OP THE EQUITABLE JURISDICTION OF THE COURT OF CHANCERY. EonDon: C. J. CLAY AND SONS, CAMBRIDGE UNIVERSITY PRESS WAREHOUSE, AND STEVENS AND SONS, LIMITED, 119 AND 120, CHANCERY LANE, LAW PUBLISHERS AKD BOOKSELLERS. DEIGHTON, BELL AND CO. F. A. BROCKHAU8. MACMILLAN AND CO. AN HISTOBICAL SKETCH OF THE EQUITABLE JUKISDICTION OF THE COUET OF CHANCEEY. BEING THE YORKE PRIZE ESSAY OF THE UNIVERSITY OF CAMBRIDGE FOR 1889. BY D. M. KERLY, M.A., LL.B., FELLOW OF ST JOHN'S COLLEGE, CAMBRIDGE ; OF THE INNER TEMPLE, BARRISTER-AT-LAW. CAMBRIDGE: AT THE UNIVERSITY PRESS 1890 [All Rights reserved.] Cambridge: PRINTED BY C. J. CLAY, M.A. AND SONS, AT THE UNIVERSITY PRESS. PREFACE. "YTTHILE so many books have been published upon every * branch of the text of English Law, it is strange that so little attention should have been paid to its history. Reeves' History is still the only account of the progress and develop- ment of the common law as a whole, and no similar history of the great rival system of equity has ever appeared. Much has been written, indeed, upon the origin of the extraordinary juris- diction of the Chancellors, and upon the genesis of particular branches of equity, as, for instance, trusts. The learned work of Spence, and the admirable introduction to the Close Rolls by Sir Duffus Hardy are accepted authorities on the origin of English equity, and quite recently new light has been thrown upon the subject by a number of essays in the Law Quarterly Review, and by Mr Pike's introductions to the Year Books of 12, 13, and 13, 14 Edward III. in the Rolls series. The second part of the first volume of Spence contains, besides the account of the rise and establishment of the equitable jurisdiction of the Court of Chancery already referred to, a description of equity at, and before the end of the reign of Charles L, a large part of which, however, is based upon inferences drawn from decisions of Lord Nottingham and other Chancellors who belong to the period following the Rebellion. These scattered fragments are, so far as I am aware, the only history of equity we have. The following essay does not pretend, in any way, to fill the gap, or to rival the elaborate history of the common law mentioned above. Its aim, as indeed its size sufficiently sug- gests, is far less ambitious. An attempt has been made to sketch the rise, development and progress of the Court of 1C99195 vi PREFACE. Chancery as a Court of Equity, and to give a summary account of the introduction and development of some of the leading principles which the court adopted, and of the procedure by which they were embodied in practice. Obviously, so large a subject could be treated within the limits of the essay in out- line only. I have derived much assistance from Spence and from the introductions and essays referred to above, and, as regards the history of the court, and of the Chancellors who presided over it, from Parkes' History of the Court of Chancery and Lord Campbell's Lives of the Chancellors, and for the materials of the 12th chapter, on the growth of modern equity, I have drawn largely upon the stores collected in White and Tudor's Leading Cases. My indebtedness to these and the other works and authorities of which I have made use is fully acknowledged in the notes. I have added, in the notes to the 12th chapter, some references, (printed in heavy type) to recent cases in which the principles summarised in the text have been discussed and illustrated, in the hope that, with their assistance, the account of the leading cases and of the doctrines established by them given in that chapter may b*e useful as a first introduction to a study of modern equity. The majority of the recent cases are taken from Brett's Leading Cases in Modern Equity, where the facts of, and extracts from the judgments in the cases are set out, and I am indebted to Mr Brett and his publishers for permission kindly accorded to me, to make use of his valuable collection. I have to thank my friend Mr A. Wood Renton for his kindness in reading the proof sheets of the essay. D. M. KERLY. 1, GARDEN COURT, TEMPLK. July, 1890. CONTENTS. CHAPTER I. PAGE Introduction 1 The Judicial System of Mediaeval England, and the relation of the King, the Council and Parliament to it 7 The King's Courts 8 Procedure by writ 9 Writs consimili casu .......... 10 Equity and the action on the case ....... 11 Judicial power of the King 13 Judicial power of the Council 17 Judicial power of the Parliament 19 Subsequent history of these powers 21 CHAPTER II. The Chancellor . ... , . 23 CHAPTER III. The Establishment of the Chancellor's jurisdiction . . . . 26 References to him under Edward I. ....... 27 References to him under Edward II 28 Eeferences to him under Edward III. 30 The Court of Chancery fixed at Westminster 31 CHAPTER IV. Petitions of the Commons against the Chancellor's jurisdiction, and Statutes relating to it 37 Petitions under Richard II. 38 Statute as to costs in Chancery 39 viii CONTENTS. PAGE Petitions under Henry IV. 41 The Statute against reversing judgments 42 Petition against the subpoena 43 Examination of the Defendant in Chancery 44 Later petitions against the Chancery 45 CHAPTER V. The Chancery from the reign of Richard II. to the reign of Elizabeth, and the Bills in the Calendars ....... 47 SEC. 1. Procedure and Pleading. Contents of the Calendars 48 Common Law in Chancery 49 Constitution of the Court 57 The Bill ... . 61 Examples of bills . . . . 62 The Writ .' 66 Answer and reply 67 The mode of taking evidence 68 The decree 69 SEC. 2. The relief sought. A. Where the common law remedy could not be obtained ... 71 B. Where the common law process was used oppressively or fraudu- lently 72 C. Forgery and duress 73 D. Where no remedy was contemplated by the common law . . 76 Discovery 77 Uses and trusts . 79 Contracts 87 Specific Performance 88 Injunction -'..-" 89 Equity under Henry VIH 92 CHAPTER VI. From Wolsey to the Commonwealth. The Chancellors .... 94 Wolsey, the last of Ecclesiastical Chancellors . . . . . 94 Sir T. More . 96 Lawyers as Chancellors 97 Lord Ellesmere .."'....". 99 Influence of precedent and of Roman Law in early equity . . . 100 Lord Bacon's Speech on taking his seat as Chancellor . . . 103 His orders . 104 Lord Coventry jQ5 CONTENTS. IX CHAPTER VII. PAGE The straggle for pre-eminence > . 107 Injunctions 107 Law and equity under Elizabeth 108 The contest over injunctions 109 The Earl of Oxford's case Ill Threat of a praemunire 113 The reports to the King 114 The King's decree 115 Development of equity consequent upon this victory .... 116 CHAPTER VIII. From Wolsey to the Commonwealth. Procedure and Practice . . 118 The bill, and process to compel appearance 119 The answer 120 Examination of witnesses 121 Dilatoriness of the procedure 122 The hearing and the decree 123 Motions and references 124 Suits in forma pnuperls . ... 126 Officers of the Court . 127 CHAPTER IX. From Wolsey to the Commonwealth. The matters dealt with by the Court, and the relief given 129 Uses and Trusts 130 The Statute of Uses . 133 The Statute of Wills . 134 Trusts after the Statute of Uses . 135 Administration . 139 Wills ..._.. 141 Charities . , 142 Separate Estate ' . 142 Mortgages . 143 Fraud and Accident . ... . . . ... 145 Suretyship . . . 146 Specific Performance . ... . . . . . ^ . 147 Accounts . . . . . ... . . . . 148 Injunction . . , . . 149 Discovery . . . * . 151 Criminal Jurisdiction 153 CONTEXTS. CHAPTER X. PAGE The attempted reforms under the Commonwealth 154 Abuses of the Chancery 155 Whitelock's Orders 156 Proceedings in Parliament 157 The Chancery Amendment Bill . . 159 Cromwell's Ordinances 161 Failure of the reformers 163 CHAPTER XI. The Court of Chancery from the Eestoration to the retirement of Lord Eldon ....... 164 Clarendon's Orders 164 Development of real property law 165 Development of equity 166 Appeals to the House of Lords 167 The Chancellors of the 17th and 18th centuries .... 169 Lord Nottingham 169 The Statute of Frauds 171 Attacks on the Chancery in Parliament 172 Somers' Act 173 Lord Macclesfield 174 Lord Hardwicke 175 LordThnrlow 179 Improvement of the Law . . . . . . . . .181 Lord Eldon 182 CHAPTER XII. Growth of modern equity 184 SEC. 1. The general characteristics of the leading cases. The leading cases 186 Scarcity of reports 187 Arguments in the leading cases 188 Influence of Roman Law upon equity 199 SEC. 2. The doctrines of the leading cases. 1. Trusts, voluntary settlements, trustees' receipts, executory trusts, precatory trusts, the trustee, investment of trust money, remune- ration of the trustee 192 Conversion 202 Joint ownership 205 CONTENTS. XI PAGE Assignment of choses in action ' . 206 Powers, illusory appointments, fraud on a power .... 207 2. Administration, payment of debts out of real estate, the interpre- tation of wills . . . 210 Legacies, satisfaction of debts, ademption of legacies by advance- ments, substitution of legacies, ademption of specific legacies . 213 Marshalling . . . . 215 Election . 217 Bestraints on marriage '. . 218 3. Married Women's property, equity to a settlement, the wife's re- version, mortgage of the wife's estate ...... 220 4. Infants . . 225 5. Mortgages, redemption and foreclosure, tacking, consolidation . 227 Vendor's lien . . 233 Equitable mortgages . . . . 234 Notice . . .234 6. Fraud, standing by . . . . . . . . .- .237 Catching bargains . . . ....; . . . 240 Undue influence . . . . . . . 242 7. Mistake, (1) in expression, parol evidence, rectification of wills, construction of releases, (2) in matter of substance, unilateral mistake '-'."-.-. . 243 Compromise . . . . . . ... . . 249 8. Penalties . ':' . . 250 9. Sureties . . . . 251 10. Specific performance, part performance, time not of the essence of the contract, specific performance a discretionary relief, agree- ments between husband and wife 253 11. Injunction . . . 258 Equitable waste 259 12. Discovery . 260 Purchase for valuable consideration without notice . . . 261 CHAPTER XIII. Reform in chancery . . . . . . . . . . -' 264 The demand for reform ......... 264 Uncertainty of the law . . . . . . . . 266 Costliness of equity . . . . . . . . . . 267 The six clerks . .. i . . 267 Evidence in chancery . . . ... . . . 268 The pleadings . . . 269 Delay in chancery 270 Xll CONTENTS. PAGE Appointment of additional judges in equity 272 The master's offices 273 Lord Eldon's commission 274 The Orders of 1828 and 1831 275 The Chancery Regulation Act, 1833 275 Eeforms in the law, and in the common law courts .... 276 Sir George Turner's Act and Lord Cottenham's orders . . . 277 Summary procedure in equity 279 Last reforms of the Masters' offices 280 The Chancery Commission of 1850 281 Its reports on jurisdiction and evidence . . . . . . 281 Extension of summary procedure 283 Abolition of the Masters 283 New rules as to pleading and parties 284 Summons at chambers 284 Issues of law abolished 2S5 Further changes in the mode of taking evidence .... 285 The Consolidated Orders of 1860 287 The Common Law Procedure Acts 288 The Auxiliary jurisdiction in equity superseded .... 288 The proposals of 1860 to give further equity powers to the common law courts 289 Substantive reforms in equity 290 Fusion of equity and common law 292 The Judicature Acts . . 293 TABLE OF ABBREVIATIONS. Abbreviations. Ap. Ca. Atk. B. and P. B., Bea, Beames Bing. Bro. Ab. Brooke Bro. C. C. Bulst. Burr. C. D. Cal. Camp. Gas. in Chy. Chy. Cas. 1, 2, 3, Ch. Cas. Cas. Talbot Cas. Temp. Finch. Ch. Cas. Ch. Eep. Ch. 01. Boll. 01. and F. Co. Co. Inst. Cox Cr. and Ph. Cro. Car. Cro. Jac. D. F. and Jo. D. G. J. and S. D. G. and J. Dick. Digby Dow Dr. and W. Drew. References. Chiefly to Reports. Law Eeports. Appeal Cases Atkyns Bosanquet and Puller Beavan Orders in Chancery Bingham Abridgement Brown's Chancery Cases Bulstrode Burrows Law Reports, Chancery Division Calendars of the Proceedings in Chancery Campbell's Lives of the Chancellors Cases in Chancery (Ed. 1735) Cases in Equity in the time of Talbot Reports tempore Finch Choice Cases in Chancery (Ed. 1672) Reports in Chancery (Ed. 1736) Law Reports, Chancery Appeals Close Rolls * Clark and Finelly Coke's Reports Coke's Institutes (Ed. 1816) Craig and Phillips Croke's reports of the reign of Car. I. ,, ,, ,, ,, James I. De Gex, Fisher and Jones De Gex, Jones and Smith De Gex and Jones Dickens (Ed. 1803) Digby's History of Real Property (3rd Ed.) Dow's Reports, House of Lords Drury and Warren Drewry XIV TABLE OF ABBREVIATIONS. Abbreviations. References. Chiefly to Reports. Eq. Ca. Ab. Equity Cases Abridged Free. Freeman Giff. Giffard Gilb. Gilbert's Reports H. L. C. House of Lords Cases Ha. Hare Inst. Coke's Institutes J. and W. Jacob and Walker Jac. Jacob K. and J. Kay and Johnson L. J. Ch. Q. B. Law Journal Chancery Queen's Bench L. R. Eq. Law Reports Equity L. R. H. L. Law Reports, House of Lords Law Quar. Rev. Law Quarterly Review Lev. Levinz M. and Cr. Mylne and Craig Madd. Maddock Mer. Merivale Mod. Modern Reports Monro Acta Cancellariae P. \v. Peere Williams (Ed. 1826) Parkes History of Chancery Prec. Chy. Precedents in Chancery Q, B. D. Law Reports, Queen's Bench Division Rep. Coke's Reports Rep. in Chy. Reports in Chancery (Ed. 1736) Rolle Rolle' s Abridgements Rot. Parl. Parliamentary Rolls Russ. Russel Salk. Salkeld Sch. and Lef. Schoales and Lefroy geton Seton on Decrees (4th Ed.) Show. P. C. Shower's Parliamentary Cases Sim. Simon Smith, L. C. Smith's Leading Cases (9th Ed.) Spence Speuce's Equitable Jurisdiction Swan. Swanston T. R. Term Reports Term Rep. . Toth. Tothill (Ed. 1649) Ves. Vesey (Junior) Ves. Snr. Vesey Senior (Ed. 1818) Vern. Vernon (Ed. 1828) Vin. Ab. Viner's Abridgement W. and T. White and Tudor's Leading Cases (6th Ed.) Warren Law Studies (3rd Ed.) Y. and C. Ex. Younge and Collier's Exchequer in Equity INTRODUCTION. THE Court of Chancery merged by the Judicature Acts with the Courts with which it had so long been con- trasted administered a system of rules and principles which were very unlike those administered by the Chancellor in the early days of his judicial dignity, if indeed the Chancellor in those early days can be said to have administered any system of rules or principles at all. Writers on the later Equity had no difficulty in showing that the decisions of Lord Eldon's successors were as closely reasoned, and as well grounded on precedent as any given in a Court of Common Law, and that the ruling of the Chancellor, the Vice-Chancellors, or the Master of the Rolls could be anticipated with as much con- fidence as that of a judge. The difficulty they found was rather to discover on what general principle those laws which were Equity could be distinguished from those which were Common Law, and to explain in any rational manner why it should be necessary in some cases to go to one side of Westminster Hall, in some to the other, and in some to both, to obtain redress which was promised by the laws of the land. Technical equity had come, in fact, to have no special connection with equity in the sense of justice, that is, the common or average idea of Avhat ought to be. Blackstone 1 , writing in the middle of the 18th century, in terms which would have been more accurately applied to a later period, shows that modern 'Equity' makes no claim to moderate in any given case the rigour of the Common Law, for there are many hard cases in which it offers no relief; that in 1 Commentaries, Vol. in. p. 430. K. 1 2 INTRODUCTION. the administration of it no special regard is paid to the spirit as opposed to the letter of the law, for all Courts use the same rules of interpretation ; that its scope cannot be summed up under the heads of fraud, accident and trust, for, while ques- tions coming under each of these are determinable in the ordinary Courts, a Court of Equity deals also with questions coming under none of them; and that, as already said, judges in Equity pay a due respect to precedents and to the customs of the Court. In fact, he says 1 , " the system of our Courts of Equity is a laboured connected system, governed by established rules, and bound down by precedents, from which they do not depart, although the reason of some of them may perhaps be liable to objection." And Mr Justice Story 2 , later on, defined Equity jurisprudence as " that portion of remedial justice which is exclusively administered by a Court of Equity as contra- distinguished from that portion of remedial justice which is exclusively administered by a Court of Common Law." It will appear in the course of this essay that, with the exception of the very small boundary marked out by Statute, which itself was often infringed, the equitable jurisdiction of the Chancellor was at first, and for many centuries remained, untrammelled by definite rule. The decrees of the Court of Equity down to, at least, the reign of Elizabeth were, in Black- stone's words 3 , " rather in the nature of awards, formed on the sudden pro re nata, with more probity of intention thaii know- ledge of the subject, founded on no settled principles as being never designed, and therefore never used for precedents," though they were indeed influenced and moulded by the current notions of morality, in the formation of which the great stores of an older system played an important part, and from time to time, but in an irregular and occasional manner, as the scanty references to Chancery in the Year Books show, affected by a repugnance to interfere with what were taken to be fundamental principles of Common Law. This was the Equity whose standards Selden indignantly compared to the length of the Chancellor's foot. 1 Commentaries, Vol. in. p. 432. 3 Vol. in. p. 433. 2 Story's Equity Jurisprudence, c. 1, 25. INTRODUCTION. 3 Sir Henry Maine has suggested that the earliest laws originated in the " themistes " or decrees of an arbitrary and uncontrolled judge being found to contain, in the long run, a number of constant principles. The same case arising again and again with slightly varying circumstances is found to call for the same decision, and so a rule is formulated and laid down prospectively. In just the same way, in a particular class of cases, our modern English Law, erecting the jury as the judge of what is average or reasonable care or conduct, gradually obtains from repeated verdicts a rule to fit the more marked cases, and what was a ' question of fact ' becomes a ' question of law 1 .' I shall endeavour to show that the develop- ment of our system of Equity, its growth from the rudimentary stage, in which the personal conscience of the judge, the arbi- trium of a single bonus vir, assisted by the principles and rules of morality, and occasionally the vague traditional course of the Court, decided each individual case, to that in which such legislation ex post facto almost entirely ceased to occur, was carried out by an analogous process. Right and legal remedy are expressly declared by a maxim of our law to be correlative terms, and a modern jurist in defining rights deals only with such as may be enforced or defended in the Courts of the State, but these notions, it must be borne in mind, are essentially modern, and are based upon the near coincidence in a developed State of the areas covered by positive law and by positive morality, and upon the per- manent presence of a legislature ready and willing to grant to the Courts new or altered powers wherever the sense of the community declares that a particular case is unprovided for, or wrongly treated, by the law. The state of things in England, in the thirteenth century, was entirely different ; that there was 'no remedy at the Common Law,' was only too apparent in many a hard case, not only where the Common Law did not contemplate a remedy, but where it did and its machinery failed to provide one. The legislature indeed was not altogether inactive, and from time to time elaborate codes dealing both with procedure 1 The Common Law, Holmes Lecture, in. p. 123. 12 4 INTRODUCTION. and with substantive law, were enacted by it ; for instance, the Statute of Marlebridge 1 , and the Statute of Westminster the first 2 were enacted, for "the Reformation of Statutes and Laws, whereby the Peace and Tranquillity of the People may be preserved, and wherein convenient remedy by the King and his Lieges ought to be applied," as the preamble of the former Statute states. Still it was both difficult to reach and hard to move, and, in most cases even of admitted hardship, a mediaeval statesman would undoubtedly have declared, as the Judges and the Chancellor himself on many occasions did, that it were better a single individual should surfer than that the law and constitution of the land should be changed. Under these circumstances sources of redress other than the ordinary courts of law were looked to. The King himself, his Council, and, after its erection, Parliament, could be petitioned for aid, and from the gradual devolution of the judicial pre- rogatives of these upon the Chancellor arose his extraordinary jurisdiction. The following pages commence with a summary account of judicial powers of the different Courts of the Kingdom, and of the King, the Council and Parliament in the 13th and 14th centuries, and of the peculiarities in the Chancellor's position which led to the gradual transference from the King, the Council and Parliament to him of applications for redress, where it was difficult or impossible to obtain it ' at common law.' The process was so far complete by the end of the reign of Edward III. that the Chancery was established as a regular Court, already administering most of what was afterwards called its common law jurisdiction, (when a distinction as yet not definitely drawn, was made, extending to both procedure and principle,) and administering also equitable relief. The gradual advance to this stage is traced by the aid of the records of orders and indorsements made upon petitions addressed to the other powers transferring them to the Chancellor's care. The new jurisdiction was not set up without considerable opposition. The House of Commons throughout the 15th century made repeated attacks upon it and the methods of 1 52 Hen. III. c. 1. 23 Edward I. INTRODUCTION. O its administration, and, though these were unsuccessful, they led to the passing of several important statutes, and they throw so much light on the Court of Chancery, and upon the popular feeling in regard to it, that I have thought it not out of place to give a short account of them. From the 17th year of Richard II. the bills and proceedings in Chancery were recorded and preserved, and, in the 5th chapter, an attempt is made to construct from the collection of those published by the Record Commissioners a sketch both of the relief granted by the Court and of the manner in which it was administered. A strict adherence to chronological sequence would have been equally difficult and unprofitable in this, as in the later portions of the book, and I have therefore adopted the plan of dividing the five centuries of the existence of the Court of Chancery into four periods : from Richard II. to Elizabeth, from Elizabeth to the Commonwealth, from the Restoration to the retirement of Lord Eldon, and from that event to the Judicature Acts. I have attempted in each of the first three periods to describe and illustrate the procedure and the leading doctrines of the Court as a Court of Equity, and in the second and third, to sketch, in general outline, the alterations from time to time of the spirit in which these doctrines were worked out, and the share taken by the great Chancellors in moulding and de- veloping their jurisdiction. The private lives of the Chancellors, their political achievements, and the important part they took in the growth and consolidation of the constitution of England have nothing to do with the subject of this essay, but the history of Equity is bound up with the alterations which many of them introduced into its principles and practice, and large areas of its jurisdiction are identified with such names as those of Ellesmere, Nottingham, Hardwicke, and Eldon. It is there- fore so far only as they left their individual marks upon the jurisdiction that any reference is made to the Chancellors who presided in the Court. The 10th chapter is wholly taken up with an account of the attempted, but unsuccessful reforms of Equity and its ad- ministration under the Commonwealth, and the 13th with the 6 INTRODUCTION. far-reaching reformation actually effected during the present century. Incidental questions, such as the relation of the Common Law side of Chancery to the Equity side, the weight of pre- cedents in early times, and the influence of Roman Law upon our own Equity, have been discussed at points in the narrative where they became of special prominence, and, in accordance with the general plan of making chronological order sub- ordinate to convenience, in discussing them, I have often taken both a backward and a forward glance at the history of the matters involved. Thus when the final settlement of the right of Chancery to grant injunctions to sterilise judgments at law is reached in the reign of James I., I have referred to the earlier grants of such injunctions and to far later opinions as to the expediency of allowing them. Propositions of fact, in a work dealing with legal history, which are unsupported by authority are entirely out of place. They are intruders which are entitled to no respect. And if in the following pages illustration and detail appear to be sometimes unnecessarily profuse, I must plead in excuse my anxiety to offer the means of verification for the opinions and statements put forward. CHAPTER I. THE JUDICIAL SYSTEM OF MEDIEVAL ENGLAND AND THE RELATION OF THE KING, THE COUNCIL AND PARLIAMENT TO IT. THE records of Mediaeval England which remain to us bear witness, not only to the extreme litigiousness of all The Courts of classes of Englishmen of the time, but also to the Law- great variety and number of courts to which, in one cause or another, recourse could be had 1 . The Norman Kings in in- troducing the High, or King's Courts, had not abrogated the jurisdiction of the local and personal courts which existed in every district. The Lord had his manorial courts and claimed to exercise judicial functions through his Council as the King himself did 2 , and the Sheriffs and the Aldermen of the towns held pleas ; the tenants in ancient demesne claimed that no writs ran against them to answer in the King's Courts, and every official of a court, lay or ecclesiastical, which exercised a particular jurisdiction claimed to answer in that court, and in that court only, for all matters, whether otherwise falling within its particular jurisdiction or not. The most important Courts, by far, in the 13th century, and especially towards its close, were the King's Courts. Henry II. had reorganised the Curia Regis, reducing the number of its judges from 18 to 5, and directing them "quod illi quinque audirent omnes clamores regni et rectum facerent ; et quod a Curia Regis non recederent, sed ibi ad audiendum clamores 1 See The Cominy of the Friars 2 See 15 E. 2. c. 12 (enacting that and other essays, Jessop ; and Intro- no one should be made to answer for ductions to the Year Books of Edward his freehold before the council of a III., Pike. Ulackstone, Vol. HI. ch. iv. lord). 8 THE KING'S COURTS. hominum remanerent ; ita ut, si aliqua questio inter eos veniret quoe per eos ad finem duci non posset ; auditui regi prgesenta- retur, et sicut ei, et sapientioribus regni placeret, terminaretur 1 ." This was probably the origin of the King's Bench as a distinct tribunal. The llth article of Magna Carta separated Common Pleas from other suits in the King's Court, and thence arose the Court of Common Pleas, which became a fixed Court sooner than the other Courts, although it was not immediately fixed by this article at Westminster, as is sometimes supposed, for it is found in Session at York so late as the reign of Edward III. At the beginning of the reign of Henry III. we find also the Exchequer as a distinct division, but, until the end of that reign, the judges of the two Benches and the Exchequer remained interchangeable, the Chief Justiciar being the recognised head of all. The office of the Justiciar lost its importance after the fall of Hubert de Burgh, the Chancellor, who had no connection with any of the Courts, succeeding to the position of judicial preeminence, and the three Courts became quite distinct, and soon began to develope diversities of procedure. Besides these Courts, and as auxiliary to them, were the itinerant justices who went circuit and held assizes of nisi prius, by virtue of special commissions, which, though at first entrusted to persons other than the judges of the three Courts, for instance to Serjeants-at-law, and on one or two occasions to the Chancellor, were ultimately almost invariably entrusted to them alone. The presence and jurisdiction of these Courts of the King tended constantly to diminish the importance of the local courts already mentioned, and gradually to restrict their functions to the determination of matters of small importance 2 . Thus it became a principle that, except as to land in ancient demesne, a claim touching a freehold must be made in the Common Pleas 3 , or might, as of course, be removed there, and 1 Introduction to the Close Rolls. Carta (c. 24) that the writ of precipe Hardy, p. xxv, quoting Beuedic Abbas should not issue concerning any tene- 206. ment whereby a freeman might lose 2 6 Edward I., c. 8 (no suit for less his court. See History of 'Real Property, than 40s. in the King's Courts). Digby, p. 71. 3 In spite of the provision of Magna FORMS OF ACTION. 9 the right of hearing appeals on pleas of false judgments given in the courts of the King's tenants was reserved to the King's Bench. The King's Courts had originally been established by the King's authority, and their jurisdiction in cases be- p roC edure by tween subject and subject was in every case based Wnt- upon the King's Writ. "Non potest quis sine brevi agere" Fleta wrote 1 in the reign of Edward I., and the same rule had been laid down in the preceding reign by Bracton. The writ had originally no connection whatever with the relief sought 2 , it had been a general direction to do right to the plaintiff, or as the case might be, but, long before the time now referred to, this had been changed. A particular writ had come to be the only appropriate commencement of an action for a particular redress, and all writs to commence actions were now issued from the Chancery, an office over which the Chancellor presided. It appears that even after the writ obtained by the plaintiff had come to be connected with the remedy sought for, until about the time of Glanvil, a writ to suit each case was framed and issued, but the Provisions of Oxford (1258) expressly forbade the Chancellor to frame new writs without the consent of the King and his Council. It followed that there were certain writs, each applicable to a particular state of circumstances and leading to a particular judgment, which could be purchased by an intend- ing plaintiff. These writs were described as writs " de cursu," and additions to their number were made from time to time by direction of the King, of his Council or of Parliament. The early statutes contain a number of new forms of writs. Thus the statute of Westminster II., after enacting that lands given to a man and the heirs of his body shall not be alienable by the tenant-in-tail, proceeds thus, " and forasmuch as in a new case new remedy must be provided, this manner of writ shall be granted to the party that will purchase it : Prsecipe A quod juste, etc., reddat E manerium de F cum suis pertinentiis quod C dedit tali viro et tali mulieri et heredibus de ipsis viro et muliere exeuntibus." 1 Fleta, 2, c. 13 (written circ. 15 ' 2 History of Procedure, Bigelow, Edward I.). ch. 4. 10 POWER TO FRAME NEW WRITS. The inadequacy of the common form writs to meet every Writs 'consi- case was > ^ some extent, remedied by the 24th mfflcuu.' Chapter of the Statute of Westminster II, which, after providing for one or two particular cases to meet which no writ existed, provides further that "whensoever from henceforth it shall fortune in Chancery that in one case a writ is found, and in like case falling under like law is found none, the clerks of the Chancery shall agree in making a writ or shall adjourn the Plaintiffs until the next Parliament, and the cases shall be written in which they cannot agree, and be referred until the next Parliament ; and, by consent of the men learned in the Law a writ shall be made, that it may not happen, that the King's Court should fail in ministering justice unto Com- plainants." In his commentary on this statute Coke asserts that it is merely declaratory of the Common Law, and Mr Bigelow has shown that, as already said, in earlier times the framing of writs had certainly not been restricted to merely copying pre- cedents 1 . The power of extending the jurisdiction of the King's Courts to new cases, and of adapting it to the growing needs and changing circumstances of the community by the construc- tion of new writs, revived or created by the statute, was not however so taken advantage of as to remove the constraints placed upon that jurisdiction by the connection between writs and forms of action. It appears that it was the custom for a plaintiff to state his grievance to the Chancellor or his clerks and for them to find or frame him an appropriate writ, for Fleta 2 tells us that there were associated with the Chancellor " clerici honesti et circumspecti, domino Regi jurati, qui in legibus et constitutionibus Anglicanis notitiam habeant pleni- orem ; quorum officium sit supplicationes et querelas conque- rentium audire et examinare, et eis super qualitatibus injuriarum ostensarum debitum remedium exhibere per brevia Regis," but this cannot be taken to mean that a writ was designed to fit every case. The words of the statute give no power to make a completely new departure ; writs are to be framed to fit cases similar to, but not identical with, cases falling within existing 1 History of Procedure, ch. 4. pears that parties sometimes brought * Fleta, 2, 13, 1. From 14 it ap- their own draft writs to be sealed. ACTIONS ON THE CASE. 11 writs, and the examples given in the statute itself are cases of extension of remedies against a successor in title of the raiser of a nuisance, and for the successor in title of a person who had been disseised of his common. Moreover the form of the writ was debated upon before, and its sufficiency determined by the judges, not by its framers, and they were, as English judges have always been, devoted adherents to precedent. In the course of centuries, by taking certain writs as starting points, and accumulating successive variations upon them, the judges added great areas to our Common Law, and many of its most famous branches, assumpsit and trover and conversion for instance, were developed in this way, but the expansion of the Common Law was the work of the loth and subsequent cen- turies, when, under the stress of eager rivalry with the growing equitable jurisdiction of the Chancery, the judges strove, not only by admitting and developing actions upon the case, but also by the use of fictitious actions, following the example of the Roman Prsetor, to supply the deficiencies of their system. It is often alleged that by a liberal construction of this statute, the need for the Chancellor's extraordinary whether e- . , . i i A i quity could have urisdiction would have been avoided. Austin with been developed * ... . . through actions characteristic vigour of language says that " Equity on the case, arose from the sulkiness or obstinacy of the Common Law Courts, which refused to suit themselves to the changes which took place in the opinions and circumstances of society 1 ." Blackstone writes to the same effect : this " provision, (with a little accuracy in the clerks of the Chancery, and a little liberality in the judges, by extending rather than narrowing the remedial effects of the Writ) might have effectually answered all the purposes of a Court of Equity, except that of obtaining discovery by the oath of the Defendant 2 ," and the idea is not confined to modern writers, for a judge of the reign of Edward VI. said that " the subpoena would not be so often used as it is, if we paid heed to actions upon the case " (such as the one before the Court) " and maintained the jurisdiction of this Court and other Courts." The suggestion is however 1 Jurisprudence, p. 635. the passage following from Y. B., 21 - Commentaries, Vol. in. p. 51 (citing Edward IV. 23). 12 EQUITY AND THE ACTION ON THE CASE. an unfounded one. It assumes that the equitable jurisdiction wholly arose from the insufficiency of the Common Law, while in fact that insufficiency accounts for but a very small part of the work which fell to the early Chancellors, if the character of that work can be judged from the applications made to their successors in the 1 5th century, which are the earliest of which we have any continuous record. The Chancellor's power at first was far more often called in to remedy or prevent a break- down or miscarriage of the ordinary system than to supply omissions which it contemplated or recognised. The suggestion assumes also that the Common Law Courts were intended to supply a remedy in aid of every right the law allowed, but this is also contrary to the fact, as will be shown later on. It implies moreover that the statute rightly or liberally inter- preted would have allowed every relief subsequently given in Chancery to have been given in the Common Law Courts ; now if it was open to the judges to offer relief to every legiti- mate claimant in their courts, it is somewhat extraordinary they should have declined to do so, for so eager were the judges of the Exchequer and the King's Bench to attract business, and its concomitant emoluments, to their own Courts, that at an early date it was necessary to forbid the Exchequer holding Common Pleas, and in face of this prohibition, by the well known fictitious allegation of 'quominus,' that Court finally evaded the restriction, and the King's Bench followed suit with the fictitious 'Bill of Middlesex.' It is not however true that without wholly revolutionising their procedure, as well as extending their jurisdiction, the Courts could have offered the kinds of relief that Equity ultimately gave. The varied and flexible decrees, indeed, applicable to suits between numerous parties, and involving intricate and inter-dependant questions, decrees which were not delivered in every case as finally determining the suit and settling the rights of the parties, as were the simple judgments for plaintiff or defen- dant at Common Law, were of far later date than that of the origin of the equitable jurisdiction, but it seems clear that by no conceivable process of development of the Common Law on the lines of this statute could they have been obtained. JUDICIAL POWERS OUTSIDE THE COURTS. 13 Blackstone himself excepts discovery, and if he could have foreseen the development of Equity in the half century following the publication of his Commentaries, he would no doubt have enlarged the exception. The experiment has, in fact, been tried, and tried under most favourable conditions by judges to whom the legislature had denied the equitable powers they themselves were anxious to possess, in some of the American States 1 , and it resulted in failure, and in the grant by the legislature of an extraordinary jurisdiction based upon that of the English Chancery. The Courts of the King and the subordinate local and franchise Courts were not regarded as offering a remedy for every civil wrong. Their work had down to the time of Edward I. been largely supplemented by the Eccle- Judicia.1 pow- siastical Courts, which had claimed to decide all ers outside the courts of law. cases where the faith of the party was pledged and broken, as well as cases of marriage and testament, but as the power of the lay lawyers increased, and the jealousy of the Church, which afterwards became so marked a feature of English social life, grew stronger, the former class of cases was withdrawn from the cognizance of these Courts by successive statutes. But the jurisdiction of the Common Law Courts was also supplemented by the judicial powers of the King, or his delegates, who afterwards became the Privy Council, sitting for him, and his Council of nobles and great officers, which afterwards developed into Parliament. The Norman Kings were not only the ' fountains of justice/ as our modern constitutional phrase puts it, but The King. were its actual administrators, and probably the absolute power of issuing decrees on disputes between their subjects was the last part of their prerogative which would have been called in question. Complaint indeed was made of the issue of writs of execution without trial being had, and this Magna Carta forbids, but the right of the King to both try and determine was not disputed or curtailed till long after this 1 Pennsylvania and Massachusetts, Fisher, 1 Law Quarterly Review , p. 455, see "Administration of Equity through and "Chancery in Massachusetts," Common Law Forms." Sydney G. Edwin H. Woodruff, ibid. 5, p. 370. 14 THE KING. period 1 , though he gradually ceased to exercise it, and Richard II. was advised not to interfere "in his proper person in any matter touching the law or party," but to leave it to his Council "to do what belonged to law and his honour and estate 2 ." The ordinance of Henry II. already quoted created or adopted a higher tribunal than the King's Court then made a permanent body 3 , for it directed a reference in cases of dis- agreement between the judges, and in cases of difficulty, to the King and the wiser men of the kingdom, that is to the King in Council with a body which, during the 13th and 14th cen- turies, consisted of the Chancellor, the Treasurer and the Judges and other great officers and dignitaries who were summoned to assist the King as his permanent advisers. The earlier kings sat continually in person in this body, John, for instance, sat in his house day after day for judicial business, but as the more absorbing interests of continental wars and domestic politics came to occupy the attention of the later Plantagenets they gradually ceased to do so, and 'Coram Rege' became a mere formal expression in the Council, as in the King's Bench. The King, who bound himself by his coronation oath 'to administer 'aequam et rectam justitiam' to all, not only heard appeals from his Courts but interfered continually in their working, and generally for reasons which are sufficiently sug- gested by the phrase repeatedly occurring in the Year Books, 'the Plaintiff purchased a writ,' and by the well-known Chapter of Magna Carta. The following case, which is stated at length in Mr Pike's Introduction to the Year Book 12 and 13 Ed. III. 4 , will illustrate the nature and extent of this interference. It began in the ninth year of Edward III. John de Boddenho brought an assize of Novel Disseisin Boddenho's a g a i ns t John de Derby in respect of a Chapel at case. Bedford. The Defendant alleged that he held it 'ex collatione Domini Regis,' and produced a writ under the 1 (Statutes were passed under Ed- Vol. i. p. 84. ward I. and Edward III. to restrain 3 Introduction to the Close Bolls, the King's irregular interferences with Hardy, p. xxv. the Common Law.) 4 p. xcv. 2 Proceedings of the Privy Council, THE KINO. 15 Privy Seal addressed to the judges, forbidding them to proceed without consulting the King, whereupon the judges adjourned to speak with the King. Afterwards the Plaintiff produced another writ close, purporting to have been granted on a petition ' coram nobis et concilio nostro in Parliamento nostro,' which directed the judges to proceed to take the assize. On the day named for the assize the Defendant produced a third writ close, which asserted the King's title again and directed the judges to give no judgment against the Defendant. A fresh jury was then impannelled, and the matter was again adjourned. When it came on again the Defendant had another writ setting up a new case, that the Plaintiff had renounced his title, and directing the judges to investigate the alleged re- nunciation, and to take care no harm happened to the rights of the King or to the Defendant, but this time the Plaintiff had his writ in reply ready, given as before on petition in Par- liament, and directing the Court to proceed, arid the assize at last was taken. It found that the Chapel was in the collation of the Mayor and Burgesses, not of the King, and that the Plaintiff was seised and had never renounced. This was by no means the end of the case, but the records contradict each other as to what happened next, and the last entry states that there was a writ of error to the King's Bench. This is perhaps a flagrant instance of interference with the ordinary course of justice, and no doubt the allegation of a claim on behalf of the King is a peculiarity, but many similar cases occur in the records 1 . They are the more striking that they occur in direct breach of the enactments that " There shall no writ from henceforth that toucheth the Common Law go forth under the Petty Seal 2 ," and that "it is accorded and established that it shall not be commanded by the Great Seal nor the Little Seal to disturb or delay common right (commune droit), and that, though such commandments do come, the justices shall not leave to do right in any point 3 ." 1 See, for instance, Introduction to 2 28 Edward I. c. 6. Y. B., 12 and 13 Edward III., Pike, 3 2 Edward III. c. 8. p. xciii. 16 PETITIONS TO THE KING. Applications for redress or assistance then were made to the King, not only by way of appeal from decisions of the Courts, but also where matters were pending before the judges, and they were also made, as appears from the Rolls of Parliament, the published proceedings of the Privy Council, and the Close Rolls, in many cases without any reference to the Courts at all. They were made by Petition addressed either to him alone, or to him in Council or in Parliament. Petitions made to the King alone and answered by him occurred long after the reign of Richard II. The following Petition was addressed to Henry IV. "A nfe is excellent I ts redoute S r , nre Seigno r le Roy," the King's tenants of Feltham pray that he will forbid the Officers of the Bishop of London to disturb their right of common, which they enjoy under a grant of Edward III. "p r Dieu t en oever de Charitie,...consideraunt ts g a cious Seigno r q les ditz sup- pliantz sont si poveres q'ils ne p r .ount endurer lez costages p 1 ' avoir remedye p la comune ley." The indorsed order is that right be done, and a writ granted to the Petitioners 1 . The Petition is interesting, although it belongs to a much later epoch than that we are now considering, because it shows the survival to a time when the authority of the Courts was even more firmly established, and when the Chancellor's Equity was an important institution, of the power of redress inherent in the King, and also because of its resemblance in form to the Petitions presented in the Chancery. So late as the reign of Elizabeth petitions of this class were presented to the Queen, and were referred by her to the Chancellor 2 . The Council, says Mr Hardy 3 , " had an absolute jurisdiction over all the proceedings in the Courts below;" . . ." if any litigant felt himself aggrieved, he ap- plied for redress to the Council, in the same manner as he would have applied to the King before the latter committed his prerogative of distributing justice and equity to his council." Application was made to it 4 , " where from the heinousness of 1 Proceedings of the Privy Council, p. xxvi, and see Stubbs' Constitutional Vol. n. p. 110. History, Vol. n. p. 273. 2 There are several instances in 4 Equitable Jurisdiction, Spence, Munro's Acta Cancellarice. Vol. i. p. 330. 3 Introduction to tbe Close Bolls, THE COUNCIL. 17 the offence, or the rank or power of the party, or any other cause, there was likely to be an impediment to a fair trial, or to the attainment of appropriate redress in the ordinary tribunals. So also when by force and violence," and, it may be added, fraud or local prejudice, "justice was prevented taking its ordinary course. The Council on such application either took the case into their own hands, or gave specific directions in regard to it according to the circumstances of the case. Where a party was suffering imprisonment by the process of an inferior Court the double remedy of a Subpoena against the pursuing party, and a writ of Habeas Corpus cum causa was sometimes given. The Council had the power of issuing writs into all special jurisdictions or Franchises, as Wales and Ireland, which, with their other extraordinary powers, gave them surpassing capabilities beyond those of any other Court except the Court of Chancery" (after its establishment). The Council here referred to, was a body of permanent salaried officials, the most important of whom was the Chan- cellor, who presided in it and directed its business. It met daily, and had from time to time associated with it the lords and great ecclesiastical dignitaries specially summoned to attend its meeting, and it then sat as the " Great Council," which was distinct from Parliament, but which blended with Parliament when sitting. The Great Council ultimately, when, under Edward III., the constitution of Parliament became fixed, merged into it, and the permanent Council became distinct and separate, during the Session of Parliament as at other times, and received the title of the ' Privy Council.' The description of the work of the Council given above is fully borne out by the ordinance made for its governance in 13 Richard II. 1 This provides that the Council shall meet at 8 or 9 o'clock a.m. at the latest, and shall take the King's business first ; that it shall send matters touching the Common law to the judges, matters touching the office of the Chan- cellor into Chancery, and those touching the office of the Treasurer into the Exchequer; that all matters which cannot 1 Proceedings of the Privy Council, Vol. i. p. 18. K. 2 18 PETITIONS TO THE COUNCIL. be disposed of without the special grace of the King shall be sent to him to have his advice and will declared concerning them, and that all other matters sent to the Council for their advice, and others of great charge shall be determined by those of the Council who are present, and the officers ; and then follows a direction that " all other bills of the people of small importance be examined and disposed of before the Keeper of the Privy Seal and others of the Council who should be present at the time." This last provision, which recalls some general orders of reference of petitions to the Chancellor of earlier date which will be mentioned later on, is supposed to have founded the Court of Requests, a minor Court of Equity which was practically abolished by a decree of the Queen's Bench under Elizabeth 1 . The following case of 1 Edward II., which is reported in the Abbreviatio Placitorum 2 , will serve to illustrate the manner and occasion of applications to the Council under that King. The tenants of the King's Manor of Carbeston, which was a manor of ' ancient demesne,' petitioned the Council for relief against the Abbot of Welbeck who had inclosed certain arable land and woods, and the Council, having read the petition, agreed that the petitioners should go before the King's Bench, and that there justice should be done, and they sent the pe- tition to the judges, who gave the parties a day for hearing. The Abbot pleaded that the land was his, but he also objected that he ought not to answer without the King's writ. To this objection the tenants replied that, their manor being of ancient demesne, no writ ran within it except the " little writ close of the King," and that they could have no remedy except by petition. Judgment was given that the facts should be found by a Jury, and the petitioners were told to obtain a writ against the Abbot if they thought it would be any assistance to them. What finally happened does not appear. The ground of the application to the Council here was the lack of remedy in the ordinary course at the Common Law. 1 Spence, Vol. i. p. 351, Coke, Inst. 2 p. 302, K. 2. v. 97. PARLIAMENT. 19 The King and the Council were not the only authorities which might be applied to for assistance : the Great . . Parliament. Council of the Realm sat from time to time under the earlier Kings, and under Edward I. and his son and grand- son it developed into Parliament, and exercised the right of hearing petitions and granting relief upon them, and, as its power increased, it manifested much jealousy of the exercise of a similar power by the Council and by the Chancellor. In the Parliament of Lincoln in 1315 it was ordered 1 that the Chancellor, the Treasurer and the Judges should lay before Parliament cases pending before them in their places which they could not decide without its aid, that what ought to be done in regard to them might be done by it. And a Statute of 14 Edward III. 2 , reciting that "divers mischiefs have happened, for that in divers courts, as well in the Chancery, as in the King's Bench, the Common Bench and in the Ex- chequer, before Justices assigned, and other justices deputed to hear and determine, the judgments have been delayed some- time by difficulty, and sometime by divers opinions of the judges and sometimes for some other cause," enacted that in every Parliament triers of petitions should be appointed with power, on complaint being made to them of such delays, to call for the proceedings in the delayed causes, and to discover from the justices what was the reason of the delays, and either (with the advice of the Chancellor, the Treasurer and others of the King's Council) to give judgment themselves, or, if the matter were of great difficulty, to bring it before Parliament. The case of Boddenho at the beginning of the reign of Edward III. has already been cited to show how the King, or his Council in his name, interfered in the course of justice, and the same case shows Parliament interfering to redress the balance. The following case of about the same date, is an instance of a dispute between the judges and Parliament upon a point of law. 3 Geoffrey Staunton sued John Staunton and his wife 1 Rot. Parl. i. p. 350 (a). 14 Edward III., Pike, p. xxxvii. The - Statute 1, c. 5. record of the proceedings in Parlia- 3 Introduction to Year Book, 13 and ment is in Rot. Parl. in. p. 122. 22 20 PARLIAMENT. Amy in formedon in the Common Pleas. The Defendant Amy vouched her husband and co-defendant to warranty, and as- signed a fine by which one T, who had an estate in the tenements claimed by her husband's gift, conveyed to her and her husband. The Plaintiff averred that T had no estate in the tenements. Thereupon Amy denied the admissibility of this averment, but offered to answer over if it were held admissible. The Plaintiff then presented a petition to the King in Council in Parliament alleging that the offer to answer over was inserted by the clerks by misprision. Parlia- ment agreed that the Plaintiff's averment was admissible, and that Amy could make no further answer as the parties had abode judgment absolutely, and two writs were sent to the judges directing them to proceed to judgment, and a third one requiring them to do so or to show cause why they delayed. Thereupon there was a new argument in Court, in the course of which Stonore C. J. said that the decision of Parliament was bad law, and no judgment was given. The Plaintiff presented another petition to Parliament, and the Clerk of Parliament was sent to tell the judges to go on, or to bring the record into Parliament for judgment there. They did the latter, and Parliament gave judgment for the Plaintiff. Error was next sued in the King's Bench, and both parties, in turn, petitioned Parliament, and ultimately a writ was sent to the King's Bench to proceed 'ad finalem discussionem negotii,' and, the defendants abandoning their case, the Plaintiff applied for, and obtained execution. From this sketch of the judicial powers of the King, Council and Parliament, it will be seen that the Common Law Courts were not at any time sufficient for the needs of the country, and that the existence of civil rights which they were incompetent to protect was, even in the infancy of the present Courts, fully recognised. These judicial powers were the roots from which the Chancellor's equitable jurisdiction grew, for the petitions craving their aid were continually referred to the Chancellor for him to consider and answer, until the reference became so much a matter of course that parties indorsed their petitions over of their own motion, and the Chancellor's power LATER HISTORY OF THESE POWERS. 21 to grant relief in the nature of that granted by the King's Council and Parliament became so firmly established that petitions were addressed, in the first instance, directly to him. The custom of granting relief in matters of private right by Parliament and the Council continued long after the reign of Edward III. when the practice of direct history oftheju- r j.- j-u /^u 11 i. A dicial P wers of application to the Chancellor became common. A the Council and petition to the King of the reign of Henry IV. has already been quoted, and numerous similar petitions are to be found in the Parliament Rolls and the proceedings of the Privy Council under Richard II. and his successors. The Statute 4 Henry IV. c. 23, which complains " that after judgment given in the Courts of our Lord the King the parties be made to come upon grievous pain, sometimes before the King himself, sometimes before the King's Council, and sometimes in Parliament, to answer there anew," and enacts that, after judgment, the " Parties and their heirs shall be thereof in Peace " until the judgment be undone by attaint or error, shows clearly that the old powers were then still in full force and exercise. In 1460 the Lords of Parliament actually tried, and decided on the right of the Duke of York to the Crown, the Chancellor pronouncing the judgment, and they resolved 1 that "every persone high and lowe suing to this high court of Parlement of right must be herd, and his desire and petition understand," but a century before this, the rule had been adopted that Parliament ought to relieve only those who could find no remedy elsewhere 2 . The interference of the Council in cases touching freedom of the person, and rights of property, was the subject of con- tinual attack from the time of Edward III. onward, as being a breach of the Great Charter, and many statutes were passed to restrain it 3 . Had these Statutes been observed, the Courts of Equity would never have arisen. Later on, when the attack 1 1 Camp. 366, Rot. Parl. v. 375 (a). m. p. 259. 