. I re- 
 collect four or five years ago a man bemg 
 brought from the Fleet into court to put in 
 his answer to a bill filed against him, but 
 which he refused to do. Two or three barris- 
 ters, not concerned in the cause, of whom 
 
 D 2
 
 20 
 
 I happened to be one, took the man into a 
 private room, offered to look into the case for 
 him, and advised him to answer so as to pre- 
 vent the necessity of his being sent back to 
 prison, but he refused to do so, and said he 
 would try a little further confinement at all 
 events. Would you have released such a 
 person from answering the claimant's case, or 
 would you have decided against him without 
 any answer? 
 
 I have thrown these observations hastily to- 
 gether, with a warm feeling of the indispensa- 
 ble necessity of upholding the jurisdiction of 
 equity, and of not diminishing the reverence of 
 the people for the administration of justice in 
 that court ; and if they shall operate to make 
 you hesitate in the attacks which you so 
 strongly make against the court, and which 
 must lessen its authority, and the value of 
 its decisions in the eyes of the country, my 
 labour will not have been thrown away. 
 At the same time I should at all times be 
 ready to concur, if my concurrence were 
 necessary, to the extent of my ability, in re- 
 medying all abuses which have in the current 
 of time crept into the administration of justice,
 
 21 
 
 whether in law or equity ; and I do trust, that, 
 in future, invective will give place to argu- 
 ment, and that they who attack the wisdom 
 of the law will condescend, first, to show in 
 what particulars they object to the law as it 
 stands ; and, secondly, what improvement 
 they suggest. 
 
 I am, Sir, 
 
 Your faithful obedient servant, 
 
 EDWARD B. SUGDEN. 
 
 Lincolns'-Inn, 
 
 \ld June, 1825. 
 
 Luke Hansard & Soii<>, 
 near Lincoln's- Inn-Fields.
 
 CV 
 
 
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