2 See Lord Chancellor Scrope's Ad- 3 5 Edward III., c. 9 ; 25 Edward dress to a parliament of 2 Richard II., III., c. 18 ; 28 Edward III., c. 3 ; 37 Rot. Parl. ni. p. 55, and the order on Edward III., c. 18 ; Taswell Lang- a petition, 13 Richard II., Rot. Parl. mead, p. 178, et seq. '22 LATER HISTORY OF THESE POWERS. was made directly upon the Chancellor's growing jurisdiction, the King and his advisers were more cautious, and the petitions of the Commons for abolition of the jurisdiction were not allowed to become statutes. The power of the King or his Council to issue ' privilegia,' or to displace the legal rights of the subject in particular cases, was definitely lost in the struggles of the 17th century, but it had long before become obsolete, although James I. claimed to possess it as well as other dead branches of the prerogative. The Private Bill in Parliament is at the present day, a direct descendant of the old Petition and Answer. CHAPTER II. THE CHANCELLOR. BEFORE dealing in detail with the reference of petitions to the Chancellor, which led to the conferment upon him of an extraordinary jurisdiction analogous to that of the King, Council and Parliament, it will be convenient to consider shortly the position of the Chancellor in and before the reign of Edward III. His office as the King's Secretary, Chaplain of his Chapel, and Keeper of his Seal was a very ancient office. Coke declares that it had existed from extreme antiquity 1 , and it certainly existed before the Conquest. By reason of his position as custodian of the Great Seal he was the head of the office in which the King's Charters were inrolled, and whence the original writs were issued, in the manner already described. All the petitions to Parliament and the Council passed through this office, and the records concerning them were there inrolled, and, where relief was granted upon them, as for instance that the judges should proceed with an action, it was usually carried into effect by a writ close out of the Chancery 2 . From the time Becket held the office it became of importance and dignity next after that of the Justiciar only. William Fitz Stephen, one of Becket's Clerks, describes the Chancellor 3 as sealing all the King's ordinances and being present, even though unsummoned, at all his councils. Nothing was done without the Chancellor's consent and advice either in the Curia or in the Exchequer. It does not appear that he regularly 1 4 Innt. 78. Edward III., p. xliii. 2 Rot. Part. n. p. 123 et passim, In- 3 Constitutional History, Stubbs, i. troduction to Year Book, 13 and 14 p. 647. 24 THE CHANCELLOR. held any Court of his own before the reign of Edward II., and the antiquity assigned by Coke and Blackstone to his Common Law jurisdiction is far too great. Fleta, writing in the reign of Edward L, merely refers to his control over the issue of writs, and says nothing of his holding any Court. He does say, however, that recognizances and contracts were inrolled in the Chancery, and judicial writs issued to the Sheriffs to en- force them out of the Chancery, just as by the judges them- selves. If the recognizance were newly enrolled, when the creditor came to complain of the non-observance of the agree- ment, immediate execution issued, but if it were not, the debtor was summoned on a certain day to show cause why execution should not be had, and if he appeared and said nothing in point, or failed to appear, the writ to the Sheriff issued. " Ex hac quidem constitutione," adds the writer 1 , " oriuntur brevia judicialia in cancellaria sicut coram ipsis justiciariis." The Statute of Merchants 13 Edward I. which created the Statute Staple, expressly reserved the power of the Chancellor and Justices to take recognizances in form by law, usage and manner provided. Perhaps in these inquiries may be found the first beginning of the Chancellor's separate jurisdiction. It is clear that by the date now considered the Chancellor was looked upon as a judicial personage 2 . Becket, Chancellor under Henry II., was panegyrised as " qui regni leges cancellat iniquas, et mandata pii principis sequa facit," and Neville, Chancellor under Henry III., is referred to as " singulis sua jura, praecipue pauperibus, juste reddens et indilite." He was too, as we have seen, the President of the Council, which was greatly occupied with judicial work, and since the fall of Hubert de Burgh and the abolition of the Justiciarship, he was in fact 'head of the law' in the kingdom 3 . So important had his office become that, from the reign of Henry III. onwards, continual demands were made that he should be elected by 1 Fleta, 2, 13. thanking him for his assistance in a 2 Campbell, Vol. i. Early Chapters. suit, and asking for further aid, No. Spence, Vol. i. p. 334. 1755, Royal Letters, cited in Hor- 3 (See letter to Lord Chancellor wood's Introduction to Year Book, 30 Langton from Milicent de Mohaunt, and 31 Edward I., p. Ixxxi.) THE CHANCELLOR. 25 the Council or Parliament, or with their assent. He had indeed already become, what Bacon's Selden calls him, ' the kingdom's darling.' The Statute 28 Edward I. c. 5 expressly associates the Chancellor with the Judges and directs him and them to follow the King, "so that he may have at all times near him some sages in law which be able duly to order all such matters as shall come into the Court at all times when need shall require." It is not then surprising that when the King or the Council appointed a delegate or commission to hear and decide pe- titions, the Chancellor should have been almost invariably chosen, with or without assistants, marked out as he was for such duties, not only by his connection with the administration of the law, with the King's grants and mandates under seal, and with the presentation and recording of the petitions, but also by his position as a great cleric, and, in most cases, the head of the chief Ecclesiastical Court in the kingdom, for such he usually was, since by reason of that position he could lay special claim to a knowledge of what ' conscience,' ' right,' 'justice,' 'honesty' or 'law and reason,' the terms employed in the references to him demanded. CHAPTER III. THE ESTABLISHMENT OF THE CHANCELLOR'S JURISDICTION. THE earliest general reference of petitions to the Chancellor The reign of ^ s f un d in an ordinance of 8 Edward I. 1 After Edward i. complaining of the multitude of petitions pre- sented to the King, most of which could be dealt with by the Chancellor or Judges, that ordinance provides that all petitions that touch the Seal shall go first to the Chancellor, and those that touch the Exchequer to the Exchequer, and those that touch the justices or the law of the land to the justices, and those that touch the Jurie to the justices of the Jurie. And if the matters are so great, or so much of grace, that the Chancellor and the others cannot do what is asked without the King, then they shall take them to the King to know his will, and that no petition come before the King and his Council except by the hands of the said Chancellor and the other chief ministers ; so that the King and his Council may be able, without the embarrassment of other business, to attend to the important business of his kingdom and his foreign lands. This, it is clear, conferred no special jurisdiction on the Chan- cellor, who is mentioned as one, and along with others, of the chief ministers, while matters of grace are distinctly reserved to be dealt with by the King himself. The matters touching the seal, I presume, refer to the formalities required to authenticate the King's grants and mandates, and the issue of original writs, and perhaps also the revocation of improper grants, which would show, if that be so, that what was afterwards the 1 Introduction to Close Eolls, Hardy, p. xxviii. Stubbs, Const. Hist. n. p. 263. THE REIGN OF EDWARD I. 27 Common Law Jurisdiction of the Chancellor was already in operation or was now first created. The matters touching the justices or the law of the land have obviously reference to ordinary administration of justice, and to delays and irregu- larities therein which the judges could of themselves correct. There is another ordinance 1 of 21 Edward I. which is to the same effect and shows that the earlier one was either temporary only, or that it had not been observed. Lord Campbell 2 gives a list of nearly a dozen decrees of the Council in the reign of Edward I. upon petitions referring them to the Chancellor. One is a petition for the King's Letters Patent of protection, and the answer to the supplicant is "veniat ad cancellariam, ut fiat ei quod graciose fieri poterit," another is for the appointment of a custos for a convent, and it is ordered that the Chancellor shall appoint one, a third is answered "cancellar: vocat justic: provideat eis remedium, et aliis in hoc casu perpetuo duratur," evidently directing the Chancellor with the help of the judges to frame an original writ for a new case, to become 'de cursu.' Several of the other de- crees, however, direct a hearing in the Chancery, and that justice shall be done. This is the case of a complaint of ejectment from a right of pasture, and of a dispute as to the jurisdiction of the Archbishop of Canterbury, which, for all that appears, might have been tried in the ordinary Courts. Lord Campbell 3 also mentions a writ under the Privy Seal directed to the Chancellor and Master of the Rolls enclosing a petition and requiring them to give such remedy as to them should appear to be consonant to honesty. These cases were as yet, however, only sent to the Chancellor as a convenient referee, and he had no exclusive jurisdiction in respect of them. Thus in the case last mentioned he is as- sociated with the Master of the Rolls, and in a case of 33 Edward I. the matter in question is committed to him and the Treasurer, and they are directed to consult with the Judges. In that case the Plaintiff complained that the Defendant, the Queen, to whom certain lands had been conveyed by a fine, had 1 Stubbs, loc. cit. 3 Ibid., citing from " The Judicial 2 Vol. i. p. 186. Authority of the M. E." 28 THE REIGN OF EDWARD IT. seized others not conveyed, and so he petitioned the King, and the King by his writ sent him before the Judges. The Judges however could not proceed because of errors in an inquisition, which it appears had been taken, and in the pleadings, and therefore the King sent the writ to the Treasurer of England and the Chancellor that they, after consultation with the judges, might proceed to judgment. This, added the order, was not to be taken as a precedent 1 . The record describes the pro- ceedings as upon a ' monstre de droit,' which was the proper form of action to recover property held by the King, and was afterwards appropriated to the Common Law side of Chancery or the Exchequer, but it does not appear that the King was interested in this case. In the course of the next reign the Chancellor began to sit The reisn O f re gul ar ly fo r judicial business, as appears from the Edward ii. entry already referred to on the Rolls of the Parlia- ment of Lincoln in 1315 2 where, after reciting the appointment of triers of petitions, it is added, that it was ordered that the Chancellor, the Treasurer and the Judges of both Benches should bring before Parliament cases pending before them 'in their places' which they could not decide without its help. There is a record too of 13 Edward II. 3 which shows that cases were regularly heard in the Chancery by the Chancellor, and that it was the custom then, as in later times, not to try matters of fact in that Court. It appears that in this case the pleading and procedure exactly resembled that of the ordinary Common Law Courts. The nature of the claim is not stated, but it was probably based upon a recognizance or other acknowledgment inrolled in the court, for the report is as follows: "Henry de Ernestfest, after inspecting the said ac- quittance, pleaded 'non est factum suum' and this he was prepared to verify ('et hoc optulit verificare &c.'). And, as this kind of cause, according to the custom of England, cannot be determined in the Chancery, the Chancellor adjourned the parties to the King's Bench ('in curia Regis coram ipso Rege 1 Abbreviatio Placitorum, 256, R. 46. 3 Abbreviatio Placitorum, p. 336, 2 Rot. Par. i. p. 350 (a), cited in Rot. i. Campbell. THE REIGN OF EDWARD II. 29 ad faciend & recipient qct jur' fu'it & raconis &c.'). The jury found that the acquittance was not the deed of the said Henry, and therefore, concludes the record, ' let Ricardus Messinge be taken' &c. The Rolls of Parliament show that a very great variety of business was at this time referred to the Chancellor, especially cases in which the Crown was concerned, for these had come to be regarded as specially appropriable to him. Thus, to a petition 1 complaining of the seizure of a ship for the then expected war, by the King's officers, it was answered ' videtur consilio quod execucio hujus peticionis spectat ad officium cancellarii. Ideo tradatur cancellario." In the same year, 19 Edward II., there is a petition addressed to the Chancellor directly, begging his attention to an earlier petition which had been referred to him by Parliament and praying that he would, by writ, direct the judge to bring the record and proceedings in an action of the suitor's before himself 2 . In the Parliament of 1320 s a petition alleging ejectment and personal outrage, for which, though the petitioner had sued out twelve writs, she had obtained no relief, was sent for hearing to justices to be assigned in Chancery, on account of the poverty of the petitioner, and a petition complaining of forcible ejectment was similarly dealt with on account of the enormity of the wrong. Sir Duffus Hardy collected from the Rolls a large number of answers endorsed on petitions of this reign, referring them to the Chancery, and from them it clearly appears that judicial enquiries were regularly made there 4 . Several of the petitions are concerned with claims affecting the King's rights, which, as already said, were now specially appropriated for the Chan- cellor's determination, and which formed the chief part of his common law jurisdiction, but many deal with matters of grace only, and in some it is expressly stated there is no remedy at the Common Law. There are several allusions in the answers 1 Rot. Parl. i. p. 433 (b), 19 Edward tions as to the method of suing there, IT. (cited in Campbell i. p. 209). in this year.) 2 Rot. Parl. i. p. 437 (a). No. 25. 3 Rot. Parl. I. p. 372, No. 11. (There are a large number of references 4 Campbell, Vol. i. p. 206. to Chancery, with or without direc- 30 THE REIGN OF EDWARD II. to the custom of the Chancery as the rule by which the decision was to be guided, and sometimes 'law and reason' or ' reason ' were to supply the determining principles, but gene- rally the matter was committed to the Chancellor to do what 'ought to be done,' or 'what justice demands,' or without any specific direction at all. In two cases he was directed to summon counsel : where the Prior of the Church of the Trinity at Canterbury complained of an infringement of his right to the goods of his under-tenants convicted of felony, the answer was 'Monstre sa chartre en Chancellerie et le Chanc: apele a lui conseil s'avise ceoq soit meus a fere de cest besoigne ;' and where the Archbishop of York complained of a prohibition to his court, it was 'Veigne en Chancellerie et mestre sa chartre ; et le Chancellier apele a lui conseile, face ceo qe face a faire,' and in another case, that of a petition for the recovery of a moiety of a manor, he was told to call to his assistance some of the Council and the Serjeants at Law, and to do what of law and reason ought to be done. The answers tell us moreover that the custom of calling a respondent to show cause, which had prevailed in the previous reign in regard to recognizances, was sometimes adopted in considering remitted petitions, but the more general course, as yet, appears to have been to issue a commission to find the facts by inquisition returnable into the Chancery, a plan always adopted in the case of escheats and forfeitures. During the reign of Edward III. the Chancery as a Court The reign of f r hearing causes became fully established, and Edward in. wag fi xec ^ wne re it remained for so many centuries, at Westminster in the Hall rebuilt by the King and William of Wykeham 1 . The record of the delivery of the Great Seal to Lord Chancellor Sadyngton says he received it " in the King's Great Hall at Westminster in the place where the Chancellor usually sits among the Clerks of the Chancery to exercise his office 2 ." Coke 8 says that the Court had become stationary before this reign " in a certayne place, to the great benefit and ease of 1 History of the Coif, Pulling, p. 78. 2 Eot. Cl. 19 Edward III., p. 2. Camp. i. p. 214, Stubbs, Const. Hist. Camp. i. p. 246. n. p. 267. 3 2 Imt., p. 552. THE CHANCERY FIXED AT WESTMINSTER. 31 the subject," but in this he is incorrect, for, as we have seen, Edward I. expressly required the Chancellor to accompany him in those extraordinary peregrinations which he, as his prede- cessors, made continually through the kingdom, and both in his reign and the next there are entries of the purchase of pack-horses to carry the Chancery Rolls 1 . The Commons pe- titioned the King in the year 1364 to make the King's Bench stationary at Westminster or York ' where the Common Bench remains,' and though the King refused to bind himself, the Court did in fact sit regularly at Westminster from his reign onwards. In the 22nd year of his reign Edward published his famous writ to the Sheriff of London 2 , reciting that he was much occupied with matters concerning the State, and his own business, and directing that all matters proper to be brought before him, whether relating to the Common Law, or to the special grace of the King, should be brought, the matters touching the Common Law before the Lord Chancellor (the Archbishop of Canterbury elect) to be disposed of by him, and the other matters touching the grant of the King's grace before the Chancellor, or the keeper of the Privy Seal, and that they or one of them should transmit to the King the petitions which they could not dispose of without consulting him, together with their or his opinion thereon, so that on reading it and without it being necessary to make any further suit to the King, he might indicate his will in the matter to the Chancellor or keeper of the Privy Seal, and that thenceforth no other busi- ness of the kind should be brought before the King himself. This writ is sometimes referred to as if it were a kind of statutory warrant for the existence of the Chancellor's extra- ordinary jurisdiction, but if this were so it could hardly have escaped the attention of the earlier writers. Coke does not mention it, nor do Bacon and his fellows in their report to King James I. 3 , and in the numerous petitions and complaints 1 Camp. i. p. 270. ordinances on the records are ad- 2 Printed in Camp. i. p. 248, and dressed to particular sheriffs.) Stubbs, Const. Hist. p. 269. (Many of 3 Post, ch. vn. the copies of the early statutes and 32 THE REIGN OF EDWARD III. of the Commons against the Chancellor's interference with the Common Law, no reference is made to it. It was probably a merely temporary measure due to the King's engrossment in the French War, and in the siege and capture of Calais, and long afterwards, petitions were made to the King and were sometimes heard and answered by him in person, while the jurisdiction of the Council probably attained its most vigorous operation under Edward's successor, Richard II. Lord Camp- bell suggests that the Common Law business of which the writ speaks was the issue of original writs, but this was the Chancellor's regular office, and applications would normally only be brought to the King in case of his refusal, it seems more probable therefore that it is to requests for interferences with the ordinary course of the Common Law, such as those in Boddenho's and the other cases cited above, that allusion is made. The records however show 1 that about this time reference to the Chancellor in cases of difficulty in, or of the absence of the ordinary remedy at Common Law had become the usual course. Sir Duffus Hardy suggests that the Council, who still accompanied the King, being deprived of the Chancellor's assistance after he began to remain regularly at Westminster, were compelled to refer petitions to him to a greater extent than before, and hence the indorsement ' adeat in Cane : ' or 'sequatur in Cane:' on petitions addressed to the Council become very common towards the end of the reign. The judges themselves occasionally sought the Chancellor's assis- tance as appears from the following interesting case 2 . It was an action for a debt of 200 marks, or pounds (the reports differ), due on a bond conditioned for the payment of 100. The Defendant pleaded payment and acceptance of 100, but did not aver payment on the day. The Plaintiff replied that he took the 100 on account only. The first hearing ended (apparently) in judgment for the Plaintiff, but the case came on again, and the judges then said they would speak to the 1 Introduction to the Close Rolls, 23, and 47 Edward III. Mich. 14, cited Hardy, p. xxviii. in Jenkyns' Six Centuries of Reports, 2 Year Book, 46 Edward III. Mich. but these are misstated. THE REIGN OF EDWARD III. 33 Chancellor, and on the next day, by the advice of the Chancel- lor and all the Judges, they gave judgment for the Plain tiff, the Defendants to be in mercy, and, as to the 100 paid, the Plaintiff to get nothing. The Chancellor did not until long after de- velope any special equity alleviative of the hardships of the Common Law, and he is here seen advising that a penalty be enforced, without any suggestion of relieving the debtor. The following decrees on petitions to Parliament complain- ing of judgments at law may be added as further evidence of the establishment of the delegated jurisdiction in Chancery. They are cited by Lord Campbell 1 . "Let this Petition be referred to the Chancery, and let the Chancellor cause to be summoned before him the Counsel of Madame (the Petitioner, who was seeking relief against a judgment in the Common Pleas,) to appear in Chancery on a certain day, and also the King's Serjeants and some of the justices, and, if nothing be shown or said which may reasonably disturb the judgment, or if the Counsel of Madame do not choose to appear, then let a writ issue to the justices where the plea was depending before judgment to proceed according to the law and the usages of the "land." "Let this Petition be referred to the Chancery, and there let evidence, which the said Geoffrey says he hath to manifest the loss of the aforesaid commodities, be received, and that justice was not done him in his suit for recovery of losses in these parts, and therefore let speedy remedy be ordained him according to the law used in such cases." Still more conclusive evidence of the thorough establish- ment of the Chancery as a Court is afforded by the proceedings in relation to a Petition to the King and Council, of the Clerks in Chancery by which they claimed, and obtained, with the consent of Parliament, the privilege of being sued only in their own Court 2 . The jurisdiction of the Chancellor in respect of claims by the King in this reign was further developed by the Statute 1 Vol. i. p. 271, et seq., Rot. Parl. n. 2 Camp. loc. cit. Rot. Parl. u. p. p. 206 ; (21 and 22 Edward III.) and 154. p. 437 (temp. Edward III.). K. 3 34 PETITION TO THE CHANCELLOR. 36 Edw. III. (13) which provides that if an escheator seize lands, and the escheat be challenged, the escheator shall send the inquest into Chancery, and a writ shall be delivered him to show the cause of the seizing in the Chancery, and the Challenger may there traverse 1 the office or otherwise show his right, and from thence the matter shall be sent into the King's Bench for final discussion. The references and applications to the Chancellors were not however confined to cases of the King's claim, nor does it appear that any distinction was drawn between such cases and others in regard to procedure, as yet, or indeed for long after. But this point will be considered later on. The following is an example of the petitions directed to the Chancellor himself in this reign. It will be noticed that it asks generally for ' a remedy/ and that in support of a common law right, as it alleges. Its form closely resembles, on the one hand, the petitions of the time to Parliament and to the Council, and, on the other, the earlier bills of the next reign which are printed in the Chancery Calendars. It commences thus 2 : "Au Chanceller n're seign r le Roi monstre William...," and it alleges that the Petitioner, a parson, claims certain tithes, which the Dean of Wymborne claims also in respect of a free chapel of the King. The petitioner had commenced a suit in the Ecclesiastical Court, but a prohibition had issued out of Chancery to stay it because of the assertion of the King's claim, " p'quey le dit William prie a v're g a ciouse seign r ie q'vous pleise ordiner remedie q'sa dite esglise ne soit disherite encontre co'e droit." The indorsement states that the Petitioner, in person, and the Dean, by his attorney, appeared in the Chancery at Westminster, and a day was given them "ad faciend' & recipiend' de contentis in ista petic'o'e quod cur' d'ni Regis considerav'it." A comparison of this case with that of Boddenho, stated above, which occurred earlier in the reign, where a similar defence involving the King's right was raised, shows 1 "Et illoeques soit oie sanz delay sanz attendre autre mandement." de traverser Iqffice on autrement mon- 2 It is quoted in the Introduction to strer son droit, et dilloeques mande the Close Rolls, Hardy, p. xxix, 38 devant le Roi affaire finale discussion, Edward III. DIRECTION TO APPLY IN CHANCERY. 35 here a prohibition issuing from the Chancery and an applica- tion to the Chancellor to remove it, in place of the correspond- ing orders of the King and petitions to Parliament in the earlier case, and, although the new ways have not yet super- seded, and for long after did not supersede, the old, their existence marks the birth of the Chancellor's jurisdiction. Towards the end of the reign a Statute 1 was passed, dealing, as was the custom with our early statutes, with many different matters, Purveyance, the Jurisdiction of Mayor of the Staple, and the stipends of priests, which contains the provision " that if any man feel himself aggrieved contrary to any of the articles above written or other contained in divers statutes, and will come into the Chancery, or any for him, and thereof make his complaint, he shall presently there have remedy by force of the said articles and statutes without elsewhere pursuing to have remedy." This, as the writ to the Sheriff discussed above, has been regarded by some as a special authority for the Chan- cellor's jurisdiction, but it seems more probable that Coke's explanation 2 , that the statute refers only to remedy by obtaining a writ to commence an action in the ordinary Common Law Courts, is correct. The concluding words point in this direction and were probably inserted to prevent the King's purveyors, against whom the Statute was chiefly directed, from objecting to the jurisdiction of the ordinary Courts. A similar direction had been given by Edward II. in answer to a complaint from the Commons of unlawful arrests 8 ; "ceux qi sont pris par tele accisement veignent en Chancellerie et averout dreyt," and another is found in the statute 15 Richard II. Cap. 12. I have now traced the Chancellor's Court down to its full establishment as a Court holding regular sittings, in which the Chancellor heard, very often by remittance from Parliament or the Council, and sometimes at least by original application, ' matters of grace ' to which the ordinary procedure was for some reason or other not applicable, or was not applied. These cases were heard on a direct complaint setting out the 1 36 Edward III., c. 9. (A later 2 4 Inst. 82. chapter from this statute, touching 3 Rot. Parl. i. 430. 19 Edward II. escheats, has already been cited.) 32 36 THE COURT OF CHANCERY FULLY ESTABLISHED. facts upon which it was based without any technicality, and without the writ which in the Common Law Courts was at once the commencement of the action 1 , and the foundation of the judge's jurisdiction to try it. Besides these matters the Court had other business to deal with, the scire facias upon recognizances and to annul the King's Charters wrongly granted, petitions of right and traverses of office, and actions by and against the officers of the Court. These latter were dealt with, in most cases, according to the ordinary common law procedure 2 , as in later times when the division between the Common Law and Equity sides of Chancery became established they always were, but so far as we have gone, and for long afterwards, as the bills preserved in the Tower show, the procedure by bill was often applied to them also. 1 Spence, Vol. i. p. 338. Bemburgli, Y. B. 12 and 13 Edward 2 Post, p. 53. Spence, Vol. i. p. III., Pike, p. 96. 337. See also the case of Mareshal v. CHAPTER IV. PETITIONS OF THE COMMONS AGAINST THE CHANCELLOR'S JURISDICTION, AND STATUTES RELATING TO IT. FROM the beginning of the reign of Richard II. and for more than a century afterwards continual complaints were made in Parliament of the interference of the Chancellor in matters cognisable in the Common Law Courts, and their terms throw much light on the growing importance of the Chancery Court, and show how it was steadily usurping the place formerly occupied by the Council, which, as we have seen, had met with a precisely similar attack in the reigns of the Edwards, and by Parliament itself in the redress of private wrongs. The fact that these complaints all came from the Commons suggests that they may have been prompted rather by the professional jealousy of the Common Law lawyers, who, though often forbidden to sit, were found in the Lower House in large numbers, than by any real abuse of the Chancellor's powers. In 1 Richard II. the Commons petitioned that no Writ issuing out of the Chancery, Letter of the Privy Seal or secret be directed to any one to cause him to come before the Council of the King, or any other, to answer for his frank tenement or things appurtenant thereto, as hath been heretofore ordained, but " that the Common Law of the land be maintained to have its due course." l The reply promised that none should be so made to answer finally, provided that, at the suit of a party, where the King and his Council should be credibly 1 Quoted in the History of the Court of Chancery, Parkes, p. 39. Eot. Parl. in. p. ii. 38 THE EEIGN OF RICHARD III. informed as to maintenances, oppressions and other outrages, in places where the Common Law was not able to have its due course, the Council might send for the alleged offender to find surety to answer for his misprision and for good behaviour. From this petition and reply it is plain that the two cha- racteristic features of the Chancery proceedings, the summons to appear and answer without any original writ directed to the Sheriff, that is essentially the 'subpoena,' and the examination of the party complained of, a thing not allowed in civil or criminal proceedings at the Common Law, were already in regular use by the Council, having been borrowed perhaps by the Chancellors and other Canonists who sat in it from the procedure of the Courts Christian where both had long been established. It has been suggested 1 that until a much later time the Chancellor enforced in his Court nothing but the Common Law, and that what the Commons complained of was, not the super- cession of an older system by a newer, of the jus civile by the jus honorarium, but the practice of the Common Law in a new Court. What relief the Chancellor gave and what matters his Court was occupied with, can only be discovered from the bills which have been preserved and the meagre references in the Year Books, but the cases cited above and Commons' petitions themselves clearly show that it was something other than mere Common Law. Thus in 7 Richard II. the Commons prayed "that from henceforth there be directed out the Chancery no letter under the Privy Seal, for the disturbance of the possession of any subject of the King, without due process and answer of the party, especially when the party is ready to do what the law demands," and the King re- plied 2 " let those who feel themselves hurt individually show their grievance to the Chancellor, who will provide them a remedy." Again in 13 Richard II. 3 , the Commons presented two petitions to the King, one asking that "neither the Chancellor nor any other person may make any ordinance 1 "Early Eng. Equity:" Mr Justice Hardy, p. xxix. Rot. Parl. in. p. 162. Holmes, 1 Laiv Quar. Rev. p. 163. 3 Hardy, loc. cit. Rot. Parl. in. pp. 2 Introduction to the Close Kolls, 266, 267. STATUTE AS TO COSTS. 39 against the Common Law, or ancient custom of the realm, and the statutes already made or to be made in this present parliament, but that the Common Law may run impartially for all the people, and that no judgment given shall be annulled without due process of Law, and the other that " none of the King's lieges be made to come by writ of Quibusdam certis de causis, nor by any other such writ, to appear before the Chan- cellor or the King's Council to answer for any matter for which remedy might be obtained at Common Law, on penalty of a fine of 100 on the Chancellor and loss of office on the clerk who issued the writ." To each of these the King returned an evasive answer. Four years later the Commons petitioned again 1 : "that, inasmuch as many liege subjects of the Kingdom. . 6 J ~ ., Power to give by untrue suggestions made as well to the Council the Defendant of our Lord the King as in the Chancery of our Lord the King, are enjoined to appear before the said Council, or in the Chancery, upon a certain penalty, upon a certain day, by which the loyal subjects of the Kingdom are unjustly harassed and aggrieved, to the great damage of your said liege subjects, and to the utter destruction of their estate, without remedy in the meantime to be had for the damages and cost : That you please to ordain and establish in this present Parliament, that the Chancellor of England for the time being shall have full power to cause the parties com- plaining in such writs, under a certain penalty, to find sufficient pledge and surety to make satisfaction to the party Defendant in case the suggestion be not true. And that the said Chan- cellor shall have full power to assess and tax the costs and damages so coming to the party Defendant from the party Plaintiff, and shall cause execution for the false suggestion aforesaid," and then, lest this be taken to authorise the Chan- cellor to try actions touching freeholds, or triable at Common Law, a proviso was inserted in the petition that such actions be tried only before the Justices, as had been accustomed. The King replied, that he willed that the Chancellor for the time being should have power to ordain and award damages 1 Parkes, p. 41. Rot. ParL in. p. 323. 40 PETITIONS REMITTED FROM PARLIAMENT. according to his discretion, and the recorded petitions in Chancery show that this power was frequently exercised ; security for costs being often given by the Plaintiff during Richard's reign, that is long before the Statute of 15 Henry VI. was passed to 1 more fully carry out the intention of the above petition. That Statute required the Plaintiff to give security for the costs before the issue of the Subposna to summon the Defendant to answer. It had fallen into disuse before the reign of James I. These attacks upon the Chancery did not prevent the House of Lords sending petitions to be dealt with there. Thus in 15 Richard II. two petitions to the King and the Lords of Parliament 2 , one of which was a complaint by a convent of an interference with its exclusive right to bury the persons dying within a certain district, and the other a complaint that the Respondent refused to enforce a recognizance which the Com- plainant's debtor had entered into with him for her use, were both indorsed "Soit ceste peticion mandez en la Chancellerie, et le Chancellor par auctorite du Parlement face venir les parties devant luy en la dite Chancellerie, et illoequez la matire en ceste peticion compris diligeaument vieue et examine, et oiez les resons d'une parti et dautre, outre soit fait par auctorite de Parlement ce que droit et reson et bone fay et bone conscience demand ent en le cas." In the same year an act was passed 3 which directed persons aggrieved by being called upon to answer before the Council of any lord, set up in imitation of the King's Council, to apply to the Chancellor. Probably this application was intended to refer to the Chancellor's ministerial duties only, as issuer of original writs, but whatever the in- tention of the statute, application was certainly made to him by bill in some cases, at least within the mischief of it 4 . In the second year of Henry IV. there is a petition couched in terms much more friendly to the Court of Chancery. It prays 5 "that, because great mischiefs happen in the Court of 1 4 Inst. p. 84, post, p. 66. 4 Freeman v. Pontrell, 1 Cal. p. xlii. 2 Rot. Parl. in. p. 297. Introduc- 5 Campbell, Vol. i. p. 308. Rot. tion to the Close Rolls, Hardy, p. xxix. Parl. ill. p. 474. 3 Ante, p. 35. 15 Rich. II. c. 12. THE REIGN OF HENRY IV. 41 Chancery by the discussion of all pleas in matters traversed in the said Court, and by the Judges of the two benches being taken out of their Courts to assist in the discussion of such matters," traverses may be sent into the King's Bench or the Common Pleas to be discussed and determined according to law. The King answered that the Chancellor had already discretion to send them. Lord Campbell apparently looks upon this as the origin of the practice of sending issues into the King's Bench for trial, but that practice was far older than the statute and was recognised by the escheats statute 1 already referred to. In the earliest times of reference to the Chancery an inquisition was often directed to be taken by a commission appointed for the purpose and returned into the Chancery for discussion and judgment, a course similar to that adopted in the other Courts, which often had the facts found for them by the Sheriff and a jury 2 . Two years later an Act 3 was passed to suppress violent disseisins and seizures of chattels, which were stated ,. jt owur LOf^i (iiiu to be of daily occurrence, and by which the injured f^^^onjut^ parties were often so utterly despoiled that they rage - had nothing left wherewith to "pursue their right." The remedy proposed is " that if the party grieved or other lawful man for him, will make affiance in his name, that the entry was made in such forcible manner, that the Chancellor of England for the time being shall have power by his discretion to grant a special assize in this case to the party grieved of whatsoever value the tenements be, without suing to the King." The penalty on the disseisor to be a year's imprisonment and double damages to the Plaintiff, and in the special assize there to be named one of the Justices of one Bench or the other, or the Chief Baron of the Exchequer if he be a man of law. This statute points to the great vice of the administration of the Common Law all through the 13th, 14th, ... . , Absence of re- and 15th centuries, its failure to give redress where niedy for poor 111 plaintiffs. the injured party was poor, and unable to pay the 1 36 Edward III., and see the case 2 For instance seeAbbreviatioPlaci- cited, ante, p. (28), of 13 Edward II. torum, p. 305, R. 72. Abbreviatio Placitorum, p. 336, R. 1. 3 4 Henry IV. c. 8. 42 NO REMEDY AT COMMON LAW. fees by which alone the original writs could be obtained, and for the reduction of which the Commons often petitioned with no better results than promises, which seem never to have been fulfilled, that special consideration should be given to applica- tions by poor plaintiffs. The sufferer's inability to sue might well be produced, as the statute says, by the wrong itself, so that the very magnitude of the outrage secured its immunity from punishment, and perhaps in addition gave the injurer means to corrupt the jury of his neighbours or the local officials, sheriffs and others, in whose hands the execution of the Common Law process lay. The power given to the Chancellor by this statute to appoint a commission to try the charge on the bare com- plaint of the party, or the sworn complaint of his agent, recalls the directions on petitions referred from Parliament and the Council, of which examples have already been given, that an inquest be directed out of the Chancery to try the truth of the petition. It would seem however that the examination of the Defendant himself on oath, in the Chancery, or by a Com- mission elsewhere, had by this time generally superseded all other modes of investigating charges made before the Chan- cellor, for this was the procedure adopted in regard to the petitions preserved in the Tower. The Parliament which sanctioned the exercise by the Chan- cellor of the special power just considered, in a later chapter of the same statute decreed 1 that, "whereas as well in pleas real judgments as ^ n pl eas personal, after judgment given in the vereedbyattoint ccmr ts of our Lord the King, the parties be made to come upon grievous pain, sometimes before the King himself, sometimes before the King's Council and some- times in Parliament to answer there anew, to the great im- poverishing of the parties aforesaid and in subversion of the Common Law of the land," thenceforth, after judgment the .parties and their heirs should be thereof in place until the judg- ment be reversed by 'attaint' or 'error.' This enactment formed one of the main weapons in the hands of the Common Law party in the great contest over the right of the Chancellor to 1 4 Henry iv. c. 23. JUDGMENTS NOT TO BE QUESTIONED. 43 issue injunctions to stay proceedings upon judgments obtained at law, which came to a head under Coke and Ellesmere in 16 James I. Bacon and his fellows, who drew the report to the King upon which the dispute was decided, argued that the extraordinary jurisdiction of the Chancellor is not here in- tended to be restrained, for the Chancellor is not expressly mentioned, and moreover the statute was made upon one of two petitions from Parliament, of which the other, which never became law, expressly attacked that jurisdiction. An account of the report and of the whole discussion will be given at a later stage. There seems little doubt that the statute was taken to bind the Chancellor, at the time and for long afterwards, for it appears to have been actually pleaded and allowed in the reign of Henry VI. in answer to a petition complaining of an un- conscientious judgment 1 . The following petition of 3 Henry V. 2 shows that the fre- quent exercise of what may be called the Chancellor's original jurisdiction was then regarded as of recent date. It shows too that summons by subpoena for personal examination i J i j v XT. W Petition had already become the common course in his against the ,^1 rrn . . . i ' r Subpoena. Court. I he petition opens with a complaint of writs of Subpoena and Certiorari sued out of the Chancery and Exchequer for matters determinable at Common Law : "which never were granted or used before the time of the late King Richard when John Waltham heretofore Bishop of Salisbury, of his craft made, found, and commenced such innovations against the form of the Common Law of your realm," and, it continues : "whereas by reason that your justices of either Bench, when they ought to attend in their places to enter pleas and take inquests for the deliverance of your people, are occupied upon examinations upon such writs," to the loss of both King and people "on which examinations there is great clamour and noise, by divers persons not aware of the law, without any record thereon entered in your said places, and upon which pleas they cannot determine but by the examination and oath i Beck v. Hesill, 2 Cal. xn. (cir. 2 Parkes, p. 48. Rot. Parl. iv. p. 84. 10. Hen. VI.) 44 PETITION AGAINST THE SUBPCENA. of the parties, according to the form of the civil law, and the law of the Holy Church in subversion of the Common Law," and Defendants are compelled to find sureties to keep the peace: therefore the Commons pray the King to ordain "that every person who shall sue such writs shall put all the cause and matter of his suit in the said writs, and that all such writs in the Courts out of which they shall issue, shall be inrolled in the said Courts and made patent and shall remain for the Defendants therein, without being returned in the said Courts," the Defendant in any case determinable at common law to recover 40 as a debt from the Plaintiff. The petition goes on to complain of 'writs called informations' issued out of the Exchequer, and to suggest that all writs contrary to the ordinance and the proceedings upon them shall be void. The King rejected the prayer. It is difficult to understand why so great an aversion should exist to the examination of a defendant as this Examination jr ,-,- j-i 1-1 ofthedefen- and subsequent petitions display, an aversion which seems to have made the procedure of the Star Chamber the chief ground of objection to its jurisdiction in the 17th century, and which still retains in our law, though now in reference to crimes and penalties only, the maxim 'nemo debet prodere seipsum.' Perhaps the accident of the procedure having been borrowed, either directly, or through the Council, from the Canon Law accounts for what is to modern notions so unreasonable an objection. Certainly the Church was at this time exceedingly unpopular in Parliament, which again and again advised Henry IV. to seize its property and apply it to founding new peerages, to charity, and to his own use. The Chancery was naturally identified with the Church, since, with few exceptions, of which the lawyers Parnying and Thorpe under Edward III. are the most important, the Chan- cellors were always Churchmen, and generally Archbishops and Cardinals, until the appointment of Sir Thomas More by Henry VIII. Perhaps the devotion of the Common Law lawyers to their own system, which rejected the testimony of the parties to any litigation, and their natural jealousy of its rising rival, at once prompted the objection and suggested its form. THE SUBPCENA. 45 The John Waltham referred to in the petition was Master of the Rolls in 5 Richard II. and afterwards became . Origin of the Keeper of the Seal. The invention of the Sub- Sub P<* a - poena was not his, as the Commons supposed, nor did he first add the penalty to the writ ' Quibusdam causis,' as Lord Campbell suggests 1 . All the essential parts of the Subpoena are to be found in writs issued by the authority of Parliament and the Council during the reign of Edward III., and the use of the penal clause in statutes and orders of all descriptions was much older 2 . For instance 3 , the Serjeants were, from the time of Edward II. appointed to aid the King with their advice, under a penalty. The earliest writ 4 in the Chancery Calendars directs Richard Stormesworth, the defendant, "for certain causes propounded before us (Richard II.) and our Council," to appear, in his proper person, "before us and our said Council in our Chancery on Tuesday next after the feast of St Martin the Bishop to answer to those things which shall then there be objected to thee on our part, and further to do and receive what our Court shall consider in this behalf;" and this, it continues, " under the peril (sub periculo) which may ensue, thou shalt in no wise omit, and have there this writ." Later on the penalty was generally a fixed sum, and the bills pray that a writ to answer 'under a great pain' may be di- rected to the defendant, but it does not appear that these penalties were ever enforced; the judges indeed denied the power of the Chancellor to fine, saying that he could imprison only, and the Exchequer refused to enforce a fine imposed in Chancery and estreated there 5 . It is unnecessary to dwell further upon the petitions of the Commons against the interference of the Chan- Later petitions cellor, and his competition with the ordinary Courts. They continued during the reigns of Henry VI. and Edward IV., and they suggested various remedies for the evil complained of; for instance, in 1 Henry VI., that 1 Campbell, Vol. i. p. 296. Note (2). 16 Richard II. c. 2. 2 Introduction to CloseRolls, Hardy, :i Pulling, Order of the Coif, p. 31. p. xxx. Note. Close Rolls. 37 Ed- 4 Cal. i. p. v. 18 Richard II. ward III., 1 Law Quar. Review, p. 162. 5 Post, p. 89. 46 SUBSEQUENT PETITION. no subpoena should be allowed until two judges had certified that the Plaintiff had no remedy at Common Law 1 , and in 15 Henry VI. that an action should lie for bringing a man into Chancery for matters determinable at law 2 , but nothing came of them, except a temporary provision in 9 Henry V. that the plea of a Common Law remedy should be a good answer to a bill 8 , and the statute 4 requiring the Plaintiff in Chancery to give security for costs, which has already been referred to. The King even refused 5 to enact that if any man indorsed his bill or petition with the words " by the authority of Parlia- ment let this bill or petition be sent to the Council of the King or to the Chancellor of England," without authority, he should be punished. Perhaps in this case, as Lord Campbell says, because he would not recognise the right of the Commons to interfere upon petitions presented, as, since the division of the Houses, all petitions in Parliament touching private redress had been presented, to the Lords 6 . 1 Parkes, p. 53. Rot. Parl. iv. p. 189. 2 Eat. Parl. iv. p. 501. 3 Parkes, p. 52. Rot. Parl. iv. p. 15G. 4 15 Henry VI. (made on the peti- tion of that year last cited). 5 8 Henry V. Rot. Parl. rv. p. 127. 6 In Rot. Parl. vi. p. 144, is an order containing a direction that, if anything be done contrary to the order, the Chancellor may hear com- plaint of it by Bill as he accustomed to do on a writ of subpoana. The reference to this in Vin Ab. Chan- cery, is wrongly printed 14 Edward III., it should be Edward IV. CHAPTER V. THE CHANCERY FROM THE REIGN OF RICHARD II. TO THE REIGN OF ELIZABETH, AND THE BILLS IN THE CALEN- DARS. SECTION 1. Procedure and Pleading. FROM the 17th year of Richard II. materials for writing the history of the Court of Chancery become more abundant, for after that time the bills presented to the Chancellor, or specimens of them, were preserved, and a selection of those now remaining of dates earlier than the reign of Elizabeth has been printed in the first two volumes of the Proceedings in Chancery 1 . I shall now attempt to describe the procedure of the Court, the relief it gave, and the nature of the matters which came before it, by the aid of these materials. There are no data, so far as I am aware, for an account of the pro- gress either of its procedure or of its jurisdiction during the period, except of the most summary kind, and it will be con- venient therefore to treat the whole of the petitions 2 together, without attempting to divide them into chronological groups, merely marking incidentally such indications of development or alteration as they supply, and marking these with the caution, that, as the records under consideration represent a selection only, and not the whole of the business done, the conclusions drawn, and above all any negative conclusion, based 1 These are referred to hereafter as time do, no distinction appears to be "the Calendars" (Gal.). made in their use down to the reign - I use the terms bill and petition of Elizabeth, indifferently as the records of this 48 BILLS IN THE CALENDARS. for instance on the first appearance of a particular form, must be taken as tentative only. The bills begin in the 17th year of Richard II., the year Contents of ^ ^e passing of the Statute to enable the Chan- the calendars, cellor to give a successful Defendant costs. None have been found of the reign of Henry IV., and but few of that of his son, but after this they became numerous. The records consist of the bills and, after written answers were introduced, the answers and further pleadings, with, in some cases, the examinations of the Defendants and others, in some the decrees made, and occasionally copies of the writs issued. There are besides a few miscellaneous entries of documents connected with particular suits : thus there is a letter from the Earl of Derby to the Chancellor, enclosing a bill 1 addressed to the Chancellor by one of the Earl's tenants, and asking him to grant relief upon it " in case that the law will permit it;" and there are two similar letters missive 2 from Henry V., when in France in 1419, to his Chancellor accompanying bills which had been addressed, and actually presented to, and con- sidered by, the King himself. The first of the King's letters directs the Chancellor that the "foresaide supplicacon wel understanden and considered by yow, ye doo calle before yow bothe parties speciffied in the same supplicacion, and thaire causes herd, that ye doo unto hem both right and equite, and in espial that ye see that the porer partye suffre no wrong, but that ye make suche an ende in this matiere y* we be no more vexed hereafter with thaire complaints." The other letter is in similar terms, but contains a statement that the King had information, outside the bill, of the great maintenance of the defendants. Both the enclosed bills were of the ordinary kind, except that they were addressed to the King, instead of to the Chancellor, and the second is indorsed with a decree by the Council, although it was remitted to the Chancellor, for the issue of writs of subpo3na, the penalty to be in the Chancellor's discretion, and the writs to be served by the Sheriff. 1 1 Cal. p. vii. -' 1 Cal. p. xvi. COMMON LAW IN CHANCERY. 49 Before discussing the procedure in Chancery of this period as it is displayed by the Calendars, it will be The Common necessary to consider the relation of what were Eq^it-^sidesof afterwards respectively known as the Common Law Chancer y- and the Equity sides of the Court. Reference has been re- peatedly made in the preceding pages to the Common Law business of the Chancellor, but, so far, I have not attempted to distinguish it from the rest of his judicial work, for, as has already appeared, the two grew up side by side, and, for the most part, in the same manner. Coke, writing in the seventeenth century, of the Court of Chancery, as he knew it, says 1 , "In the Court of Chancery are two Courts, one ordinary, 'corum domino rege in can- cellaria,' wherein the Lord Chancellor or Lord Keeper of the Great Seal proceeds according to the right line of the law and statutes of the realm, 'secundum legem et consuetu- dinem Anglise/ another extraordinary, according to the rule of equity, 'secundum sequum et bonum.' " "The ordinary Court holds pleas of scire facias for the repeal of the King's letters patent, of petitions, and monstrans de droits, traverses of offices, partitions in Chancery, of scire facias upon recognizances in this Court, writs of audita querela and scire facias in the nature of an audita querela." " In these if the parties descend to issue, this Court cannot try it by jury, but the Lord Chancellor or Lord Keeper delivereth the record by his own proper hands into the King's Bench to be tried there, because for that pur- pose both Courts are accounted but one ; and after trial had to be remanded into the Chancery, arid there judgment to be given." To this list of matters belonging to the Common Law side Mr Spence 2 adds executions on statutes, and pleas of all personal actions by or against any officer of the Court, and he says, " the proceedings in all or most of these cases were by Common Law process, not by petition or bill ; but the Chancellor never had authority to summon a jury. ...The Chan- cellor in the exercise of his ordinary or Common Law juris- diction could not advert to matters of conscience." All the older authors agree in regarding the Common Law side of i 4 Inst. 79. 2 1, p. 336. K. 4 50 COMMON LAW IN CHANCERY. Chancery as of greater antiquity than the other, and in repre- senting its procedure as, from the first, analogous to that of the other Courts, and the very name extraordinary jurisdiction was framed to connote the variation of the equity side from the normal jurisdiction and procedure of that called ordinary. It has recently, however, been shown by Mr Pike 1 that in some cases, at least, in matters outside its ' ordinary jurisdiction ' the Court of Chancery in early days adopted and allowed a procedure closely analogous to that of the Common Law Courts, and, on the other hand, the records show that the ordinary jurisdiction was often exercised through the extraordinary procedure. I shall now point out the characteristic differences of these procedures, and then attempt to estimate the extent to which either was in this period appropriated to one or the other division of the Chancellor's work. The system of pleading at Common Law had already be- Procedure at come scientific at the end of the reign of Edward I.' 2 common Law. an( j d urm g the two succeeding reigns it took the definite shape it retained down to the present century. An action commenced with a writ to the Sheriff to which the Defendant appeared. The Plaintiff then, by the mouth of his Counsel, till, under Edward III., written pleadings were intro- duced, put in his declaration, consisting of 'Counts' or suc- cinct statements of the allegations on which he relied, framed in alternative forms, but so as in every case to follow the writ. The Defendant thereupon pleaded, stating his answer to each Count on one or more grounds, the Plaintiff replied to the Pleas, and then the Defendant rejoined, and so on. The declaration, pleas, reply, rejoinder, &c. being all generally described as pleadings. Either party instead of pleading to the last pleading of his adversary could demur to it, alleging some ground of insufficiency in law of the facts as stated to support the claim or defence, or alleging want of form, and the demurrer was tried and determined. Finally, when all disputed points of law and pleading which arose had been decided, if 1 "Common Law and Conscience 2 Introduction to Year Book. 30 in The Ancient Court of Chancery." and 31 Edward I. Horwood, p. xxvii. 1 Law Quar. Review, p. 443. COMMON LAW IN CHANCERY. 51 the action had not itself been disposed of, one party concluded to the Country, that is, appealed to a jury upon the facts then left in issue, and the other party replied with a 'similiter,' and the cause stood for the hearing, after which judgment was given on the verdict of the jury. In Chancery the procedure by bill and answer, as it appears in the records of this period, was in many respects p roc edure in different from this. The Plaintiff commenced with Equity " a bill in which he set out the facts of the case, as he alleged them, and asked for relief, and generally for a Subpoena to compel the appearance of the Defendant for examination. The Defendant put in his answer, in which he usually both demurred to the bill and pleaded matters in reply to it, and also denied the truth of its allegations and set out his own version of the story. The Plaintiff then replied to the answer, in the same manner as the Defendant had replied to the bill, and the Defendant rejoined to the reply, and so on, one case in the records getting as far as a surrebutter. There are also instances of amended bills, and of a cross bill by a Defendant. In after times these further pleadings beyond the answer were dispensed with, amended bills and answers serving to bring out the points in issue, and pleas and demurrers were separated from the answers and employed and treated with the accuracy, and in the manner of the Common Law Courts. Thus Lord Bacon 1 distinguishes a plea, which he says imports matter foreign to the bill, from a demurrer, which does not. At some stage in the proceedings the Defendant was examined on oath in the Chancery, or elsewhere by a commission, on the matters alleged in the bill. Before the introduction of written answers, of which the first instance recorded is in 21 Henry VI. 2 , there seems to have been no distinction between the examination and the answer. In later times it became the custom to add to the bill a series of interrogatives to which the Defendant made written answers whose truth he swore to, but during the present period the examination was always viva voce. When the pleadings were finished the parties produced witnesses who 1 In his Orders. 2 Arkenden v. Starkey. 1 Cal. xxvi. 42 52 COMMON LAW IN CHANCERY. gave their evidence orally in the Chancery or to Commissioners, and tendered such documentary evidence as they had, and the judgment or decree was made. From this sketch it will be seen that the main distinctions between the two systems at this time were the commencement by original writ, implying a grant of jurisdiction from the King in the particular case, and the trial of the issues of fact by the jury, in the one, and the personal summons, by sub- poena, of the Defendant, and his examination on oath, in the other. There was a further distinction in some cases, in that at Common Law the judges pronounced judgment on their own authority, conferred by the writ, while in Chancery the Chancellor made his order by the advice, or with the consent of the Council, or of specified persons, or of the judges sitting with him. Mr Pike has discovered and published a case of Hals v. Hyncley 1 heard in the Chancery in the seventh Common Law _* r __ . . , procedure in year oi Henry V., which so lar as is known is the equity matters. ' i t i j i , ,1 i 11 Hals v. earliest case which can be traced right through all its proceedings from bill to decree, and which, though concerned with matters in the ' extraordinary juris- diction/ is inrolled among the County Placita records, which are generally taken to relate to the Common Law business only. The proceedings, except that they commence by bill and that the Defendant was brought into Court by subpoena, are through- out closely analogous to those adopted in the Common Pleas of the day, and they are closed by the Plaintiffs appealing to the jury: "et haec omnia petunt quod inquirantur per patriam," the Defendant joining issue with the ' similiter.' The issue so joined was neither tried by the Chancellor upon the exami- nation of the Defendant and Witnesses, nor by being sent into the King's Bench, but by a special commission under the Great Seal to three judges to try the truth of the matter by a jury of the County, and to return the inquisitions into the Chancery. The Jurors found for the Plaintiffs, and, on the return, the Plaintiffs moved for judgment, which is recorded in these words, "super quo habita super premissis matura et 1 1 Law Quar. Review, p. 445. COMMON LAW IN CHANCERY. 53 diligent! deliberatione cum Justiciariis et Servientibus dicti domini Regis ad Legem, ac aliis peritis de Consilio suo in Cancellaria prdicta existentibus, de eorum avisamento con- sideration est quod predicti (the Plaintiffs) ad possessionem suam manerii et advocationis prsedictorum cum pertinentiis, una cum exitibus de eodem manerio a predicto die Mercurii perceptis, restituantur." From this Mr Pike infers that, down to the reign of Henry V., at least, no sharp line had been drawn between the Common Law and the Equity proceedings in Chancery. This inference is supported by a study of the records in the Calen- dars, and of the references from the Council and Parliament to the Chancellors cited above, which amply es- Equity pro- tablishes the converse proposition to that sug- monLaw Sat-" gested by this case, namely, that the procedure by ters " bill, subpoana and examination was frequently applied to the matters enumerated above as belonging to the Common Law jurisdiction, and to others which must be classed with these. Thus there are references 1 under Edward I. of two petitions, one touching the grant of Letters Patent, and the other con- cealment of dower, the former directing the suppliant "veniat ad cancellariam, ut fiat ei quod graciose fieri poterit," the latter the Defendants "veniant coram Cancellario et respon- deant Regi de concealameiito, et ibi fiat remedium tarn pro Rege quam pro Petente;" and amongst the references of the reign of Edward II. there are numerous petitions 2 dealing with the matters above mentioned, one or two of which (e.g. a petition touching the King's rights in a hospital, and another touching a ship) are expressly said to belong to the Chancellor's office, and a remedy is directed to be given upon them in Chancery, in some cases summarily, in some on the return of an inquisition issued thence to find the facts. Among the bills printed in the Calendars are several which relate to and complain of claims made on the King's behalf: for example, the second in the first volume which complains of failure to obtain redress by a scire facias obtained from the King by petition, and the petition of Lord 1 Campbell, Vol. i. p. 186. 2 Campbell, Vol. i. p. 207. 54 COMMON LAW IN CHANCERY. De Grey 1 in the second volume, which complains of seizure of the Plaintiff's lands into the King's hands by the Lord-Lieu- tenant of Ireland, and prays that the Lord- Lieu tenant may be ordered to return the "whole tenor of all manner of records and evidences, and the cause of the seizure abovesaid, with all offices and inquisitions which are in the said Chancery of Ireland " into the Chancery of England, arid to these may be added the frequent applications, which in after time would have been for ' supplicavits ' to compel the Defendants to find surety of the peace. There is nothing whatever in the form of the bills in these cases, or in the recorded proceedings upon them, to suggest that they were dealt with in any manner different from that adopted in regard to the other bills in the collection. On the other hand there is ample evidence that certain Common Law re g u l ar work had been discharged in the Chancery m chancery. without special reference there, before the custom of making applications in matters of grace had become es- tablished. A case in 13 Edward II., in which a Defendant in the Chancery pleaded " non est factum," and the matter was sent into the King's Bench because it was not the custom to try pleas of that character in the Chancery ; and another in 33 Edward L, where a "monstrans de droit " sent for trial, from the Chancery apparently, was referred to the Chancellor and Treasurer because of errors in the inquisition and pleadings which prevented the judges proceeding upon it, have been already cited 2 . In the Year Book 12 and 13 Edward III. is a case of scire facias by Mareschal against Bambrighe 3 , heard in the Chancery by certain of the judges, whether with or without the Chan- cellor does not appear, which seems to have been tried right through in the manner afterwards adopted in like cases. The Plaintiff had been accused of treason, and his lands were forfeited, and granted, by charter of the King, to one who aliened them to the Defendant. The Plaintiff, however, being restored to favour, obtained a scire facias against the Defendant, and a Com- 1 2 Cal. p. vi. c. p. Sotehill v. Har- B. 1, and p. 256, E. 46, ante, p. 28. rington, 1 Cal. p. Ixxxvi. 3 p. 96, and Introduction, p. civ. 2 Abbreviatio Placitorum, p. 336, COMMON LAW IN CHANCERY. 55 mission, appointed to find the facts and make a return into Chancery, found there had been no forfeiture. On this the argument, of which the record is a report, took place, the Defendant's counsel beginning with a demurrer to the scire facias, and alleging that " this is only a place of office, where- fore we do not think that without a writ (of Right, or Novel Disseisin) you can put us to answer." The real objection was that by the procedure adopted the Defendant lost his warranty against his grantor. Fleta too, in the passage 1 quoted above, expressly states that scire facias on recognizances were taken in the Chancery as before the judges themselves, and he makes no suggestion of there being any difference in the procedure in that Court. Stauneford 2 , writing at the end of the 16th century, seems to have been in doubt whether the strictness of the rules of pleading at Common Law applied also to cases remitted for trial from the Chancery, and he cites two opinions of the judges of Edward IV., the first that a bad traverse is con- clusive against the traverser, the other that this is not so, because it proceedeth in the Chancery, which is a Court of Conscience, and to the latter he adds the note, " but as to that a man may answer and say that a Chancellor hath two powers, the one absolute, the other ordinary, and this traverse is before him by an ordinary power, in which case, all things touching the same must proceed as it should happen before any other ordinary judge of the Common Law," and therefore the first opinion is right, " tamen qucere." The true inference to be drawn would seem to be that the oldest part of the Chancellor's jurisdiction, that . . * i i j Conclusion. relating to scire facias, recognizances, and claims affecting the King's rights, and the jurisdiction conferred upon him by statute 3 in respect of traverses of office upon escheats, was generally exercised by him according to Common Law rules, and with the Common Law Procedure, and that it was the custom when matters of fact were in dispute to send the case into the King's Bench for trial, but that in some 1 Fleta, 2. 13 (a). 3 36 Edward III. c. 13. a See 1 Law Quar. Review, p. 454. 56 COMMON LAW IN CHANCERY. cases the procedure by bill and examination was adopted as in the case of the other matters dealt with by the Chancellor on application or reference to him. On the other hand the case of Hals v. Hyncley shows that the Common Law procedure was adopted, sometimes at least, in cases not " touching the Office of the Chancellor," and this is supported by the terms of the references of many of the petitions by Parliament and the Council to the Chancellor 1 bidding the suppliant, "sue in the Chancery at Common Law," "habere remedium secundum legem terrse," and many times directing a writ to be issued to the Sheriff to find the facts by inquisition and to return it into the Chancery. The case of Hals v. Hyncley is an exceptional one. It arose in a peculiar way, for the Plaintiff was only prevented from suing at law by the King's command on going abroad, that there should be no assize of novel disseisin until his return, and the bill is quite unlike the bills in the Calendars, being framed upon the model of a scire facias, and asking that the Defendant should make answer to the Plaintiffs, and not, as usual, that he be examined by the Court. There is no record of pleadings at any length until the next reign, but when we do come to recorded answers, replies and so on, they none of them so closely follow the Common Law proceedings as those of this case, and the conclusion to the Country in it is, I believe, unique. On the whole the statement of the older writers seems in the main correct, but with the qualification that, while the two procedures existed in the old Court of Chancery from its earliest establishment as a settled Court, and were specially appro- priated to what afterwards were called respectively the Common Law and the Extraordinary Jurisdictions, they were not con- fined each to its proper side in every case, but that the appli- cation of the Common Law procedure to the extraordinary jurisdiction was far less common, and ceased at an earlier time, than that of the extraordinary procedure to the Common Law jurisdiction. 1 Campbell, Vol. i. p. 207. CONSTITUTION OF THE COURT. 57 The next point to be considered is the constitution of the Court. We have seen that the Equitable, and the greater part, at least, of the Common Law jurisdiction of the Chancellor arose from the frequent reference to him of Petitions directed to the Council and Parliament. These were referred sometimes to him alone, and sometimes to him and the judges, or other associates, as the Treasurer or the Master of the Rolls, and very often he was bidden to call in members of the Council to help him. The records show that the close connection between the Chancellor and the Council continued long after the bills had begun to be addressed to him directly and alone, and it would not be in- correct to describe the connection as it appears, as being that the Chancellor is the official representative and the acting Committee of the Council. Mr Pike 1 gives the following de- crees as specimens of those recorded in the " County Placita.' " Habita plena deliberatione cum toto Concilio domini Regis, videtur Curias " &c. " De advisamento Justiciariorum et Ser- vientium ipsius domini Regis ad Legem, ac aliorum peritorum de Concilio ejusdem domini Regis in eadem Cancellaria ad tune existentium, consideratum fuit quod litera? prsedictse revo- centur et adnullentur." " De avisamento domini Cancellarii Anglise, Justiciariorum, Servientium ad Legem et Attornati ipsus domini Regis consideratum est" &c. and these are pre- cisely analogous to those found indorsed upon the bills in the Calendars. The frequent summons of the judges to aid in the discussions in Chancery was, as has already appeared, the subject of repeated complaint by the Commons; they continued to be called to assist the Chancellor down to the end of the 18th century. The indorsement on one of the bills 2 remitted by Henry V. shows that the case was dismissed by the Lords of the Council, including the Chancellor, although committed by terms of the King's letter to the Chancellor alone. A writ issued on a bill to the Chancellor, of the reign of Richard II. 3 directs the 1 1 Law Quar. Review, p. 444. 3 1 Cal. v. and 1 Cal. xii. 2 1 Cal. xvi. 58 CONSTITUTION OF THE COURT. Defendants for certain causes, " propounded before us and our Council " to appear before " our said Council in our Chancery," and a bill of the same reign prays that the Defendant be arrested and brought before the Council, and in Saundre v. Gaynesford 1 in 29 Henry VI. is a decree by " the Lord Chan- cellor and other judges present." In the reign of Edward IV. however the Court seems to have regularly given judgment upon its own authority, and the form of the endorsement of the decree is to this effect : " be it remem- bered (memorandum) that the Petition of the Plaintiff and the answer, reply &c., and the other examinations and proofs having been read, heard, and fully understood, on full and careful deliberation, it was considered and adjudged by the Chancellor and by the authority of the Court of Chancery that," &c. 2 In some cases the Chancellor is not mentioned 3 , once only is there a decree by the Chancellor alone 4 . The judges were however still, as already said, occasionally called to the Chancellor's assistance, and decrees were made by their advice, possibly, as Edward IV. directed, in his instructions to Kirkeham, Master of the Rolls 5 , and in accordance with the practice of later times, when a difficult point of law arose. Thus in a case in 14 Edward IV. 6 the widow of the Gaoler of Ludgate, and the late Sheriffs of London seek the Chancellor's aid and pray for a certiorari to the Mayor and Aldermen of London to bring into the Chancery an action before them at the Guildhall, in which the Defendants named in the bill are suing for damages for the escape of their debtor from the gaol, although he had been recaptured, and the Defendants had procured his escape them- selves because he could not pay. In the reply the Plaintiffs added a new prayer for an injunction to stay the action. It was however " considered, adjudged and decreed " by the Lord Chancellor, with the advice of some of the judges, that the Defendants be dismissed "sine die." In another case 7 where 1 2 Gal. xxviii. xiv. (1 E. III.) 2 See 1 Cal. xci. xcvii. c. cix. (all 4 1 Cal. xciv. (14 Edward IV.) Edward IV.) 8 post, p. 60. 3 1 Cal. Ixviii. (3 Edward IV.) 1 6 Stokker v. Colyns, 1 Cal. xcv. Cal. cvii. (22 Edward IV.) 1 Cal. c. 7 1 Cal. Ixxxv. (Edward IV.) THE MASTERS. 59 Henry Sotehill sued on behalf of the King, charging the De- fendants with taking possession of the King's wards, the nieces of one of them, and asking, as usual, for a subpoena to them to appear and be examined, and also for an order to them to produce the wards, an order was made, in the Exchequer Cham- ber, "by the advice of the judges, Serjeants, attornies, and others of the King's Council," by the Chancellor committing the Defendants to the Fleet. These cases are quite exceptional, so far as can be judged from the very few decrees found, and in them it is noticeable that the Chancellor makes the decree, and it may be taken as clear that, by the reign of Edward IV., the Chancellor himself conducted the judicial business of his Court and formulated its decrees. The Masters in Chancery held an old and honourable office, dating from before the Conquest. Their position The Masters. during the present period was sufficiently prominent to invite the attack of the Commons, who in 5 Richard II. complained that the Masters 1 were "over fatt both in boddie and purse, and over well furred in their benefices, and put the King to veiry great cost more than needed." They sat with the Chancellor on the bench, and acted as " Pedanei Judices," and the custom of recording the Chancellor's decree as that also of the Court may have arisen from the share taken by them in determining it before the growing judicial power and dignity of the Chancellor made their assent merely formal. The course of the Masters, unlike that of the Chancellor, was a downward one : present in the Witan as chief councillors, they remained as councillors also in the House of Lords, having precedence of all the Serjeants until the unlucky presumption of one of their number in Elizabeth's reign lost them that dignity, and con- demned them to perpetual silence in the House. Two of them in later times, until the present century, were always named with a judge to sit for the Chancellor, when he required a deputy, but, although at first cojudices with him, they ceased in the 17th and 18th centuries to be anything more than his advisers. 1 Campbell, Vol. i. pp. 37, 305. See Hargrave's Law Tracts, and Spence, also the " Treatise on the Masters," Vol. i. pp. 238, 332, 357. 60 THE MASTER OF THE ROLLS. It is stated in the " Treatise on the Masters," written at the end of the 16th century, that the Masters at one time examined the witnesses on commissions, to the great assistance of the Court, for, says the author, " in wainge and consideringe of depositions the civilians and canonists holde that the coun- tenance and irresolutenes of the deponents is speciallie to be regarded ; of which point the masters, that should bothe take the depositions and assist the lord chaunceller at the hearing of the cause, might well informe him, which the commissioners " (whom it was the custom to appoint when the treatise was written) " cannot doe." It may well be that the Masters took the examinations which are recorded as taken in the Chancery in the 14th and 15th centuries, and a record headed 1 , "These ben the proyntes and articles whiche that John Mathew squier praieth you that John Oxenbrigge squier may be examyned on before you in the chauncerye," which is followed by the result of examination, shows that the Master of the Rolls sometimes, at least, did so, but the commissions to take answers and evidence in the country were certainly not given to the Masters only, but to the nearest prominent Churchman, to an Abbot or a Bishop in most cases, or to judges, or to judges and laymen combined. The Master of the Rolls had originally been merely the The Master of chief of the Masters, but before the reign of the Roils. Edward II. he had attained a superior position, and, as we have seen, he had in that reign a petition referred to him by the Council. In the Calendars are two bills addressed to him directly, the first of which 2 is of the reign of Henry VI., and this would seem to show that he had already the power of hearing causes for the Chancellor which he exercised in and after the 17th century, and this inference is confirmed by the direction of Edward IV. to Kirkeham when he was appointed Master of the Rolls 3 . " The King willed and commanded there and then that all manner matters to be examined and discussed in the Court of Chancery should be directed and determined according to equity and conscience, and to the old course and 1 Mathew v, Oxenbrigge, I Gal. lix. 3 Campbell, Vol. i. p. 397. 01. Roll 2 Goddard v, Ridmynton, 1 Cal. lix. 7 Edward IV. THE BILL. Cl laudable custom of the same court, so that if in any such matters any difficulty or question of law happen to rise, that he herein take the advice and counsel of some of the King's Justices; so that right and justice may be duly ministered to every man." He is referred to four times in the Calendars, twice in the addresses of bills, once with regard to an examina- tion he was to take, and once when money is ordered to be lodged with him in Court 1 . The bills preserved are much alike in form. They are all addressed to the Chancellor, with the exception of 1-1 -i TIT The bil l s - about a dozen, which are either not addressed, or addressed to the King 2 , the Keeper of the Seal 3 or the Master of the Rolls 4 , and they humbly beseech him to grant the relief asked for, and to apply right and remedy to the suppliant, for the love of God and in work of charity. Between the opening words of address and the principal verb ' beseecheth,' or the like, of the single sentence which comprised the whole of the typical bill, is introduced an informal recital of the wrong com- plained of, generally showing or stating that the suppliant was without remedy at the Common Law. The specific relief, if any, asked for is extremely variable, but it almost always comprises a prayer that the Chancellor will cause the Defendant, under a great pain to be named by him, to come into the Chancery, and be examined upon the matter of the complaint. Often, in the earlier bills especially, no specific relief is suggested, but in those of Edward IV. and the later ones the prayer is generally precise ; writs of certiorari to other courts, of corpus cum causa to bailiffs and gaolers, of quibusdam causis, of supersedeas to Commissioners, and of procedendo, being mentioned by name, and orders for delivery of the goods withheld, injunctions to restrain suits, and giving of sureties of the peace being asked for. Most of the bills have obviously been drawn by counsel, but there are some so ingenuous and inartistic in their wording as to leave no doubt that they were the productions of unprac- 1 Mitchell v. Marunyen (13 Edward 1 Cal. xci. (Edward IV.) IV.), 1 Cal. Ixxxvii. 4 Goddard v. Redmynton, 1 Cal. lix. 2 1 Cal. xvi. (Henry VI.) 3 Kirkeman v. Sheriff of London. 62 EXAMPLES OF BILLS. tised draughtsmen. The following 1 is a translation of one of the earliest bills, and both its form and matter may be taken as typical. " To the very honourable and very reverent Father in God, the Archbishop of York and Chancellor of England, Robert Briddecote showeth and grievously complaineth of John Forster. That whereas the said Robert was going in the peace of God and of our Lord the King, the Saturday next after the feast of St Barnabas on the highway on the other side of the town of Brentford, alone on foot, on a message to carry to Mr Piers de Besiles near Oxford ; there the said John with divers persons unknown, all on horseback, met the said suppliant thus alone on foot without defence, and on him the said John cried with a loud voice in English ' slay slay the thief, shoot shoot the thief.' By force of which cry all the people there being, surrounded the said suppliant in great numbers, and some of them bent their bows ; and some drew their swords and daggers to kill the said suppliant. Whereupon among others, a servant of the said John Forster shot the said suppliant with an arrow through all his cloaths into his arm, and thereupon he com- manded the said servant to cut off his head, and the strangers there would not suffer him ; Whereupon the said John Forster took a bow string, and threw it into water, and then tied his hands so tightly that the blood gushed out of his fingers ; and so led him as a thief to the town of Brentford, and there in the presence of divers persons would have killed him with his dagger, if it had not been for certain esquires of my lord the Duke of York, when the said suppliant had no other expecta- tion than of his death. And thus they brought him in such durance to London and there put him into a house, and went in haste to the Comptor of London, and there affirmed a false plaint of account upon the said suppliant of 1000, and there- upon he had two catchpoles assigned to him to arrest the said suppliant, being thus in custody he was delivered by the said John to the said two catchpoles, and by them brought to the said Compter tied by both hands as a thief, and there by force of the said plaint is to this day detained in strong and close 1 Briddicote v. Forster, 1 Cal. iv. (Kichard II.) EXAMPLES OF BILLS. 63 prison in despair of his life. May it please you for love of the Almighty to examine the said John on this matter, and to investigate his cause, thus to do and moreover to apply remedy and right to the said suppliant for God and in work of Charity." This bill, as all those of Richard II. and several of those of Henry V., is in French. The following 1 is given in the original English. "To a rev'ent fadur in God and a full g a cious Lorde my Lorde of Bathe the Chaunceller of Ingland. Mekely besechith your pov'e oratryce Kat'yn that was the wyf of on John Danyell of Brarnbele, that hough here said husbond was sole seised in his demesne asof fee in c'teyn landes and ten in Esthamme and Wohvych and died; so that the said landes and ten come to the possession of on Richard Belyngburgh. And your said bedwoman for pov'te of here party and maintenaunce and overledying of the cuntre, be the pcuryng of the monyfold gret mysdoers of the party of the said Richard, be this xxu yere last passed, myght nev' be suyt no be trety come to have resonable partie of the said landes and ten, no nev' shall withowetyn your g a cious Lordship and socour; for your said oratrice for this mater is to the utterest empov'ed and destroed: so that in no wis she is of power to sewe the coe lawe. Wherefore lyk yt to your g n ce to send for the said Richard to apere to for you in the chancellar' ther to be examyned of the mater aforsaid so that by your g a cious Lord or your ordynaunce be trety or other wey your said orattrice may have fynale ende in the mater aforesaid in the werke of charite." (From the indorsement it appears that Richard came and confessed, and promised to give up 12 acres to the Plaintiff, and was then dismissed, by consent.) The more technically expressed bills, especially the later ones, are too long to quote, but the following bill of the Arch- bishop of Canterbury may be taken as an example of their style, and also as illustrating the less cringing form of address adopted by suppliants of high position. It belongs to the reign of Edward IV. 2 1 Danyell v. Belyngburgh, 1 Cal. 2 2 Cal. liii. (Edward IV.) xxx. (temp. Henry VI.) 64 EXAMPLES OF BILLS. "Sheweth on to your Lordshyp Thomas cardinal! and arche- bishop of Canterbure primate of all England, that where he was possessyd of CC.IIJ, li. VJ, s. viu d, as of his propre money, and of an obligacon conteynyng the summe of LXIIJ, li. VJ, s. viu d, and so yeroff possessyd delivered the seid money and obligacon to on William Durrant his servant, saveli to kepe on to his use, be vertu wheroff y e same William Durrant was theroff possessed on to y e use of the seyd cardinal!, there com on John Derby, late alderman of London, draper, ymagynyng untreuly to trouble the seid cardinall, affermid a pleynit of dette of xiiu, li ayenst the same cardinall, as administrator of the goodys and catelx of Margarete late countesse of Shrewsbury, commyng on to the handys of the seid cardenall, as ordenary, before the maire and aldyrmen of London, and theruppon causyd xiiu li parcell of the seid CCIIJ li. VJ s. viu d to be attached in the handys of the same William Durrant, supposing the seid ccnu li to be the money of the seid late Countesse y e tyme of here deth, and hath causyd an enquest to be empanellyd of such as be of his affinite to find y e same, entendyng be suche sinister menes, y e said cardenall not knowyng thereof tyl it was don, to retorne the said xiiu li. contarie to all ryte and conscience. Wherfor please it your said lordshyppe, the premissis considered, to graunt a certiorari to be directe to y e seid maire and aldyrmen and shyrrefes of London, commaundyng them be the same to certyfie the same attachement before the king in his chauncerie atte a certeyn daye be your lordshype to be limited, there the cause theroff to be examinyd and revelyd as ryght and concience shall require." The bills very rarely state any authority for the grant of the relief they ask. In one or two cases only are statutes referred to in them 1 , and this is the more unexpected because several of the petitions seem to have been founded upon particular statutes, or at least are warranted by them. Thus relief against judgments fraudulently obtained in the Defen- dant's absence is within the Statute of Westminster the Second 1 Frebarn v. Davy, 2 Cal. xxxvi. is schedule of the grounds on which an instance. The bill in Guy atte relief ought to be granted attached Halle v. Goodbern, 1 Cal. xlv. has a to it. EXAMPLES OF BILLS. 65 10', and relief against a summons to answer for lands before a lord's Council is within 15 Richard II. 2 In the answers citations of statutes are more frequent, especially of the statute of Richard II. enabling the Chancellor to give damages, and in one case the statute 4 Henry IV., forbidding the questioning of judgments in Chancery, is cited and, apparently, with good effect 3 . In one case the bill asks for a remedy in accordance with the usage of the Court, and this suggests that some regard at least was paid to precedent; a point to which I shall return later on. Several of the bills have reference to proceedings already commenced before the Court ; thus a person who had been imprisoned by the Earl of Warwick as his neif, and had pro- cured his liberty on giving bail in the Chancery to defend his freedom at law, applied to be released from the bail, "having regard that the father of the said suppliant, who is the principal, hath pleaded to issue of the country, that he is free 4 ;" another instance is Stavenre v. Bonyngton 6 , where matters pending on a subpO3na in Chancery had been referred for one David Marrys to report upon, or, at least, been adjourned until he should show the truth of them, and the said David, it was alleged, would gladly "knawelygge the treweth of the same matiers, bot he wald have a maundement from yowe for the cause that he shuld noght be haldyn parcaill in the same matier." A good many of the bills pray for the dissolution of injunc- tions granted to stay actions in other courts, and one, a case of Henry VIII., alleges" that the suppliant is too poor to sue in Chancery, and therefore prays a procedendo, a plea that must have sounded odd indeed in a Court which specially promised to defend the weak, and in which, as a common form, the pleadings alleged the poverty of the party. Cases of an amended bill 7 and cross bills occur. The bill is generally indorsed with the names of the pledges to prosecute, whom the Chancery borrowed, as it borrowed so 1 Armeburgh v. Bernard, 2 Cal. xiv. 5 1 Cal. xix. 2 Freeman v. Poutrell, 1 Cal. xlii. 6 Eoyall v. Garter, 1 Cal. cxxx. 3 Beek v. HexiH, 2 Cal. xii. 7 Felbrififle v. Damme, 2 Cal. xxiii. 4 Tregoys v. Warwick, 1 Cal. ii. Hen. VI. K. 5 66 THE WRIT. much of its procedure, from the Common Law Courts, and, in many cases, both before and after the statute 15 Henry VI., c. 4, there is an indorsement that A and B came into the Chancery on such a day and undertook for the within written Plaintiff to make satisfaction to the within written Defendant in case the Plaintiff shall not prove the Plaint. The next step was the issue of the Writ asked for, gener- ally, but, as already said, by no means always, a subpoena. The majority of the bills have no in- dorsement or note of further proceedings recorded with them, and it is impossible to gather from them whether the grant of the writs was a matter of form, or rather of price, as the petitions of the Commons suggest, or not. When Sir Thomas More was Chancellor it is said he refused to allow any step until he had considered the bill himself, and that this was at that time an alteration in the practice 1 . If the Defendant did not appear on the subpoena he might be arrested 2 , and in one or two cases his arrest is demanded in the first instance 3 ; for example, one Trewonwall in the reign of Henry VI 4 . accuses the Defendant of sacking his house with Welshmen, Irishmen and Dutchmen, " unto the mooste utt'est destruccion of youre seid besecher," so that he " is not of power to sewe ayenste (the Defendant) at the coe lawe," wherefore he prays the Chancellor to command a serjeant at arms to bring the Defendant into the Chancery, there to give security to keep the peace, and to be examined. In several cases, how- ever, a second bill is brought, complaining of the failure of the first 5 , and, if we can judge from what we know of the 16th century, such failure must have often occurred. On the Defendant's appearance a day was given to the parties to be heard, and for the Defendant to answer. In early times he seems to have been examined straight away, viva voce. There is an account of the trial of one Thorpe 6 for heresy by the Chancellor, in 1407, from which 1 Camp. Vol. i. p. 540. 4 1 Cal. xlvii. 2 George of Clay v. Aldeburg, 2 5 Queen Katherine v. Glover, 1 Cal. Cal. Ixii. xxiii. 3 Sessay v. Beverneck, 1 Cal. xii. 6 Carnp. Vol. i. p. 314. ANSWER AND REPLY. 67 it appears that he took him "faste into a closett " and entered into an angry colloquy with him, and this, perhaps, represents the custom of the Chancellors of the time. By 21 Henry VI. however, written answers, corresponding to the written pleas which had been allowed at law since Edward III., were intro- duced, and these were apparently sworn to as in after times. The answers comprise demurrers, generally to the jurisdiction, pleas, and traverses, in the earlier cases, and in the amateur pleadings throughout, all mixed up together, along with the Defendant's own statement of the facts, and they usually con- clude by asking for dismissal and costs. Under Henry VI. the answers, and in fact all the pleadings, become in several cases long and elaborate 1 , the technical phrases of protestation against the sufficiency of the bill, and the introduction of the traverse of the Plaintiff's allegations, after the Defendant's own statement of his own, by the words ' without that the Defendant did ' &c., pointing clearly enough to the model on which they were framed, the formal pleadings at law. After the answer came the reply, which was very much like the answer. It generally realleged the matter e *u Til 1 J 1 -^ T l. The Reply. ot the bill, and concluded with a prayer, which was not infrequently different to that in the bill. And then came further pleadings, often two or three more on each side, and of such character that one cannot imagine why, since their denials and counterdenials went on so long, they ever stopped at all. In some cases there is an offer to verify in such manner as the Court shall direct, but in none, so far as I am aware, a con- clusion to the country, as at law: the case of Hals v. Hyncley* being, as already said, without a parallel in the Calendars. When the pleadings stopped, the parties had a day given them to produce evidences and witnesses, and perhaps a further, and ultimately, if need be, a peremptory day 3 . If the parties, or one of them, or their witnesses, lived far away, a commission to take their answers, &c. and . . -11 Commission evidence was given to selected persons, mages ana to take the evi- , , . . . deuce. great churchmen being the usual commissioners, 1 See Scale* v. Felbrigge, 2 Cal. ~ Ante, p. 52. xxvi. 3 Mayhewe v. Gardener, 1 Cal. xcix. 52 68 EVIDENCE. by a writ of dedimus potestatem, which issued, sometimes before and sometimes after the pleadings subsequent to the bill were recorded. The writ directed the Commissioners to examine on the matters contained in the bill, or bill and pleadings and other documents, the parties and others who knew most about the matter, and the return generally states that the parties, and others whom it was thought proper to call, having been examined, the laymen sworn on a book or on the Holy Gospels, and the Clergy sworn on their faith, deposed the matters contained in the schedule to the return. This schedule con- tains merely a record that A said this, and B said that, some- times adding that indifferent men made such a deposition, but it contains no report on the truth of the matter and nothing to guide the Chancellor through the conflicting state- ments to a proper conclusion. It possesses, in fact, the essential vices of the affidavit evidence of which it was the direct ancestor. The defect may have been corrected by the ex- aminer sitting with the Chancellor, as suggested in the " Treatise on the Masters," but it seems unlikely he did so when he was, as he often was, a local dignitary placed at a distance from London 1 . Sometimes of course the Defendant confessed the truth, or the Plaintiff the falsity of the bill, and it would be surprising that so many cases were dismissed or adjudicated on by the consent of parties, if the mighty and unchecked power of the Chancellor were not taken into account : a power which attracted to his Court suppliants too weak to sue in the ordi- nary way may well have awed the petty tyrant of a village into an unwonted veracity. A summary account of the proceedings in the great case of Ardern v. Ardern*, will serve to illustrate what has been said, and to close this account of the early Chancery procedure. In that case the bill alleges that the Plaintiff enfeoffed the Defendant of a Manor for life, on the understanding that he should take no profit during the Plaintiff's life, and the deed was committed to A and B to deliver to the Defendant after the Plaintiff's death. In breach of this trust, however, they 1 See Willebye v. Veyle, 2 Cal. xvi. 2 1 Cal. Ixxii. 6 Edward IV. EVIDENCE. 69 delivered it at once, and the Defendant ejected the Plaintiff, and he had no remedy at the Common Law. By his answer the Defendant demurred, for that the Plaintiff should have sued (for the deed) in detinue, traversed the allegations of the bill, alleging that the Plaintiff gave one H a power of attorney to deliver seisin to him, and prayed dismissal of the suit with costs. The Plaintiff replied, and then a Commission to take depositions at Coventry was issued to Zerdeley, Abbot of Kenilworth. The Abbot reported that, on the day fixed, the Plaintiff brought some witnesses who were examined verbally by the Abbot, and that he said he had no more for lack of notice ; that the pro- ceedings were thereupon adjourned to the next Saturday when the Plaintiff brought no more witnesses, but brought letters and testimonials, and, as these did not refer to any one present, the Abbot advised the Plaintiff to have them in the Court of Chancery ; that the Defendant then brought his witnesses, who were asked by the Abbot to depose in writing under their seals what they knew, and they made ' bills ' ; that one Agnes Lucy (one of the alleged trustees of the deed), being 30 miles from Coventry, and too ill to travel, sent her bill under her seal, and swore before the messenger, as he swore to the Abbot, that the statements in it were true; and that the Defendant also brought letters, and the Abbot gave him the same advice with regard to them as he had given the Plaintiff. This is the whole report. Finally, the matter was settled in the Plaintiff's favour. It appears that there was no cross examination, and that exceedingly loose practice in regard to evidence was allowed. The forms taken by the decrees have already been indicated. Of the small number recorded a large proportion . . The decrees. are dismissals, the Defendants to go 'without a day,' and, in some of them, the Plaintiff is ordered to pay the costs of the Defendant, or an assessed sum in lieu thereof, and sometimes, in addition, to be committed to prison 1 . In the cases turning on trusts, however, the Plaintiff appears to have generally succeeded, the Defendant being ordered to ' make a sufficient estate,' but in these cases the real dispute was nearly 1 Reed v. Prior of Launccnton, 1 Cal. cxiv. (Kich. III.) 70 TfiE SUBJECT-MATTER OF THE BILLS. always over the terms of the will for the purposes of which the trust existed. Allusion has been made to the frequency of compromises, and with these may be compared a few cases in which the parties agreed to refer the matter to the decision of the Chancellor, or some other person 1 . The detailed enquiry, the direction for accounts, and the complex and apportioned decree, so characteristic of the Court in the 18th and present centuries, was as yet entirely unknown. SECTION II. Tlie Relief sought Turning from the procedure of the Court to the subject- matters of the bills we find that these range over a very exten- sive field: the description of the scope of the jurisdiction by Coke, as comprising trusts, fraud and accident only, is quite inadequate, and the view that outrage and maintenance were the only wrongs which brought parties into the Chancery is equally incorrect. I propose to divide the cases in the following manner : (A) where the Common Law remedy could not be obtained ; (B) where Common Law process was being used oppressively or fraudulently ; (C) where forgery or duress formed the ground of complaint ; (D) where no remedy was contemplated by the Common Law ; and (E) cases specially within the jurisdiction of the Chancellor. The last head may be disposed of at once, it comprises a very few bills only, and those of early date, referring to cases of the King's claim or his wardships, or cases concerning ships, witchcraft, heresy, and the assumption of jurisdiction by the Council of a lord 2 . 1 Beck v. Hesill, 2 Cal. xii. a 1 Cal. pp. xii. xxiv. xxv. NO REMEDY AT COMMON LAW. 71 (A) The poverty, illness or imprisonment of the Plaintiff, his fear of the Defendant, who in such cases is 1 Where the generally roundly charged with maintenance, remeT"ou ( id 'overlaying the country,' barratry and outrage, not be obtained - and the mightiness of the Defendant and of his party compared with the weakness of the Plaintiff and his, are, in the earlier cases at any rate, the most frequent of the reasons alleged for the lack of remedy at the Common Law 1 , and with these may be classed those cases where the Defendant is a local official, as a Sheriff, or a King's officer, whom it would be hopeless to sue in the local court, or before a jury of his own selection' 2 . A system of popular justice is likely to work exceedingly ill where one of the parties has lost the good wishes of his neighbours, and a perusal of these bills forcibly illustrates this danger, and shows how urgent was the need in mediaeval England for a great judge, who, being also a great executive officer and con- stantly in possession of the King's ear, could bring to book offenders who safely braved the terrors of the Common Law. The matters complained of in the above cases are generally disseisins, thefts and outrages, and the bills frequently ask, besides the examination of the Defendant, that he may find sufficient surety of the peace 3 . Much allowance must be made for the gross exaggeration of petitioners, who felt it necessary to found the jurisdiction of the Court by showing that the ordinary remedies were useless to them, but still the picture of anarchy arid insecurity of life and property which the bills paiut is a most melancholy one. The poor widow and the helpless old man are attacked and beaten, their houses broken into, and their chattels swept away by bands of marauders, whose leaders were known to the whole country- side, and who made no attempt to conceal their identity since 1 1 Cal. pp. iv. v. vii. xx. xxx. et larly out of the Chancery, and is men- passim. tioned in the Natura Brevium. It was - QIIIJHCI/ v. Landasdale, 1 Cal. granted upon the exhibition of sworn xxxi. et passim. 'Articles of the Peace' of which these 3 2 Cal. pp. xxix. xxxii. The Writ of bills are the ancestors. Supplicavit, wliich only became obso- 4 Spence, i. p. 690. lete in the last century, was sued regu- 72 ABUSE OF THE COMMON LAW. retribution, save at the hands of the distant Chancellor, was little likely to overtake them. (B) The second head includes applications which are where Com- closely analogous to those just mentioned, and wnich sti11 further illustrate the liability to abuse - f ^ ne ^ oca ^ court > an ^ the 'jury of the vicinage.' lentiy. rfo Q proceedings here complained of are in most cases, not those of the King's Courts, but those of the minor courts of the Sheriffs, or the franchise courts of the towns, but this is not always so. It must be borne in mind, that almost all the Common Law actions had to be tried, that is, their venue had to be laid in the county where the wrong was alleged to have taken place, so that the parties' neighbours might find the facts. There was indeed a remedy provided by the law to avoid the danger of a prejudiced jury, and new trials with other juries, or challenges to the panel, were allowed if the sheriff or bailiff who had summoned the jurors were related to the Plaintiff, or were the ' capital enemy ' of the Defendant 1 , but these protections were quite inadequate, especially when the action was brought in a subordinate Court. The following bill is a good instance of the present class*. The Earl of Kent alleges that he had for a year or two resorted to the tavern of Walter ap Rice in London, allowing him to keep the reckoning, and giving him from time to time orders on his receivers and farmers, who paid what was due ; that now the said Walter is suing the Plaintiff before one of the Sheriffs for 84, as for his reckoning, a most preposterous sum, and will not confess his receipts, seeing that the servants of the Plaintiff are not ready to prove them, and is like to succeed " by favour of certayne jury ours of the same citie with whome he is of speciall acquaintaunce," and so the Plaintiff prays a subpoena to examine the Defendant, and a certiorari to remove the suit. A large number of the later bills are for writs of certiorari or corpus cum causa to bring up 'feigned actions' before Sheriffs 1 Aibreviatio Placitorum, pp. 114. 2 Grey v. Rice, 1 Cal. cxxv. ^temp. K. 30 (2), 323. R. 84, 349. B. 22. Henry VII.) ABUSE OF THE COMMON LAW. 73 and others 1 , many of these arising out of trade disputes. Such is the case of Damico, a silk weaver 2 , who had set up in London under the patronage of the King, Edward IV. The Defendants, the Plaintiff says, to stop his trade, have brought actions against him for sums so large that he cannot find bail, and he is therefore like to remain in prison all his life. Other bills charge that the Defendant has coerced the jury, or has brought his suit in a foreign court, before a jury of his affinity, or has got judgment in the Plaintiffs absence, arid pray for certiorari or injunction, and, generally, for the ex- amination of the Defendant also. Several instances of the last charge occur, and they show that the provision of the Statute of Westminster II. c. 10, requiring the Justices in Eyre to fix days after which no writs should be received, was not observed. The recital in the Statute exactly tallies with the bill in Armeburgh v. Bernard 3 . There the Plaintiff at- tended at Warwick Assizes, and asked the Sheriffs deputy, the Clerk of the Rolls, and others if there were any writ against him, and was told there was none. Then he went away, and the Defendant produced a writ and got judgment, and by his bill the Plaintiff prayed that execution on the judgment might be stayed till after the examination of the Defendant in the Chancellor's presence. Under this head come also a few heterogeneous complaints of abuse of the Common Law and other process, including sometimes that of the Chancery itself. Thus in Wele v. Cour- tenay*, the bill alleges that one of the defendants had sued out of the Chancery a commission of oyer and terminer to certain commissioners, including two judges, to adjudicate upon a claim of his Co-defendant, but without his authority, against the Plaintiff and one Taillour, and that Taillour intended to confess judgment, and so let the Plaintiff in for heavy damages. (C) The first two divisions have dealt with cases where the Common Law at least contemplated a remedy, the fourth deals with cases where none was contemplated by it : that now 1 1 Cal. Ixxxviii. xci. ci. civ. cv. xxxiii. (temp. Henry VI.) 2 Damico v. Burdican, 1 Cal. ciii. 3 2 Cal. xiv. cf. Quyncy v. Landasdale, 1 Cal. 4 2 Cal. viii. (Henry V.) 74 FORGERY AND DURESS. to be considered stands between the former and the latter. Forgery, fraud and duress could always be pleaded in defence Complaints a ^ ^ aw > ^ u ^ preventive measures could not be taken forgwf or there, nor had the action on the 'Common Courts' duress. y e ^ ^ een developed, as it was during the 18th century, so as to enable a Plaintiff to recover money which the Defendant had improperly deprived him of, or which he had been compelled to pay under circumstances which made it just and right that the Defendant should repay it. In conse- quence of this want there were numerous complaints to the Chancellor alleging that the Defendant by a forged power of attorney had obtained payment of the Plaintiffs debt, or payment from the Plaintiff of money due to another, or that the Defendant had sued or was suing the Plaintiff upon a forged charter 1 . Analogous to these are cases where the Defendant, being the Plaintiff's debtor, has obtained a release from him or his joint creditor, by fraud, and where the Defendant has obtained, by the like means, an obligation, upon which he is suing the Plaintiff, or title-deeds under which he claims an estate' 2 . A bill of the last kind is remarkable both for the ingenuousness of its wording and the peculiarity of its prayer, which it will be seen asks for " cancellation and delivery up," a prayer often present in modern Chancery bills. The bill relates that the Defendant came to the Plaintiff's house and got him to execute a bond and conveyance by making him drunk. " And y as a man withoute counsayll, for drede dude as he badde me," and "so my wyff and I had ful evel rest that nyght," the poor suppliant adds, and he begs the Chancellor, considering " that I am of grete age, that my discresion many tymes and for the most pt ys passed awey fro me," and that "I was owte of myselff and also with owte my wyff, frende or eny con "...(sic) to order the Defendant to deliver up the charter and to annul the acknowledgment 3 . The bill concludes with the appoint- 1 Bief v. Dyer, 1 Cal. xi. Walker v. Bank, 2 Gal. Ixx. v. William, 2 Cal. xxx. 3 Stonehouse v. Stanshawe, 1 Cal. 2 Hulkere v. Alcote, 2 Cal. xv. xxx. (Henry VI.) Cobblethorn v. Williams, 1 Cal. li. Box FORGERY AND DURESS. 75 ment of an Attorney to sue " as well tofore the Kynge and his counseil as in (Chancery)." A few cases of frauds of a different kind occur; thus, one Slefeld bought an Exchequer tally for 100 from one who had bought it of the Defendant, and the bill alleges that, during the absence of Slefield abroad, the Defendant obtained an ' innovate ' from the Exchequer, saying he had lost the tally. Slefield had given the Defendant notice of his title, but had no record of the sale, and he was, he said, without remedy at Common Law. The answer traversed the allegations of fact in the bill, and submitted moreover that it was matter for the Common Law, and the bill was dismissed 1 . The Chancellor had in some cases a statutory jurisdiction to relieve against obligations obtained by duress, under 31 Henry VI. c. 9. The Statute throws some light upon the procedure of the Court at the time, but, as already said, the Calendars do not afford any instances of commissions being issued to try causes, the commissions being always directed to examine the parties and their witnesses, and to return the result into Chan- cery*. The Statute recites that " divers persons of great power, moved with insatiable covetousness against all right, humanity, integrity and good conscience," had seized ladies and compelled them to enter into obligations, and it enacts " that in all such cases aforesaid the party bound may have a writ out of the Chancery, containing the matter of their unreasonable intreaty, directed to the Sheriff of the County where any such offences were done, or after shall be done, commanding him that he by force of this writ make proclamation in the full country, and in the next County Court, after the receipt of the said writ that the person or persons contained in the said writ shall appear at a certain day and place prefixed in the said writ, before the Chancellor of England for the time being, or otherwise before the Justices of Assize in the county where the said offences 1 Slefeld v. Graf ton, 1 Cal. xcvii. common in the original references of (temp. Edward IV.) Petitions by Parliament to the Chan- 2 Directions to try the facts by a cellor. See the account of the year commission, which should make a 19 Edward II. in the Parl. Rolls, return into the Chancery, were very 76 FORGERY AND DURESS. were done ; or else before some other notable person to be assigned by the Chancellor," and the Chancellor, justice or commissioner, " by virtue of this ordinance shall duly examine the said parties upon the premises," and if they find the obligations were made as aforesaid, " then the said obligations and all process and execution sued or to be pursued thereon shall be void." There does not appear to be any peculiarity in the bills, or, where there are any, the other proceedings in the cases charging duress, nor is reference ever made to this statute, and the Plaintiffs are in many cases not women but men. The Statute can therefore only be regarded as a partial recognition, but coming as it did, with the assent of a hostile House of Commons, a striking one, of a larger jurisdiction independently exercised by the Court. The subpoena was sometimes passed through the Sheriff's hands 1 , as the Statute suggests, but the ordinary course was for it to be sent straight to the Defendant. One of the earliest cases of this class, which occurred about the middle of Henry VI.'s reign, is a curious one 2 . The Plaintiff alleges that the Mayor of London (acting, no doubt, judicially) compelled him, by duress, to lodge an obligation with the Defendant, the City Clerk. The Defendant, when sworn and examined, admitted that there was such an obligation, but said he could not deal with it without the consent of the Alderman. Unfortunately one cannot tell whether this irregular manner of appeal was allowed to succeed or not. The relief prayed in these cases is sometimes that the Defendant be made to appear in the Chancery and bring the obligation ; sometimes, where he has commenced to sue upon it, a certiorari to bring the action before the Chancellor. (D) It remains to consider those cases where the relief prayed for could not in any event be obtained remedy was at Common Law. Under this head come applica- contemplatedby . i i ,1 i_ c ai the Common tions based on the superior machinery 01 the Chancery with its examination of the Defendant upon oath, including the recovery of chattels which the Plaintiff could not specifically describe, (in almost every case 1 Bief v. Dier, 1 Cal. xi. 2 Pickering v. Tonge, 1 Cal. xliv. DISCOVERY. 77 muniments of title not " contained in a bagge, boxe or cheste or other thynge enseled 1 ") so that he could not sue in detinue, and cases where the Defendant, being sued in debt, had waged his law, or where, the debtor being dead, his executors could not be sued, because, had their testator lived, he might have availed himself of this defence 2 . The earliest case of discovery among these bills is of the reign of Henry VI., but applications had long before been made to the Chancellor for this purpose 3 . The bill in the case referred to is by a customary heir against his ancestor's executor and it asks that the executor may be ex- amined, so that the Plaintiff may know for what goods " he maye conceve hys accon att the lawe"..."considerying that wythoute soch examinacon hadde your saide besecher ys with- oute remedye 4 ." Soon after there occurs a case to which several parallels might be found in the collection 5 . The Plaintiff alleges that he is cousin and heir of Watier Shiryngton, who, with other feoffees, was seised of lands to his own use, and who died without a will, and that the late Lord Say induced the cofeoffees to sell him the lands, and by duress compelled the Plaintiff to release his claim " and aft' ward the same Lord Say, knowyng hymself to be putte to deth by that horrible and crewell tretour Jakke Cade opunly knowlechid among other extorcions this mater," charging his confessor to urge Lady Say, the Defendant, to re- dress the wrong. And he prays the examination of the confessor. Another case where discovery and relief are asked for is Cullyer v. Knyvett, in which the Plaintiffs allege that they are copy- holders on the Defendant's manor and have replevied a distress against him, and that, the replevy having been removed into the Common Pleas, they are likely to lose their lands as the only evidence of their title is the Court Roll which is in the Defendant's possession 6 . Closely allied to bills for discovery are bills for the preser- 1 Reed v. Prior of Launceston, 1 Cal. Richard II. cxiv. (Richard III.) 4 Polgrenn v. Feara, 1 Cal. xxxix. 2 Giglis v. Welly, 1 Cal. cxx. (7 5 Brown v. Say, 1 Cal. xlvii. Henry VII.) 6 1 Cal. cxxxvii. (temp. Edward VI.) 3 See 3 Rot. Parl. 79, No. 24. 3 78 USES AND TRUSTS. vation of testimony of which examples are to be found from the reign of Henry VI. onwards. The earliest case 1 being to take and record the examination of the brother-in-law of the Plaintiff, who had confessed, in the presence of certain notaries, that a feoffment made by the Plaintiff's wife, since dead, had been pro- cured by the Defendant's duress, and had subsequently retracted the confession. The relief asked for was granted by the issue of a Commission to examine the brother-in-law and the notaries also. By far the most important cases under the present head are the cases of uses or trusts. The work of the Chancery in connection with these became, from the end of the reign of Henry VI., so prominent a part of its jurisdiction that, by the middle of the following century, the idea had already gained ground that the Chancellor's equitable jurisdiction had been originally constructed for the purpose of protecting them. The common explanation of the origin of uses is, that they were introduced by the Clergy, who were well acquainted with the dual ownerships of the Roman Law, quiritarian and ' in bonis,' and dominium and usufruct, and fidei commissa, in order to avoid the restrictions on gifts into Mortmain 2 . Mr Justice Holmes has lately 3 traced their origin to a different source, and he finds in the Teutonic 'Salman' the ancestor of the medieval feoffee to uses : each was a person to whom property was transferred in order that he might make a conveyance accorning to his grantor's directions, and the essence of the relation, in each case, was the fiducia of the grantee. The executor was originally a salman whose duty it was to distribute the estate, and, though his interest became confined to the personalty, under the early Plantagenets, when devises of land were no longer generally allowed, yet under Edward I., where, by custom, lands were subject to the will, the executor was still put into possession of them before or immediately after the death. Edward III. himself made a feoffment to his executors of lands of his pur- 1 Lewis John v. Earl of Oxford, 1 tory of Real Property, Digby, 271. Vin. Cal. xxvii. (6 Henry VI.) Ab. Uses. 2 Blackstone, Vol. n. p. 271. His- 3 1 Laiv Quarterly Eeview, 163. ORIGIN OF USES. 79 chase, and afterwards gave the executors verbal directions how to dispose of them, which however the Judges advised they were not bound to obey 1 . Again, "if the remedies of the ancient popular Courts had been preserved in England it may be conjectured that a cestui que use in possession would have been protected by the Common Law. It was not, because at an early date the Common Law was cut down to that portion of the ancient customs which was enforced in the Courts of the King. The recognitions (assizes) which were characteristic of the royal tribunals, were only granted to persons who stood in a feudal relation to the King, and to create such a relation by the tenure of the land something more was needed than de facto possession or pernancy of profits." The meaning of the word seisin became limited to such possession as was protected by the assizes, but ultimately " a series of statutes more and more likened the pernancy of profits to a legal estate in respect of liability and power, until at last the statute of Henry VIII. brought back uses to the Courts of Common Law 2 ." The more important of the statutes referred to are 50 Ed- ward III. c. G, giving creditors execution against lands and chattels in spite of gifts made in fraud of them ; 7 Richard II. c. 12 forbidding aliens, and 15 Richard II. c. 5 forbidding spiritual persons or corporations (who, says the statute, are as perpetual as the others) to hold lands by way of use ; 1 Richard II. c. 1, making all grants by, and executions against a seller or grantor of lands binding upon his heirs and upon feoffees to his or their use ; and 3 Henry VII. c. 4, avoiding deeds of gift on trust, made to defraud creditors 3 . The position of the cestui que use in remainder was dif- ferent ; he was a stranger both to the possession and to the covenant, and his remedy originally was found in the juris- diction of the Courts Christian in case offidei Icesio, over which there was so long a struggle between the lay and ecclesiastical courts, and subsequently the ecclesiastics who sat in the Chancery carried out there, as secular judges, the principles which their 1 Rot. Parl. in. 61 (26). 3 See 1 Law Quar. Rev. p. 167 n. (3), 2 Holmes, loc. cit. p. 167. p. 168 n. (3). 80 USES AND TRUSTS. predecesors had striven to enforce in their own tribunals under the authority of the Church. Whatever be thought of this striking theory, it is clear that by the reign of Edward III. feoffments to uses were already well known, and attempts were made to enforce them in the Common Law Courts, on the one hand by the aid of conditions in favour of the intended beneficiaries 1 , and on the other by the series of statutes in restraint of fraudulent feoffments referred to above. In the third year of Richard II. there is a petition to Parliament by the heirs of William de Cantelow 2 complaining that they have been impleaded in the Chancery, by Thomas, son of Robert de Roos, of certain lands of which their ancestor, before he went over the sea, made a feoffment to feoffees on conditions in the Indentures appearing ; that the feoffees have been examined before the Chancellor and the Lords and others of the Council then present in the Chancery, and that the Seneschal of de Cantelow, who was in his confidence, has been examined also ; that afterwards, at the suit of the said Robert, who sued on his son's behalf, and suggested that the ex- amination and the writing of it did not show the truth, a commission was issued to one R. R., clerk, and others to ex- amine one of the feoffees afresh ; that the examinations were taken, and by them it was found that the feoffment was made under conditions and other circumstances which tended for the saving of the Plaintiff's rights, and the examinations are of record in the Chancery ; but that Robert nevertheless is seeking to try the case before a Jury, intending to aver that the feoffment was made without any condition, against good faith, conscience and truth. The Petitioners therefore pray that the indentures and examinations and matters may be shown in Parliament by the Serjeants, who have cognizance of them, and that the rights of the Petitioners may be saved. Thereupon Parliament issued an 'injunction' to the Chief Justices and others to examine the parties and to return the 1 In the Year Book 19 Henry VI. enfeoff C, and C refuse the feoffment, Mich. 72, there is a discussion as to A can enter upon B. whether, if A enfeoff B that he may 2 3 Rot. Parl. 79, (24). USES AND TRUSTS. 81 result into Parliament. The record, which gives the topics of examination as well as what the deponents said, states that the examination was taken before certain judges, Serjeants and others, and that, inter alia, one deponent said that de Cantelow, after coming back from abroad, required the feoffees to reinfeoff him, and, if they did not, to infeoff Thomas son of Robert de Roos, and the heirs of his body, and if Thomas died without heirs of his body that the lands should remain to his own right heirs, and that, if they did not infeoff Thomas, it should be lawful for the said Thomas to enter. Robert de Roos said he had had a part (counterpart) of the indenture containing these uses (described as conditions), but that he had given it up to the feoffor at his request. There is no record of any further proceedings after the report of the examination. I have quoted this petition and the proceedings at length because they show, in a most interesting manner, how the feoffment to uses, or as they are here called conditions (the first known mention 1 of a 'use' being in 7 Richard II. cap. 12), was used to reintroduce the will of freeholds, in a manner recalling the conveyance to the 'familiae emptor' in old Rome. It is noticeable that the declaration of the will is made after the feoffment as in the previous case of the will of Edward III., which the judges had declared to be of no effect. In the subsequent cases in Chancery, or rather, in the earlier of them, a promise 'of great trust,' at the time of the feoffment, to perform the will is usually alleged. The petition incidentally shows that at its date the Chancery was already in full operation, and was resorted to for discovery in aid of proceedings at law. Uses, being driven in all cases 2 into the Chancery for enforcement, and there protected by the characteristic remedy of a 'subpoena' and decree binding the person, came to be regarded as mere choses in action, and were so described by the lawyers, but the protection afforded to cestuis que trust was soon extended beyond that accorded to ordinary rights in personam*. In the reign of Henry VI. we find a bill against 1 Digby, p. (274). Soon after the Eich. II.). term became very common, see for - 1 Law Quarterly Review, p. 170. example Rot. Parl. in. p. 297 (15 3 See Digby, p. 282 et seq. K. 6 82 USES IN THE YEAR BOOKS. the heirs (in gavelkind) of one of several feoffees who held to the uses of the marriage settlement of the Plaintiff's wife, and by their answer the Defendants allege that they have conveyed to her son by an earlier marriage than that with the Plaintiff, who was the proper cestui que use, and they do not suggest that they are not bound by the trust 1 . The judges in the next reign denied that the heirs were bound 2 , but it is clear the Chancellor had already held the contrary. On the other hand, a use was not property in the full sense, for from the terms of the bills which complain of conveyance by the feoffees to a stranger it appears that, as in the case of a modern trust, only purchasers with notice were bound, and that they were bound the judges held in 5 Edward IV. 3 Moreover the lord claiming on an escheat, the creditor on an elegit, and the consort in curtesy or dower, were not bound by the use as yet. The following cases from the Year Books show that, under Edward IV., both the existence of the use, and that it was protected only in Chancery, were recognised by the judges, although in 7 Henry VI. a judge said 4 "that if one enfeoffed another with a proviso that the feoffor should take the profits, the feoffee would nevertheless have them as the proviso was entirely void." In 37 Henry VI. Lord Chancellor Waynflete consulted the judges 5 , and they resolved that, if the intent of the feoffor were expressed in writing, the feoffee must fulfil it, and if the feoffor devised to one for life, with remainder to another, the remainderman, in Chancery, even during the life of the life tenant, might compel a conveyance. In 4 Edward IV. 6 to a writ of trespass, the Defendant pleaded that the Plaintiff held to his use, and that he occupied by sufferance and at the will of the Plaintiff. The Plaintiff's counsel replied that the Defendant must plead a lease. Moile, J., said the plea 1 Goold v. Petit, 2 Cal. xxxix. (35 4 Campbell, Vol. 1, p. 376. Year Henry VI.) Book, 7 Henry VI., Trin. (21) 2 Digby, p. 282, Year Book, 8 Ed- 8 Camp. loc. cit. citing Bro. Ab. ward IV. (6) and 22 (6). See Eowe's Garde 5, but query. Bacon on Uses, n. 39. 6 Year Book 4 Ed. IV. (8) trans- 3 Year Book, 7 (b). Spence 1. p. lated in Digby, p. 294. 445. USES IN THE YEAR BOOKS. 83 was good ground to allege in Chancery, " for the Defendant there shall aver the intent and purpose upon such a feoffment, in the Chancery a man shall have remedy according to conscience upon the intent of such a feoffment, but here, by course of the Common Law, in the Common Pleas or King's Bench, it is otherwise, for the feoffee shall have the land ; and the feoffor shall not justify contrary to his own feoffment, that the feoffment was made in confidence, or the contrary." The Defendant's counsel suggested that the law of the Chancery was the Common Law of the land, but the judge replied that on the point in question it was not so. In 7 Edward IV. there occurred a case 1 in the Exchequer Chamber before the Chancellor and all the judges, adjourned thither by the Chancellor, no doubt, as we have seen cases often were adjourned, for the consideration of the judges. There had been a feoffment to the use of a woman who afterwards married, and she and her husband sold, and the feoffee to uses conveyed at her request. After her husband's death the woman sued a subpo3na against the feoffee, who pleaded the circumstances, and the wife thereupon demurred. The Chancellor, treating the case as a ' cui in vita,' said the Plaintiff could not consent to the conveyance, and, in response to the request of her counsel that the feoffee be attached until he made satisfaction, he said, " You can have a subpoena against the Vendee who is in possession, and recover the land against him." If, added Yelverton, J. "he knew of the deceit and wrong done to the woman, then a subpoena lies against him, otherwise not." " He knew," said the Chancellor, "that she was married." The Plaintiff's counsel decided to take the attachment against the feoffee and to consider whether they would attack the Vendee or not. It is noticeable here that the Common Law judge founded the liability of the vendee on his concurrence in a wrong, but the Chancellor put it on his notice of the weakness of his own title. Neither suggested, as it would be ruled in the case of a modern trust, that, once notice of the trust brought home to the vendee, he would be bound to prove an effective conveyance to him of the equitable estate, and that his know- 1 Year Book (8), translated in Digby, p. 297. 62 84 USES IN THE CALENDARS. ledge of the coverture of the beneficiary, or of the deceit practised upon her would be immaterial. Returning to the Bills in the Calendars, we find that the first which turns upon a trust 1 was presented in one of the first four years of Henry V. It alleges a feoffment of land and chattels, in trust during the Plaintiff's absence, and that the Defendants, the feoffees, had put the land to farm without the Plaintiffs assent and refused to redeliver the chattels. After this the cases of trust become very numerous. In the earlier ones the feoffment is on trust to ' make an estate ' to the feoffor or his nominee upon the happening of some event, as the demand of the feoffor, or his death, and where there is a change of title the new cestuis que use request the feoffees not to convey to them immediately, but to continue the uses, the feoffee being, in fact, extremely like the Salman to whom Mr Justice Holmes compares him, but later on, it is evident, a continuance of the dual ownership was often contemplated, when, under Edward VI., uses became the rule, and possession with seisin the excep- tion. From the first, several feoffees are employed, and appoint- ments of new trustees by a feoffment by the surviving trustees to a third person, and a refeoffment by him to the continuing and the new trustees occur 2 . In the case last cited the uses were declared by a will under seal, and the feoffees, by deed also, undertook to make an estate to the Plaintiff according to the will, but writing in either case is very rarely alleged in the bills, and, in spite of the opinions of the judges upon the will of Edward III. and the opinion of Waynflete in 37 Henry VI., already quoted, nun- cupative wills were regularly enforced 3 , in fact the whole contest in the majority of the trust cases of which a record remains was as to what last declaration of his wishes the feoffor actually made. Nothing could show more forcibly the dangers informal wills invite than a perusal of such cases as Felbrigge v. Damme*, in this collection, where the Plaintiff alleged one will, 1 Dodde v. Browning, 1 Cal. xiii. Henry VI.) 2 Rothenhale v. Wycltingham (8 or 4 2 Cal. xxiii. cf. Withe v. Mulles- 9 Henry V.) 2 Cal. iii. worth, 2 Cal. xxxvii. s 2 Cal. xxi. Myrfyn v. Fallan (24 USES IN THE CALENDARS. 85 the Defendant another, and by amended bill the Plaintiff charged the Defendant with having altered the testator's will three days after the testator last spoke, and with producing yet another will after the proof of the first, and the case of un- written wills was even worse. The common prayer asks, besides the ancillary examination, that the Defendant be ordered to make an estate, and there is a case in 29 Henry VI. in which the Chancellor, with the advice of the judges present, after the examination of the Defendant, ordered him to convey on the spot and make and seal a power of attorney to one to deliver seisin to the Plaintiff 1 : a method of summary execution which must have made the Chancery remedy ' against the person ' no whit less beneficial than the legal judgment binding the estate. Occasionally in the cases of disputed wills the feoffees inter- pleaded' 2 , but generally they had identified themselves with one side or other by making, or refusing to make, a conveyance. In one of the former cases 3 , a party who had been " ruled by the Court to enterplede with the seide Johan," (the Plaintiff) sets out his title in detail. After the bills to enforce trusts, and in most cases, as I have shown, really to recover devises, the most common of those dealing with trusts are, applications against feoffees who have fraudulently released debtors to the estate whom the cestui- que-use has sued in their names 4 . The means employed to carry out a will of lands were used also where chattels were to be disposed of, the feoffee being a trustee for the executors, put into possession, as the executors themselves had been in Glanvil's time, during the life. Thus under Henry VI. we find a bill 5 alleging a deed of gift of chattels in trust to perform the donor's will. The donor made 1 Saundre v. Gaynesford, 2 Cal. to Parliament of 15 Eich. II. (Rot. xxviii. Part. in. p. 297) in which the sup- 2 Flykke v. Banyard, 1 Cal. cxv. pliant says that one who is trustee (Rich. III.) for her refuses to enforce a covenant 3 Saundre v. Saundre, 2 Cal. Ivi. against the debtor. Bro. Ab. Con- (Ed. IV.) science, (7) (9). 4 Gross v. Depeham, 1 Cal. xlviii. 5 Wilflete v. Cassyn, 2 Cal. xxxiii. (323 Hen. VI.). There is a petition 86 USES IN THE CALENDARS. one of the Plaintiffs the ' surveyoure ' of his estate and the others his executors, and the donees, other than the Defendant, were willing to assign the chattels to the Plaintiffs, but the Defendant refused, wherefore the Plaintiffs dared not take up the administration of the will, and it was likely never to be performed. It is difficult to see the utility of employing a trustee when executors were appointed, for executors, since the time of Edward I., had had universal succession to the per- sonalty, unless indeed a fraud were intended, such as that alleged in the bill in Mayhewe v. Gardener 1 , where a parson complained that his predecessor had made a gift of all his goods to the Defendant, and died intestate, so that the Plaintiff could sue no one for his dilapidations. Here the Plaintiff actually recovered his damages. The statutes of Edward III. and Richard II. cited above 2 , were directed against frauds such as these. Besides wills, feoffments in trust were employed to carry out arrangements made upon sales, and to secure the payment of purchase money, and the performance of conditions which were intended to be precedent to the vesting of the estate in the ultimate takers, buyers or others 3 . The feoffment alleged in Clay v. Aldeburgh* is an example of this. There an ad- vowson was conveyed to the Defendants to secure the next presentation to one of them. The deeds of feoffment to uses, and releases relating to them, were frequently recorded in the Chancery for safe keeping, and references to such records occasionally occur 5 . Another important class of applications to the Chancellor was for the enforcement of verbal contracts. At Contracts. . law the action of covenant had during the reign of Edward I. become restricted to cases where there was a writing, which at that time meant a deed under seal, and the action of debt had come to lie only for money due on a promise, although it had originally lain for chattels also 6 , and it was open to the 1 1 Cal. xcix. (Ed. IV.). Bro. Ab. Edlington v. Everard, 2 Cal. xxxi. Conscience (20), relief given in such 4 2 Cal. Ixii. (Ed. IV.) cases in Chancery. 6 Rope v. Rollyng, 2 Cal. xix. 2 Ante, p. 79. 6 See History of Contract: Salmon, 3 Ardern v. Ardern, 1 Cal. Ixxii., Laio Quar. Rev. 3, p. 167. CONTRACT. 87 serious danger that the Defendant might ' wage his law,' and, moreover, as a consequence of this possibility, it did not avail against the executors of the debtor 1 . Consequently the creditor on a verbal contract often had, as the bills allege, no remedy at law at all, and therefore made application to the Chancellor. Later on, after the action of assumpsit, a form of the action on the case, allowed already under Edward III. and Richard II. for breaches of contract by malfeasance, was extended under Henry VII. to breaches by nonfeasance also, a competent remedy being provided in the Common Law Courts, this part of the jurisdiction of the Chancellor fell into abey- ance. The earliest bill of this class 2 complains that the Defendant agreed to assure a reversion to the Plaintiff, and, to make him suppose he would keep the agreement, gave him all the deeds. The Plaintiff, relying on the affiance of the Defendant, went to London to see his Counsel on the matter, and spent 40/- in so doing, and then the Defendant refused to perform his promise, and the Plaintiff having " no special or other writing of the covenant " was without remedy at Common Law. Wherefore he prayed the Chancellor to grant a subpoena to the Defendant " to answer him of the deceit aforesaid, and according to his answer to give your judgment according to that which loyalty, good faith and conscience, demand..." In this case a pledge of faith (affiance) is alleged, and it seems that the jurisdiction of the Chancellors in contracts was at first based upon the presence of this pledge 3 . There had been three methods of making a binding promise in the two centuries after the Conquest, by writing, oath, and pledge of faith, the contract in the last case being enforced in the Ecclesi- astical Courts 4 . These Courts were however repeatedly forbidden to interfere in questions arising on contracts between laymen, even though faith were pledged, under Henry II. and subsequent 1 Vavasour v. Cliadworth, 1 Gal. xcii. Law Quar. Rev. i. p. 173. Fry, L. J., (Ed. IV.) Specific performance and Laesio Fidei, 2 Wheler v. Huchynden, 2 Cal. ii. 5 (ibid), p. 235. Year Book, 9 Ed. (Kich. II.) IV. (11). 3 Holmes, J., Early English Equity, 4 Spence, i. p. 118. 88 SPECIFIC PERFORMANCE. kings, and the judges restrained their interferences by prohibi- tion, and ultimately, as in the case of trusts, the Chancellors took under their protection in the Chancery what they could no longer protect in their Spiritual Courts. The fides however soon dropped out of sight, and the promise of the Defendant, supported in most cases by a part performance, is the allegation on which the bills rely. In the Diversite des Courtes 1 it is said that "a man shall have remedy in Chancery for covenants made without specialty, if the party have sufficient witness to prove the covenants." The contrary appears however to have been decided soon after the date of the treatise, but then, under Henry VIII., a com- petent remedy already existed at law. Although the action of assumpsit took away ordinary claims on contracts from Chancery, one form of relief based upon agreements, already granted there in the present period, was never, after the reign of Edward III., obtainable at law, and so became an important branch of the equitable jurisdiction, the enforcement of specific performance. There are several bills in the collection claiming specific per- speciflc per- formance in cases where executors and trustees had agreed to sell with the assent of their cestuis-que- use, and others where the cestuis-que-use had themselves made the agreement. They all allege payment or part payment by the Plaintiff, and, no doubt, the analogy of the position of one who has paid his money under agreement for conveyance to him to that of a cestui-que-use, which was afterwards the foundation of the conveyance by "bargain and sale," was already recognised. There are several bills dealing with pledges and mortgages, but the relief sought is not the special relief after- wards given in such cases 3 , but redress where the defendant has had an absolute instead of a conditional deed made, or, after the day for repayment is passed, is suing at law, 1 Law Quar. Eev. p. 172. xi. Senyng v. Orangeman, 2 Cal. 3 Scales v. Felbrigge, 2 Cal. xxvi. xlviii. (Hen. VI.). Furby v. Mostyn, 2 Cal. 3 Broddeswortli v. Coke, 1 Cal. Ixvii. INJUNCTION. 89 or has refused to accept tender of the money upon the day fixed and claims nevertheless under the forfeiture 1 . Nor is there, as yet, any trace of the relief against penalties in Chan- cery, although a case occurs where the Chancellor stayed by injunction an action on a bond of which the condition was not pleadable at law 2 . The administration of the estates of deceased persons was at this time peculiarly within the cognizance of the n -I/-N i i ..,.. ,,, ~, Executors. Spiritual Courts, but the jurisdiction 01 the Chan- cellor in cases of trust naturally led applications to be made to him in the allied cases of claims against executors, who, as we have seen, were often also feoffees to uses 3 , but no special juris- diction in regard to them had as yet arisen. Amongst miscellaneous applications to Chancery in default of a remedy at Common Law are several to compel arbitrators, to whom parties have committed disputed claims, to give awards, and to enforce the awards of such arbitrators when given 4 . In the exercise of his jurisdiction the Chancellor had for the most part the full concurrence of the judges, , . , , . ,11- Injunction. who in many cases, assisted him at the hearing, and often referred parties to his Court, but when the Chancellor claimed to arrest the fruits of an unconscionable judgment, the seeds of a contest between "the two sides of Westminster Hall " were sown. The judges having held, as already stated, that Equity could only bind the person 5 , injunctions similar to those previously issued by the King and Parliament were resorted to by the Chancellor, where he found it necessary to interfere, to forbid a party suing at law or enforcing a judgment there obtained. The judges from the first refused to bow to these injunc- tions. In 22 Edward IV. they urged the Plaintiff at law to take judgment in contempt of the Chancellor's order, telling him that if the Chancellor should fine him the fine could not be 1 Shakespeare v. Lambert, 1 Cal. 4 Hoton v. Hardewyn, 2 Cal. xv. cxlv. (Eliz.). (Hen. VI.). Blower v. Luke (Ed. IV.). 2 Astel v. Caiiston, 1 Cal. cviii. 5 Campbell, Vol. i. p. 377. Year 3 Fitzharry v. Lyngen, 1 Cal. xlviii. Book, 36 Henry VI. 13, 4 List. 84. Wilfiete v. Gassy n, 2 Cal. xxxiii. 90 INJUNCTION. levied at law, and if he should imprison him, they would release him by writ of habeas corpus. The year before the judges had given the Plaintiff at law, whose action had been temporarily stayed by an injunction, the costs occasioned by the delay 1 . A number of applications for injunctions from the time of Henry VI. onwards occur in the calendars. The earliest case is that of Beek v. Hesill 2 , in which the Plaintiff alleges that, the Defendant having laid claim to her land and sued a cessavit against her, the then Chancellor, by consent, took the matter into his ' governance and ordinance,' and ordered the Defendant to ' leve his sute of the seid cessavit.' He had, however, con- tinued it, and recovered judgment in the Plaintiffs absence, leaving her no remedy, " saf by a writ of right, the which writ is the utmost suyt in lawe." On this the Defendant pleaded his judgment, and the Statute 4 Henry IV. against reopening judgments, and was dismissed sine die. Instances of injunctions being granted are; where the De- fendant had been seized by the Plaintiffs as the villain regardant of the Bishop of Ely, who had fled and lost all the evidences of his (the Bishop's) title, and the Defendant had commenced an action at Common Law 3 ; where the Plaintiffs were suing in the Sheriff's Court, on the case, against a pretended surgeon for failure to cure, and injuries, and the Chancellor's servant came into Court and delivered an in- junction 4 ; and the much discussed case of the bond paid but not released, and then sued on again. In the last case it was held by the Chancellor and judges under Edward IV. that the obligee should not sue again 5 , but that in the case of a statute staple, because it was of record, the debtor should have no protection. The latter proposition is stated (in the case of judgments satisfied without acquittance), in the " Diversite' des Courtes 6 ," and the former in the " Doctor and Student 7 ." The statement of the ' Student' called forth a pamphlet 8 by 1 Bro. Ab. Conscience (16), (22). 5 Year Book, 22 Ed. IV. (6). See 2 2 Cal. xii. (early in Henry VI.) Bro. Ab. Conscience. 3 Edyall v. Hunston, 1 Cal. cxiii. 6 (circ. 21 Henry VIH.) (Rich. III.) 7 (1518). 4 Eoyall v. Gartner, 1 Cal. cxxx. 8 Hargrave's Tracts, p. 325. (Henry VIII.) INJUNCTION. 91 a ' Serjeant,' who stoutly objects that no injunction ought to go in such case, for the Common Law should not be over- thrown by the folly of an individual. " I mervaile moche," says the writer, " what authorite the chancellor hath to make soche a writ (of injunction) in the Kinge's name, and ho we he dare pre- sume to make soche a writ to let the Kinge's subjects to sue his lawes." The Chancellors, he says, " have done this thing through ignorance of the goodness of the Common Law," and, he adds, "in my conceite in this case I may liken my lord chaunceller, which is not learned in the lawes of the realme, to him, that stands in the Vale of Whitehorse farre from the horse and (be)holdeth the horse ; and the horse seemeth and appeereth to him a goodly horse and well proportioned in every poincte, and that if he come neere to the place wher the horse is, he can perceave no horse nor proportion of any horse," and so when the Chan- cellor knows the Common Law he will see the matter is not fit to be reformed in the Chancery, certainly not on the plea of conscience, for "the lawe of the realme is a sufficient rule to order you and your conscience what ye shall do in everie thinge and what you shall not do." The worthy Serjeant's metaphor would have been a dan- gerous one a century later, when people were found to suggest that a lawyer might look so closely at the propositions of his books as to lose sight of the outlines of reason, and might rule his conscience so straitly by the law of the realm that it should bear no resemblance at all to the consciences of his neighbours. The Serjeant's pamphlet was answered by a " Little treatise on the Subposna," evidently written by a Chancery lawyer, which is a valuable statement of the equitable jurisdiction of the Chancery early in the reign of Henry VIII. and I shall therefore shortly summarise its contents l . The Chancellor, says the writer, gives relief, where, because certainty of pleading is impossible, none is obtainable at Common Law, as in the common case of claims to recover title-deeds (evidences); where an incorporeal hereditament 1 Hargrave's Tracts, p. 331. (It is, Chancery, other than the bare refer- so far as I am aware, the earliest ences of the two books just referred to.) account extant of the jurisdiction of 92 EQUITY UNDER HENRY VIII. (lying at law 'in grant') is granted for a quid pro quo but The jurisdic- without writing ; where a rent is reserved, but tion of Equity , . , , ,. . . . , at the beginning there is no reversion; where an obligation is paid of the reign of , ..., . i ,1 Henry viii. and no acquittance given ; and in the cases 01 uses. These last, he states, were so many it would take a special treatise to declare them. The writer then gives a list of cases where, though there is a right in conscience, there is no remedy at Common Law, and none by subpoena either. Several of them may be generally described as cases of estoppel. Where on a replevin by a tenant by knight's service the lord 'avows' on a tenure in socage, he cannot afterwards sue the heir for his marriage or wardship ; where the owner, having no notice, is barred by a fine and nonclaim, " for there is no subpoena directlie against a Statute, nor directlie againste the maxims of the lawe " ; where there is procured a collateral warranty against the right of another and the estate descends upon him, and he is barred ; where the grand jury in attaint affirm a false verdict of the petty jury, for if a subpoena were allowed the law would have no end, and it would be against 4 Henry IV. c. 23 ; where in debt the Defendant 'wages his law,' or executors, whose testator might have waged his law, are sued ; where a woman induces her husband to sell her lands and to convert the money to her greater profit than the land, and of her own free will promises further assurance, but after her husband's death sues a ' cui in vita' ; and where two are joint tenants and one takes the whole profits. And no Subpoena lies, he says : For waste by the tenant for life of a term ; for offences done by a man's servant without his assent, although the Master is in conscience bound to repair them 1 ; or where a lessee for life covenants to leave the ground in good condition, and sudden tempest or strange enemies destroy the woods without his fault. And the Chan- cellor must rule his conscience by the law, so that if a man seised of lands make a will of them, he must hold it void, and if a son buy land and die, leaving a father and an uncle so that the uncle inherits, and dies, and the lands pass to the pur- chaser's younger brother, " and if the matter come in variance 1 The modern opinion is that the Common Law has outrun the demands of conscience on this head. EQUITY UNDER HENRY VIII. 93 in the Chancery, for evidence or otherwise," the Chancellor is bound to give his judgment according to the law, i.e. for the younger brother, not the father. The author throws some light on procedure also, for, in cautioning the Chancellor as to what he is bound in conscience to observe, he reminds him that a subpoena should not be issued without sureties, or after judg- ment, and that he should only allow further pleading after the proofs are brought in, in a very special case. "Also he may suffer the parties to change their demurrer, and that is a greate favour, for they shall not be admitted thereto in none other Courte of the Kinge ; also in the Chauncerie a double plea, rie a departure from his plea, ne two pleas wher the one goeth to the whole shall not condemn him that pleadeth it ; but the verie trothe in conscience is to be searched, and that trothe cannot be searched by conjectures, as me seemeth." Comparing the sketch given of the Chancery in this pamph- let with the review previously made of the records in the Calendars, and the few cases in the Year Books, it appears that the contents of the equitable jurisdiction were, at the beginning of the reign of Henry VIII., by no means extensive. The earlier cases of outrage and violence had passed from the Chancery and gone over to the Star Chamber, the business in regard to uses had attained a very great extension, and the correction of the injustice wrought through the inferior Courts, which had so much occupied the Chancellors in the 15th century, was now, through the fading importance of those Courts, and the supervision exercised over them by the King's Bench, no longer the subject of application to the Chancellor, but it had a parallel in the correction which the Chancellor had long before claimed to make of the injustice wrought by the rigid rules of the King's Courts themselves. It is during the next period that Equity, as a later system modifying an earlier, which in part no longer agreed with current morality, becomes really important, and the establishment of the right to grant injunctions against suits at law, and against the en- forcement of judgments there obtained, early in the 17th century, was the foundation of the great structure erected by the later Chancellors. CHAPTER VI. FROM WOLSEY TO THE COMMONWEALTH. THE CHANCELLORS. DOWN to the appointment of More in 1529 the Chancellors TheEcdesi- had been, with few and unimportant exceptions, ceiiors. unacquainted with the Common Law. They were for the most part Churchmen, bishops or archbishops, well versed indeed in the Civil Law and its descendant the Canon Law, as all great ecclesiastics of the later Middle Ages were, and furnished by these with a repertory of principles and maxims which they used as a guide in the cases of conscience which came before them, but they were chosen for office, not because of their skill as civilians or canonists, but entirely on political grounds. Like the Chief Justiciars whom they suc- ceeded, the Chancellors were the greatest political officers of the realm, and their judicial work, though by the end of the 15th century of great importance and prominence, was merely subsidiary and quite subordinate to their political labours and occupations. Several common lawyers of high reputation had indeed held the Great Seal under Edward III., and the creation of beneficial rules has been attributed to them by common law writers, whose confidence in their own order has supplied the lack of authentic information, but their rule, in fact, left no impression upon the jurisdiction of Chancery, nor, in the absence of reports, could it have done so. The work of the Ecclesiastical Chancellors was an exceed- ingly beneficial one, for it may well be doubted whether judges trained in the practice of the Common Law would ever have possessed the courage to interfere with its rules, in the face of the professional opinion of their brethren, or indeed have been WOLSEY. 95 sufficiently detached in mind to discover that the rules stood in need of correction. It were better, the judges held, in the case of actions on bonds paid without acquittance taken, that an individual should pay twice than that the law be changed, and it is certain that none but a great officer, wielding all the power of the King, could ever have enforced his decrees as the Chancellor did. The judges had comparatively little dignity or power. They eked out a miserable stipend by the suitors' fees, and were subject to removal at any time if they offended the King or the reigning favourite, but my Lord Chancellor, while his term of office lasted, was the greatest man, next the King, in the country, and in a time of lawlessness and anarchy often his orders alone could command respect. Wolsey, the last of the race of political and ecclesiastical Chancellors, is also the typical example of the class. Wolsey. He was Prime Minister and keeper of the Royal conscience, and, secure in the former office, he ventured in the latter to lengths beyond any of his predecessors, but he fell upon a time of changing conditions. The rise of the middle classes, following upon the fall of the great Barons, had greatly strengthened the position of the lawyer class, and, on the other hand, the pacification of the country, and the consolidation of the central power had made the extraordinary interferences of the Chancery less needed. The contrast between the arbitrary decision of an untrained judge in Chancery, tempered no doubt by " the old course and laudable custom of the same Court 1 ," and the decisions of the judges of Common Law, moulded and controlled by the precedents in the Year Books, now first digested in Fitzherbert's Abridgement and the early text-books, become more and more striking, and, at least to the lawyers, more and more distasteful. In fact, when the ordinary law became settled, scientifically studied, and in a way popularised, it became necessary that equity also should be administered in a regular fashion on settled principles, and during the present period many steps were taken in this direction, of which the most important was the introduction of the practice of having great lawyers as Chancellors, which commenced with the 1 Edward IV.'s direction to Kirkeman, M. R., quoted above, p. 60. 96 MORE. appointment of More, and was regularly adhered to after the time of Lord Coventry. Wolsey is charged with having extended the jurisdiction of his Court in a very arbitrary manner, and in his time the applications to it increased so much that he erected no less than four Commission Courts to sit for him, one of which, that of the Master of the Rolls, has continued ever since as an assistant Chancery Court 1 . In a controversy with a Common Law judge he very distinctly claimed the power, as representing the King, " to execute justice with clemency where conscience is opposed to the rigour of the law," " and to command the high ministers of the Common Law to spare execution and judgement where conscience hath most effect," for "laus est facere quod decet non quod licet 2 ." After his fall the articles of his impeachment 3 charged him with misusing, altering and subverting the laws, with issuing injunctions to parties to actions to stay their actions, and, after judgment, to stay execution, and often without any bill having been presented, and even with sending for the judges and expressly, with threats, commanding them to defer judgment; and with calling, by writ of Certiorari, actions against his own officers, into Chancery. "And by such means," it was alleged, "he hath brought the more party of suitors of this your realm before himself, whereby he, and divers of his servants, have gotten much riches, and your subjects suffered great wrongs." Wolsey was succeeded by Sir Thomas More, a lawyer of great reputation, and, moreover, a man of culture and Sir T. More. . . m , liberality of mind. 1 hough he had taken a promi- nent part in the impeachment of his predecessor, he also found it necessary to grant injunctions to stay actions at law con- demned by equity as against conscience, but, according to the well-known tale, he did not do this until he had called upon the judges to grant the relief in their own Courts, and they, anxious as the Chancellor thought to cast all responsibility upon the jury, had refused to do so 4 . More sat but two years 1 (That is until 1881, when the M. R. casionally, at an earlier period.) was made a judge of the Court of 2 Camp. i. p. 499. Appeal. The M. K., as stated above, 3 Coke, 4th Inst. p. 89. had exercised judicial functions, oc- 4 Camp. i. p. 542. LAWYERS AS CHANCELLORS. 97 and a half, and in that time succeeded in removing the arrear of causes which had already commenced to be an abuse in the Chancery, and of which, after his death, with a few brief in- tervals, there was a continuous complaint until modern times. The hopes excited by More's advancement, that the seals would be henceforth held by a good lawyer, were not fully realised for another century, but that special knowledge was now considered necessary to satisfactory performance of the duties of the Chancellor is shown by the pains which Wriothesley, the last Chancellor of Henry VIII., Hatton, who held office under Elizabeth, and Williams, who succeeded Lord Bacon under James I., took to qualify themselves , for an office for which they had had no previous training, while the success which, according to their contemporaries, they attained, shows, on the other hand, the meagreness of the code they had to administer, and the freedom of discretion allowed them. The men who followed More were of no special mark until, during the con- servative reaction under Mary, Bishop Gardiner was given the Seals. Elizabeth's first Lord Keeper, Sir N. Bacon, was an accomplished lawyer, and during a careful administration of twenty years of office, he must have done much to consolidate and settle the practice and doctrines of his Court. During his time an Act was passed to give the Lord Keeper the same jurisdiction as the Chancellor had, so that the Queen's re- luctance to confer the greater dignity and reputation of the Chancellor's office might not curtail the powers of the Court. " The business of the Court of Chancery," says Lord Campbell 1 , " had now so much increased that to dispose of it satisfactorily required a judge regularly trained to business in the c e 4.1. i j iv Chanceiy. the proiession ot the law, and willing to devote to it all his energy and industry. The Statute of Wills, the Statute of Uses, the new modes of conveyancing introduced for avoiding transmutation of possession, the questions which arose respecting the property of the dissolved monasteries, and the great increase of commerce and wealth in the nation brought such a number of important suits into the Court of Chancery that the holder of the Great Seal could no longer 1 Vol. 2, p. 87. K, 7 98 SIR C. HATTON. satisfy the public by occasionally stealing a few hours from his political occupations to dispose of bills and petitions." Lord Keeper Bacon in fact sat, during term time, at his own house in the afternoon, as well as at Westminster Hall in the morning, and sat also frequently in Vacations, as his predecessor More had done, and the custom became permanent that the Chancery should be always open for the relief of suitors. Notwithstanding these changes one of Bacon's successors in the same reign, Sir Christopher Hatton, owed his preferment not to his legal acquirements, for he was only nominally a Student of Law, but to the Queen's personal favour, won, it is said, by his skill as a dancer, and yet with the assistance of a learned civilian, Dr Swale, and the Masters of the Court, whom by one of his orders he required to be in constant attendance upon him, he satisfied his contemporaries, and quieted the revolt of his Bar, who had at first refused to prac- tise before him. A speech of his in calling a Serjeant, in 1587, shows that, if no lawyer, he yet professed a great respect for the Common Law. Referring to bills to quiet possession, which the Chancellors had introduced, and which had formed one of the subjects of complaint against Wolsey, he said, " I find that many are called hither and much money spent, and in the end their causes are sent to law, where they might have been begun at the first, if the parties had been well advised and counselled. We sit here to help the rigour and extremities of the law. The holy conscience of the Queen for matters of equity is, by Her Majesty's goodness, in some sort committed to me ; but the law is the inheritance of all men 1 ". Elizabeth did not repeat the experiment of choosing an outsider again after Hatton's death, and Puckering, Egerton (created Lord Ellesmere by James I.) and Francis Bacon formed a succession of holders of the Seals as well qualified for their position as any who have presided in the Court. Lord Ellesmere is practically the first Chancellor whose decisions have come down to us, and few of his Ellesmere. . chancellor remain. He has the reputation of having been 15%. _ A t the first to establish equity upon the basis that 1 Spence, i. p. 693. LORD ELLESMERE. 99 its jurisdiction was to be found in and guided by the cases already decided and the principles to be extracted from them 1 , and he certainly did much to settle the practice of his Court, for almost all the decisions referred to in the sketch of Chan- cery procedure prefixed to the "Choice Cases in Chancery," published in 1672, but evidently written much earlier, are his decisions. The larger claim must however be allowed with much reservation. To precedents he no doubt frequently referred 2 , and he directed the Masters to search for them in particular cases. But, it is clear, he added many new doctrines to equity and gave relief in many new cases, as his successors did after him. He certainly did not regard himself as entitled only to administer rights ascertained by positive law, which, when once discovered, could neither be diminished nor enlarged by his discretion, and he allowed appeals to be made, not only to his judgment, but also to his feelings. " The pitiful cries of the father and mother dying as aforesaid" (they had died of the plague) " and of the poor orphans called to God for relief, and moved the heart of the Chancellor to take compassion upon them, and to take such order as he hath done," is the reported reason 3 for his decision in one case, and this instance of vicarious charity stands by no means alone in the records of the time. Sir N. Bacon, for instance, let off an unsuccessful Plaintiff without costs, because he was " a very poor boy in very simple clothes and bare legged, and under the age of 12 years 4 ." And another case 5 Lord Ellesmere himself decided on its special cir- cumstances, with the proviso that his decision was not to be a precedent. The judges, his contemporaries, had made no scruple of appealing to the compassion of one of his immediate predecessors in recommending him to grant a decree for quiet possession to a woman who had recovered her dower at Common Law 6 . In the great case of the Earl of Oxford, decided shortly 1 (It must be added that he shares 3 Proceedings in Parliament &c. C. this reputation with several of his sue- P. Cooper, p. 5. cessors.) 4 Munro, p. 433. 2 As his predecessors sometimes did, e ibid. p. 687. see an order of Sir N. Bacon, Acta 6 ibid. p. 506, Bromley L. K. 1581. Cancellaria:. Munro, p. 423, et passim. 72 100 PRECEDENT IN EQUITY. before his death, Lord Ellesmere plainly claimed power to determine new cases on new principles, even against the law, and to legislate on individual rights 1 . " The Chancellor is by his place under his Majesty to supply that power (i.e. of Parlia- ment) until it may be had in all matters of meum and tuum between party and party," and "the cause why there is a Chancery," he said, " is for that men's actions are so divers and infinite that it is impossible to make any general law, which may aptly meet every particular act, and not fail in some circumstances." The question how far precedent was regarded as binding on The influence ^ e Court and as limiting its jurisdiction under the of precedents. early Chancellors and during the present period has excited much discussion. The more popular view is that of Blackstone and Lord Campbell, which Selden and Coke, Lord Ellesmere's contemporaries, held, and which made White- lock, when offered the Great Seal under the Commonwealth, object to the responsibility, for, he said, "the judges of the Common Law have certain fixed rules to guide them ; a Keeper of the Seal has nothing but his own conscience to direct him, and that is oftentimes deceitful. The proceedings in Chancery are 'secundum arbitrium boni viri,' and this arbitrium differs as much in several men as their countenances differ 2 ." Spence 3 , on the other hand, has ably argued for the opposite conclusion. If the popular opinion be correct, he says, " it is a little extra- ordinary that causes " (under the Clerical Chancellors) " should have been brought to a hearing and heard with so much of ceremony and of regard to regularity" as the records exhibit. In his opinion the Clerical Chancellors, and, to a less extent, their lay successors, introduced the doctrines of the Civil Law, and were chiefly guided by adherence to its rules, and he shows how much similarity there is between many of its doctrines and the doctrines of equity as established by the end of the present period. But the importance of this similarity may, I suspect, be much overrated. Granting that the process of discovery by 1 Leading cases, W. and T. 2, p. wealth, post. 644. 3 Vol. i. p. 367. 2 See the chapter on the Common- ROMAN LAW IN EQUITY. 101 the oath of the Defendant, which the Chancery borrowed from the Canon Law, and of injunction to quiet possession, which Wolscy is charged with having introduced, bear close analogies to forms of procedure allowed at Rome, it is not clear that any of the doctrines of early equity can be traced to the Civil Law, although, when the construction of legacies and gifts mortis causa, at a later date, were taken over by Equity from the Ecclesiastical Courts, no doubt the Civil Law rules in regard to them were taken also. The Civil Law, as I have already said, was referred to as a repertory of moral principles, and, as such, it was accepted, not only in our Court of Chancery, but throughout the Western World. The Law of Nature to which the publicists of a later age constantly referred was nothing more than the Civil Law denuded of its technicalities, and modified occasionally by contrast with the positive morality of the Christian system. In this sense the Ecclesiastical Chan- cellors perhaps referred to the Civil Law, and guided their discretion by its rules, but in this alone. The protection of trusts may have been suggested by the double ownerships of the older code, but such ownerships, as already shown, were known apart from it, and the wording of the earlier bills in Chancery would suggest that it was due to the simple principle of com- pelling a Trustee to give up what he had only received on an express undertaking to do so. The great doctrine of Specific Performance of obligations both arising ex contractu, and apart from agreement, is wholly without warrant from the Roman Law. But if there be no reason to suppose that the early Chancellors restrained their discretion by the rules of the Civil Law, it is clear they attached much force to the practice and usage of their own Court. The direction to this effect to Kirkeham, M. R., several times cited above, the record of cases on subpoena and conscience in the Year Books, and the express declarations in the tracts already referred to are sufficient to establish this. On the other hand, in the absence of reported cases, this practice and usage must have been uncertain and variable, and the precedents recorded down to Lord Ellesmere's time were exceedingly few, so much so that Mr Norburie, at the beginning 102 LORD BACON. of the 17th century 1 , lamenting their paucity, suggests that the judges should make some, and those that existed were not invariably followed, as may be seen by the contradictory deci- sions in Tothill's book. The actual state of the matter seems to be that where they could be found and cited, precedents were generally followed, while in their absence the tradition of the Court, as reported by the Masters, or as known to the Chancellor, was generally adhered to, and this to a greater and greater degree, especially during the long Chancellorships of Lord Ellesmere and of Lord Cov entry, but neither the traditions nor the precedents were of bin ding authority if the presiding Chancellor was satisfied that a new or a special rule ought to be adopted in a given case. The last years of Lord Ellesmere's Chancellorship were marked by the crisis in the long struggle over the claim of the Chancellors to issue injunctions against proceedings at Common Law, and to stay executions on judgments there, and by the successful establishment of their right to do so. To this subject I shall return later on. Lord Bacon, who succeeded Ellesmere in 1616, had been chiefly instrumental in securing this great victory, and in his opening speech on taking his seat he showed that he had conceived a high idea of the dignity of his new office and fully intended to preserve and develope its jurisdiction. He compared the Chancellor to the Roman Praetor, and, as Bacon's the Prffitor issued his Edict on taking office, he taking hfs seat proposed, he said, to state in his speech 2 , the as chancellor. principles which would guide h i m fa his ad- ministration of equity, and what orders and resolutions he had taken in conformity with the King's charge, so that the Bar might know what to expect, and not move for any- thing against his rules. " It is no more," he declared, " I will not, but I cannot after this declaration," and, he continued, "this I do under three cautions. The first is that there be some things of a more secret and council-like nature, more fit to be acted than published," referring perhaps to the private directions which he received from James and his favourite, his 1 Hargrave's Tracts, p. 431. 2 Works (Ed. 1827), vol. 7, p. 244. LORD BACON. 103 obsequiousness to which, as well as his corruption by more direct bribes, disgraced his rule in the Court. The second caution referred to details, and the third was " that these imperatives, which I have made but to myself and my times, be without prejudice to the authority of the Court, or to wiser men that may succeed me." The King's charge, he said, "rested on four heads. The first was, that I should contain the jurisdiction of the Court within its true and due limits, without swelling or excess,... the third that I should retrench all unnecessary delays, that the subject might find that he did enjoy the same remedy against the fainting of the soul and the consumption of the estate, which was speedy justice, ' Bis dat qui cito dat.' " He then divided the excess of the Court into five natures. " The first is when the Court doth embrace and retain causes both in matter and circumstance merely determinable and fit for the common law ; for, my Lords, the Chancery is ordained to supply the law, not to subvert the law;" and, in guarding the jurisdiction, he promised that he would determine demurrers himself, or at least, the Master of the Rolls should, instead of referring them to the Masters (as Lord Ellesmere had done), a promise which he carried out by his order that they should be heard in Court 1 . "The second point concerneth the time of the complaint, and the late comers into Chancery ; which stay till a judgment be passed against them at the common law, and then complain: wherein your lordships may have heard a great rattle and a noise of a prcemunire and I cannot tell what. But that ques- tion the King hath settled according to the ancient precedents at all times continued.... My rule shall be... that in case of com- plaints after judgments, except the judgments be upon nihil dicit, and cases which are but disguises of judgments, as that they be judgments obtained in contempt of a preceding order of this Court, yea, and after verdicts also, I will have the party complainant enter into good bond to prove his suggestion : so that if he will be relieved against a judgment at common law upon matter of equity, he shall do it ' tanquam in vinculis,' at 1 0. 45. 104 BACON'S ORDERS. his peril/' thus re-introducing in this case the condition which the Statute of Henry VI. had required to be fulfilled before the issuing of any subpoana, but which had quite fallen into disuse. The speech goes on to promise that the Chancellor would not rely too much on the reports of the Master, or delay his decisions after the hearing until he had forgotten the argu- ment, and then re-hear the case, as his predecessors were said to have done, and that he would abolish prolixity, punishing the party and fining the offending counsel. Lord Bacon's orders as to the practice of his Court were published soon after, and they are described as the first attempt to systematise and settle the procedure, but as we have seen, Lord Ellesmere's decisions had done much in this direction, and a few other general orders had been issued before Lord Bacon's. The orders are carefully framed to carry into effect the promises of the speech. They introduced or adopted many beneficial rules which remained in force down to the procedure reforms of the present century. Some of these will be discussed later on, in a review of the practice of the Court in the present period. " Although they have been varied in detail, I only find in them one principle which would not now be recognised," says Lord Campbell 1 , namely: that "no decrees shall be made upon pretence of equity against the express petition of an Act of Parliament " (so far so well) " nevertheless, if the construction of such an Act of Parliament hath for a time gone one way in general opinion and reputation, and by a later judgment hath been controlled, then relief may be given upon matter of equity for cases arising before the said judgment, because the subject was in no default." But this was a very mild suggestion in comparison with Lord Ellesmere's claim to legislate upon "matters of meum and tuum between party and party," and to declare, as he did in the Earl of Oxford's case, that to be a good lease which an Act of Elizabeth had declared the lessor might not make. The judges themselves of this age did not regard statutes as necessarily binding, if opposed to fundamental prin- ciples of the Common Law, especially where they were old. 1 Vol. 2, p. 421 n. Order (6). LORD BACON. 105 Lord Bacon promised to use generously the fruits of his victory over the common law lawyers, and it is said he dis- cussed the matter of injunctions with the judges as Sir Thomas More had done, taking however a somewhat higher ground, for the predominance of the Chancellors was now once more esta- blished within the legal, though not in the political sphere 1 , and told them that, if they would acquaint him with any pro- ceedings of the Chancery which seemed to be exordinate or inordinate, he and they would soon agree, or if not, the King would settle their differences. He held the seals for four years only. What he might have done for Equity had he held them as long as his predecessor it is idle to speculate upon. Of all men of his age he was probably best fitted to devise new principles, and to rationalise the old ones, and his mighty reputation and transcendent genius, if unsullied by the shame of his degradation, would probably have preserved for long the fabric he perfected, but no man of his age could have devised a system fitted to the new social wants, and to ideas liberated, thanks in a great degree to Bacon's own labours, from the tyranny of the scholastic philosophy, which were so soon to come, but of which there then was no anticipation. A churchman, Dr Williams, was chosen to succeed Bacon, and deeming some knowledge of Equity useful to a Chancellor, and being quite ignorant of Equity, he set to work to study the rules he was to administer. On his first appearance in Court he reminded his bar that " it may be that the continual prac- tice of strict law, without a special mixture of other knowledge, makes a man corrupt and underhand for a Court of Equity." But, notwithstanding his varied acquirements, he does not seem to have worked any noticeable improvement in the doctrines or practice of his Court, and many of his decrees were overruled by his successor, Lord Coventry. Lord Hardwick, in his celebrated letter to Lord Karnes on English Equity, dates the establishment of general ^^ rules of Equity "so far as it has been judged the Coventry, nature of things would admit, especially from the time of my Lord Keeper Coventry 2 ," and certainly a great number of the 1 Camp. ii. p. 364. 2 (1625 to 1639.) 106 LORD COVENTRY. principles of Equity, some of which have been re-discovered in comparatively modern times, are to be found illustrated in the " Reports in Chancery " of his time. Many of the cases were decided " on view of precedents," and with the assistance of the judges, and they are somewhat better reported than the deci- sions of Lord Ellesmere, of which we have generally only the Registrar's notes, but otherwise I can find little difference between the decisions of Lord Coventry's and those of Lord Ellesmere's time. Lord Coventry, with the assistance of Sir Julius Csesar, the Master of the Rolls, issued some orders which were afterwards embodied in Lord Clarendon's, and of which Mr Spence wrote 1 as still, in his day, forming the basis of the practice of the Court with regard to interrogatories and the examination of witnesses, and which introduced the practice of putting par- ticular interrogatories to the different witnesses, and made other alterations with a view to shorten pleadings and facilitate procedure. He gained further renown by clearing off an arrear of 500 causes which had accumulated under his predecessor. 1 Spence, i. p. 402. CHAPTER VII. THE STRUGGLE FOR PRE-EMINENCE. WHEN two rival systems of judicature exist in the same country and profess to administer the rights of the ,. . j. j.fy, , Injunctions. same litigants according to dmerent rules, some un- derstanding must be arrived at to determine which is to prevail at the last resort ; this was, of course, plain from the first, and, as I have already shown, injunctions had been granted from the reign of Henry VI. prohibiting Plaintiffs from proceeding with actions at common law or issuing executions on judgments there obtained, in cases where, in the Chancellor's opinion, their legal claims were against conscience. This had not oc- curred without some objection on the part of the judges, who feared that all suitors would be drawn into Chancery if the power of the Chancellor to override or intercept their decisions became established, and much discussion had taken place over the case of the paid but unreleased bond, apparently with different results under different Chancellors. The controversy raised by the publication of the 'Doctor and Student' at the beginning of the reign of Henry VIII. seems to show that it was the settled practice to issue these injunctions in some few cases, although the right to do so was bitterly denied by the lawyers 1 . Wolsey however was then Chancellor, and the judge would have been unusually bold who would have ven- tured to disregard his decree, or to advise the Plaintiff at law, as the judges under Edward IV. did, to proceed with his action and ask for judgment in contempt of the Chancellor's order. 1 Ante, p. 89. 108 LAW AND EQUITY UNDER ELIZABETH. It was made a charge against Wolsey after his fall that he had interposed to prevent judgment at law, and had questioned judgments when given, but his successor, Sir T. More, although identified with the common law Bar as the son of a judge, and for long a successful practitioner, continued the practice. All through the reign of Elizabeth the dispute over the Chancellor's claims continued. The judges, on the one hand, were now men of better standing and position, and, on the other, the Chancellors were no longer ministers whom it was dangerous to offend, and hopeless to defeat so long as the Royal favour continued. A considerable improvement more- over had been effected in the Common Law, both by its develop- ment by the judges, to a great extent under the incitement of a well-grounded fear that if they gave no remedy the Chancery would do so, and also by statute. The mentofthe action of ' assumpsit ' had been, by the beginning of this period, so expanded that it offered a fairly complete protection in all cases of simple contract, the action of ejectment had begun to be employed to try questions of title by means of fictitious leases in place of the difficult and expensive writ of right 1 , the statute of Uses had for a time greatly diminished the number of double ownerships, the statutes of Wills 2 had restored the right of devising without the need of having recourse to a trust, and several statutes of Elizabeth had been passed for the ' expedition of justice ' and the improvement of common law procedure. The most im- portant of the statutes last referred to were 27 Elizabeth, c. 5, which provided that the judges should "proceed and give judgment according as the very right of the cause and matter of law shall appear unto them, without regarding any imper- fection, defect or want of form," in any pleadings or proceedings except those specially set down in a demurrer, and that, with the same exception, the Courts might amend all such imper- fections from time to time ; and 27 Elizabeth, c. 8, which, re- citing that erroneous judgments in the King's Bench were 1 Throcmorton's case, 4 Inst. 86. of equity during this period : Chap. ix. 2 A short account of these statutes below, will be given in reviewing the growth LAW AND EQUITY UNDER ELIZABETH. 109 only reformable in Parliament, which did not sit so often as formerly, enacted that a party might sue out a writ of error to examine a judgment of the King's Bench in the Exchequer Chamber before the judges of the other Courts, who should have power to reverse the judgment for errors other than want of jurisdiction or of form. The position of the judges was therefore a strong one, and there seemed much probability of their ultimately prevailing, at least upon the question of staying execution after judgment had been obtained at law, for comparatively little objection was now made to oyerinjunc-' injunctions against actions on forfeitures caused by accident, as, for instance, the rise of the river preventing a debtor from reaching his creditor in time to pay on the day, or by the fraud of the Plaintiff at law himself. Even Coke admits 'accident' as a head of Equity jurisdiction. Coke cites the following case in which, at the end of Eliza- beth's reign, the Chancellor's injunction seems to have been defeated 2 . The Plaintiff in Equity claimed a lease against the Defen- dant, Sir Moyl Finch, who pleaded that he had made a lease to one privileged to sue in the Court of Exchequer, for the purpose of recovering in ejectment on an alleged forfeiture, and that his lessee had recovered judgment, and the judgment had been affirmed on appeal. The Plaintiff however showed clear matter in equity to be relieved against the pretended forfeiture, arid Lord Keeper Egerton 3 ordered the Defendant to answer the bill, with a view, no doubt, to granting an injunc- tion against the ejectment if the Plaintiff proved his case. The Defendant appealed to the Queen, and she referred the matter to all the judges. It was argued for the Plaintiff that he did not question the judgments, but, confessing them, claimed equitable relief on grounds which could not have been pleaded at law against them, and precedents of the last three reigns were shown to support the right to do this, but the judges allowed the plea, "for though the Lord Chancellor 1 See Spence, i. p. 673, Camp. n. p. and 40 Eliz.). 235, Hallam, Const. Hist. i. p. 4C9. 3 Lord Ellesmere. - 4 Inst. 86, Throcmorton's case (39 110 JAMES I. would not examine the judgment, yet he would by his decree take away the effect of the judgment : and for the precedents, they were grounded on the sole opinion of the Lord Chancellor, and passed sub silentio." In fact the question in dispute being referred to one of the parties was naturally decided in that party's favour, and small importance was attached to earlier examples of the other's claims. Coke cites other cases to show that the judges not only regarded Equity as altogether barred by a judgment at law, but that they denied its jurisdiction to determine the right to freeholds, in every case, just as the petitions of the Commons had denied it at an earlier time. No subprena lay, the judges resolved, in another case against the same Defendant two years after the case just cited, because the right of inheritance was determinable at Common Law and not in Chancery, and they further resolved that, when any freehold, or other matter de- terminable at the Common Law, came incidentally in question in Chancery, the same could not be decided there, but ought to be sent for trial to the Common Law, where the party grieved might be relieved by error, attaint or by action of higher nature. Lord Ellesmere did not, however, abandon his claim to de- termine suits affecting either judgments at law or rights to freehold, and about 10 and 11 James I. the dispute came to a crisis. In 1614 the case of Courtney v. Glanvil 1 occurred. The Defendant had sold to the Plaintiff a jewel worth 20, which he pretended was worth 350, and other jewels worth 100, for 600, taking a bond in payment, and had got judg- ment (in the first instance by consent) upon the bond, and the judgment had been affirmed on appeal. The Plaintiff then filed his bill in Equity, and it was decreed that the Defendant should take back the 20 jewel and be paid 100, and should release the judgment. He refused to obey and was committed to prison. The judges then granted a Habeas Corpus to release him, and Coke said the decree and imprisonment were unlawful. 1 Cro. Jac. p. 343. THE EARL OF OXFORD'S CASE. Ill Two years later the great case of the Earl of Oxford 1 came before Lord Ellesmere. Magdalen College The Earl of had granted a lease for 72 years of the Covent Oxford>s a* 6 - Garden at 9 a year, and when 50 years of the term were expired they conveyed the fee to the lessee under a license from Elizabeth, by way of grant to her, on condition to grant to the lessee. The consideration for the conveyance was 15 a year, and the profit to the College on the transaction was therefore considerable. After the conveyance had been in peace forty years, and 10,000 had been spent on the land in building under it, the Master of the College, alleging that the conveyance was void under the statute of 13 Elizabeth against alienations of ecclesiastical and college lands, took possession of part of the land, and a lessee, claiming through the Earl of Oxford, the then owner under the disputed convey- ance, brought an action of ejectment on fictitious leases to try the validity of the Earl's title. The jury found a special verdict, and before the matter could be debated by the judges the leases of the nominal parties to the litigation, or one of them, ran out, and the action thereupon discontinued. The judges however delivered their opinions 8 , deciding that the conveyance was void, and that no act of the Master could bar the title of the Fellows or of his successors. Upon this the Earl filed his bill for relief, and the plea and demurrer of the Defendants being reported against by two of the Masters, the Defendants, who still refused to answer, were committed to prison. The matter then came before Lord Ellesmere on a motion to sequester their property until they did answer, and he delivered a careful judgment upon the jurisdiction of Chancery to interfere with judgments at law. The judgment is of great interest for the insight it gives into the nature of the arguments adopted in Equity Courts of the day, and of the principles by which their decisions were ruled. By the Law of God, said the Chancellor 3 , he that builds a house ought to dwell in it, and yet here in this case, such is the conscience of the doctor, the Defendant, that he would have the houses, gardens and orchards, which he neither built nor 1 2 W. and T. 642. 11 Rep. 66. 3 (Citing Biblical authority.) 112 THE EARL OF OXFORD'S CASE. planted. Equity and good conscience were wholly for the Plaintiff, for Equity speaks as the law of God speaks. And as to there being a judgment at law, this, he said, was not in fact the case, for there was only a discontinuance of the suit, which gave no possession, but, he added, "take it as a judgment to all intents, then I answer, that in this case there is no opposition to the judgment, neither will the truth or justice of the judgment be examined in this Court... and therefore a judg- ment, is no let to examine it in Equity so as the truth of the judgment, &c., be not examined." He then went through some of the precedents, and stated the conclusion to be drawn from them thus : " When a judgment is obtained by oppression, wrong, and a hard conscience, the Chancellor will frustrate and set it aside, not for any error or defect in the judgment, but for the hard conscience of the party." A second objection was made that this judgment was grounded upon a statute, but this also the Lord Chancellor overruled, claiming, in a passage already quoted, the power to legislate on private rights in particular cases. The judges themselves, he said 1 , claimed power to adjudge as void statutes repugnant to the Common Law, and he adduced several instances where the letter of a statute had been departed from by the Courts. Finally, the law of the land was not against the jurisdiction, for cases in the Year Books recognised it and there was no statute to retain it. The statute 4 Henry IV., c. 23, providing that "after judg- ment given in the Courts of Our Lord the King, the parties and their heirs shall be thereof in peace" until the judgment be reversed, on which the attack upon the injunctions now chiefly turned, and which (as has already appeared) had once been allowed as a good answer in the Chancery itself, he explained away by the suggestion that it refers to legal proceedings only, and was intended to secure that the judges " should be constant and certain in their own judgments, and not play fast and loose," an explanation which is not only false historically, but directly contrary to the recital of the statute, for the King himself, his Council and Parliament are 1 Citing 8 Coke's Reports, 118. THREAT OF A PR/EMUNIRE. 113 mentioned as the authorities to whom applications to upset judgments were made. Other statutes which had been cited on the Defendants' part, and which were less directly in point, the Chancellor disposed of on the ground that they referred to the Ecclesiasti- cal interferences with the Common Law, not to that of the Chancery. Soon after this case the judges, led by Coke, the Chief Justice, made a determined attempt to put an end to- the Chancellor's interference. The opportunity was seized when Lord Ellesmere was ill, and it was thought unlikely that he would recover 1 . A judgment at law had been obtained, it was said, by the Plaintiff inveigling the Defendant's witnesses into an alehouse while the hearing was going on, and the Chancellor had granted an injunction to stay proceedings upon it. On this Coke recommended the Plaintiff's Attorney to indict the Defendant, his counsel and all concerned in obtaining the injunction of a prsemunire under 27 Edward III., for impeaching a judgment ; and in the following term he persuaded Choke, J., in charging the Grand Jury, to tell them to enquire, among other things, of such persons as questioned judgments by bill, and he himself strongly pressed the Jury to find true bills against one such person, but they, having a wholesome fear that to be employed as a weapon in the contest between the Chancellor and the Chief Justice would bring but little profit and much danger, altogether declined to follow his advice. The Chief Justice, moreover, announced that any counsel who signed a bill praying an enquiry into the circumstances of a judgment would find his mouth closed for ever in the King's Courts, an even more severe measure than the imprisonment by which a barrister in Elizabeth's reign had been driven to humble apologies 2 for the same offence, for, until centuries afterwards, there was no separate Chancery Bar. The Lord Chancellor appealed to the King, and he referred the matter to Bacon (then Attorney-General) and other lawyers 8 , 1 Camp. n. p. 236. and in the Keports in Chancery. The 2 Spence, i. p. G75. first report, at least, is obviously 3 (Their reports are given in Gary, Bacon's workmanship.) K. 8 114 REPORTS TO THE KING. to report upon the instances on record of " complaints made in the Chancery, there to be relieved according to equity and conscience after judgments in the Courts of the Common Laws, in cases wherein the judges of the common law could not," because of their oaths, grant relief themselves. The referees reported that there was a "strong current of practice of pro- ceeding in Chancery after judgment," from the beginning of the reign of Henry VII., "in cases where there is no remedy for the subject by the strict course of the common law, unto which the judges are sworn," and that, this was, in most cases, upon matters of equity precedent to the judgments, and not matter of agreement after. They found, they said, " in the said cases, not only the bill preferred, but motions, orders injunctions and decrees thereupon, for the discharging and releasing the judgments, or abiding the possession thereupon obtained, and sometimes for the mesne profits and the release of the costs." The judges themselves moreover, they reported, had directed parties to seek relief in Chancery, and sitting there, "in the vacancy or absence of the Chancellor," had granted it, and the hands of " sundry principal Counsellors at Law, whereof divers of them are now judges, and some in chief place," had appeared in bills of the kind in dispute. A second report drawn up by the same learned persons and the Attorney of the Prince of Wales, stated that Chancery was not restrained by any Statute of Prsemunire from giving relief after judgment, but had given it for six score years, not only under the Bishops, who, said the Referees, " might be thought less skilfull or lesse affectionate towards the laws of the land, but also by divers great Lawyers, which could not but know and honour the law, as the means of their advancement." They then argued that the Statute 27 Edward III. against appeals 'in aliena curia,' not, as they say, 'in alia curia 1 ', does not apply to an English Court, and that the Statute 4 Henry IV. c. 23, does not either, first, because the Chancery, being un- named, must be taken to be outside its purview (a better answer than Lord Ellesmere's); secondly, because it was made on 1 (The words in the French are " qi empescher les juggementz renduz en suent en autri court a deffaire ou court le Roi".) THE KING'S DECREE. 115 one of two petitions of which the other, not the one it was founded on, attacked the Chancery; and thirdly, because in restraining parties from proceeding in judgments there is no ' answering anew,' such as the statute forbids, but matters are discussed which could never be relevant to the trial at law. After these reports James decided in favour of the Chan- cellor's contention. "Now, forasmuch," his Decree . The Kind's runs, "as mercy and justice be the true supports decree 14 July, of our Royal Throne ; and it properly belongeth to our princely office to take care and provide that our subjects have equal and indifferent justice ministered to them; and that when their case deserveth to be relieved in course of equity by suit in our Court of Chancery, they should not be abandoned and exposed to perish under the rigor and extremity of our laws, we... do approve, ratine and confirm, as well the practice of our Court of Chancery expressed in the first certi- ficate as the opinions for the law on the statutes." Coke bowed, at the time, to the King's decision, but his bold attempt cost him his place, and afterwards when he wrote his third Institute 1 he questioned the authority of the decree, for, he said, it was obtained by importunity, and the jurisdiction of the King over the law obtains so far only as he decides judicially. His contemporary Jenkyns, too, in his Eight Centuries of Reports, reckoned among the abuses of the law " the excess of Juris- diction in Chancery, in examining Judgments at Common Law." That Court, he said, ought to do nothing else but compel the execution of trusts and moderate the rigour of Forfeitures*. An attempt was made to revive the controversy at the end of the 17th century, and Sir Robert Atkyns, late Chief Baron, published a book attacking the jurisdiction to grant these injunctions 3 , but nothing came of it, and from the time of Lord Bacon down to the Judicature Acts the 'common injunction' was regularly issued, although, of course, after the settlement of equitable jurisdiction it assumed quite a different aspect to that it had borne while the common law was still supposed to mark the limits of every man's civil rights. Coke disliked it, not only as an insult to his own Court, but also as a deliberate 1 p. 125. 2 p. vii. 3 See below p. 172. 82 116 THE EFFECT OF THE DECREE. interference with property, upon the security of which against arbitrary power the happiness of the community depends, but when once the injunction in given cases became common form, it had, of course, to be included in the consideration of every question of ownership. Lord Bacon when he succeeded Lord Ellesmere in the chancellorship used his success generously, and, by his orders published in January 1618, he made careful provision 1 to prevent injunctions to stay actions being used for mere delay, or being otherwise abused. Such injunctions were not, he directed, to be granted upon priority of suit or mere surmise in the Plaintiff's bill, but upon matter confessed in the answer, or of record, or in writing plainly appearing, or where the defendant was in contempt or was claiming an old long sleeping debt, or the debtor or creditor was dead some good time before the suit was brought, and in any case only upon security for costs. An almost immediate consequence of the victory now gained was the extension of the interference of Chancery to cases, not only where a judgment had been obtained by fraud, or by the defendant's accidental default, but in some instances where a right deliberately granted and secured by the Common Law was being enforced by unexceptional means. The creation of rights in Equity in substantive opposition to rights at law, of which perhaps the case of the right to redeem a forfeited mortgage is the earliest and most striking example, dates from about this time. Besides the cases of conflicting rights, the ' common injunc- tion' went on suggestion of fraud and other matters destructive of the defendant's equitable right to sue at law, and it continued to do so long after the improvement of legal procedure and of the spirit of its administration, and especially the introduction, in the reign of Charles II., of the grant of new trials with refer- ence to the merits of the evidence 2 , made this but rarely neces- sary, and this vehicle of so much improvement in our law, once the valued remedy against outrageous evils, became a standing nuisance. Sir J. Mansfield, C. J., in 1809, stated 3 that he 1 Orders, 21 25. 3 Goldschmidt v. Man-yat, 1 Camp. 2 Spence, i, p. 700. Eep. 559. The particular reference in THE COMMON INJUNCTION. 117 thought it highly desirable that some steps should be taken to check the growing practice of seeking for injunctions against proceeding to trial at law, and, in more recent times, Lord Gotten ham, admitting the necessity for their existence, stated his opinion that the power to issue them practically did as much injustice as it promoted justice 1 . that case was to injunctions issued by 570. 1837. Both cases are cited in the Court of Exchequer. Warren's Law Studies. 1 Brown v. Newell, 2 My. and Cr. CHAPTER VIII. FROM WOLSEY TO THE COMMONWEALTH. PROCEDURE AND PRACTICE. THE regular session of the Court under professional chan- cellors for over a century gave birth, as would be anticipated, to a formal and ordered system of procedure. For the regula- tion of this, orders were from time to time issued, and, from Lord Elles mere's Chancellorship, we find established a practice of the Court which, in the main, lasted down to the Chancery reforms of the present century, and in it the presence of some of the evils that disgraced the Court so long is already apparent, and formed, in the time of the Commonwealth, the subject of bitter complaint. Sir Thomas More had refused to allow a subpoena to issue until the bill had been approved, and this course had been recommended in the 'Treatise on the Masters' 1 , at the beginning of the period, but the practice was soon settled the other way, and the issue of a subpoena became a matter of course. The requirement of security for the expenses of the defendant in case the plaintiff failed had also fallen into disuse in ordinary cases, as appears from Lord Bacon's direction that this should be made a condition precedent to the grant of an injunction to stay proceedings upon a judgment. The bill was signed by Counsel and filed, and it, as also the other pleadings and the interrogatories, might be objected to, for scandal 2 , for multifariousness, if it joined together different causes of complaint by different plain- tiffs 3 , for undue prolixity, and on other grounds, one of which 1 Hargrave's Tracts, p. 301. 3 Toth., p. 26; Ch. Cas. p. 6. 2 Monro, p. 632. APPEARANCE. 119 was derogation of the settled authority of any Court, and this, if supported, entailed the punishment of the party and his Counsel 1 . Prolixity seems to have been a crying evil: it is mentioned in nearly all the codes of orders, notwithstanding that offenders were severely treated, one Mylward, for instance, in 1596, for drawing a replication on six score sheets of paper which might have been well contrived on sixteen, was directed to have a hole cut in the said replication and to be shown at the bar of each of the Courts in Westminster Hall with his head put through the hole, and to be fined 10 and 20 nobles costs 2 . In early days the main object of the subpcena had been to compel the personal attendance of the defendant for examina- tion by the Chancellor himself or the Master of the Rolls, and after written answers, and, early in the 16th century, attornies 3 were allowed, his appearance and answer were still necessary to enable the plaintiff to obtain relief, for his default or other contumacy was not sufficient to establish the claim. "If a man should allege by his bill that one had done him wrong, and the defendant should answer nothing, yet if it should appear to us that the defendant had done no wrong to the plaintiff he shall not recover 4 ," is the very reasonable declara- tion of a Chancellor under Edward IV., but although in the " Choice Cases 8 " an order in 18 Elizabeth, admitting the plain- tiff to proof on the defendant's refusal to answer, is cited, and the author says that " of late orders have been granted to take the bill pro confesso," these were clearly exceptional cases. Most stringent means were taken to compel appearance and answer, extending not only to committal to the Fleet, but, from the end of the 16th century, to a commission of Rebellion, equivalent to an outlawry of the contumacious defendant, and sequestration of his property 6 , the plaintiff being put into possession of such of the property as was claimed by him, until the defendant should purge his contempt. 1 Bacon, Ord. 56. 4 Ed. IV. 14 (9) cited Spence, i. 376. 2 Monro, p. 692. 5 p. 10. 3 (The attornies at this time were 6 Bacon, Order 29, and see Beames' officials of the Court, ' the six clerks '.) note. 120 THE ANSWER. In case of transmission of title by death or marriage of the plaintiff, pendente lite, it was necessary that a bill of Reviver should be filed to continue the suit. The defendant's answer to the interrogatories attached to the bill was due eight days after the bill was filed, unless he required to see evidences or confer with parties 20 miles away from London, or unless he were over 70 years of age or too ill to travel, and in the latter cases he might have a ' dedimus potestatem ' to take his answer. The first answer was however rarely deemed sufficient, and second, third, fourth and further answers might be ordered on the Master's Certificate, the defendant paying, as appears from an entry of 1594 in the Registrar's Books 1 , costs as ordered, in that case 20s. on each of four insufficient answers and 40s. on a fifth. Bacon's orders 2 , however, provide that double costs should be paid on a second insufficient answer, treble on a third, and quadruple on a fourth, after which the defendant might be committed, and examined by interrogatories on the points as to which the answer was insufficient. But it by no means followed that the process of extracting a sufficient answer from a stub- born defendant commenced at once, he might demur to the Demurrers bill or jurisdiction, or plead, or both 3 . The common practice was to refer demurrers and pleas, as indeed most other interlocutory matters, to the Masters, and many reports on them occur in Mr Monro's collection, but Lord Bacon 4 promised to hear demurrers (upon which the whole legal question in the suit would often turn) himself, in open Court. When the demurrer was decided against the defendant he generally abandoned it, having indeed in later times no option but to do so, and Lord Keeper Egerton in a case 5 where the defendant persisted, in spite of an adverse decision, in pressing his demurrer, gave a final decree for the plaintiff. No costs were given, in any event, upon demurrer, for the truth of the matters in question was not tried 6 ; this must often have worked great hardship to defendants, for a speculative plaintiff 1 Monro, p. 647. * Speech (ante) and Order 45. 2 Order, 61. 5 Ch. Gas. p. 13. 3 Bacon, Orders, 58. 6 year Book, 1 Ed. IV. 146. THE EVIDENCE. 121 might find out on the interlocutory discussion that he had no chance, and then, under a rule which lasted down to Lord Chancellor Jefferies, dismiss his suit on payment of 20s. costs only. When pleas and demurrers were disposed of, and a sufficient answer obtained, the plaintiff in the same term, or The Reply. at least the next term, put in his Reply, which might not be a new departure or contain new matter, and then, on subpoena to rejoin and join in a commission to examine witnesses, the defendant rejoined 1 . The pleadings went no further, the old extravagances of rebutters, and surrejoinders being, early in the present period, abandoned, and what of their work was necessary being done by amendments. Even the rejoinder was probably already rare at the end of the 16th century. The examination of witnesses might take place at any time after the answer, or on special grounds before it, . _* . TheExami- one case being given in Monro where it preceded nation of wit- 00 * nesses. the bill. In London the examination was con- ducted by the official examiners, in the country by commis- sioners named by the parties. It was always private, and the examiners or commissioners took the witnesses in turn through a list of interrogatories supplied to them, having no discretion to judge of the pertinency of the questions, and no power to frame new questions after hearing the examination on behalf of the other side. The order to examine ran, (according to a rule introduced, it seems, by Lord Keeper Egerton, for the earlier Chancellors and Commissioners had been unrestricted in their examination,) super interrogationibus inclusis not ad- ministrandis 3 , so that, in effect, the evidence resembled modern affidavit evidence, save that a party could examine, but not cross-examine, an opponent's witnesses. The answers of the defendant were taken before the Masters, if sworn in, or within 3 (afterwards extended to 5) miles of London, in other cases before the Masters Extraordinary, or, if sworn more than 20 miles from London, before commissioners. Evidence by affidavit 1 Ch. Cas. p. 14. 3 Ch. Cas. pp. 16, 69. Beames, 2 p. 518. p. 30. 122 PROCEEDINGS BEFORE HEARING. was allowed for some purposes, for example, on motions, but, according to express orders, it was never accepted in proof of title, or on other important issues 1 . The next step Publication. J J was the ' publication ' of the evidence, after which, except in special cases, no further evidence could be taken on the same matters 2 , though it was allowed on matters springing out of them, and no deposition could be amended. The delays allowed before one party could force another, Thediiatori- if unwilling, to take these necessary steps of ex- ness of proce- . . , ... . dura animation and publication, are astounding, and after considering them, and considering the references to the Masters on pleas, on demurrers, as to the sufficiency of answers and the relevancy of replies, and for enquiries, the delays of com- missions and the frequent rehearings, one's wonder ceases that causes should be found five, ten and even twenty years in arrear, as the contemporary records complain. Surely the claim to be the " Great Sanctuary of Plain Dealings and Honesty 3 " must have sounded odd in a Court which permitted this, and whose method of getting at truth was no more effective than a hole- and-corner examination of the alleged knave and his friends, upon questions framed by themselves, or framed by the other side, in complete ignorance of the tale intended to be set up, except so far as the answer disclosed it, and the discussion of the evidence produced by such examination before a judge who had no opportunity of deriving assistance from the demeanour of the deponents or their manner of giving their answers. Yet this course was pursued by the Court of Chancery for centuries, and in a modified form continues to work injustice in its successor, the Chancery Division 4 . It is true disputed rights were sometimes sent to be tried at law, where a more rational system of examination prevailed, and references were also made to the Masters who saw the 1 Bacon, Ord. 75, 76. advisable to state, which are put before 2 Ch. Gas. p. 17. Monro, p. 32. the Court on contested motions. The 3 Preface to " Cases in Chancery." power of cross-examining upon the 4 (Witness the piles of contradictory affidavits does something to mitigate affidavits, carefully drafted by counsel the evil, though it involves great ex- to set the facts in their best possible pense and delay.) light, or such of them as it is deemed THE HEARING. 123 parties and their witnesses 1 , and occasionally, by special order or by consent, witnesses were examined, as in every case where the facts were in dispute they should have been, at the hearing, but the normal course was that I have described 2 . An extra- ordinary practice, grounded upon the peculiar re- U-1-; t ^ nu 11 7 u* j Evidence. sponsibihty 01 the Chancellors position as judge of conscience without appeal, was sometimes resorted to. After publication of the evidence taken by the parties, new witnesses, or those who had already made their depositions, were privately examined ' ad informandum conscientiam judicis,' and the evidence so obtained was reserved for the judge's eye alone unless he chose to disclose it 3 . Great improvements were effected in the manner of taking evidence and the rules in regard to it by Lord Coventry's orders of 1635, chiefly in the direction of abolishing unnecessary interrogatories and restricting the evidence to the matters which the bill and answer really left in dispute. And it was enjoined on plaintiffs and their counsel that in every case they should consider whether they could not proceed to the hearing upon these last materials alone, a practice which is also referred to in Lord Bacon's Orders. An interesting letter to a country client from Lord Ellesmere, when he was at the Bar, advising on a case then pending, which Lord Campbell has published 4 , throws some light upon the manner in which the hearing was conducted, and depicts it as a leisurely proceeding in which the opposing counsel put in their evidence, criticised that of their opponents, and made their points alternately, and it would seem that the formal speeches which the presence of the jury fostered in the com- mon law Courts never obtained in the rival forum. The Decree is described 5 as " a final sentence or order of the Court, pronounced upon the hearing and under- standing of the cause, which decree being drawn up by the pleadings, and the final order so pronounced, by one 1 (In the 17th century they also 3 Bac. Ord. 74. ceased to hear the parties and pro- 4 Vol. 2, p. 177. ceeded on affidavit evidence only.) 5 Ch. Cas. p. 21. 2 Ch. Cas. p. 19; Toth., p. 190. 124 THE DECREE. of the Six Clerks, and signed by the Chancellor, and enrolled of record may not be altered upon any Motion or Order, but the party is put to his Bill of Review if he have good cause," but until so signed it was an interlocutory order merely, and open to reconsideration. The decrees of the present period, so far as can be judged from the records, were simple orders that the plaintiff have quiet possession, recover the property asked for, or the like ; and Spence seems to have attributed to the flexibility and com- plexity which characterised Chancery decrees at a later time, too early a date when contrasting these decrees with the judg- ments at Common Law \ Cross bills by the defendant were however already well known in the preceding period, and the rule is now found that though no such bill could be allowed after ' publication/ in a proper case a decree could be made for the defendant at the hearing, without it, and this must have often tended to complicate the decree 2 . The only mode of appeal from a decree drawn up and signed by the Chancellor was by way of a Bill of Review, or by a petition to the King. The former is said to have been introduced in the time of Henry VIII. 3 , and under Lord Ellesmere it was, nominally, only admitted upon new matter occurred since decree or on matter of record, or contained in writing and not used before. Lord Bacon introduced some valuable improvements in regard to these bills, especially by requiring obedience to the decree questioned, (unless it entailed the extinguishment of the Appellant's right at common law, as if the cancellation of a bond were ordered,) before the bill was admitted, and requiring the appellant to give security for costs, and the damages occasioned by delay 4 . Motions, that is to say, summary applications to the Chancellor, in interlocutory matters, had become exceedingly frequent " more than needful, and not tending to Motions. . - , , i N the end of the course : (they) are many times the cause of long and tedious suits in Chancery." "Some have conceived," adds the writer 5 , " that there needs but one Motion 1 Spence, 1, p. 390. 4 Orders, 1 5. 2 Ch. Cas. 22. 8 Ch. Gas. p. 30. 3 Spence, 1, p. 394. MOTIONS AND REFERENCES. 125 in a cause, viz., for an injunction for quiet possession as at the time of the bill exhibited, and for staying of suits at the common law in the meantime till the cause be determined here." Common injunctions, objections to answers and pleadings, injunctions to stay waste and cutting of timber, applications for security, and applications in regard to the conduct of commissions and taking the evidence, the latter of which were generally referred to the four of the six clerks not concerned in the cause, were all the subject of motions, and the frequency of these gave rise to the generations upon generations of orders, amounting sometimes to 500 orders in a cause, among which, according to the Commonwealth reformers, at times counsel, parties and judges alike lost themselves and lost sight of the original cause of dispute. It was found necessary to provide that any order made without the Court being informed of the last material order before it should be void 1 . References of the cause for report on particular issues, and upon the whole case, were another cause of frequent complaint, especially those of the latter kind, and they were References. repeatedly forbidden by Lord Ellesmere, and by Bacon's Orders 2 they were directed to be 'sparingly granted,' but they nevertheless constantly occurred, and often a plaintiff eight or nine years after the reference would find himself, it is asserted 3 , obliged to return to Court and go on again where he left off. These abuses mark the latter end of the present period chiefly, for the reports of the Masters under Elizabeth do not seem to have been much delayed ; thus a certificate of Masters Lam bard and Hobarte 4 , stating that an account referred to them is long, and that the defendant seeks to rip it all up again, and praying that, as they have no time for it in term, and are going into the country for the Vacation, a single arbitrator with more leisure may be appointed instead of them, would not have been made if such monstrous delays as those alleged had already become familiar. One subject of such references seems often to have been to settle the dispute by the Master's arbitration, as many disputes 1 Bac. Ord. 36. 3 Ch. Cas. p. 34. ' Ord. 47. 4 Monro, p, 15 (1597). 126 PETITIONS. were settled in Court by the good offices of the Chancellor him- self. An instance of this appears in the certificate of Master Tyndal in 1610, which reports that the Master had done his best to reduce the parties to peace but without success, and he prays he may be no more troubled about the matter 1 . Besides the regular procedure upon bill and Petitions. r , answer, the more summary mode of procedure by petition had been introduced in a few cases, the petition being an informal statement of the case, as the bill originally was, without interrogatories attached to it. Bacon's Orders give a list of things which could not be done upon petition, including the grant of injunctions, making of final orders and overruling demurrers. Generally petitions seem to have been used only for more or less formal applications, and in addition to these, it is interesting to note that applications to reverse the decrees of Charity Commissioners were made by petition ' containing only matter fundamental ' 2 , offering a precedent, to some extent, for what Lord Redesdale thought the dangerous innovations of Sir S. Romilly's Charity Act at the beginning of the present century. Suits in forma pauperis were already allowed by special suits in leave, which Lord Ellesmere refused if the suit forma paupens. were a l rea( Jy begun, but which was subsequently granted, on the intended plaintiffs oath that he was not worth 5, without reference to this rule. If in such a suit the plain- tiff failed, as he paid no costs, he was sometimes ordered to be whipped or pilloried as a warning against similar abuses, or in deference to the once well-received maxim that he who cannot pay with his purse should pay with his body. By an order of 1623 3 , a certificate both of the 'likely good of the merits of the cause/ as also of the mean and weak state of the intended plaintiff, was required. The Decrees were, as we have seen, taken to bind the party only, and were enforced by process against him, imprisonment (which, being ' in the nature of an execution,' was to be close), and, in case of obstinacy, fines, and, if the decree were for pos- 1 Monro, p. 129, see also p. 622. 3 Beames, p. 49. 2 Ch. Cas. p. 23. OFFICERS OF THE COURT. 12? session, then successively, if need be, a Commission of Rebellion against the offender, and a Commission to the Sheriff to put the plaintiff into the possession of the lands adjudged to him 1 . An important addition to the working power of the Court was made by the establishment of the Master of TheMasterof the Rolls as a regular judge to hear causes, which the Eolls - is commonly dated from the time of Tunstall, M. R. in Wolsey's Chancellorship, although, as has already appeared, he had exer- cised some judicial duties, at least occasionally, and had attained a higher position than that of the other Masters in the preceding period. He sat in the Rolls to hear causes referred to him by the Chancellor, when the Chancellor was not himself sitting 2 . Considerable discussion took place as to his judicial authority, and though it was well established, and regularly acquiesced in, the controversy did not cease until an Act of George II. 3 , was passed to put an end to it. In the reign of Elizabeth he seems to have assisted the Chancellor in Equity matters somewhat by way of concession: the Chancellor " moved the Master of the Rolls to hear the cause, which at his Lordship's motion the said Master of the Rolls was content to do " is the recital in an order 4 of 1579, but in the reign of Charles I. his position as one of the rulers of the Equity Court was so thoroughly settled that he issued many general orders for the regulation of its practice 8 . The importance which the Master's offices had now attained in regard to the equitable jurisdiction of the Court, Tiio Masters may be gathered from the references already made to them. It is to this period that the earliest development of the great administrative system of the later Chancery, which was carried out in these offices, with its enquiries, accounts and reports, must be traced. Matters of account, say Bacon's Orders 6 , unless in very weighty cases, are not fit for the Court, but to be prepared by reference, with perhaps directions as to taking the account given at the hearing, and so examinations of Court Rolls, upon customs and copies are to be referred, and if the 1 Bacon's Orders, 710. 4 Monro, p. 468, cf. pp. 439, 518. 2 Ch. Gas. p. 64. 5 Beames, p. 49, et passim. 3 3 Geo. II. c. 20. 6 Orders, 50, 51, 53. 128 OFFICERS OF THE COURT. defendant by his answer, confess a trust, then there is no need for a hearing, but the reference can take place at once. The Masters continued to take acknowledgments of deeds, oaths of witnesses, answers and affidavits and similar business in London ; and orders were made by Lord Chancellor Hatton that the Masters Extraordinary, then lately constituted, should not interfere in this business within three miles, extended by an order of 1622 to five miles, from the town, their work lying apparently outside this district, but within a radius of twenty miles, beyond which limit commissions were issued, but they continually infringed the privileges of their more dignified fellows 1 . Another class of officers attached to the Court were the Six Clerks, who were supposed to supervise the Six Clerks steps taken in every cause, one of them always appearing, in early times really, but from the end of the present period only nominally, on each side, as the party's attorney 2 . And by repeated orders of the reign of Charles I. it was provided that no subposna ' ad audiendum judicium ' should be issued to secure the attendance of the persons intended to be bound by the decree until the Six Clerks engaged were satisfied that the cause was ready for hearing. These officials made great profits from the copies of proceedings their clients were bound to take from them, and for which they charged exorbitant fees. No complaint during the 17th century against the Court was more frequent than that excited by these extortionate payments for work, which was generally unnecessary, made to men who performed it by underpaid deputies. 1 Beames, p. 48. who had acted as his solicitor was not 2 Solicitors, but not professional to be examined by the defendant as a solicitors, were already known. See witness. Monro, p. 519 (1583). an order that the plaintiff's servant CHAPTER IX. FROM WOLSEY TO THE COMMONWEALTH. THE MATTERS DEALT WITH BY THE COURT AND THE RELIEF GIVEN. IN the collections of Tothill and Gary, the " Choice cases," which are chiefly decisions of the reign of Elizabeth, and the "Reports in Chancery 1 " of the time of Lord Keeper Coventry, material is to be found from which some idea of the matters dealt with during this period by the Court, and the relief afforded by it can be obtained. The reports are however ex- ceedingly meagre, and rarely give any clue to the grounds of the decisions, or the lines of the arguments adopted, and often contain only the barest statement of the facts of the case and the Court's decision. Still, almost all the great heads of equity can here be traced in embryo, and the precedents recorded were the authorities referred to, so far as any authorities were, in the great constructive period which commenced directly after the Restoration, and it will therefore be useful to briefly indicate their nature. In doing this I propose to follow chiefly the excellent summary of Spence, but to discard the inferences which he has drawn from the course of the Court in later times, as it seems exceedingly dangerous to accept the rulings of the Chancellors at the end of the 17th century, when they were adopting new rules and determining new questions on the largest scale, as any guide to the course of the Court fifty or a hundred years before. (1) The Chancery enforced rights which were unrecognised at Common Law, trusts were peculiarly its care, and the sub- 1 First published in the years 1649, Bridgman's Legal Bibliography, p. 57. 1650, 1672 and 1697 respectively. K. .9 130 USES AND TRUSTS. jects of administrations, charities, separate estate, and equities of redemption were closely connected with the preservation of trusts ; (2) as a Court of Conscience it interfered where a legal advantage had been unjustly gained by fraud, accident, or mistake, and granted relief according to the true intent of the parties, as it understood it, in cases of joint indebtedness and suretyship by its doctrine of contribution; (3) and where a right was recognised at law, but was there imperfectly protected or secured, it stepped in to decree specific performance, to take accounts, to allow set off, to enforce dower or partition, and to quiet and end rival claims, by interpleader and bill of peace, by its injunction to secure quiet possession and to afford pro- tection from threatened wrongs, and by discovery to give assistance in aid of proceedings at law, and to perpetuate testimony in danger of being lost. I. Trusts. Before the present period trusts or uses were fully estab- lished 1 , and conveyances by way of use had become so common that the rule was adopted that on a feoffment without valuable consideration, and where the feoffee was not a near blood-rela- tion of the feoffor, unless the use were otherwise declared, it should result to the feoffor. " Because purchases were things notorious, and uses were things secret, the Chancellor thought it more convenient to put the purchaser to prove his con- sideration, or the purpose of the grant than the feoffor and his heirs to prove the trust 2 ". So where the owner agreed to sell or lease, or undertook to stand seised for another, for valuable consideration, the Chancellor declared that he should hold to the other's use. The agreement or undertaking under the early Chancellors might have been by parol, but, after uses fell within the cognizance of the judges, they declared that "a man cannot raise an use by parol in the nature of a covenant to stand seised without feoffment, by natural affection, for it would be mischievous if one without any ceremony in law could raise an use without a settled resolution manifested by a deed." Where, however, there was valuable consideration, 1 Ante, p. 79 ct seq. ' 2 Bacon, Reading on Uses. USES AND TRUSTS. 131 marriage for instance, they subsequently determined to support even a parol declaration of use 1 . And, on the same principle, relief was given in cases where the legal estate had been conveyed, or not conveyed, by or through fraud or accident, by declaring a constructive use for the party deemed by the Chancellor to be entitled. It had been settled that uses should descend to the heir like freehold estates, and that they could be alienated by any direction to the feoffee, even, as appeared in the numerous cases of nuncupative wills in the Calendars, though given verbally only. It was settled also that, the creation of uses being freed from the restrictive rules of the common law, they could be made to commence in futuro or to cease by matter subsequent; could be declared in favour of the grantor himself, or of his wife ; and were not subject to defeat by the ouster of the cestui-que-use. Other instances, says Spence 2 , "might be cited, showing how little the rule that ' Aequitas sequitur legern ' was adhered to where it would have interfered with the determination which the clerical Chancellors appear to have entertained, of making property subservient, through the medium of uses and trusts, to all the legitimate objects of family arrangements, and for the purposes of commerce." But in this passage, as elsewhere in his book, I think the learned author is attributing too early a date to principles found in operation, not in the 15th century, or the first half of the 16th, but in the latter half of the 16th, and the following centuries. The clerical Chancellors refused to allow a trustee to betray his trust, and cared nothing for legal rules of which they knew little, but one may suspect that in dealing with the settlements, by will or deed, that were brought before them, which to judge from the Calendars were exceedingly simple in character, they had in view no wide-reaching plan for the improvement of their country's institutions. The use rested on ' confidence in the person ' of the feoffee, and therefore a corporation or the King could not hold to uses, but, though on this ground the judges under Edward IV. had 1 Collard v. Collard (Mary) 2 Rolle, Eliz.) 2 Eolle Ab. 784. Ab. 788, and Corbyn v. Corbyn (37-8 2 Vol. 1, p. 456. 92 132 USES AND TRUSTS. advised the Chancellor that the feoffee's heir was not bound, this ruling had been reversed before the present period. So the purchaser for value without notice of the use was not bound by it. It rested also on 'privity of estate,' and, as a consequence, neither tenant by the curtesy, nor tenant in dower, nor tenant by elegit, claiming through the feoffee but without his act, nor the lord on escheat, nor a disseisor, abater or intruder who had expelled the feoffee, was bound by it. On the other hand, though, as already said, the use descended to the heir of the cestui-que-use or passed to his assign, neither curtesy nor dower could be had out of it, it could neither be escheated nor forfeited, and the creditors of the cestui-que-use could not have execution against it for their debts. A series of statutes, as we have seen 1 , had been passed with a view to preventing the frauds perpetrated under this im- munity of the use from execution, and to protecting the feudal claims of the lords. For example, uses had been declared liable to wardships and reliefs by 4 Henry VII. c. 17, to execution by 19 Henry VII. c. 15, and to forfeiture by 26 Henry VIII. c. 13. These statutes altogether failed to meet the evils which the existence of uses was alleged to create, and after the fall of Wolsey and of More the temporary triumph of the common lawyers was marked by a statute 2 which was intended to sweep away uses, root and branch, to abolish de- vises and all the other facilities for transferring interests in laud which had grown up by their aid, and to reinstate " the Common Laws of this Realm," whereby, as the preamble to the statute stated, "lands, tenements and hereditaments be not devisable by testament, nor ought to be transferred from one to another, but by solemn livery and seisin, matter of record (or) writing sufficient, made bona fide." The preamble complains that by secret conveyances and by wills made " by nude parolx arid words, sometimes by signs and tokens, and sometimes by writing " (made for the most part by persons in extremis, with) " scantly any good memory or remem- brance," and " provoked by greedy and covetuous persons lying 1 Ante, p. (79). 2 The Statute of Uses, 27 Hen. VIII. c. 10. THE STATUTE OF USES. 133 iu wait about them," many persons indiscretely disposed of their inheritances, whereby heirs lost their lands, and lords their rights, and purchasers were made insecure ; men lost their tenancies by curtesy, and women their dowers, perjuries were encouraged, and the King was deprived of his profits on attainders, and on purchases by aliens ; and many other incon- veniences happened, to the " utter subversion of the ancient Common Laws of this Realm." The statute provides " for the exterping and extinguishment " of these errors, that " where any person or persons stand or be seised... of and in any... lands, tenements... or other hereditaments to the use, confidence or trust of any other person or persons or any body publick, by reason of any bargain, sale, feoffment, fine, recovery, covenant, contract, agreement, will or otherwise,... all and every such person and persons and bodies politick that have... any such use, confidence or trust in fee simple,... or otherwise,... or in remainder, or in reverter. . .shall stand and be seised and adjudged in lawful seisin, estate and possession of and in the same lands (&c.)...of and in such like estates as they had... on use, trust or confidence of or in the same." Sections 4 to 7 deal with the case of freehold jointures settled by way of use, and provide that where a woman had such a jointure she should not claim dower if it were settled before marriage, and if settled after she should elect between her dower and her jointure. And section 11 provides that wills of lands made before the statute, in the manner in use within the last 40 years, should be " taken and accepted good and effectual in the law." The immediate effect of the statute was to convert such uses as it operated upon into legal estates, and to import into the common law (if the judges allowed the same latitude to the creation and transfer of uses as the Chancellors had, and this, in effect, they ultimately did), the varied interests com- mencing in futuro, and upon matter subsequent which had previously been created by way of use only, and also to intro- duce new methods of conveyance of the legal estate characterised by the same secrecy as had attended the transfer of the use. The Statute of Enrolments ! passed in the same session required 1 27 Hen. VIII. c. 16. 134 THE STATUTE OF WILLS. that bargains and sales of freehold interests should be enrolled, but it was evaded by the device of conveying by a lease, which the Statute of Uses executed in possession, followed by a release of the reversion, and this became the common form of conveyance down to the present century. An even more important consequence of the Statute of Uses, was the abolition, except where local custom allowed, and in the case of copyholds, to which the statute did not apply, of the power of devising, now enjoyed for over a century. It is not worth while to speculate whether on the construction of the statute, but in defiance of its expressed intention, or under cover of the trusts which escaped its operation, devises would have been reintroduced when the pressure of the demand for them was felt, had not Parliament interfered. The attempt to suppress them excited an outcry so loud that the Court party, who had fathered the restraining statute, five years afterwards brought in the Statute of Wills to undo their previous work. This statute 1 recites that the King's subjects, for want of the power of devising, " cannot use or exercise themselves according to their estates, degrees, faculties and qualities," maintain hospitalities, bring up " their lawful generations, which, in this realm, (laud be to God) is in all parts very great and abundant," pay their debts or advance their children, and therefore, with a great show of royal generosity, but the utmost care that the King and the overlords shall lose nothing by the concession (except possibly a chance of escheat), the power is granted for 2 anyone to devise the whole of his socage lands and two-thirds of his lands held by knight's service. The history of uses so far as they were within the Statute of Uses, and of wills of real property, does not belong to the subject of this essay. They passed into the jurisdiction of the ordinary Courts, and thus a great portion of the earlier business of the Court of Chancery was swept away. The statute how- ever did not touch many of the uses, or, as they are from this time commonly called, the trusts which the Chancellors had protected. Trusts raised out of chattels, or chattel interests in 1 32 Hen. VIII. c. 1. the amending statute 34 and 35 Henry 2 (In effect, taking the statute and VIII. c. 5, together.) TRUSTS AFTER THE STATUTE OF USES. 135 realty were from the first clearly outside it, and gained there- fore no protection at law by its aid. It was held, soon after the statute was passed, that special trusts, which cast some duty upon the trustee, remained unexecuted by it also, since where they existed the use was partly, at least, in the trustee. A more important exception was made by the narrow construc- tion put by the judges upon the terms of the statute. In Tyrell's case, which came before the Court of Wards in the reign of Philip and Mary, it was declared 1 that limitations to uses contained in a bargain and sale, which itself operated under the statute, were void-: " because an use cannot be spring- ing, drawn or reserved out of an use, as appears prima facie" The Chancery, following its former course of preserving to a grantee rights which were intended to be passed by the grant, stepped in and supported as trusts, identical in character with the old uses, the trusts or uses which the law refused to recog- nise, and these are the trusts so familiar in later equity. It would seem that the statute did, nevertheless, greatly diminish for a time the prevalence of dual ownerships : the power of devising had been granted without the creation of a use being necessary, except as to copyholds, which were devised by way of surrender to the use of the surrender's will until the present century, and forfeitures had become comparatively rare, the feudal claims of the King indeed remained over lands held by knight's service, but the claims of the mesne lords had for the most part been forgotten, and there was therefore little in- ducement to separate anew the legal and beneficial ownerships. It is probable that for a long time after these statutes the Chancellor's court had little to do with trusts. A few cases however occur in the books of the reign of Elizabeth, and at the beginning of the seventeenth century this branch of the jurisdiction of Chancery was completely reestablished. This is well shown by the remarks of Coke, C. J., in a case 2 in 12 James I. The action was "on the case" against the lord of a manor to whom a surrender to the use of the plaintiff for life had been made, and who refused to admit him. The Chief Justice compared it to an action against feoffees in trust who 1 Dyer, 155 (a) 2 Foorde v. Hoxliins, i. Bulst. 337. 136 TRUSTS AFTER THE STATUTE OF USES. would not perform their trust: "if the cestui-que-use desires the feoffees to make an estate over, and they so to do refuse, for this refusal an action on the case lieth not," he said, "because for this he hath his proper remedy by subpcena in the Chancery;" and again, "he which hath the trust, hath no remedy by way of action, against the other who hath the interest ; for a trust is not assets, nor yet forfeitable by attainder, and so in effect, the same is nothing," and the action was dismissed. By Lord Bacon's time, suits in regard to trusts were again so common, that by his orders he provided that, where an answer confessed a trust, the matter should be at once referred to a Master to take the trustee's accounts without any hearing being required 1 . The old rules with regard to uses were applied, in the main, to trusts, so that they were governed in most things by the same law as legal estates, the analogy being in some cases more closely followed than in later times. Thus it was held in 6 Charles I. that the wife of a trustee was entitled to dower out of the trust estate 2 , a judgment which was overruled after the Restoration. And where in a marriage settlement trusts of a term were declared for the heirs of the body of the hus- band, the judges, to whom the case was referred, advised that, as no cestui-que-trust under this declaration was in being at the date of the deed, the trust for the heirs was void, and that the whole term belonged to the husband's executors, and ought to be sold to pay his debts 3 . 1 O. 53 (1618). gagor, on the ground that, by the 2 Nash v. Preston, Cro. Cas. 190. conveyance the fee simple had been This is a curious case. One who was vested in her husband. The judges, seised in fee, wishing to mortgage the to whom the case was referred from reversion on his own and his wife's the Chancery, thought the claim un- lives in the land, conveyed to the just, but clearly good at law, and mortgagee on condition that should he equity, they said, ought to follow the immediately demise to the mortgagor law: "and it was (the mortgagor's) and his wife for their lives, and that folly that he did not conjoin another the conveyance should be void if the with (the mortgagee) as is the ancient money were repaid at the end of 20 course in mortgages." years. The mortgagee died and his 3 Lyddal v. Venlore. Rep. in Chy. wife claimed dower against the mort- 5. (The note of this case in Toth. TRUSTS AFTER THE STATUTE OF USES. 137 On the other hand, trusts were not considered to be within the Statute De Donis, and, during the present period, it was held that entails in trust estates could be barred by a mere conveyance without fine. Entails indeed were little favoured in Equity. De Donis, Lord Ellesmere declared, was " an ambitious statute, let it help him (the plaintiff) at law as it may 1 ". Towards the end of the present period a case occurred which shows that the question of the liability of a trustee for the safe keeping of the property subject to the trust had arisen, and its importance was already recognised 2 . A trustee had been ordered to account for all the rents and profits raised out of an infant's lands under a trust, which, so far as they were not already accounted for, had been received by his co-trustee. The case was reheard by Lord Coventry, who directed a search to be made for precedents, and called in the judges to advise: "whereby some course might be settled that parties trusted might not be too much punished, lest it should dishearten men to take any trust, which would be incon- venient on the one side, nor that too much liberty should be given to parties trusted, lest they should be emboldened to break the trust imposed on them, and so be as much prejudiced on the other side." Several precedents, both in the Court of Equity and in the Court of Wards, for charging trustees on their several receipts were found, but no others, and the Chan- cellor and judges resolved that, " unless there be dolus mains, or any evil practice, fraud or ill intent in him that permitted his companion to receive the whole profits," a trustee should be liable only for what he himself received. The employment of old terms of years to protect the legal owner from subsequent charges on his estate, by assigning them to trustees to ' attend the inheritance,' which became so important in later conveyancing, was already familiar, and it was settled that such terms would not be allowed to prejudice (p. 187) is "look into it, how to re- 2 Townley v. Slwrborne (9 Car. I.), move a trust made for use of children." 2 W. and T. 960. 1 Ch. Gas. p. 49. 138 TRUSTS AFTER THE STATUTE OF USES. any other rights than those they were created or assigned to bar 1 . They were employed in Equity " to protect property and keep it in the right channel," and were "moulded according to the uses, estates and charges which the owner of the inheritance declares or carves out of the fee 2 ." And a clear distinction was drawn between them and long terms ' in gross,' which equity regarded as frauds on the king and over- lords 3 . Successive interests in chattels, which until the time of Coke were not permitted at law, were protected when created by way of trusts, or by the limitations being construed in Equity as limitations of the use only*. And a case occurred under Charles I. where the life tenant of the chattels was compelled to give security for their delivery upon his death 5 . In the same way assignments of possibilities 6 , and assignments of choses in action, of which Coke says 7 " the great wisdom and policy of the sages and founders of our law have provided that no possibility, right, title or thing in action shall be granted or assigned to strangers, for that would be occasion of multiplying of contentions and suits, of great oppression of the people, and chiefly of terre-tenants, and the subversion of the due and equal execution of justice," were nevertheless allowed and protected in Equity, where the assignor was regarded as trustee for the assignee, if valuable consideration were given. The practice in the case of choses in action dated at least from Edward IV 8 . The reason why the assignee was not recognised by the judges was, no doubt, because they regarded the obligation as a strictly personal bond between the debtor and creditor 9 , and, on the same ground, they advised the Chancellor under Elizabeth that a trust of a term could not be assigned, but this ruling, if ever 1 Huddlestone v. Lamplough (5 Car. 5 Bracken v. Bentley, Rep. in Chy. I.), Rep. in Chy. 19. 59. 2 Lord Hardwicke in Willougliby v. 6 Warmsley v. Tanfield (4 Car. I.), Willoughby, 1 T. R. 763. Rep. in Chy. 16; Wiseman v. Roper 3 Ch. Cas. p. 49. Bacon, Order, 15. (21 Car. I.), Rep. in Chy. p. 85. * Spence, i. p. 458 (f), Game v. Hone 7 10 Rep. 48. (4 Car. I.), Rep. in Chy. p. 15, and 8 Spence, i. p. 457 (b). per Lord Nottingham in Seaman v. 9 Pollock on Contracts, 4th ed. p. Wurman, 1 Free, 306. 206 and note G. ADMINISTRATION. 139 followed, was not adhered to in the 17th century or subse- quently. In administering trusts, as in much of the other work of the Court, questions of legal rights and the construction of instruments often arose. The same rules of construction were generally followed as at law, though great license was still allowed in interpreting, by extrinsic evidence, what was thought to be the intent of the parties. Points of law were often sent to be determined in the common law Courts, and questions of fact too, especially of title, were occasionally sent there with, in some cases, directions as to the conduct of the trial. Administration. The administration of the estates of de- ceased persons, which afterwards fell wholly upon the Court, was already the subject of its care. The grant of adminis- tration and the recovery of legacies were the special business of the Ecclesiastical Courts, but the jurisdiction of these Courts was a very lame one. By a statute of Edward III. 1 adminis- trators had been made accountable to the Ordinary as executors already were, but though a legatee could question the accounts rendered by them, a creditor could not. And by 21 Henry VII. 2 executors and administrators were required to make an inventory of the goods of the testator or intestate. The facilities for obtaining discovery in Chancery naturally led legatees and creditors to seek the aid of that Court, and many cases occurred, during this period, in which an executor or administrator was ordered to make an inventory on his honour or oath 3 . Applications, as already stated, had frequently been made to the Ecclesiastical Chancellors for aid in recovering from his executor a simple contract debt of the testator, for the executor could not be successfully sued in ' debt,' because the testator, it was said 4 , might have " waged his law," and creditors continued to apply in Chancery after this difficulty disappeared. There is a reported case 5 of 40 Elizabeth in 1 31 Ed. III. st. i. c. 11. to the power of one executor to sue 2 c. 5, sees. 2, 6. another in equity. Toth. pp. 86 9. 3 The executor was considered a 4 Vavasour v. Chadworth, 1, Cal. trustee to pay debts and legacies. 93. Cary, p. 28, and see Monro, p. 300, as > Cary, p. 11. 140 ADMINISTRATION. which the Plaintiff after having been defeated at law, filed a bill against the executors of his father-in-law for a marriage portion promised by him, and when it was found by the Master's Report that the executors had assets for funerals, debts and legacies, with a good overplus to satisfy the com- plainant, a decree was made for payment of the portion. From this it appears the creditor's right to sue was settled, and the machinery of an enquiry into the amount of the assets and of the charges upon them was already adopted. Under James I. in several cases the executor was compelled to distribute the residue among the relatives, although by the Common Law, after paying the debts and legacies, he was entitled to retain it 1 . The Court always regarded such distribution as probably in accordance with the testator's intention, and in later times it seized the smallest indication of such intention in the will to enforce it. In 5 Car. I. in a suit for administration a time was fixed for the next of kin, among whom the surplus was decreed by the Court to be distributed, to bring in their claims 2 . Some of the doctrines which the Court afterwards adopted in administrations are already traceable. Thus, under Charles I., it was held that a charge of debts upon land did not prevent the personalty being primarily liable, a point settled, after much consideration, by Lord Thurlow 3 . It was also held, in the same reign, that the appointment of a creditor as executor, which put an end to the debt at law, would not be allowed to do so in equity 4 . There was some doubt down to the Chancellorship of Lord Ellesmere whether bills would lie for simple legacies. He sometimes sent the Plaintiffs to the Spiritual Courts, but often allowed the suits, and, it seems, with more latitude than a report on a demurrer to a bill for recovery of legacies, an inventory, and an account against an executor, in 1607, would 1 Anciently he was bound to account 3 Smith v. Hopton (18 Car. I.), Rep. for the surplus to the Ordinary in in Chy. 82. Ancaster v. Mayer, 1 W. pios usvs, and this is stated to be and T. 723. still the rule in Cary, p. 29 (1602). 4 Askwith v. Chamberlain, Eep. in 2 Toth. 129. Chy. 73. WILLS. 141 indicate, for there it is said the demurrer was good, unless trusts were alleged in the bill 1 . After his time the jurisdiction was fully established, Equity adopting from the Ecclesiastical Courts the Civil Law Rules by which, in those Courts, the construction of legacies was governed. Among other rules adopted was that avoiding conditions or legacies in restraint of marriage 2 . Wills of lands had passed from the cognizance of the equity courts, but wills of personalty, in the manner described, had practically come to be there exclusively construed and ad- ministered, and in regard to them there seemed a strong probability that the doctrine of inofficiousness would be intro- duced with other rules from the Civil Law. Several cases on this point of the reign of Charles I. occur in the Reports in Chancery. In one the Plaintiff's father had made a will giving all his property to his executors in trust for the Defen- dant, whom he had intended to marry. The trust, which seems to have been verbal, was disputed, and a judge, to whom the cause was referred, certified that it was not proved, and that the Defendant was a lewd woman, but the decision of the Court is reported thus : The Court, " much disliking that the estate (of the testator) should be given away from his own child " to (the Defendant) dismissed the Defendant's cross-bill and decreed for the Plaintiff 3 . In another case the will was actually set aside as inofficious, but there it was suggested that the drafts- man had not carried out the testator's intentions 4 . There is a note in Tothill of two cases which seem to have involved the same point. In the first, the Court, it is said, " was assisted with bishops and noblemen at the hearing of a cause in Chancery, in July, 5 or 8 Jac., upon a point of disinherison," and the other is " a disinherison, and a decree for confirmation, yet after twenty years the decree reversed and disinherison avoided in 8 Car. 6 " The doctrine however did not become established, and full liberty of bequest became and remains the rule of our land. 1 Monro, p. 109, and see pp. 10, 425, Car. I.). 761. 4 Maundy v. Maundy, p. 66. 2 Toth. p. 129. 5 Toth. p. 81. 3 Ansicorth v. Pollard, p. 54 (11 142 CHARITIES AND SEPARATE ESTATE. Charities. Charities had always been peculiarly the subject of the Chancellor's care, and accordingly the statute 1 of Elizabeth put the appointment of Commissioners to enquire into abuses of charities into his hands, and directed the appeal from their judgments to lie to his Court. After the statute there seems to have been a constant reference to the Court in charity cases, and special favour was extended to trusts for charitable purposes, neither the incapacity in law of the donees to take, nor the absence of a devisee in trust being allowed to prejudice the charity, and, in spite of the general refusal to enforce nuncupative wills, parol devises for charities were supported 2 . It was always the boast of the Court that the poor and helpless there found redress, and as it protected charities for their relief, so it often admitted bills by them which were otherwise demurrable, as, for instance, if the amount claimed were smaller than the sum, fixed by Bacon at 10, regarded as the lowest the dignity of the Court should allow it to be con- cerned with 3 . Separate Estate. By the Common Law the property of a married woman is wholly vested in her husband, and conse- quently she can neither sue nor be sued without him. In Equity however she was, according to the rules ultimately adopted, entitled to hold her ' separate estate,' and deal with it, as a feme sole. During the present period not only was a wife's separate estate protected against her husband, but, in some cases, a married woman was admitted to sue the trustees of it alone, and in her own name, and even to sue her husband 4 . In the reign of Charles I. however, we find her suing strangers in the name of a friend, and it was decided that husband and wife could not sue each other 5 . Separate estate could be created out of the woman's own savings, or by property being given to trustees for her use, 1 43 Eliz. c. 4. 4 Toth. p. 94, Sanky v. Golding ; 2 Bacon, Ord. 15. Toth. Charitable Cary, p. 124 (21-2 Eliz.). Uses, p. 29. 5 Danby v. Peele, (13 Car. I.) Toth. 3 Monro, p. 108, and see p. 355, p. 96. Simpson v. Simpson (3 Car. I.), a suit for a shirt and a coif, and a suit Toth. p. 97. for a swarm of bees, dismissed. MORTGAGES. 143 and the Court was " clear of opinion, and so declared, that for things in action, or upon a trust, a feme covert might by will dispose of the same without the assent of her husband 1 ." Mortgages. The interests hitherto considered were pro- tected in Equity, although void at law, in pursuance of the intention of their creators, but in the case of mortgages the Court took from the legal owner, not only what the law gave him, but what the express agreement of the parties had provided should be his. Though other forms of mortgage were known, that commonly employed in England at and before this period was an absolute conveyance of the land with a proviso for reconveyance if the money secured were paid by a fixed day and, as in the analogous mortgage of the Roman Law, the "fiducice contractus," if the day were not kept the mortgagor's estate became absolutely forfeited, but as Constan- tine abolished this rule at Rome, so Equity practically destroyed its effect in England. The security of the debt was the main object of the transaction, and if this were attained, if re- payment of principal, interest and costs were offered, current morality demanded that the mortgagee should abandon his hold on the land, and this Equity ultimately enforced. The establishment of the right to redeem dates from the reign of James I. Before that time, and it seems from the time of Edward IV. where the default happened through acci- dent, or if there were any other acknowledged equitable ground, as a collateral agreement that, notwithstanding the forfeiture, the mortgagor might redeem, or if any fraud or practice of the mortgagee prevented payment on the day, the Chancellor gave relief, but in no other case*. From 9 James I. onwards, how- ever, cases occurred where redemption was allowed after the day, and in 4 Charles I. there occurred a case of How v. Vigures which shows that the right was then settled 3 . The suit was for foreclosure, and from the presence of the allegations as to the Plaintiff's position, and the hardship that the refusal of relief would entail, it seems probable that this is the first case 1 Gorge v. Chansey (15 Car. I.), Rep. the Calendars, ante p. (88). . in Chy. p. 67. 3 Toth. p. 132, et seq.; Rep. in Cby. 2 Spence, i. p. 602, citing Year Book, p. 18. 9 Ed. IV. 25, Cary, p. 1, and cases in 144 MORTGAGES. of foreclosure that occurred. A reversion had been mortgaged, and devised by the mortgagee to the Plaintiff, and the day was past. " The Plaintiff, being a merchant, and his livelihood consisting in the returns of money, and the consideration in the said deed of mortgage being 340 disbursed in 18 Jac... upon a dry reversion," the Plaintiff prayed the Chancellor to order repayment of his money, or a sale. The decree was that the Defendant pay the principal " with damages," i.e., interest, or in default the property be adjudged to the Plaintiff to be sold : " this was nisi causa, but none showed." Eleven years later 1 the Court asserted the right of redemp- tion in very emphatic terms. " The Court will relieve a mort- gage to the tenth generation, though the purchaser had no notice, because it is supposed that he cannot purchase, but it must be derived from the mortgage, and (it will also relieve) in some cases where the mortgagee will suddenly bestow unneces- sary costs upon the mortgaged lands, of purpose to clogg the lands, to prevent the mortgagor's redemption." Tothill reports that there were decisions as to whether the executor or heir of the mortgagee was entitled to the mortgage money, but does not state their result, and the point remained to be decided by Lord Nottingham. The Court, however, con- stantly refused to allow claims on old and forgotten mortgages to be set up, and, as it gave relief against actions at law for old debts " long slept upon," so, within its own jurisdiction, it en- forced the maxim " vigilantibus non dormientibus jura sub- veniunt." II. Fraud. The cases under the second head of Jurisdic- tion may be summed up more briefly. To give relief against all kinds of fraud had from the first been one of the objects of the Court, and its power of searching the conscience of the defendant, and of decreeing ' restitutio in integrum' in place of mere damages ascertained by the rough assessment of a jury, gave to the relief it offered, in many cases, a peculiarly bene- ficial character. Moreover, fraud was already, as in later times, understood in equity in a far more extensive sense than at law, 1 Bacon v. Bacon, Toth. p. 133 (15 Car. I.). FRAUD AND ACCIDENT. 145 as the dictum that " in Chancery fraud may be inferred from attendant circumstances ; at law it must be proved or be appa- rent from the intrinsic nature of the transaction 1 ," shows. The two Statutes of Elizabeth 2 against fraudulent Conveyances extended the powers of the Common Law Courts to defeat such devices, but recourse continued to be had to the Chancery to set aside settlements in fraud of creditors 3 , and to recover property colourably transferred to defeat their claims. The Court declined to interfere in such cases on behalf of the trans- feror for " fraus non est fallere fallentem," but did so to protect the rights of innocent third persons*. The extensive relief offered by equity in modern times in cases of instruments ob- tained by undue influence, or other unconscientious means, is found foreshadowed in that given in the present period against deeds " gotten by threats and practice," and leases and bonds obtained from " simple " lessors and obligors 8 . Accident. Accident had been an important occasion of the interference of the Court under the Ecclesiastical Chancellors, and it continued to invite that of their successors. Where a copyhold was mortgaged without a surrender 8 , a bargain and sale for value not inrolled, a feoffment made without livery, or a penalty incurred through the rising of a river over which the debtor must pass to effect his payment in time, or through similar unavoidable mischance, the Court forbad the enforce- ment of the legal rights retained or acquired thereby. In the old cases too of lost or unacquitted bonds the relief had become a common form, and when equity expanded its rules in this direction, by staying actions on old and sleeping debts or claims, upon the presumption that they had been paid or discharged, the benefits of limitation were in some measure secured. About the beginning of the 17th century a step further was taken, and where a penalty was incurred by a man's own neglect, if the neglect were trifling and unintended, relief was granted against it. But no trace is yet to be found of the veto affcer- 1 Spence, 1, p. 625, citing Tothill. 4 Cary, p. 18. 2 13 Eliz. c. 5, 27 Eliz. c. 4. 6 Toth. p. 170. 3 Naylor v, Baldwin (13 Car. I.), 6 Toth. pp. 54, 170; Ch. Cas. p. Rep. in Cby. 69. 106. K. 10 146 SURETYSHIP. wards put upon the exaction of penalties wherever compensa- tion could be given 1 . Mistake. Mistakes in the drafting of legal instruments, whereby they were avoided or caused to have an effect other than that intended, were readily corrected by a Court which paid so much regard to intention, and so little to the legal doctrine of estoppel as the Chancery of this age. Instances of it are recorded in the calendars 2 , and many occur under Elizabeth and her successors. The following may be taken as an example. A lease was to be made excepting the woods, but the clerk drew the deed so that it made no mention of woods, though it did refer to some exception, and on the lessee com- mencing to cut, he was enjoined .not to do so 8 . Suretyship. The contract of suretyship in the mercantile community of London, during the 15th and the two following centuries, was a very important one, offering as it did, in many cases, the only available security upon^which money could be borrowed, and from the earliest time, equity insisted that the surety, who generally enters gratuitously into a dangerous obli- gation, should be treated by the creditor with the utmost fairness. A case occurred as early as Edward IV. where the Chancellor released a surety because the executor of the creditor had given time to the debtor 4 , and similar relief was given, under James I., where the creditor delayed to get paid for many years, the surety not being aware of the continuance of the bond, but thinking that payment had been made 5 . There is a decision recorded in Tothill 6 which seems however to favour the surety to the extent of defeating the very purpose of his contract : " One becoming bound with sureties," says the Reporter, " and afterwards bankrupt, the creditors sued the sureties, because they were remediless as against the bankrupt, yet ordered not to take any advantage." It is difficult to tell precisely to whom the pronouns refer, but it would appear that it was the 1 Underwood v. Swan (1649), Rep. 4 Spence, 1, 638 (a). in Chy. p. 85. Bidlake v. Phillips (9 Saunders v. Churchill (10 Jac.), Car. 1), Rep. in Chy. 50. Toth. p. 181. 2 Astel v. Causton, 1 Cal. 108 (Ed. 6 Johnson v. Pudicott, p. 181 (10 IV.). Jac. I.). 8 Toth. p. 131 (37 Eliz.). SURETYSHIP. 147 creditors' claims which were the subject of the injunction. Perhaps the Chancellor in this case proceeded in the high handed manner adopted in another 1 reported by the same authority, where the creditors were ordered to make terms with an insolvent debtor instead of suing his sureties, or perhaps he gave his decision on special grounds to which the report yields no clue. Gary 2 states that in his day it was usual to allow nothing more than the debt and damages to be taken from the surety, that is to relieve him against the penalty of his bond, and this 3 is said to have been the first step towards the grant of the relief to the mortgagor, of which the development has already been traced. Gary thought the rule very objectionable. Sure- ties were not only protected against the creditor, but as between themselves, they were compelled to bear the obligation equally. Several cases of contribution among sureties of the reign of Charles I. are reported 4 . This however was an application of a larger principle adopted by the Court, extending to all joint liabilities. " If a man grant a rent-charge out of all his lands and afterwards selleth his lands by parcels to divers persons," writes Gary 5 , "and the grantee of the rent will from time to time levy the whole rent upon one of the purchasers only, he shall be eased in the Chancery by a contribution from the rest of the purchasers ; and the grantee shall be restrained by order to charge the same upon him only." III. Specific Performance. The more complete relief offered in Chancery for the enforcement of rights recognised at Common Law is illustrated by the grant of specific performance of which many cases occurred before the present period, as we have already seen. To the report of the case in 21 Henry VII. which decided that assumpsit should lie for non-performance of a contract Brooke adds this note 6 : "by this he will get nothing but damages, but by subpoena the Chancery can compel him (the defendant) to convey the estate, or imprison him, ut 1 Mildmay v. Wentworth (11 Jac.), 4 Toth. p. 41. p. 47. 5 p. 3. 2 p. 17 (1601). 6 Cited by Fry, L.J., Specific Per- 3 Spence, 1, p. G02. formance, 2nd ed. p. 9. 102 148 SPECIFIC PERFORMANCE AND ACCOUNTS. dicitur" Coke 1 objected to the grant of specific performance on the ground that it was not contemplated by the parties, the covenantor understanding that it was his election either to lose damages or make a lease, a view of contract which still finds favour in America 2 , but the jurisdiction was well established in the time of Elizabeth. The restrictions afterwards imposed upon the grant of this relief are not yet traceable, and it was extended to other cases than those of promises to convey land, for instance, to an agreement to make a licence to use a patent, but causes were sometimes dismissed as " meet for common law 3 ." The enforcement of the performance of obligation was extended beyond those arising out of contract ; awards, for example, were frequently decreed to be carried out, and the delivery of chattels in specie to their owner was directed 4 . Accounts. An action of account lay at common law against a guardian, bailiff or receiver, and for jone merchant against another, the account being taken before appointed auditors, but Chancery even in these cases gave a more beneficial assist- ance by its process of discovery, and its permanent administra- tive officials, the Masters, and it extended relief to all cases where the taking of accounts was necessary to determine mutual rights and obligations. We have already seen that the Masters under Elizabeth were constantly employed in this work, and that special directions were made by the orders of the Court 5 as to how and when accounts were to be taken. The newer relief, as time went on, entirely superseded the elder, even where that could be had, but though account became practically, it never was nominally, an exclusive subject of equity jurisdic- tion, and it is curious to find that Lord Hardwicke dismissed a cause because it was very much entangled, and the transactions of long standing, preferring rather to leave the plaintiff to his action at law than to direct an account before the Master 6 . 1 Broniage v. Jennings, Rolle Rep. 4 Cary, p. 80 (19 Eliz.) and p. 47, 368 (14 Jac. I.), also cited by Fry, L.J. (Phil, and Mary), Church v. Roper, Rep. 2 (See Anson on Contracts, early in Chy. p. 75. editions, note to Chap. 1.) 5 Monro ' accounts ' in index. Bacon's 3 Spence, 1, page 64G. Greville v. orders. Botcker, Cary, p. 135 (22 Eliz.). 6 Sturt v. Hellish, 2 Atk. 610, INJUNCTION. 149 The facilities for accounting in Chancery naturally brought questions between partners to that Court for determination also, and, ultimately, partnership law was there exclusively administered. Partition. Commissions to effect partitions 1 , in some cases where none could have been obtained at law, to set out dower 2 , and suits to determine boundaries 3 , are also found in the present period. Set-off. The "Set-off" of what was due to the Defendant was of course allowed without difficulty where the defendant had the right to file a cross-bill, or, without one, to have his claims considered in the decree 4 . Bills of Peace. "Bills of Peace 5 " to establish a general right on behalf of, or against numerous claimants or defendants (as commoners, for instance), which the strict rules of the Common Law as to parties made it difficult or impossible to bring as actions, were of frequent occurrence under Elizabeth and her immediate successors, and the analogous "Bill of Interpleader" by a Plaintiff indebted to one of several rival claimants, who brought the debt into Chancery and was thereon protected against any future process on account of its payment, is found as early as the second year of Elizabeth 6 . Injunctions. Injunctions to quiet possession, in some in- stances founded upon the advice of the judges 7 , granted some- times until trial at law, sometimes until the hearing in Chancery, and sometimes, after the right had been established in one way or the other, in perpetuity, are found in many cases during this period, and they formed one of the matters in contest in the great dispute between the Chancellors and the judges. It was by the aid of the last kind of injunction that the effective- ness of the possessory action of ejectment to decide the title to lands was secured 8 . 1 Toth. 155. 7 Monro, pp. 348 (1564), 431 (1575), 2 Huddleston v. Lamploinjh (5 Car. 506 (1581). I.), Kep. in Chy. p. 19. 8 Spence, 1, p. 658 (but the learned 3 Gary, p. 107 (21 Eliz.). author is wrong in supposing its use 4 Spence, 1, p. 651. was suggested by the Chancellors. 5 Spence, 1, 656, Cary, p. 30. See the case of the Earl of Oxford 6 Cary, 65. stated in Chap. VII. ante). 150 INJUNCTION. The grant of injunctions in all cases of threatened wrongs formed one of the chief branches of the Court's business, and, as appeared in the discussion of the bills in the calendars, it dates from the earliest time. The Common Law itself had writs of waste, and writs ' quia timet,' of a nature similar to the Chancery injunction, but the relief afforded by them was both partial and temporary, and an attempt to extend the powers of preventive relief wielded by the judges, by procuring writs of ' estrepment ' returnable in the Common Pleas, was defeated by the Lord Keeper refusing to allow such writs to issue except according to the old course 1 , that is to say, in a real action or action of waste pending the suit, or, after judgment (for the recovery of land) pending the execution, to prevent waste of the lands claimed or recovered 2 . Injunctions against waste were granted, not only where the Common Law remedy of writ of waste would, but for some accidental bar. have lain, as for instance, where a second life tenancy followed that vested in the offending party, and there- fore no one could claim the inheritance forfeited by the wasting, but even where waste was by law allowed 3 . Thus, among the other illustrations of the restraint imposed by Chancery upon the unconscientious exercise of legal rights, in his judgment in the Earl of Oxford's case 4 Lord Ellesmere adduces this, "In Morgan and Parry's case (Pasch 27 Eliz.) a woman had an estate in a house for her life dispunishable of waste, and yet she was enjoined not to commit waste in the house, contrary to the case of Lewis Bowles." And thus the foundation of the doctrine of equitable waste was laid. It was found necessary to adopt a rule to prevent applica- tions for injunctions being made the means of oppression, and several orders were made for the purpose of regulating them ; thus Sir- N. Bacon provided that parties seeking them should give security for the truth of the allegations upon which they were obtained, and his son, Lord Bacon, made the following order on the subject 8 . " Injunctions against felling of timber, 1 Spence, 1,672 (Egerton, L. K. 1594). 4 2 W. and T. p. 647. 2 Fitz N. B. "Estrepment." 5 See Beanies' notes to Bac. Ord. 21, 3 Gary, p. 36 (1 Jac.), Toth. p. 188. 26, 28. DISCOVERY. 151 ploughing up of ancient pastures, or for the maintaining of enclosures, or the like, shall be granted according to the cir- cumstances of the case ; but not in case where the Defendant upon his answer claimeth an estate of inheritance, except it be where he claimeth the land in trust or on some other special ground." The grant of writs of ' ne exeat,' to prevent a debtor from escaping an action at law by absconding from the country, dates from before this period. Lord Bacon's orders provide that in civil cases ne exeats may be granted, according to the practice of long time used, in case of interlopers in trade, gjeat bank- rupts, in whose estates many subjects are interested, or other cases which concern multitudes of the King's subjects 1 . Discovery. ' Several points in regard to discovery, the cha- racteristic process of the Court, were decided during this period. The judges, in Finch's 2 case, advised that the Chancellor ought not to retain for purposes of relief suits brought to obtain dis- covery, and further that, where by his answer the Defendant made title to land, the Plaintiff ought not to be allowed to proceed, but these rulings were not adopted by the Court of Chancery. The important rule that a Defendant should not be driven by his answer to discover a forfeiture to his hurt was estab- lished, but the Court declined to extend the protection to the case where the answer might be to " his prejudice by statute laws 3 ." The Court refused to compel Counsel and Solicitors to betray their client's confidence 4 . Direct answers as to the deponent's own acts, in the affir- mative or negative, were required, and answers according to his belief in other cases 3 . Though the Defendant was often compelled to amend his answer against his will, he was not allowed, without special leave, to do so for his own purposes, even to state his title more fully, and never after issue joined 6 . 1 Order 89, and see Beames' note. 4 Ch. Gas. p. 121. 2 4 Inst. p. 85. 8 Toth. p. 8. 3 Toth. p. 7 (32 Eliz.), p. 12 (4 Car. Toth. p. 9 (1597), and p. 13 (9 Car. I.). I.). 152 DISCOVERY. Infants and femes covertes were compelled, as other people, to answer upon oath 1 . One particular species of discovery, that sought in suits to perpetuate testimony, was the subject of several orders of the Court 2 . Commissioners to take evidence "in perpetuam rei memoriam," according to the orders of Sir N. Bacon, were to be granted to examine only aged and impotent witnesses, and the evidence was to be taken only if the person against whom it was to be used (who was made the Defendant in the writ,) did not show to the Court or the Commissioners good ground to. the contrary. The Defendant might, if he pleased, join in the commission, and have commissioners appointed to examine upon interrogatories on his behalf. The depositions, when taken, were not to be published, until the evidence be- came necessary to the Plaintiff, in some trial at which the witnesses, being dead or too old or ill to travel without danger to life, could not attend, and then only the evidence of wit- nesses originally indicated to the Defendant was to be used, and that only as against him. The orders of Lord Bacon on this subject were to the same effect as those of his father, but they required the bill and answer to be put in before the grant of the commission. Lord Ellesmere greatly disliked suits to perpetuate testimony, regarding the concealment of the evidence given, in most cases, until after the death of the witness, as an encouragement to perjury, and he used to order the Plaintiff to file his bill upon the title and to proceed in common form to the examination of witnesses and publication forthwith 3 . The repression of outrage, which formed so prominent a feature of the Chancellors' jurisdiction in earlier days, ceased during the present period to fall under their care, except so far as it occurred in contempt of the Court itself, as where attacks were made on servers of its process, or in defiance of its injunc- tions. The records of outrages on process-servers under Eliza- beth are extremely numerous 4 , but notwithstanding this, and though allowance be made for the establishment and operation of 1 Toth. pp. 13, 95. 8 Ch. Gas. p. 9. 8 Toth. Appendix, p. 24. 4 Munro passim. CRIMINAL JURISDICTION. 153 the Star Chamber, a comparison of the applications to Chancery in this and the preceding period bears eloquent testimony to the improvement in manners, and the development of civilised order in places where brutal barbarism had previously existed. Perjury cases too were rarely tried in Chancery after the time of Sir N. Bacon 1 . The Court became a purely civil tribunal, although the allegation of combination and confederacy survived as a mark of the more extensive character its jurisdiction once bore, and was found in every bill down to the present century. 1 Spence, i. 690. CHAPTER X. THE ATTEMPTED REFORMS UNDER THE COMMONWEALTH 1 . No sketch of the history of English Equity would be com- plete without some account of the suggestions which were made for the reform of the procedure and practice of the Court in the time of the Commonwealth. The men who then ob- tained power and pre-eminence in the State were disabled by no class or caste prejudices for the discovery of the errors of its institutions, and were as determined to remove them as they were industrious in searching them out, and the machinery of government and administration for the first time passed under the scrutiny of intelligent outsiders whose detachment of mind enabled them to unveil abuses, even when their want of technical knowledge prevented the success of their attempts at reconstruction. Little improvement was actually effected at the time in the Chancery, and little of that survived the reactionary influences of the Restoration, but the diseases of the Court were diagnosed, and, to some extent, the nature of the remedies required was pointed out. It was not now the professors of a rival system who attacked the Chancery. The need of the Court and of the relief it administered were recognised throughout all the Parliamentary proceedings for its reform. It was not the jurisdiction of the Court, but its procedure and practice, and the behaviour of its officials, and especially of those in important places, and the organisation of its offices that the reformers essayed to change. 1 See generally on this subject Chap. VIII. of Parkes' History of the Court of Chancery. INCREASE OF BUSINESS. 155 The business of the Court had become very great. Lord Bacon in a letter to Parliament written in deprecation of the attacks upon him 1 , estimated the number of orders Greatincrease he made at 2000 a year, and, in 1621, Coke stated of business - ' the number of pending causes to be 35,000, and though this was probably an exaggeration, the number given by his oppo- nent in debate, 16,000, is unlikely to have been overestimated *. "It was confidently affirmed by knowing gentlemen of worth that there were depending in that Court 23,000 causes," wrote a defender of " Barebones" Parliament ; and Whitelocke, when objecting to his appointment as Commissioner, said that "the business of the Chancery is certainly more than of any other Court, the trouble must needs be greater, and the burden the heavier, too heavy for me to bear 3 ." This great accumulation of business was due in part to the extraordinary dilatoriness of the Court's procedure, to which reference has already been made in sketching its Abuses in rules, and to the weakness of the coercion applied Chancer y- to a defaulting party, but much was due to the inefficiency of the judges, and more to the misbehaviour of the subordinate judges, the masters, and the other officials of the Court. Arrears had always existed from the time of More to that of Bacon, and though Bacon cleared them off, his successor left a new accumulation of 500 causes. Lord Coventry made an attempt to cope with the mass of work by directing that six instead of four causes should be put in the paper each day for hearing, but the frequent re-hearings, fresh arguments and re- ferences for the judges' assistance to be had, which he allowed to a greater extent even than his predecessors, had greatly mag- nified the evils already existing. The Court, without extending its sittings, could hardly have properly disposed of all the cases before it, had it worked its best, but when it delayed its decree till the arguments had been repeated a second and perhaps a third time, and after the decree was at last pronounced, reversed it on bill of review, and when on interlocutory applications finality was thrown to the winds and " what was 1 Camp. 2, p. 386. lianient, p. 103. 3 C. P. Cooper, Proceedings in Par- 3 Parkes, pp. 123, 130. 156 ABUSES OF THE CHANCERY. ordered one day was contradicted the next, so as in some cases there had been five hundred orders and faire more as some affirmed 1 /' not only did causes drag on for years, but the cost and uncertainty made the ofFeY of relief a mere mockery of the suitors. The appointment of the numerous officials who had found a home about the Court had been in some cases granted to private persons, by patent, but generally it lay with the Chancellor or the Master of the Rolls. The officials were paid by fees which had grown to be exorbitant, and were the less will- ingly paid because in many cases they were exacted as the price of work which was unnecessary, or could have been done by the suitor's own solicitor, and which was in fact done by underclerks who received but a small modicum of the price so paid. No reform or redress could however be obtained from the Chan- cellor or the Master of the Rolls, for they openly sold the appointments which conferred the right to make these exactions, and to have interfered with them would have diminished their own returns. Officials who farmed their offices for profit were little likely to be conscientious in the discharge of such duties as they had to perform, and it is not surprising that 'expedition money' for the advancement of causes referred to the masters, and other bribes were given and received, or that the under- clerks increased their slender share of the nominal fees, at times, by embezzling the moneys paid to them, thus further delaying the progress of the cause. Well might a pamphleteer com- plain that "This Court of Chancery which was so anciently famous, and erected to so good an end, (was) like to become a mere monopolie to cozen the subjects of their monies 2 ." The Commons, in 1649, appointed Whitelocke and Keble Commissioners of the new seal, which they had made after the night of the Lord Chancellor to the King, and the Commis- The orders of s i ner8 an d Lenthal, the Master of the Rolls, at 1640. once published a collection of orders for the regu- lation of Chancery proceedings, pending the further reforms then under their consideration. The orders are almost wholly made up of selections from Lord Bacon's and Lord Coventry's 1 "An exact relation, &c." 1654, - Parkes, p. 141. Parkes, p. 129. PROCEEDINGS IN PARLIAMENT. 157 codes, but a few additions appear, amongst them a direction that demurrers and pleas shall be put in by counsel instead of, as formerly, by the Defendant in person, thus in many cases saving the trouble and expense of a commission and answer. The orders also direct that causes should be set down in the order of their publications and so heard, and they attempt to meet the complaints of expense and of unnecessary pleadings by fix- ing rates of costs, and allowing costs on demurrers and pleas 1 . Next year Parliament took up the question of law reform, and after resolving, as matter which needed no enquiry, that legal proceedings and records ought to be written p roceedings in English in ordinary writing, referred the con- in Parliament - sideration of fees and salaries of judges and officers, and of delays and unnecessary charges at law to a powerful committee to which the Commissioners, Law Officers and other Gentlemen of the Long Robe were directed to give constant attendance 2 . The committee's report suggested many legal improvements, amongst others the abolition of fines and recoveries, and the substitution for them of an inrolled deed, and the abolition of arrest on mesne process, but none affecting the Chancery. After the dismissal of the Rump the new Parliament (Bare- bones' Parliament,) which Cromwell summoned returned to the consideration of law reform, especially with reference to the Chancery. In August 1653 a great debate on the subject, lasting over two days, took place, and two papers were circulated for the information of members, which had been evidently prepared by someone who was fully acquainted with the Court and its abuses. The first 3 is entitled " Observations concerning the Court of Chancery." It dwelt on the evils occasioned by the delegation of their proper work by the Six Clerks, Register and Examiners, contrasting existing evils with the lack of them at a former, perhaps imaginary, time, when " the Labourer receiving his full wages, the business was well and soon dispatched, and the Records well kept," noting especially the delays of the Masters' office, and the ' expedition money ' and unjust rewards paid to avoid them; the uselessness of the subposna and affidavit 1 These orders are printed in the 2 Parkes, pp. 134 6. appendix to Beames. 3 Parkes, p. 149. 158 PROCEEDINGS IN PARLIAMENT. offices, retained only because made monopolies in King James' time ; the sale of offices by the Masters of the Rolls ; the difficulty and cost of compelling an obstinate Defendant to make a sufficient answer, " so that sometimes Defendants cannot be compelled to make perfect answers in two or three years," and the analogous abuse occasioned by the wilful delays of Plaintiff in vexatious suits; the inconveniences "at and after the hearing of causes, more prejudicial to the Clients than the former;" rehearings five or six deep ; orders so ambiguous that the Register could draw what he pleased ; needless references to the Masters; and, lastly, the difficulty after the decree was pronounced of obtaining the fruits of it. The other paper 1 contained proposals " for the regulation or taking away of the Court of Chancery, and settling the business of Equity according to the original and primitive constitution of it; and for taking away all unnecessary fees, offices and officers and formalities now used, and for the speedy dispatch of business." The proposals comprise : " That the Court as it is now used or rather abused be wholly taken away, and some of the most able and honest men" be appointed to hear and determine all causes of equity, and be empowered to put their decrees into execution as judgments at law were, for, said the author, " as long as the Bar is more able than the Bench, as of late it hath been, the business of the Court can never be well despatched"; that, instead of the Six Clerks, Chief Register and two Examiners, "a sufficient number of godly, able, honest and experienced clerks, which be working attorneys and clerks and not overseeing officers," be appointed, and two chief clerks be elected by the attornies from their number to advise the Court on points of practice; that a certain number of godly and able men be appointed, instead of the Masters, to take oaths, and hear and determine in their order all matters of account &c. referred to them by the Court ; and that bills- be perused and allowed before they be filed. It was also proposed that rules of practice be framed, and this sanguine hope is expressed, " it is not to be doubted but such rules of practice may be framed as that no cause shall depend above a year (but generally 1 Parkes, p. 153. THE CHANCERY AMENDMENT BILL. 159 not so long) before it be ready for hearing, and the whole charge of the Proceedings not to exceed ordinarily above 40 or 50s." The immediate result of the two days' debate was a resolution that " The High Court of Chancery of England shall be forth- with taken away, and that a bill be brought in for that purpose." This resolution has called down much ridicule upon the Parliament that agreed to it, but it is plain from these papers and the subsequent proceedings that merely destructive work, and certainly the total abolition of the more important part of the civil judicature of the country, was not intended. The suggestions made in this proposal, amount to little more than that the old judges and officials be removed, and new and better ones be found and put in their places, but the scheme of the bill adopted by Parliament, after the rejection of three others which were considered insufficiently drastic, was far more thorough-going. The provisions of the bill 1 provide for the appointment of a single chief-clerk to issue process, commissions &c., with working under-clerks, and they substitute The Bill .,,,. touching the tor the subpoena an open summons with the bill chancery, annexed. Appearance is compelled by fine and attachment, and default to file a good answer is met by the like process, committal following at once on a second insufficient answer, and, if the default be persisted in, the bill to be taken as con- fessed. Any justice of the peace is to have power to take answers and affidavits, and send them up, under seal, to the Chief Clerk. Demurrers and pleas in term time are to be determined on within fourteen days, and to be decided without a second hearing, and, if over-ruled, to subject the Defendant to a fine and payment of the Plaintiff's costs. Six Masters, appointed by Parliament, are to decide in turn all references, three of them sitting every day, and finishing one cause before beginning another, and causes, both before them and before the Court, are to .be entered in cause books and, under heavy penalties, to be taken by the Masters and judges respectively in their turn. Commissions to take evidence are to be returned within 60 days, and, if there be none, the witnesses are to be examined in Court, and witnesses who 1 Parkes' Appendix. 160 THE CHANCERY AMENDMENT BILL. cannot be examined within the time fixed for the return are to be produced, and, if necessary compelled to attend, to give evidence at the hearing. Interlocutory stays of proceedings at law on bills of exchange between merchants, and stays of execution upon judgments (without written defeazance) are to be abolished, and no stay of proceedings at law is to go in any case except upon equity confessed in the answer, or where the party stayed is in contempt for refusal to answer.. The bill further provided that a Plaintiff, if dismissed as against any Defendant, should pay him full costs, and con- versely, that a Defendant who had unsuccessfully defended a suit should also pay full costs, the unsuccessful parties being also fined. The decree of the Court was to be strin- gently enforced. If the Defendant did not obey it within eight days he was to be attached, and, if it were for the payment of money, execution upon his lands and goods might be levied as upon a judgment at law, all the cumbersome and expensive extravagances of " attachment with proclamations " and " com- mission of rebellion " being superseded. Lastly, a table of fees much lower than the fees in use, and indeed ridiculously small, which should be paid to the officials, and (for drafting pleadings) to the parties' attorneys and counsel, was appended to the bill. The substantive alterations proposed were, that no suit on any allegation of a trust or agreement not in writing should be entertained ; that the redemption of a mortgage should be only allowed within a year from the entry of the mortgagee after condition broken, and that then double damages (interest) should be paid, and the mortgagee should be responsible only for net profits actually made by him when in possession ; and that on relief against a penalty or forfeiture at Common Law, except where the default occurred without negligence, or the party relieved was an infant, double damages should be paid. The bill never became an act, for Parliament resigned its power into Cromwell's hands, but several of its Cromwell's . . . , . . .. ordnances of provisions were carried out in a code 01 ordinances which Cromwell had drawn up in 1654, and which he directed the Commissioners to put into force. The Com- CROMWELL'S ORDINANCES. 161 missioners, except Lisle, however, refused to obey, and stated in writing detailed objections 1 to the ordinances which had been drafted without reference to them or to the Master of the Rolls, and on their persisting in this refusal they were re- moved, and Lisle and Colonel Fiennes were appointed in their place, to put the ordinances into operation, and to administer equity, of which, in the technical sense, they knew nothing. Many of the objections of the Commissioners to the new orders are practical and just, and they make throughout a great show of care that the profits of counsel and solicitors should not be increased at the suitor's expense, but some of them are so captious as to suggest that, in their dislike to the imposition upon them of rules drawn by outside, and, probably, unpro- fessional hands, they were eager, rather to find the orders un- workable, than to adopt the spirit of the intended reformation. The principle upon which the ordinances are framed is a thorough distrust of the persons who would have to enforce them, and the device adopted to prevent a recurrence of the old abuses of delay and expense is the creation of a rigid un- bending rule. A plaintiff, say the orders, is to file his bill, and give security for costs before taking out the first process of the suit, which is to be an open subpoena in which he may insert the names of what defendants he pleases. If a defendant will not appear, or if, after appearing, he do not make a suf- ficient answer within eight days from a rule directing him to do so, he shall be attached, and, in seeking him, the bailiffs, who are to execute the attachment, may break open doors and renew the search as often as need be. Instead of commis- sions being necessary, Masters Extraordinary are to be ap- pointed to take answers in the country. The granting of injunctions is restrained. Six Masters are to be appointed by the Protector, of whom three are to sit publicly every day so long as any references remain to be decided, but all dif- ferences on points of practice are to be determined by the chief clerks appointed, as in the bill of Barebones' Parliament, to superintend the procedure of suits and the formal business of the Court. Finally, and these orders are typical of the whole, 1 Parkes, Appendix. K. 11 162 CROMWELL'S ORDINANCES. all causes are to be heard in the order in which they have been published, and every cause on the same day on which it is set down for hearing, and, for this purpose, the commissioners are to sit, if need be, in the afternoon, except on Saturdays. To the last orders the Commissioners objected that power to ad- vance urgent causes was absolutely necessary, and that it would often be impossible to hear a cause on the day for which it was set down, "for causes for equity depend upon so many circumstances in cases of frauds and trusts that three or four days is not sometimes sufficient for the orderly hearing of one cause ; and the sitting of the Commissioners upon the rolls' days cannot consist by reason of councel and sollicitours, who cannot do their duty at both places." The last objection has reference to the practice, already mentioned, by which the Master of the Rolls sat only when the Chancellor or Com- mission was not sitting, which made the two judges little more effective for the dispatch of business than either would have been alone. The practice continued to the present century, and this very objection was used by Lord Eldori as an argument against the appointment of a Vice-Chancellor. The attempt to put the Court into fetters failed, and after a couple of years the ordinance lapsed, and thereupon great confusion was oc- casioned by the return of the officials who had been dispossessed by them, and whose ejectment from their ' freeholds ' had been another of the Commissioners' objections. No doubt the orders were unworkable if literally followed, as it was the evident intention of their makers they should be. The means and method of a successful reform of an elaborate and complex institution must always be devised by the ex- perience of those who are trained in its actual working and acquainted with its history, though the need for reform be usually apparent only to those who, standing outside, have not become so accustomed to its abuses as to regard them, even where their effects are plainly noxious, as the necessary incidents of its operation. The misfortune of the Common- wealth reformers was that the whole body of lawyers, whose profits were threatened, and whose calling was ignorantly and unjustly attacked by some of the reforming party, was united FAILURE OF THE REFORMERS. 163 against them. Had the Court been once successfully reformed, and set into satisfactory working, and, as Cromwell himself said 1 , had people once perceived at how cheap a rate property could be preserved, they would never have permitted them- selves to be so cheated and abused again as they then were. The reactions of the Restoration would have threatened the reforms in vain. Nothing was done. The Rump returned, and new dis- cussions took place upon the crying evils of the Chancery, and pamphlets were published in attack and defence. But the Restoration put back the expelled officials, and restored, in the main, subject to some improvements adopted by Lord Claren- don's orders from the suggestions made in the course of the proceedings of which a sketch has just been given, the old procedure and practice. Yet the labours of the Reformers were of great value. The disorders were made public and their causes investigated : it was found they were more due to the working than to the machinery, and chiefly to the spirit in which the orders of the Court were administered, and to the license allowed in contempt of its process, and these were changed. Unjust judges presided again, and rank mal- administration invaded the offices, but, for the most part, from this time onwards matters improved, until the business of the Court outgrew its powers, and the development of its juris- prudence, and of that of the rival forum, and the increasing implications of the two called for the reforms effected during the present century. 1 Parkes, p. 165. 112 CHAPTER XI. THE COURT OF CHANCERY FROM THE RESTORATION TO THE RETIREMENT OF LORD ELDON. THE restoration of the Stuarts put an end to the hopes of an extensive reform of the Court of Chancery which the labours and deliberations of the Commonwealth Parliaments had ex- cited. The light which had been thrown upon the old abuses, however, made it quite impossible to set them up again without an attempt at improvement, or to start the Court exactly at the point where the outbreak of the Rebellion had found it, and the first proceeding of Lord Clarendon, who was the new Chancellor, was to publish a fresh edition of the orders of the Cromwellian Commissioners, for the regulation of the' practice of the Court, of which some account has already been given 1 . Extremely little alteration was made in the original code, and the most important of the new provisions made, that no com- ciarendon's mission to examine witnesses in London or within orders. ^Q m [\ es o f ft should be allowed without special order ; that decrees should be inrolled on the first day of the Michaelmas or Easter term next after they were pronounced ; and that no exceptions to a Master's report should be heard until 40s. had been deposited as security for costs, were altera- tions for the public benefit ; while one only, forbidding Masters Extraordinary to take affidavits within 20 miles of London, was directed to the preservation of official privileges. Clarendon's orders remained the ruling orders of the Court throughout the 1 Ante, p. (157). It will be remem- great measure, taken from those of bered that these orders were, in a Bacon and Coventry. Beames, p. 165. INCREASE OF BUSINESS IN EQUITY. 165 whole of the period under consideration, for, though a few orders in particular points of practice were made from time to time, and one or two important lists of fees were issued, no fresh code was drawn up, and no fundamental alteration of the practice was introduced. During the Commonwealth the incidents of feudal tenure had fallen into oblivion, and on the Restoration it was found impossible to restore them, and the Restoration Parliament in its first year passed an Act "for taking away the Court of Ward and Liveries, and Tenures in capite and by Knight's Service, and Purveyance, and for settling a Revenue upon his Majesty in lieu thereof 1 " : the revenue, which was to replace that so vexatiously exacted from the tenants in capite, was with cha- racteristic injustice raised by an excise of general incidence upon beer, spirits and wine. This Act marks the introduction of the system of real property law which lasted down to the abolition of Fines and Recoveries and the associated reforms of the first half of the pre- sent century. The extremely complicated and artificial devices adopted in conveyancing and settlement, of which one main object was the strict preservation of landed property .,,, .. ., Development in the hands of the same families, was introduced f r ^ property law. about this time ; the invention of trustees to pre- serve contingent remainders, upon which the security of these interests and the whole superstructure of strict settlement depended, being due to Sir Orlando Bridgman, a conveyancer of great repute during the Commonwealth, and Lord Keeper for a few years after Clarendon's fall 2 . The numerous questions raised by the new methods of conveyancing and settlement naturally found their way into that Court where alone trusts, with which they were much involved, were recognised, and where alone the redemption of mortgages and the specific per- formance of contracts could be enforced, and the abolition of the Court of Wards ultimately threw the guardianship of the estates of infants wholly upon the same Court. 1 12 Car. II. c. 24. Lord Nottingham's in the Duke of 2 See Lord Hardwicke's judgment in Norfolk's case, 3 Chy. Cases, 14. Garth v. Cotton, 1 W. and T. 806, and 166 DEVELOPMENT OF EQUITY. Another circumstance moreover began to operate powerfully upon the nature of the work of the Chancery. The discussions of the Commonwealth, and the liberalising of public opinion to which the Rebellion itself was chiefly due, had not been with- out effect upon the Courts of law, and a steady, though at first slow, amelioration of their practice and doctrines commenced, improvement which made the necessity of the interference of the m the law. Chancellor, save in the cases where an avowed divergence between the common law and equity existed, rarer and rarer, at least this was the Chancellor's view. The intro- duction in the reign of Charles II. of new trials with reference to the nature of the evidence upon which verdicts had been obtained 1 , for instance, enabled a remedy to be found without recourse to Equity in cases like that which brought to a crisis the great dispute between Coke and Ellesmere. " The judges who have presided in Chancery since the Revolution," wrote Lord Hardwicke in his celebrated letter to Lord Kames 2 , " have for the most part endeavoured with much anxiety to preserve the boundaries of common law and equity from being con- founded ; and have sent forth their injunctions to stop the course of the common law with a cautious and sparing hand. But new discoveries and inventions in commerce have given birth to new species of contracts, and these have been followed Development ^y new contrivances to break and elude them, for of Equity. which the ancient simplicity of the common law had adopted no remedies; and from this cause, Courts of Equity, which admit of a greater latitude, have, under the head adju- vandi vel supplendi juris civilis, been obliged to accommodate the wants of mankind." And he added, " Another source of the increase of business in Courts of Equity has been the multipli- cation and extension of trusts. New methods of settling and en- cumbering land property have been suggested by the necessities, extravagance or real occasions of mankind. But what is more than this, new species of property have been introduced, parti- cularly by the establishment of the public funds, and various transferable stocks, that required to be modified and settled 1 Spence, 1, p. 699. 3 Printed in the appendix to Parkes. It was written in 1759. DEVELOPMENT OF EQUITY. 167 to answer the exigencies of families, to which the rules and methods of conveyancing provided by the common law would not ply or bend. Here the liberality of Courts of Equity has been forced to step in and lend her aid." The result of these alterations was that the equitable juris- diction became chiefly concerned with the adjudication and administration of proprietary rights, and while at the com- mencement of the present period it was fairly enough said that " the grand reason for the interference of a Court of Equity is the imperfections of the legal remedy in consequence of the universality of legislative provisions," at its close the rules of equity had become no less universal than those of common law, and the characteristic features of the Court had come to be the elaborate decree, balancing and declaring the rights inter se of numerous parties, the enquiry in the Master's Chambers, and the summary injunction to stay a threatened wrong. Equity when Lord Eldon retired was no longer a system corrective of the common law: it could be described only as that part of remedial justice which is administered in Chancery, while, taken generally, its work was administrative and protective, in contrast with that of the Common Law, which was remedial and retributive 1 . An innovation of great importance occurred soon after the Restoration, in the establishment of the right of Appeals to appeal from the Chancellor to the House of Lords. Lords. Until the reign of James I. no trace of any regular appeal to the House of Lords in suits in equity, or indeed in any suits or actions, is to be found 2 , though, of course, in earlier times there were petitions to Parliament of which many instances have been given in the preceding pages 3 . In that reign a Committee of the House reported that there was no precedent for the exercise of jurisdiction by the Lords over decrees in equity except under the authority of some writ, 1 Story, Chap. 1. Warren, Law and the judicial work they gave rise to Studies, ed. 1863, p. 582. was, in early time without question, 2 C. P. Cooper, Proceedings in Parlia- and during the later middle ages with ment, &c. chap. x. Blackstone hi. p. 455. only an occasional protest, assigned to 3 The majority of the petitions were them. See Stubbs, Comt. Hist. in. p. addressed to the Lords of Parliament, 485. 168 APPEAL TO THE HOUSE OF LORDS. commission, indorsement of petition or other act proceeding from the Crown, and, in fact, several petitions by way of appeal had been made directly to Elizabeth and had been by her referred to the judges, according to whose decision the Chan- cellor had sustained, reversed or modified his decree 1 . Crom- well had vested an appellate jurisdiction over the Chancery in the Lord Chancellor or Lord Keeper and six of the judges, but his ordinance had not been revived. The House of Lords in the Convention Parliament, in spite of the absence of precedent and the adverse report cited above, claimed not only an appel- late, but also an original jurisdiction in equity, and a hot dispute arose between the Houses in consequence, and was continued in the succeeding Parliament. Finally the. Lords' claim to original jurisdiction was dropped, but during the Long Parliament of Charles II., notwithstanding a resolution of the Commons, that " any person solliciting, pleading or prosecuting any appeal against any commoner of England before the House of Lords, shall be deemed and taken a betrayer of the rights and liberties of the people of England, and shall be proceeded against accordingly," the appellate jurisdiction on simple peti- tion was fully established 2 , and Lord Nottingham, in delivering judgment in the Duke of Norfolk's case 3 in 1682, found comfort, among the difficulties it presented, in the reflection that, if he were wrong, the House of Lords would overrule his decision. In fact, his decision, reversed on bill of review by his successor, Lord Guilford, was restored by the House on appeal. Until the present century but few appeals were taken to the Lords, partly because of the exhaustion of the parties in the Court below, partly because all the advantage of a fresh argument could generally be obtained on a rehearing there, but chiefly, no doubt, because the Lord Chancellor himself presiding in the Lords was little likely to reverse his own previous deliberate decision. In the century and a half which elapsed between the Restoration and the retirement of Lord Eldon, twenty-two 1 4 Co. Inst. p. 85. appeals was not settled until 1726. 3 That is as regards final appeals: C. P. Cooper, p. 161. the jurisdiction to hear interlocutory 3 3 Ch. Ca. p. 1. THE CHANCELLORS. 169 Lord Chancellors and Lord Keepers presided in Chancery, which gives an average tenure of office, after making The Chan _ allowance for the frequent occasions when the seals cellors - were in commission, of about seven years to each. The periods for which they sat were however of very various lengths, thus Lord Eldon sat twenty-five years, Lord Hardwicke twenty, Lord Thurlow fifteen, and Lords Nottingham, Cowper and Henley about ten years each, so that from time to time the changes were very rapid. Taking into consideration the political character of the appointments, for, though Lord Hard- wicke and Lord Eldon alone were great ministers, and neither of them was in the first place, the Chancellorship had become a distinctly political office, one is struck by the excellence of the majority of them. A Shaftesbury might be given the seals for an immediate political purpose, a Jefferies as a reward for notorious services, or a Wright, a King, a Bathurst, or an Erskine might be appointed, in spite of his ignorance of equity, to suit party exigencies, but such appointments were rare, and in no case were they followed by a long tenure of office, and for much the greater part of this period of development and con- solidation the Court of Equity was presided over by judges whose reputations have been established, not only by the writings of their biographers, but by the impartial records of their reported judgments. Lord Clarendon it is said never made an order without the assistance of some of the judges, and both he and his successor Lord Keeper Bridgman, who lost in the Chancery the greater part of the reputation he had gained at the bar and as a Common Law judge, were often assisted by the skill and learning of Hale, the Chief Baron of the Exchequer. Lord Nottingham, who was made Lord Keeper in 1673, was of a different character, and the following extract from Blackstone embodies the traditional estimate of LordNottuiK- his work in Equity. He was, says Blackstone, i>n,iw*-icies- f hi successor Lord Macclesfield, who, after being flew, ma 1725. chancellor f or se ven years, was impeached and con- victed, in 1725, of trafficking, and conniving at trafficking by the Masters and others, with the suitors' money, and of making irregular orders 2 . Lord Macclesfield undoubtedly fell a victim to the improvement of public morality which no longer suffered the open sale of high offices, such as the Masterships. The growth of the business of the Court is shown by the statement, made in the discussion on the impeachment, that every estate in England passed through Chancery, on an average, once every thirty years, and by the evidence given that the price of a Mastership had increased since the Re- volution from 1000 to 6000, a chief part of the emolument of the office down to this time arising from the employment of the suitors' funds deposited with the Master. The immediate results of this scandal were the promulgation of an order, endorsed by Act of Parliament, directing that all suitors' money in Court should be paid into the Bank of England instead of remaining in the hands of the usher or the Masters as hitherto, and the creation of the Accountant- General's office. 1 Quoted in Parkes, p. 279. 2 Parkes, p. 294. Camp. iv. p. 539. LORD HARDWICKE. 175 Lord Macclesfield in spite of his faults had been a wise and careful judge, and in his short Chancellorship of seven years several cases of great importance were decided with regard to the doctrines of fraud, specific performance, relief against penal- ties, and the guardianship of infants 1 . The seals were next successively in the hands of King, a common law lawyer, who knew no equity and before whom, it is said, causes were equitably arranged by the candour of the leaders of the Chancery Bar, the future Chancellors Yorke and Talbot, and Talbot, who died of overwork, as his biographer alleges, in his anxiety to cope with the business of the Court. And in 1736, Lord Hardwicke (Phillip Yorke), who bears of all the judges who have ever sat in the Court the greatest repu- tation for learning and ability, was made Lord Chancellor. It was under Hardwicke that the full development of the jurisdiction of Equity was attained, not, of course, by the full working out of its principles, nor even by the limitation and definition of its doctrines, for in both of these directions much work was done by his successors, and especially by i -i Lord Hard ' Lord Thurlow and Lord Eldon, but during the wicke, me twenty years he presided in the Court most of the great branches of the jurisdiction were fairly mapped out, and not only is authority on most of the important questions of equity to be found in the pages of his reporters, Atkyns and Vesey (Senior), but this authority was that chiefly relied on and regularly cited until after Lord Eldon's time. His letter to Lord Kames, referred to on a preceding page 2 , which he wrote after he had resigned the Chancellorship, gives us his view of the important question how far equity re- mained discretionary in his time. "Some general rules there ought to be, for otherwise the great inconvenience of Jus vagum et incertum will follow ; but yet the Praetor must not be so absolutely and invariably bound by them, as the Discretion and judges are by the rules of the common law; for if "^ in equity ' he were so bound... he must sometimes pronounce decrees which 1 Savage v. Foster, Cuddee v. Euddee, xn. post.) Peachy v. Somerset, and Eyre v. 2 It is printed in the Appendix to Duchess of Shaftesbury. (See Chap. Parkes, p. 506. Ante, p. 166. 176 LORD HARDWICKE. would be materially unjust, since no rule can be equally just in the application to a whole class of cases, that are far from being the same in every circumstance. This might lay a foundation for an equitable relief even against decrees in equity, and create a kind of superfoetation of courts of equity." His own decisions did much to limit the discretion of his successors, though, as will be seen later on, even Lord Eldon thought that rules of equity should be as certain almost, not entirely, as rules of law. The current towards definition be- came in Lord Hardwicke's time extremely strong. Though he again and again laid down general rules after the greatest deliberation, and sometimes expressly proclaimed his intention of doing so, he nevertheless ' utterly repudiated ' the power of legislation, and the distinction between a real discretion and the fiction known as a judicial discretion could hardly be put more strongly than in the following passage from a judgment of his contemporary Sir Joseph Jekyll, M.R. 1 : "I own and cannot forbear declaring, that were I to consider the matter, not as sitting in judicature, but taking into consideration all manner of considerations, such as honour, gratitude, private conscience, &c., I must think this claim should never have been made." But "the law is clear, and Courts of equity ought to follow it in their judgments concerning titles to equitable estates; otherwise confusion would ensue ; and though proceedings in Equity are said to be secundum discretionem boni viri, yet when it is asked Vir bonus est quis? the answer is Qui consulta patrum, qui leges juraque servat ; and it is said in Rook's case, that discretion is a science, not to act arbitrarily according to men's wills and private affections : so the discretion which is exercised here is to be governed by the rules of law and equity, which are not to oppose, but each in its turn to be subservient to the other ; this discretion in some cases follows the law implicitly, in others, assists it, and advances the remedy ; in others again, it relieves against the abuse, or allays the rigour of it ; but in no case does it contradict or overturn the grounds or principles thereof as has been sometimes ignorantly imputed to this Court. That is a discretionary power which neither this nor 1 Cowper v. Cowper, 2 P. W. pp. 735, 753 (1734). LORD HARDWICKE. 177 any other Court, not even the highest, acting in a judicial capacity, is by the constitution entrusted with." The contradictory statements of Blackstone, who was also Hardwicke's contemporary, that "there can be no established rules and fixed precepts of equity laid down without destroying its very essence and reducing it to positive law' 1 ," and that " the system of our courts of equity is a laboured connected system, governed by established rules, and bound down by precedents, from which they do not depart, although the reason of some of them may be liable to objection 8 ," point, on the one hand, to the (partial) inauguration of such a system as is described in the second passage, and, on the other, to a vivid recollection of a time when the first description was in a much greater degree than at the time when the passages were written a true one, and to an unchanged tradition in its favour. Lord Hardwicke's judgments are remarkable for the clear- ness and the generality of the principles enunciated in them, as well as for the extensive knowledge of the common law which many of them display ; they afford excellent instances of judi- cial legislation. One of them, that in Chesterfield v. Janssen, has acquired great celebrity for the analytical discussion of the kinds of fraud against which Equity would relieve, and another is worthy of particular mention, that in Penn v. Baltimore, for the example, an extreme one, which it affords of the magnitude of the interests Equity sometimes had to deal with ; for it was decided in that case that it was within the jurisdiction of the Court to grant specific performance of an agreement as to real property situate in America, comprising two provincial govern- ments and three counties, a matter which the Chancellor described as " worthy the judicature of a Roman Senate rather than of a single judge." The jurisdiction existed, he said, be- cause the Court acted by a decree in personam, " the strict primary decree in this Court as a Court of Equity." One great disservice Lord Hardwicke did to his Court : he carried the practice of requiring fresh arguments to great extremes, and delayed his important judgments for months and sometimes for years. A great arrear of causes ready for hearing 1 Introduction, s. 2. 2 Vol. in. p. 432. K. 12 178 LORD HARDWICKE'S COMMITTEE ON FEES. was accumulated in his time, and no subsequent judge ever succeeded in overtaking it. His dilatory practice was, more- over, imitated by several of his successors, and surpassed by one of them, Lord Eldon. He published two important orders in 1741 and 1747 respectively, the first extending the requirements of leave and a deposit of 50, previously required in cases of bills of review, to supplementary bills filed, before the decree complained of was inrolled, to attain the same object, the rehearing of the cause; the second extending a section of 4 Anne, c. 16, allowing full costs, instead of 40s. only, to be given where a plaintiff brought his suit to a hearing on the bill and answer only and it was dismissed. As Phillip Yorke, Lord Hardwicke had sat on a Committee of the House of Commons to enquire into the fees of the officers of the Court. The Committee reported 1 that no enquiry into the conduct of these officers had been held since the time of Charles L, and that they had exceedingly increased since that time by patents and grants, and that many ' honorary attend- ants ' had found a place within the offices of the Court, who at the time of the report, claimed large fees ; that the prodigious length to which the documentary proceedings had grown, extending often to several thousand sheets in a cause, was a great abuse ; and that in many cases the officials did not know what the authorised fees were. The Committee resolved " that the interest which a great number of officers and clerks have in the proceedings of the Court of Chancery, has been a principal cause of extending bills, answers, pleadings, examinations and other forms and copies of them, to an unnecessary length, to the great delay of justice and the oppression of the subject," and amongst their recommendations were that a list of permissible fees be published, and a summary remedy for the demand of greater be provided, and that no expedition money be paid in any case, or any office for the future be sold. As Chancellor, Lord Hardwicke did not act very fully upon the report and recommendations in which he had con- curred, but he published in 1743 a list of permissible fees, 1 Parkes, p. 307. LORD THURLOW. 179 which, no doubt, effected a reform at the time, and he made the important order that no one should be compelled to take office-copies which he did not require. The list of fees, ex- tending over 76 pages in Beanies, and comprising more than 1000 items, is an appalling example of the abuses which the unrestrained farming of the Offices of the Court, and the pay- ment of all officials by fees had developed. Two judges of considerable reputation followed Lord Hard- wicke in the 18th century. Henley, made Lord Northington, who was appointed Lord Keeper in 1757, and who is chiefly remembered for his connection with the great case of Burgess v. Wheate 1 , in which he held, in opposition to Lord Mansfield, that there could be no escheat through failure of the heirs of the cestui que trust, and practically settled the length to which the analogies between legal and equitable estates were to be pressed, and Lord Thurlow who was made Chancellor in 1778. Lord Thurlow sat for fourteen years, and in that time decided many cases which became leading authorities in Equity. By his judgment in Fox v. Mackreth*, he assisted to lay the foundation of the wide reaching doctrines which have in modern times been applied to restrain every person in a Lord Thurlow fiduciary position from dealing for his own ad- 1778 ~~ 1792 ' vantage with the subject of his trust; by his judgment in Ackroyd v. Smithson he opened the way for an extensive de- velopment of the gratuitous and vexatious complexities of 'conversion'; and both by decisions and suggestions he identi- fied his name with the growth of the latest born of all the great principles of equity, those governing the separate estate of married women, the idea of a ' restraint upon anticipation ' originating in a suggestion made by him on being appointed trustee of a marriage settlement. The improvement of the common law to which reference has already been made is closely connected with the history of equity, though the time had now passed when branches of equitable jurisdiction could be dropped because the relief they were constructed to afford, or some other as adequate, was at length offered by the common law courts, Lord Eldon over 1 Eden, 177. 2 For these cases see post Chap. 12. 122 180 IMPROVEMENT OF THE LAW. and over again affirmed that cases once dealt with in Equity, upon which authorities were to be found in the Chancery reports, would not on any such ground be abandoned, of the common and it cannot be wondered that he refused to subi ect law. himself to the labour, and parties to the cost and danger, of determining whether the judicial legislation of an- other Court had ousted the settled jurisdiction of his own, well as such a course would have corresponded with the decla- ration, that it was better parties to any litigation should be inconvenienced or delayed than that the public interest should be impeded, a declaration often made to excuse the apparent evils which the separation of equity and law entailed 1 , strangely contradictory, though it was, of the very purpose of the original establishment of the extraordinary jurisdiction of the Court of Chancery. The amelioration of the common law was to a great extent effected by the introduction into the working of the elder system of principles developed by its rival. Lord Mansfield, with whose name so much of the substantial improvement is associated, said that he never liked the law so much as when it was most like equity. The chief means of this improvement were the actions on the ' common courts ' for money had and received and money paid. Speaking of this class of actions, Lord Mansfield said 2 "it lies for money paid by mistake, or upon a consideration which happens to fail ; or for money got through imposition (express, or implied) or extortion ; or oppres- sion, or an undue advantage taken of the Plaintiff's situation, contrary to laws made for the protection of persons under those circumstances. In a word, the gist of this action is, that the Defendant upon the circumstances of the case is obliged by the ties of natural justice and equity to refund the money." It is obvious that when such a statement as this could be made from the Bench, the judges had got far towards adopting the fundamental principles of equity. Some years later Buller, J. 1 See for instance Lord Hardwicke's recover money paid to the Defendant letter to Lord Kames. by the Plaintiff under the judgment 2 Moses v. Macferlane, 2 Burr 1012 of an inferior Court, obtained mala (1760). The action was brought to fide. IMPROVEMENT OF THE LAW. 181 (who often sat in Equity for Lord Thurlow) expressly compared 1 the action just referred to, to a bill in Equity, and therefore, he said, the Plaintiff must show he had equity and conscience on his side. The introduction of the action for deceit in the case of Pasley v. Freeman* has already been referred to ; it became the starting point of a series of decisions which practically assimilated the doctrines of common law, in regard to fraud, with those of equity. The process, in fact, which Blackstone 3 described as working around him, was continued long after his day, until in many of the cases, where it granted a relief rather than conducted an administration, and chiefly by the develop- ment of the common law in the manner described, the extra- ordinary jurisdiction of the Court of Chancery came to be concurrent with that of the courts of common law. Besides developing the principles of the Common Law along equitable lines the judges introduced a practice of preventing abuses of their judicature by exercising a summary control over the pro- cedure of their Courts. Thus by dispensing with the profert, they enabled a Plaintiff to sue upon a lost bond 4 ; by striking out unconscientious pleas, they prevented an unrighteous advantage being taken of a technical defence 5 ; and by with- holding the postea, by the aid of which alone advantage could be taken of the judgment, in cases where it was patently unjust to allow the Plaintiff to succeed unconditionally in his action, they forced an unconscientious Plaintiff to come to terms. It was, therefore, to administer a system which could no longer claim to be the only judicature animated by a progressive spirit, and anxious to cope with new evils as they arose, that Lord Eldon came when he was appointed Chancellor in 1801. He definitely brought to a conclusion the work of Lord Bldon binding down the Chancellor's discretion to which 1801 ~ 1827< reference has been so frequently made in these pages. Lord Eldon, wrote his contemporary Kent 6 , " has secured to himself 1 Straton v. Rastall, 2 T. B. 366 9 and 10 Will. III. c. 17, granted relief (1788). (Both these cases are cited in in the cases of a lost recovery deed, Warren's L. S.) and of a lost bond respectively. 2 Smith, L. C. 5 Warren, Laic Studies. 3 Vol. iv. p. 442. 6 Commentaries, Vol. i. p. 490. 4 The statutes 14 Geo. II. c. 20 and 182 LORD ELDON. a title to the reverence of his countrymen by resisting the temptation, so often pressed upon him, to make principles and precedents bend to the hardship of a particular case." " The doctrines of this Court," he said himself 1 , " ought to be as well settled and as uniform, almost, as those of the common law, laying down fixed principles, but taking care that they are to be applied according to the circumstances of each case. I cannot agree that the doctrines of this Court are to be changed by every succeeding judge. Nothing would inflict on me greater pain than the recollection that I had done anything to justify the reproach that the Equity of this Court varies like the Chancellor's foot." Certainly the reproach he dreaded cannot justly be inflicted upon his memory. Had the guiding principles of his judgments been as clearly enunciated, and in as general terms as those of Lord Hardwicke, the number of his reported decisions (which fill thirty-two volumes), the care with which he considered them, the weight of his authority, and the force of his example and precept would have gone far to remove the blight of uncertainty which magnified the evils of the complexity and irrationality of much of the law of his day. From his time onward the development of equity was effected ostensibly, and, in the great majority of cases, actually, by strict deduction from the principles to be discovered in decided cases, and the work of subsequent Chancery judges has been, for the most part, confined, as Lord Eldon's was, to tracing out these principles into detail, and to rationalising them by repeated review and definition. So long, however, as a single judge presided in Equity and formed an unassisted conclusion on law and fact, it was inevitable that the individual bent of his mind should gravely influence the character of his decisions, and it was therefore with no reflection upon the adherence of Lord Eldon to the principles he professed, that Sir Samuel Romilly, who, as leading counsel in the Court of Chancery and a man of unusual clearness of view, was peculiarly qualified to form an opinion on the subject, based his objection to the appointment of a Vice-Chancellor in 1813 upon the frequency with which his decisions would be reversed on appeal 1 Gee v. Pritchard. 2 Swan 414. LORD ELDON. 183 to the Chancellor. The anticipation was in some degree ful- filled, partly no doubt from the cause suggested, but partly also by reason of the want of consideration by which the decisions of the second Vice-Chancellor under Lord Eldon, Sir John Leach, were sometimes marked. His practice, it was satirically said, was "terminer sans oyer," while that of the Chancellor was " oyer sans terminer." The terrible delays and the accumulation of arrears, which the most energetic Chancellors had been unable to prevent or dispose of, were intolerably increased by the dilatoriness of Lord Eldon and the constitutional indecision of his mind, but these and the other abuses of the Court will be considered in a later chapter in dealing with the reforms introduced during the present century. CHAPTER XII. GROWTH OF MODERN EQUITY. SECTION I. The general characteristics of the leading cases. MANY of the principles of modern equity had been already adopted by the Chancellors, and, as we have seen, most of its great heads had already appeared as more or less distinct divisions, before the Great Rebellion. There is, however, a marked difference between the earlier and the later equity. Before Lord Nottingham's time there was little system or definition to be found in the relief administered by the Court. No volumes of reports existed, and, though precedents could be extracted from the Registrar's Books, and were recorded in the note-books of Counsel, these must have been few, vague and unreliable. All that practically existed to control or assist the individual inclination of the judge was the tradition of the Court, on some points, that is, those which most frequently occurred, no doubt strong and clear, on some uncertain and shifting, but on most entirely silent. A general idea existed as to the kind of case in which Chancery would or would not relieve, but that was all. It is not suggested that there was any sudden alteration, or that, as soon as Lord Nottingham, for his immediate predecessors belong rather to the earlier period than to his own, was placed upon the Woolsack, a developed system of equity forthwith began to be administered, the case is entirely different, for, so far from there being then any such system ready to hand, almost every Chancellor who followed Lord Nottingham down to Lord Eldon, added important doctrines to those accepted by his predecessors. But from that time the modern spirit pervaded the Court, the Chancellor, for THE LEADING CASES. 185 the most part, appeared as a judge administering rights and not, at least not intentionally, as a legislator creating them, or as a moralist dispensing justice according to ethical standards distinct from those of positive law. The earlier cases influenced the decision of those now to be considered, but they rarely determined it, the decisions after Lord Nottingham, on the other hand, were generally regarded as, and intended to be, deductions from those that preceded, and were designed to supply rules for those that followed them. I have found it impracticable to divide the growth of equity during the last two centuries in any satisfactory manner, for though there have been great Chancellors who have sat for long periods, and deeply impressed the stamp of their individual characters upon the system, its development has been so irregular, and the important additions to each head of juris- diction so little connected, that it is hopeless to seek for stand- points from which, with advantage, to review the work done in the intervening periods. The space at my disposal would not allow me to attempt, even if I possessed the necessary know- ledge to do so, to sketch the history of the doctrines of equity during this long and important period as a whole, and I do not propose to do more than to give a short account of the intro- duction of some of the principal doctrines adopted under the chief heads of jurisdiction. To search out the very first reported decision in a Court of Equity of each, even of the doctrines selected, would entail an expenditure of labour that the result would ill repay. In early days many a decision was pronounced and forgotten, and years later, after, it may be, much con- sideration, was pronounced again to be reported and adopted as the rule of the Court. It is the second judgment, not the first, which in such a case is of interest. The first if it be reported and discovered is a curiosity, but is of no more importance to legal history than the Aztec buildings of Central America are to the history of architecture. Until the retirement of Lord Eldon equity was developed wholly by judicial legislation, it was entirely constructed upon precedent. In such a system, at least until the publishing and citation of contemporary reports becomes an established 186 THE LEADING CASES. practice, it must often happen that conflicting decisions will occur and create uncertainty, and questions will arise from time to time for the determination of which no precedent exists. In each of these cases sooner or later the judge has to make up his mind what the rule of the Court shall be, and if the point be important the decision he arrives at, if known Leading cases. _ * IT mi and accepted, becomes a leading case. The pro- cess here described is illustrated over and over again in the Chancery Reports from the time of Nottingham to that of Eldon. A great Chancellor gathers up a more or less numerous, but usually small collection of earlier cases, extracts from them a general rule, which perhaps has previously been stated, but as often departed from as followed, and lays it down as a guide for future decisions, secured against reversal by the weight of its author's reputation, and the care by which its enunciation was marked, but offering an admitted foundation for the refine- ments and distinctions suggested by the circumstances of subsequent cases. A typical example of this is furnished by Lord Eldon's judgment in Mackreth v. Symmons 1 . Such cases have naturally grown rarer with the increasing volume of reports, and this is still more so with the leading case of the other kind, in which a rule has had to be devised to meet circumstances hitherto unprovided for by the aid of analogies drawn from accepted principles, and arguments ' ab incon- venienti'; of such cases Garth v. Cotton* is a famous instance. The continuity of the growth of equity is well shown by the dates of the decisions of the leading cases in the collection of Messieurs White and Tudor. There are 64 cases, or, putting aside one decided by Lord Ellesmere, and two decided under Lord Coventry 8 , 61 cases, of which the first was decided by Lord Keeper Bridgman, and Hale, C. B., in 1670, and the last by Plumer V. C. in 1816 ; 32 fall before and 29 after the year 1750, 5 were decided under Lord Macclesfield, 3 under Lord King, 6 during Lord Talbot's short Chancellorship of 3 years, 11 during Lord Hardwicke's Chancellorship of 20 years, 14 1 1 W. and T. 355. Warmsley v. Tanfield (Assignment of 2 1 W. and T. 806. Possibility), Townley v. Sherborne 3 Earl of Oxford's case (Injunction), (liability of trustee for co-trustee). THE SCARCITY OF UEPOllTS. 187 during the alternating Chancel lorships of Lord Thurlow and Lord Loughborough between 1778 and 1801, and 11 during the remaining 16 years under Lord Eldon. It would be surprising that so many important questions should have remained to be decided by the later Chancellors after the regular administration of the Court, with strict respect to precedent, wherever it was clear and in point, for so many years, by judges of the ability and reputation of Nottingham, Cowper and Hardwicke, if the scarceness and unreliability of the reports until the end of the last century were forgotten. The earlier reports, such as those " Tempore Finch," and the " Equity Cases Abridged " are often mere notes of the decisions without the facts of the cases, or the reasons of the judgments, and, though Lord Hardwicke is moderately well reported by Atkyns, yet Lord Redesdale writing at the end of the 18th century, could still complain of the extreme scarcity of authority, and Lord Eldon, some years later, could describe Lord Redesdale's book as "a wonderful effort to collect what is to be deduced from authorities speaking so little that is clear," so that " the surprise is not from the difficulty of understanding all he has said, but that so much can be understood 1 ." "It is a misfortune," said Counsel in a case argued before Lord Hardwicke 2 , "that accounts of Courts of Equity are conveyed to the public in loose notes by persons not concerned in the cause, and mistaken, and that general rules are drawn from particular premises." But perhaps the most striking illustration of the insufficiency of the earlier reports is the discovery of important cases long after their decision, as occurred when Robinson v. Longe was published from a private note by Mr Cox half a century after it was decided by Lord Hardwicke, and then, being found to be utterly opposed to the practice of the Court, was solemnly over-ruled by Lord Eldon in Aldrick v. Cooper 3 . The arguments in these leading cases are almost wholly based on precedents supposed either to be directly in point, or 1 Lloyd v. Jones, 9 Ves. p. 54. books of equity reports of the last 2 Chesterfield v. Janssen (1750), 1 century were published many years W. and T. 624. after the decision of the cases they 3 2 W. and T. 82. Most of the contain. 188 THE ARGUMENTS. to furnish guiding analogies in the discussion upon which they were cited. The importance of precedents for the guidance of the Court was well recognised, as already shown, so early as Elizabeth at least, but their binding force was hardly established till Lord Hardwicke's time. He "utterly disclaimed" the power to legislate, and both he and his successors repeatedly followed rules which they personally disapproved ments in the of, and they would have entirely repudiated the apology put forward for the frequent reversals of the decrees of Chancellors upon rehearings by their successors, of a learned writer in 1735 1 . The Chancellors, the writer urged, are individually responsible in conscience for their judgments, and therefore each must decide according to his own reason and judgment, and he cites Lord Notting- ham's dictum to that effect in the Duke of Norfolk's case. Besides, he adds, with the courage of his opinion 2 , "non est inconveniens judicium esse uno tempore justum, et postea ejus contrarium justius." During the 18th century the apology ceased to be needed. Surprisingly little of the argument in these cases was based upon public policy, even where the cases were admittedly new, but occasionally the probable consequences of giving or refusing a particular decision were urged with effect, as in the important case of Chesterfield v. Janssen*, where the question of setting aside a purchase from a reversioner was discussed, and in Hugenin v. Basely*, where Romilly's celebrated argument was largely based on the danger of allowing a gift obtained by misemployment of religious influence to stand. On the whole, however, making allowance for many striking exceptions, both arguments and judgments, forcibly illustrate one of Austin's objections to judicial legis- lation: that it is, as it were, accidental law making, the decision of the case, and not the promulgation of a rule, being the direct object of the judge, who consequently pays small, if any, attention to the consequences or tendencies of the law he is creating. 1 Preface to "Eeports in Chy." 3rd 3 1 W. and T. 624. ed. 4 2 W. and T. 597. 2 Citing "Gomez." INFLUENCE OF ROMAN LAW. 189 The influence of Roman Law upon equity has several times been adverted to in this essay, and a fresh perusal of these leading cases has confirmed the opinion I have already expressed, that the earlier has directly contributed very little to the later system. In cases relating to the descent of personalty on an intestacy, or under a will, the Civil Law rules were, of course, more or less adhered to, for they had been originally adopted in such matters by the Ecclesiastical Courts. Thus the House of Lords in the case of the half-blood next-of- kin heard civil as well as common lawyers, and in cases like Ashburner v. Macguire 1 , and Scott v. Tyler 2 there was much discussion of Roman Law. The sources from which the passages from the Institutes and the Digest which were cited in Equity were almost invariably taken, the text books of Ecclesiastical law, Godolphin and Swinburne, indicate clearly the uses to which they were applied. References to the Digest and the later Civilians occasionally occurred in the arguments and judgments in cases of a different character, but they were rare, and were used merely as illustrations, or in support of arguments of a general nature, as a modern lawyer might employ references' to the Code Napoleon. The definitions of fraud and negligence propounded and discussed by the Roman jurists, for example, were employed in this way, and it was no doubt for the sake of these that, at a time when the authorities of equity were certainly to be found solely in the English reports, Lord Westbury 3 advised his pupils to make a constant study of the Digest. Certainly the general opinion has long been that the debt of equity to Roman Law was much greater than that here suggested, and comparisons between the two systems were common in the text books of the last century. The editor of the Reports of Lord Nottingham's time, for instance, annotated them with reference to Roman Law rules, for the assistance of practitioners. It was the fashion to trace prominent doctrines to the older law: thus Lord Eldon in Mackreth v. Symmons* traces the vendor's Hen for unpaid 1 2 W. and T. 246. (1786) (ademp- straint of marriage). tion of legacy). 3 Life of Lord Westbury. Nash. 2 2 W. and T. 120. (1787) (legacy 4 1 W. and T. 355. giving subject to a condition in re- 190 DECISIONS IN IMPORTANT CASES. purchase money to the rule " quod vendidi non aliter fit accipientis quam si aut pretium nobis solutum sit, aut satis eo nomine factum, vel etiam fidem habuerimus emptore sine ulla satisfactione *," but on turning to the earliest case where the lien was allowed, it is found to have been grounded "on natural equity, that the lands should stand charged with so much of the purchase money as was not paid, and that without any special agreement for the purpose 2 ." The arguments indeed, in the leading cases, closely resemble those with which our present Courts are familiar, though one suggestion frequently made during the last century, that a case against the pleader lacked authority because decided by a Chancellor newly come to the Court, Counsel would now hardly venture to employ. In many of these cases the deciding judges were well aware that their decisions would be of great importance to the future course of the Court, and they brought to them the ability and care which the occasions demanded. The deliberate intention to settle the law by the enunciation of general principles is often apparent and is sometimes expressed. Thus Lord Hard- wicke, whose judgments are especially conspicuous for this, in Ryall v. Rolles 5 , after stating his concurrence with the elaborate opinions which had been delivered by the judges, added "as this is a case of great expectation and consequence I will reduce the grounds to some general principle." These were leisurely times in the Court. An argument by half-a-dozen Counsel on each side, repeated at the Chancellor's request some months later, and then consideration for a year or two frequently pre- ceded an important judgment. The following list is taken almost at random from the reports. CASE. HEARING. JUDGMENT. JUDGES. Ryall v. Rolles. Nov. 1747. Feb. 1748. Jan. 1750. Hardwicke and Judges. Garth v. Cotton. Twice in 1750. Feb. 1753. Hardwicke. Fox v. Mackreth. July, 1786. Kenyon M. R. May, 1787. Nov. 1787. Dec. 1788. Thurlow. 1 Dig. 18. 1, 50. 11. 2 Chapman v. Tanner, 1 Vern. 267 (1684). 3 2 W. and T. 799. THE DOCTRINES OF THE LEADING CASES. 191 CASE. HEARING. JUDGMENT. JUDGES. Scott v. Tyler. Easter, 1787. Dec. 1788. Thurlow. Ashburner v. Macguire. 1784. 1786. Thurlow. Dearie v. Hall. 1823. Plumer M. B. 1828. Eldon. Certainly in some cases when the Chancellors made law they made it with deliberation. SECTION 2. The doctrines of the leading cases. I propose to arrange the subjects I have now to consider in the order stated below, roughly following that already adopted in a previous chapter. No doubt a more satisfactory arrange- ment might be drawn up if time permitted, but where the several heads of jurisdiction conform so little to general prin- ciples, and have been adopted or elaborated upon grounds so various, and at periods so far apart, as is here the case, it is hopeless to attempt to represent them in anything like a con- nected and logical order. 1. Trusts and subjects connected with Trusts. Conversion. Joint ownership. Assignments of choses in action. Powers. 2. Subjects connected with Administration. The liability of personalty. Legacies. Marshalling. Election. Restraints on marriage. 3. Subjects connected with Married Women's property. Separate estate. Equity to a settlement. Assignment of wife's reversion. 4. Guardianship of Infants. 192 TRUSTS. 5. Mortgages. Tacking. Consolidation. Vendor's lien. Equitable mortgage. Notice. 6. Subjects connected with fraud. Catching bargains. Undue influence. 7. Mistake. Compromise. 8. Penalties. 9. Sureties. 10. Specific Performance. Delivery of chattels. Separation deeds. 11. Injunctions. Equitable waste. 12. Discovery. Purchase for valuable consideration. I. Trusts. " In my opinion," said Lord Mansfield in Burgess v. Wheate 1 , " trusts were not on a true foundation till Lord Nottingham held the Great Seal. By steadily pursuing, from plain prin- ciples, trusts in all their consequences, and by some assistance from the Legislature, a noble, rational, and uniform system of law has been raised. Trusts are made to answer the exigencies of families, and all purposes, without producing one incon- venience, fraud or private mischief which the statute of Henry VIII. was meant to avoid." The help from the Legislature here referred to was that given by the Statute of Frauds which, reversing the rulings of Lord Nottingham's immediate prede- cessors, enacted that lands held on trust should be liable to execution on judgments against the cestui que trust, and be 1 1 Eden, p. 223. TRUSTS. 193 bound by his obligations in the hands of his heir to the same extent as lands of which he was seised at law. The statute further declared that declarations and creations of trusts in lands, unless evidenced by writing, and assignments of such trusts, unless made in writing, should be void. Many important questions relating to trusts came before Lord Nottingham, and the spirit in which he dealt with them is well illustrated by his exclamation in the Duke of Norfolk's case 1 , " Pray let us resolve cases here," said he, " that they may stand with the reason of mankind when they are debated abroad. Shall that be reason here that is not reason in any part of the world besides ? I would fain know the difference why I may not raise a new springing trust upon the same term, as well as a new springing term upon the same trust ; that is such a chicanery of law as will be laughed at all over the Christian world." In that case he held, contrary to the advice of the Judges, that a trust of a term might be limited in tail with remainder over, to attend the inheritance, provided such remainder must necessarily take effect, if at all, during a life or lives in being at the time of the creation of the trust. How far a fee could be limited on a fee was, he said, not then determined, but it soon would be, if parties continually tried to do what the law forbad. It was not, however, till nearly a century later, that the rule applying precisely the same rules of limitation to trust as to legal limitations was settled 2 . The construction of equitable limitations might still, in the time of Lord Nottingham, be affected by considerations other than those admitted in Courts of Law, ' in cases of extremity 8 ,' but Lord Hardwicke stated the principles of interpretation 'to be identical in Chancery and at law, with the exception that words of regulation or modification, as ' equally to be divided,' might be read by the light of equitable considerations, a prac- tice soon after adopted by the Judges themselves, and from Lord Thurlow's time there has been no exception to the rule 4 . 1 3 Ch. Cas. p. 33. 3 Nourse v. Yarmouth, Cas. temp. 2 By Lord Northington in Duke of Finch, 159. Marlborough v. Earl of Godolphin, 1 4 1 Spence, 520, Jones v. Morgan, Eden 404 (1759). 1 Bro. C. C. 20G. K. 13 194 TRUSTS. The husband was held to be entitled to curtesy out of his wife's trust estate, and this was clearly settled before Lord Cowper's time 1 , but, by a singular anomaly, the wife was not allowed her dower out of her husband's trust estate, no doubt because of the difficulty which the right of a dower out of lands acquired by the husband, relinquishable, as it was, only by the formality of a fine, imposed on sales and purchases. Jekyll, M. R., attempted to remove the anomaly 2 , but his decision was over-ruled as disturbing too many settlements. Lord Hard- wicke extended the right of curtesy to the equity of redemption of the wife's mortgaged lands 3 . In the great case of Burgess v. Wheate in 1759, already referred to, Lord Mansfield described equitable interests as, in all respects, governed by the same rules as legal estates, and advised that on the death without heirs of a cestui que trust his interest ought to escheat to the Crown. This, however, was not approved by the Lord Keeper Northington, who declined to hold that, as regards third persons, the trust could be treated as a nullity, but agreed that " where there is a trust it should be considered in this Court as the real estate between the cestui que trust and the trustee and all claiming by or under them," and this represents the modern rule, though the escheat of trust estates on failure of heirs of the cestui que trust has been introduced by statute 4 . A purchaser without notice from the trustee has never been held to be bound by the trust, as Lord Mansfield's dicta, if fully pressed, would require. Following the principles indicated in the passage quoted from his judgment above, Lord Nottingham held that a merger at' law was of no avail to oust a cestui que trust, and he severed an attendant term in order to protect an interest which was recognised in equity, though not at law 5 . The presumption of a resulting trust where a purchase is made in the name of another, or a conveyance made without consideration, Lord Nottingham held to be rebutted if the grantee were a child of the actual purchaser or 1 Watts v. Ball, 1. P. W. 108 (1708). 1171. 2 Per Lord Mansfield Burgess v. 4 47 and 48 Vic. c. 71. Wheate, Eden 195. 5 Noursc v. Yarmouth, Ca. temp. 3 Casborne v. Scarf e, 2 W. and T. Finch 155. TRUSTS. 195 grantor. In other cases he held that evidence of acts of ownership on the part of the latter would strongly support the presump- tion 1 , but in this case, it was not reasonable that the father's per- ception of profits, he said 2 , "or doing such acts as these, which the son, in good manners, does not contradict, should turn a presumptive advancement into a trust." And the same rule was adopted in the leading case of Dyer v. Dyer 3 in 1788, where, however, a suggestion of Lord Nottingham, that the fact that the son was already advanced, or not advanced, would be ma- terial upon the question whether the presumption or the counter presumption should prevail, was disapproved, for the father ought to be sole judge of the sufficiency of the advancement. Many distinctions as to what is, and what is not sufficient to rebut the presumption of advancement were suggested by intermediate and later cases, but these are now disregarded, and the modern rule seems to be that, where the grantee is a near relation of the purchaser or grantor, naturally or by adoption, no presumption of a trust exists, but a trust may be established by evidence of the latter's intention 4 . Voluntary trusts and settlements, except where they fall within the statute 13 Eliz. c. 5, or, as against sub- voluntary sequent purchasers, are avoided by the statute trusts - 27 Eliz. c. 4, are not regarded as revocable in equity. " If a man will improvidently bind himself up by a voluntary deed, and not reserve a liberty by power of revocation, this Court will not loose the fetters he hath put upon himself, but he must lie down under his own folly," said Lord Nottingham in an early case 5 , and when it was argued before him that voluntary trusts (in the case in question in favour of the settlor's children) must be taken as fraudulent, he decreed the contrary "with great earnestness and not without some re- flection on the Defendant's Counsel, as if the fee was more regarded than the justice of the cause 6 ." On the other hand, Lord Eldon settled the rule that an imperfect declaration of 1 Cook v. Fountain, 3 Swan 592 4 Fowkes v. Pascoe 10 Ch. 343. (167G). Bennet v. Bennet 10 C. D. 474. 2 Grey v. Grey, 2 Swan 599 (1677). 6 Villars v. Beaumout, 1 Vern. 101. 3 1 W. and T. 23G. Pisco v. Banbury, 1 Ch. Ca. 289. 132 196 VOLUNTARY SETTLEMENTS. trust will not be assisted in Equity, where there is no con- sideration given 1 , and an imperfect gift will not be supported as a declaration of trust 2 , although if a donor has completely transferred his interest, then the rights of the donee are as fully protected as those of any other cestuis que trust. ' Good consideration,' that is the claims of natural affection in favour of near relations, was frequently allowed in Equity to distinguish settlements made in favour of children and others from other voluntary settlements, until the distinction was finally exploded in Jefferies v. Jeffries 3 about the year 1840. The principles of the rules just stated have been departed from to some extent by the assistance given to the defective execution of powers in favour of the donee's near relatives, and on the other hand, by the readiness of the Court to regard voluntary settlements as tainted by fraud or ' undue influence,' the mere absence of a power of revocation, if unexplained, being often allowed as sufficient indication of the latter 4 . Trusts for payment of creditors, though completely declared, so long as they are not communicated to the creditors, are looked upon as mere dispositions for the settlor's own con- venience, and are therefore revocable by him. This exception was introduced in the case of Walwyn v. Coutts 6 by Lord Eldon, and was settled in Garrard v. Lord Lauderdale 6 . Past immoral consideration, according to modern views, is treated simply as no consideration at all, and a settlement for which it forms the sole motive is regarded as voluntary, and this view was taken by Lord King 7 , but the rule was not then settled, thus Lord Talbot postponed payment of a bond given to the obligor's mistress until after payment of his simple contract debts 8 , and Lord Hardwicke set such a bond aside 1 Ellison v. Ellison, 1 W. and T. 291 the definite limitation of ' valuable (1806). consideration ' to the grantee's or pro- 2 Antrobus v. Smith, 12 Ves. 39 misee's loss was not arrived at until (1806). Richards v. Delbridge, L. R. the present century.) 18 Eq. 11. Henry v. Armstrong, 18 4 (See fraud, &c. post.) C. D. 668. s 3 Her. 707. 3 Cr. and Ph. 138. (Lord Mansfield 6 3 Sim. 14 (1830). had suggested that the fulfilment of a 7 Marchioness of Annandalev. H arris, moral obligation would afford con- 2 P. W. 434 (1727). sideration to support a contract, and 8 Cray v. Eooke, Cas. Talbot 155. EXECUTORY TRUSTS. 197 expressly on moral grounds 1 . Had the Plaintiff not known that the obligor was married, he said, she might have been entitled to relief. But " she entered into the family, knowing it, and continued so as to occasion a separation; and this court ought to endeavour to preserve virtue in families." From the middle of the last century much difficulty was caused by the inability of a trustee for sale to give R ec eiptonsaie a receipt for the purchase money which would b y trustee - exonerate the purchaser from liability upon its wrongful appli- cation by the trustee. In the leading case of Elliot v. Merry- man* the clear rule was laid down that, where there is a trust for sale to pay debts, and in the will or deed creating the trust particular debts are referred to, the purchaser is bound to see to the payment of such debts, but of no others. This, however, proved to be insufficient, and many refinements were intro- duced by subsequent decisions, and these have now been cleared away by successive statutes of the last fifty years, by which the receipt of the trustee has been made practically sufficient in every case, except, of course, where the purchaser has notice that he intends to misapply the money 3 . Chancery in early days had undertaken to interpret limi- tations of trusts according to the presumed intention of the settlor, and to rectify deeds and documents which were drawn up by mistake so as not to carry out the wishes of Executory the parties. When the stricter interpretation of trusts " trust limitations, as already described, became the rule, a beneficial distinction between executed and executory trusts was introduced. In the leading case of Glenorchy v. Bosville* this distinction was stated by Lord Talbot, who held that directions in a will to settle an estate, which, if repeated in the settlement, would have given the first taker a tenancy-in-tail, should be construed to give a tenancy for life only, that being the clear intention of the testator. And in another case 5 the same Chancellor applied the rule to executory limitations in 1 Priest v. Parrot, 2 Ves. Snr. 160. 4 1 W. and T. 1 (1733). 2 1 W. and T. 72 (Verney, M. R. r ' Le an( ^ * ^ e ma >de at the testator's own home, unless made by him ' in extremis.' From this time such wills, against which the Chancellors had long set their faces, became rare, but the interpretation of written wills continued to supply the Court of Chancery, and still supplies the Chancery Division with much of its work. Two important points in regard to the revocation of wills were decided soon after the statute. A decision of Trevor, M. R. in 1701, that marriage and the birth of issue revoked a will of lands, a decision previously arrived at by the Ecclesi- astical Courts in regard to wills of personalty 2 , though it was dissented from by Lord Hardwicke, and was contrary to the express words of the Statute of Frauds, that nothing but what was there specified should operate to effect a revocation, let in the numerous discussions that afterwards perplexed the Courts of Law and Equity as to what alteration of the testator's circumstances would revoke a will. These questions were settled by the Wills Act, which restricted revocation, by reason of such alteration, to the case of marriage only. Lord Cowper decided that, as the revocation of a will is based upon intention, the revocation of a duplicate will revoke the original also 3 . In Roach v. Hammond Wright, L. K., decided that a will of perso- nalty speaks from the death of the testator, and this rule was extended by the Wills Act to all wills 4 . 1 Foly's case, 2 Free. 49 (Netting- p. 190. ham). 3 Onions v. Fyrer, 2 Vern. 741 (1716). s Williams on Executors, 8th Ed., 4 Free. Chy. 401 (1714). The actual ADMINISTRATION. 213 Legacies. In the course of administration many questions upon the construction and effect of legacies came before the Court, of which the following are the more important. A legacy to a creditor, provided it be as great as, or greater than the debt, and be not subject to any condition, is presumed, according to a rule settled by the case of Talbot satisfaction of v. Shrewsbury 1 , in 1714, to be intended as a satis- debts- faction of the debt, for the testator is taken to be just before he is generous, although, as Lord Cowper said in an earlier case, " it might be good equity to construe him to be both j ust and kind, if he intended to be both 2 ." The presumption, though accepted, has often been disapproved, and slight evidence will suffice to oust it 3 . Even extrinsic evidence of the testator's intention is admitted against the presumption, although in modern times such evidence is generally rejected as an aid to the construction of wills 4 . A corresponding rule had been applied so early as 10 Charles I. 5 , where a portion had been agreed to be given to a child, and a subsequent legacy was left him. The converse rule, that a legacy to a legatee to whom the testator stands in loco parentis, in the absence of ' . . ,, Ademption of evidence 01 the contrary intention of the testator, legacies by ad- , . vancements. is adeemed by an advancement made to the legatee by the testator after the date of the will is traced by Lord Eldon to the time of Lord Hardwicke 8 . Lord Eldon disap- proved of the rule, for the father, he thought, should be sole judge of the necessities of his children, and, since his wishes or his circumstances might have changed after he made his will, it ought not to be inferred that the legacy was intended by him as his child's whole provision. Lord Thurlow had decision was that, where there is a L. R. 18 Eq. 595. legacy to 'relations,' the next of kin * See Kirk v. Eddows, 3 Ha. 509. at the death take. Wigram, V. C. 1 2 W. and T. 378. 5 Lake v. Lake, Rep. Chy. 42. - Cuthbert v. Peacock, Salk. 155. Taussaud v. Taussaud, 9 C. D. 363. 3 Chaucey's Case. 2 W. and T. 379. s Exp. Pye, 2 W. and T. 364. King, L. C. Atkinson v. Littlewood, 214 ADMINISTRATION. previously refused to extend the rule to the case of illegitimate children. In Pym v. Lockyer 1 Lord Cottenham, contrary to the opinion previously current, decided that where a legacy is in this way adeemed, it is adeemed pro tanto only, and not altogether. On similar principles a second legacy given in a codicil Substitution of nas been presumed to be a substitution for a legacy previously given, and in Jones v. Selby* in 1710 a legacy was taken to be in place of a donatio mortis causa, but in Hooley v. Hatton 3 in 1772, this presumption was much re- stricted, and was placed on a more rational basis. Where a second legacy is given totidem verbis, or in slightly altered terms, of the same amount, and in the same instrument, it is primd facie a repetition, but if it is given by a different instru- ment, it is primd facie cumulative 4 . The distinction between demonstrative, specific and general legacies was taken over by Equity from the Ecclesiastical Courts. General legacies have this disadvantage, that they abate Ademption of ^ necessary for the payment of debts before specific specific legacies. } e g ac i es 5 j on the other hand, specific legacies are adeemed if the subject of the legacy cease to exist. Bond debts, at the beginning of the 18th century, when as already stated they offered the common form of investment, were often the subject of specific legacies, and the question arose whether payment of the debt to the testator would effect an ademption. It was agreed that this would be so if he had demanded the payment, but Lord Hardwicke 6 , approving a distinction sug- gested before his time, held that, if the bond had been volun- tarily discharged, there would be no ademption. This however was overruled by Lord Camden 7 ; and in Ashburner v. Macguire 8 it was settled by Lord Thurlow that whenever the subject 1 5 M. and Cr. 29 (1840). Leighton (1714). v. Leighton, L. R. 18 Eq. 459. 6 Pettiwardv.Pettiward, Gas. temp., 2 Free. Chy. 300. Finch, p. 152, see 2 W. and T. p. 248. 3 2 W. and T. 349. 7 Atty.-Gen. v. Parkin, Ambler, 566 4 Wilson v. O'Leary, 7 Ch. 448. (1769). 6 Sayer v. Sayer, Free. Ch. 392, 8 2 W. and T. 246 (1784). ADMINISTRATION. 215 of a specific legacy ceases to exist in specie the legacy is lost, without any reference to the presumed wishes of the testator 1 . A somewhat similar doctrine to that of the satisfaction of a debt by a legacy is that of the satisfaction of a covenant to settle property by the devolution upon the intended grantee, on the intended grantor's death intestate, of the property in question, or of property of the kind specified, if none in par- ticular is indicated by the covenant. This doctrine was ap- plied in Wilcocks v. Wilcocks* in 1706, and its principle was affirmed a few years later by Lord Cowper in a case 3 where personalty passed on the intestacy of a husband to his wife, to whom he had covenanted to leave a sum of money by will, and again in the leading case of Lechmere v. Lechmere* by Lord Talbot, where the covenant was to buy fee simple land, subject to certain consents, and to settle it to specified uses, and such land having been bought, but without the consents and without being so settled, on its coming by intestacy to the person who would, in the events that happened, have been entitled had the purchase and settlement been made in accordance with the deed, the Chancellor held that the covenant was thereby satisfied pro tanto. Marshalling. The opportunity which bond creditors had of obtaining payment out of the lands of their debtor on his decease, or out of the personalty at their discretion, while the simple contract creditors were restricted to the personalty only, led to the introduction of the doctrine of marshalling, which Equity applies wherever one who has two funds to have recourse to, would otherwise defeat the claims of another who has but one. The practice adopted in early days was to summarily forbid the creditor with two funds to touch that which was the sole resource of the other. Gilbert, C.B., in the middle of the last century, who, however, often represents as good equity what was already out of date, says that the course adopted in his 1 Harrison v. Jackson, 7 C. D. 339. 3 Blandy v. Widmore, 2 W. and T. 2 2 Vern. 558. 428 (1716). 4 2 W. and T. 412 (1735). 216 ADMINISTRATION. time was to hand over the bond to a trustee for the simple contract creditors, but long before they had been allowed to stand in the place of the bond creditors as against the real estate, to the extent to which these had exhausted the personalty, without the necessity for an action at law 1 . Lord Hardwicke held that, where a mortgagee of copyhold lands was paid out of the personalty, the simple contract creditors had no right to stand in his place against the lands, though he would have had they been freeholds. This decision was entirely forgotten till a note of it was unearthed in 1793, and it was shortly afterwards overruled by Lord Eldon 2 , who laid down the general rule, stated above, in the broadest terms. The statutes subjecting real estate to simple contract debts, and placing such debts and specialty debts on an equal footing, have greatly diminished the importance of this doctrine, but in such a case as that of two mortgagees of whom one has a charge upon two estates and the other upon one of them only, it remains to give valuable assistance to the less favoured creditor. It is never applied, however, so as to prejudice the rights of the person marshalled against 3 . The same principle was applied between legatees, for instance, where one of two legacies was charged on the realty and the other not, the former was, if necessary, thrown upon the realty so as to leave the personalty for the latter. And so where creditors who might have proceeded against the realty exhausted the personalty, the legatees were permitted to stand in their place as against the realty, provided it were not specifically devised 4 . It was subsequently decided, in Lord Eldon 's time 5 , that all devises, even residuary devises, are specific, and so the legatees, where there is no charge in ques- tion, are now allowed to marshal against descended lands only. Marshalling in favour of legatees was fully treated by Gilbert, C.B., and its main rules stated, but in his day the heir was 1 Gilb. Chancenj, p. 306. Clifton v. 3 Webb v. Smith, 30 C. D. 192. .BM-<,1P.W.679(1720). Tippingv.Tip- 4 Clifton v. Burt, 1 P. W. 678 (1720). ping, 1 P. W. 729 (1721), Macclesfield. 5 Howe v. Lord Dartmouth, 2 W. 2 Aldrich v. Cooper, 2 W. and T. 82 and T. 329, and see Collins v. Lewis, (1802). L. E. 8 Eq. 708. ADMINISTRATION. 217 treated with the same consideration almost as the devisee, and legatees were not allowed, by marshalling, to utterly exhaust his patrimony ; indeed, unless they were near relations of the testator, or their legacies were given them for other meritorious consideration, this relief was not extended to them at all 1 . These modifications on the general rule have however been long abandoned. Marshalling will not be allowed in aid of a bequest which is contrary to the Mortmain Act. This was decided by Lord Hard wick e soon after the passing of the Act 2 . Election. " Where a man takes upon him to devise what he had no power over, upon a supposition that his will will be acquiesced in this Court compels the devisee, if he will take advantage of the will, to take entirely, not partially under it," so Lord Talbot ruled in Streatjield v. Streatfield 3 . The doctrine was well established by an earlier case, in which an heir, to whom the fee simple lands had been devised by his ancestor, was required to relinquish his claim either to them or to certain entailed lands to which he was by law entitled, but which had been devised by the ancestor to another 4 . It was finally decided, after some conflict of opinion, by the House of Lords 5 , in 1816, that extrinsic evidence cannot be admitted to prove that the testator thought that certain specified property was his own, and therefore was intended by him to be included in a general devise, and thus to raise a case of election. The gift of what is not the testator's property must appear on the face of the will. Modern decisions have placed this doctrine upon the ground of compensation, the devisee or legatee, who is compelled to elect, being required to compensate the devisee or legatee, who would otherwise be disappointed by his refusal to relinquish the property devised or bequeathed to the latter, out of the 1 Chancery, p. 307. p. 395 (1706). 2 Mogg v. Hodges, 2 Ves. 83. 5 Doe v. Chichester, 4 Dow. 65. 3 1 W. and T. 400 (1735). Stratton v. Best, 1 Ves. Jur. 285 (1791). 4 Noys v. Mordaunt, 1 W. and T. 218 ADMINISTRATION. property devised or bequeathed to himself, so that if this be from the circumstances of the gift or devise impossible, there is no election 1 . Restraints upon Marriage. Among the rules adopted from the civil law, as we have already seen, were rules avoiding conditions upon legacies in restraint of marriage, such conditions having been declared of no weight by the Leges Julia et Papia Poppo&a. In early times these conditions without distinction were treated as void, but at the end of the 17th and the beginning of the 18th century distinctions began to be admitted, chiefly no doubt by reason of the slackening regard for the claims of the heir and of children, the usual legatees, the satisfaction of which had once been looked upon as a debt of nature. Hale, C. B., sitting with Clarendon, L. C., in 1663 2 , held that, where a portion was given subject to a marriage with the consent of a specified person, and the condition was not observed, the portion must nevertheless be paid, for the condition was 'in terrorem' only, but that had there been a limitation over, he said, it would have been otherwise. Six years later the same judge actually held that a devise on condition of marriage with consent, coupled with a gift over, was forfeited by breach of the condition, for, he said, devises were not governed by the civil law, and " there being a full breach of the condition as law will not, equity cannot help 3 ;" and the Lord Keeper Bridgman, who was nominally presiding in the Court, added the curious remark that " he was glad to see that a parent could settle his estate that it might be out of the power of a Court of Equity." By the middle of the following century it had become established, that conditions on devises of realty, unless in general restraint of marriage, were binding. In the case of Scott v. Tyler*, which was argued with great elaboration and consummate ability before Lord Thurlow 5 , a 1 Bristowe v. Warde, 2 Ves. Jur. 336, 3 Fry v. Porter, 1 Ch. Ca. 138. Loughborough. See Vardon's Trusts, 4 2 W. and T. 120 (1787). 31 C. D. 275. 5 By Mansfield, Scott (Lord Eldon), 2 Belarsis v. Ermine, 1 Ch. Ca. 22 Graham, Alexander, Hardinge, Har- 1663). greave, Plumer and Stratford. ADMINISTRATION. 219 legacy had been given to the testator's daughter to be paid to her at the age of twenty-one if she were then unmarried, and if she married under that age with the consent of the specified persons to be settled upon her. She married under twenty-one without consent, and filed a bill against the residuary legatee to have the condition declared to be void. In his argument for the Defendant Mr Hargreave suggested that the whole doctrine of the invalidity of these conditions was based on a misapprehension of Roman Law, but it was, he admitted, too late to retract. He however argued that, though a condition subsequent upon a legacy in restraint of marriage would be void, yet a condition precedent would not be, for, in the absence of compliance, the legatee could never become entitled. He admitted that this distinction was directly opposed to the deliberately formed opinion of Lord Hardwicke, but it was, he said, approved by Lord Nottingham in Popham v. Bamfield 1 (not a case of marriage), where his Lordship said "precedent conditions must be literally performed, and this Court will never vest an estate where, by reason of a condition of prece- dent, it will not vest in him at law,... but with the conditions subsequent it is otherwise, and relief can be given against them if it is just and equitable." Lord Thurlow approved the dis- tinction and dismissed the bill. The effect of these and later decisions may be summed up as follows : Conditions in restraint of marriage whether upon legacies or devises are good if they are conditions precedent. Conditions subsequent, if in general restraint, are binding in regard to devises (at any rate if they can be construed as intended to make a provision until mar- riage), but are not binding in regard to legacies; if in particular restraint, i.e. forbidding marriage with a particular person, they are binding in regard to devises, but not binding in regard to legacies unless the legacies be given over on non- compliance 2 . Marriage brocage contracts, that is contracts to procure marriages, have always been disfavoured in equity arid were regularly set aside until Lord Somers' time 3 . He refused to 1 1 Vern. 83. 309. 3 Pollock on Contracts, 4th Ed., p. 3 Hall v. Potter, Show, P. C. 78. 220 MARRIED WOMEN'S PROPERTY. follow the rule, but his judgment was reversed by the House of Lords, and the rule has obtained ever since. 3. Married Women's Property. It has already been shown that, during the preceding period, Equity had refused to treat all the personal property in possession of a married woman as the Common Law did, as, during the continuance of the coverture, necessarily vested in her husband. During the last and the present centuries, it has gone further, and gradually, by extending its doctrine of separate estate, has placed married women in an even peculiarly favourable position as regards property given or settled to their sole use. It was decided in 1725 l that, if property were given for her separate use, even though conveyed directly to the married woman, it would be preserved for her, her husband being Separate es- regarded as a trustee of it. This cannot, however, tete ' be said to have been settled till much later, for Lord Thurlow at the end of the century thought the inter- position of trustees necessary to the creation of separate estate. In 1750, Lord Hardwicke 2 clearly stated as the rule of the Court that a married woman could as freely dispose of personalty held to her separate use by deed or will as if she were un- married, but it was not till the great case of Hulme v. Tennant 3 came before Lord Thurlow, that it was decided that her general engagements, made without express reference to it, would never- theless bind her separate estate in personalty. A married woman, the Chancellor said, is not legally incapable, as an infant is, and therefore such property as she can freely dispose of during the coverture ought to be liable to her debts. The method of securing real estate to a married woman adopted long before this time was to give the rents and profits for her separate use for life, and to give her a power of appointment by will or deed, or by will only, over the reversion in the land expectant upon her life estate. And in the case just mentioned, the Chancellor held that the rents and profits so given were 1 Bennet v. Davies, 2 P. W. 316. 2 Peacock v. Monk, 2 Ves. 190 (1750). 3 1 W. and T. 536 (1778). MARRIED WOMEN'S PROPERTY. 221 liable for the debts, but, though the power of appointment was an unlimited one, he refused to direct its exercise so as to subject the reversion to the debts also. Although Lord Thurlow's judgment was based entirely upon the admitted right of the wife to dispose of her property, yet in many subsequent cases the liability of the separate estate for engagements not referring expressly to it was placed on the ground that the engagements must be taken as appointments pro tanto, from which it followed that the wife's undertaking to pay must be in writing. This doctrine was, however, rejected by Lord Cottenham and Lord Brougham, who said that the liability of the separate estate is a corollary to the wife's power of disposition over it, and it was accordingly decided soon after- wards that, to the same extent as a man's contract made in the same form would bind his property, a married woman's would bind her separate estate 1 , subject, however, to this, that the contract must be shown, by its express terms, the circumstances under which it was made, or other evidence, to have been made with reference to, and upon the faith or credit of that estate 2 . It had always been held, and without reference to the doctrine of separate estate, that, where a power of disposition was given to her, a wife could exercise it notwithstanding her coverture, but it was not finally settled, until a decision 3 of Lord Westbury in 1865, that where the fee simple of realty was held on trust for a married woman for her separate use, she could freely dispose of it by will or deed, a power extended to her in the case of personalty more than a century before, although, where lands were given in trust for her simply, on the analogy of the Common Law, and the restraining clause in the Statute of Wills, she could not have disposed of them without her husband's concurrence at all, and with it only by fine, recovery, or deed acknowledged, or by will. The full liberty of disposition gradually acquired in this way was allowed to be limited by the imposition in the settlement on, or the conveyance to the married woman of 1 See per Kindersley, V. C. Vaughan 2 Johnson v. Gallager, 3 D. F. J. v. Vanderstegen, 2 Drew 165 (1853). 509 (1861). 3 Taylor v. Meads, 34 L. J. Ch. 203. 222 MARRIED WOMEN'S PROPERTY. a restraint on anticipation which was first introduced at Lord Thurlow's suggestion 1 into a settlement of which he was trustee, and, though it is repugnant to the principle that a power of disposing of it is incidental to the right to possess property, Lord Avanley, Lord Thurlow's successor, held the restraint to be valid. An important extension of the doctrines of separate estate was made by a decision 2 , that property held as separate estate during a prior coverture, is held again as such on the re- marriage of a widow, although at the determination of her previous coverture all distinction due to the coverture between different parts of her property had lapsed, for separate estate, and, it may be added, the peculiar variety of separate estate with restraint on anticipation, exist only during the owner's coverture. Recent statutes, beginning with the Divorce Act of 1856, have successively extended the right of married women to hold, at law, property to their separate use ; and the last statute, the Married Women's Property Act of 1883, has practically put an end to the husband's interest in his wife's property other than his chance of curtesy or of acquisition on her death intestate 3 . Not only did Equity protect property settled to a married woman's separate use, but, from Lord Coventry's time, if a Equity to a husband sought the assistance of the Court to recover property come to him through his wife, it required him to make some provision for her out of it. From Jacobson v. Williams 4 , in 1717, it went further still, and the rule was established that, where either the husband, or assignees in bankruptcy representing him, was claiming in Equity, through his wife, property of considerable amount, she might come and insist on having a part settled to her separate 1 See note to Pybus v. Smith, 3 Bro. woman's contract does not bind her C. C. 347. separate estate unless she had, when 2 Tullet v. Armstrong, I Bea. 1 contracting, some separate estate with (1847). Langdale, M. R. regard to which she "might reasonably 3 Many of the old rules with regard be deemed to have contracted." Leak to equitable separate estate have been v. Driffield, 29 Q. B. D. 98. held to apply to the separate estate 4 P. W. 384. created by this statute ; thus a married MARRIED WOMEN'S PROPERTY. 223 use. In Lord Hardwicke's time this rule was carefully recon- sidered and approved, and the amount which must be claimed to entitle the wife to apply to the Court was fixed at 200 l . Although Lord Hardwicke had interfered to secure a pro- vision for the wife where a legacy left to her was being recovered in the Spiritual Court, the right of the wife to come into Equity, when no application was pending there by the husband or his assignees, and to claim an ' equity to a settlement ' out of property he, or they, were getting possession of, without the Court's interference, was not admitted till the leading case of Elibank v. Montolieu* was decided at the beginning of the century, but it was there established. And in a subsequent development of the same case it was deter- mined that, the wife dying after making her claim and without releasing it, her children were entitled to insist upon it. It was settled too, about the same time, that an assignment by the husband for valuable consideration before he actually received the property would not bar the wife's equity, though it would, if the property were got in during his life, bar her chance of survivorship 3 . The husband was at law, and, subject to the wife's equity to a settlement, in equity also, entitled to all the personalty of his wife not settled to her separate use, which he got possession of during the coverture, but her personalty, which at his death was still unreduced into his possession, reverted to her. Personalty therefore to which the wife was entitled in reversion unless it fell in during his life never came under the The wife's re- husband's control, and, even though the two con- version - curred in assigning it, the assignment would be of no avail to bar the wife's title on her husband's death, for, by reason of her coverture, her assent would not bind her after her husband's death. And this was held in Hornsby v. Lee* in 1816. This case affords an excellent illustration of the protection given to married women. Even when the juristic capacity of married 1 Jewson v. Moulson, 2 Atk. 417 3 Macaulay v. Phillips, 4 Ves. 19. (1742). March v. Head, 3 Atk. 720. Johnson v. Johnson, 1 J. and W. 472 2 1 W. and T. 486 (1801), Lough- (1820), Plumer, M. R. borough. " 2 W. and T. 906, Plumer, M. R. 224 MARRIED WOMEN'S PROPERTY. women was treated by the Chancellors as far greater than it was at law, or subsequently in equity, this was for their advan- tage only. Thus, under Edward IV., where a conveyance of a wife's real estate had been made by her husband, without a fine but with her concurrence, and she, after her husband's death, sought to reclaim the lands by a 'cui in vita,' the pur- chaser asked in vain for relief against what he naturally re- garded as a fraudulent claim 1 . The Married Women's Property Acts, before referred to, are rapidly making all these doctrines obsolete. The principle on which it is held, that, where one mortgages his estate as security for the debt of another, the mortgage shall have no further operation than its intended object requires, Mortgage of i g a general one, and was recognised and applied the wife's estate. ^ -^^ Nottingham in the case of attendant terms, but it received its most prominent applications with regard to mortgages of a wife's estate for her husband's debt. So early as 15 Car. I., where a wife levied a fine to secure a lease to a mortgagee, the lease was not allowed to be used to bar her dower after the satisfaction of the mortgage 2 . And in 1702 the House of Lords, reversing Wright, L. K., decided that the widow's, not her late husband's heir, was entitled to an estate, which she and her husband, acting under a power, had mortgaged to secure his debt, and which had been reconveyed, on payment off, to him 3 . Following this, it was held soon after that, on the husband's death before redemption, the widow could file a bill to compel his executors to redeem her mort- gaged estate 4 . And this was extended by Lord Hardwicke to enable the wife to stand in the mortgagee's place to recover the money, as any other surety might, if she paid the mortgage off 5 . A mere variation in the limitations of the proviso for redemption in the mortgage will not be taken as intended by the husband and wife to be an exercise of a power of resettle- ment, and indeed, before the case of Jackson v. Innes 6 was 1 Ante, p. 83, and see pp. 93 and 142. and T. 1150. 2 Naylor v. Baldwin, Rep. in Chy. 4 Pocock v. Lee, 2 Vern. 604 (1707). 69. 5 Patersche v. Powlet, 2 Atk. 384. 3 Huntingdon v. Huntingdon, 2 W. 6 1 Bligh, 104. INFANTS. 225 discussed in the House of Lords, in 1819, it was thought that no form of limitation in the proviso for reconveyance in the mortgage, without an express recital, would suffice to effect a resettlement. 4. Infants. After the abolition, on the Restoration, of the Court of Wards, and perhaps at an earlier period, the Court of Chancery undertook to appoint guardians for infants, upon petition, and claimed a general jurisdiction to interfere for the protection of infants in all cases. The leading case on the subject is Eyre v. The Countess of Shaftesbury 1 , in which the Court interfered to support the authority of a testamentary guardian, Mr Justice Eyre, who was the survivor of three guardians appointed under the statute of 12 Car. II., which first allowed a father by his will to appoint guardians of his infant son. So firmly established did Lord Commissioner Gilbert consider the jurisdiction, that he traced the obligation of loyal obedience to the debt of gratitude due "for the protection which the infant receives at his first breathing vital air, since care is supposed to be taken of him by appointing proper guardians to manage him and his affairs." The jurisdiction, the Lords Commissioners said, was inherent in the King as parens patrice, and was exercised by Chancery as representing him. The Defendant, the child's mother, in contempt of the order of the Court, carried him off and married him to the child of one of her friends, without the consent of the guardian, and for this the Court, following a practice already adopted, ordered her to be committed to prison. Most of the contempts alleged in the early cases are for marrying the ward to an improper person, or without obtaining the proper consents, and it is interesting to notice that the custom of child marriage, which was extremely pre- valent among the wealthier classes during the 16th century, as the report of Henry VIII. 's divorce proceedings in the State Trials shows, survived into the 17th and 18th centuries also. 1 2 W. and T. 698 (1722). K. 15 226 INFANTS. The Court in Lord King's time 1 , however, declined to treat the marriage of a ward by his guardian to the guardian's son, as a contempt where the ward was not a ward of Court ; and Lord Eldon carried this further by refusing to interfere at all on behalf of an infant, except where there was property of the infant under the administration of the Court 2 . Lord Eldon claimed for his Court power to take away a child even from the father's custody 3 , if the father were not in its opinion a fit person to be trusted with the care of the child, and by exercising this power in the case of a child of the poet Shelley he provoked the poet to address to him the well- known ode. Lord Macclesfield had, long before, claimed juris- diction over the father of a ward of Court 4 . The custody of the father was, however, in ordinary cases regarded with such respect by the Court that it refused to decree the enforcement of an agreement by the father himself to surrender it 5 . "If the matter were res Integra," said Lord Chelmsford 6 in reference to this, "I certainly should have a very strong opinion that this is opposed to a policy on which the best and dearest interests of society may depend." This view was shared by the Legislature, and Talfourd's Act enabled Chancery to give the custody of infants under seven years old to their mother; and the recent Infants' Custody Acts have extended this power and enabled the Court, for the infants' benefit, to enforce an agreement made by the father to sur- render their custody 7 . The Court from the time of Lord Nottingham, made allowances for the maintenance of a child out of rents and profits to which he was absolutely entitled, and recent statutes 8 1 Goodall v. Harris, 2 P. W. 560 4 Duke of Beaufort v. Bertie, 1 P. (1729). W. 703. 2 Wellesley v. Duke of Beaufort, 5 St John v. St John, 11 Ves. 530, 2 Euss. 21. Eldon. 3 Shelley v. Westbrooke, Jac. 266 n. 6 Vansittart v. Vansittart, 2 D. G. The Common Law Courts only refused and Jo. 256 (1858). the father custody on the ground that 7 2 and 3 Vic. c. 54. 36 and 37 V. he had shown his unfitness for it by c. 12. grossly immoral conduct. See Seton, 8 23 and 24 V. c. 145, 26. Con- 4 Ed. p. 750. veyancing Act, 1881, 43. MORTGAGES. 227 have greatly enlarged its power to make such allowances, extending it even to property to which the child is only con- tingently entitled. The Legislature also intervened to extend the beneficial powers of the Court with regard to infants by Malms' Act, which enables the Court by its approval to give validity to a marriage settlement made by a female infant of 18, or a male infant of 20, where the infancy is the only objection to the settlement 1 . 5. Mortgages. We have seen that during the reign of Charles I. the right of the redemption of mortgages in equity was clearly established. This ruling, though it continued during the Commonwealth to be regarded as a somewhat oppressive and unwarrantable inter- ference with deliberate contract, was never afterwards shaken, but, on the contrary, the mortgagor's interest was more and more fully protected by the Court, and this drew all questions connected with mortgages, whether concerning the conditions of redemption, the devolution of the right, or the rival claims of successive incumbrancers, into the forum where alone any other interest than that of the first mortgagee was recognised. The subject came before Lord Nottingham and his successors entirely unencumbered by rules of law, or traditions of earlier equity, and the elaborate chapter of the equitable code raised by their labours is a worthy monument to their care and ability. One doctrine only admitted by them is unworthy of the justice they professed to administer: the doctrine of ' tacking/ which allows a man, who intended to buy, and thought he had bought from a second, what the second had already sold to a third, by securing a perfectly adventitious addition to his shadowy right to cheat his rival of what he had in fact fairly bought and obtained. From the first the maxim ' once a mortgage always a mortgage ' was adopted : it is a rule, said Lord Nottingham, 1 20 and 21 Viet, c 57. See Seaton v. Seaton, 13 Ap. Ca. 61. 152 228 MORTGAGES. " that no mortgage by any artificial words can be altered, but Redemption on ty ty subsequent agreement 1 ;" and in a case and foreclosure. w h ere the mortgage deed had provided that no one but the mortgagor or his direct heir should redeem, the same Chancellor allowed a jointress to do so, in spite of the deed 2 . This decision Lord North affirmed, and the rule has prevailed ever since, that no contemporaneous agreement shall put a restriction upon the right to redeem. After a number of discussions as to who might sue for the redemption, it became settled by Lord Hardwicke's time that, practically, any one who, but for the mortgage (or in the case of a second or subsequent mortgagee, the mortgages antecedent to his own), would have been interested in the land, might do so. The decree for redemption always involved alternatively, on non-compliance with its terms, foreclosure, and the mortgagee, as appeared at an earlier period, could sue for foreclosure in an original suit. The decree for foreclosure was not, however, absolutely final in every case, indeed, in 16 Car. II., it was described as ' in the nature of a mortgage ' itself, and it was said that ' in cases of inevitable necessity ' the Court would enlarge the time for payment even after the decree was signed and inrolled 3 . Later cases have put a limit to the indulgence once granted in this respect, and a foreclosure, after it has been made absolute, is not now reopened, unless the security is ample and good grounds are shown for the relief 4 . The time fixed for repayment of the mortgage money is more readily extended if application be made before it has expired, and if the interest and costs to date be paid, but even for this indulgence, since Nanny v. Edwards 5 was decided in 1827, some special ground must be shown. If, however, the mortgagee sues upon a collateral security to recover the mortgage money after foreclosure, his action will suffice to reopen the foreclosure at any time. This was decided in 1729 8 , and a century later 1 Jason's Case, 2 Ch. Ca. 33 (1680). 172. 2 Hoioard v. Harris, 2 W. and T. 5 4 Kuss. 125. Eyre v. Hanson, 2 1190. B. 479. 3 Cocker v. Bevis, 1 Ch. Ca. 61. 6 Dashwood v. Blighway, 1 Eq. Ab. 4 See Campbell v. Hoyland, 7 C. D. 317. MORTGAGES. 229 Lord Langdale, M. R, ruled that, conversely, if, having put it out of his power to reconvey the land, the mortgagee sues for the money, his suit will be stayed 1 . The usual terms of redemption are payment of principal, interest and costs. In Howard v. Harris" 2 , however, Lord North, in spite of the rule against giving interest upon interest, allowed the interest unpaid from time to time to be taken as added to the principal according to the terms of the mort- gage. When a similar point came before Lord Hardwicke he said he would, if there were an agreement to that effect in writing, allow interest in arrear to be added to the principal 3 , but only at the rate reserved by the mortgage. Apart from agreement, interest on interest is not allowed 4 . The mortgagor is not compelled to account for the profits. This was expressly decided by Lord Loughborough, in 1790, but the contrary rule has never existed, for if the mortgagee wants the profits he can take possession, though then he will be held strictly to account under a rule established from an early period 5 , and he will even be charged an occupation rent if he occupy the premises himself. If he take possession un- necessarily, as if no interest is in arrear, he will suffer loss of interest by having the surplus profits, after allowing for the interest as it comes due, set off agains^ the capital yearly. So Lord Hardwicke held 6 . But the rule does not apply if he is forced to take possession to preserve himself from loss 7 . In any case a mortgagee in possession is chargeable, not only with what he receives, in fact, but also with what he would have received, but for his wilful neglect 8 . The assignee of a mortgage debt was held to be entitled to all that was due, irrespective of what he had paid himself, as against the mortgagor, but not, according to Lord Jefferies, as against subsequent incumbrancers unless they had refused to 1 Lockliart v. Hardy, 9 B. 349. (1687). White v. City of London 2 2 W. and T. 1178 (1683). Brewery Co. 42 C. D. 240. :i Thornhill v. Evans, 2 Atk. 330 6 Robinson v. Gumming, 2 Atk. 410. (1742). 7 Davis v. May, 19 Ves. 384 (1815). 4 Proctor v. Cooper, Free. Chy. 116 Grant, M. E. (1700). s Noyes v. Pollock, 32 C. D. 53. 8 Fulthorpe v. Foster, 1 Vern. 476 230 MORTGAGES. buy at the same rate 1 , this distinction, however, was abandoned in Lord Hardwicke's time 2 . Of course, according to the rules already mentioned under the head of trusts, any purchaser of the mortgage who stands in a fiduciary relation to the mort- gagor, or to a puisne mortgagee, cannot make a profit by charging his cestui que trust more than he paid himself. A statute of 1734 allowed a mortgagor when sued at law by the mortgagee, in simple cases, to plead his mortgage and obtain a judgment for redemption, but the statute was of little importance, and Equity retained its practically exclusive hold over mortgages. In the present century many additional powers for dealing with mortgages have been given to the Court by statutes, of which power to decree sale, in any case, instead of foreclosure, is one of the more important. Lord Hardwicke 3 had said that if the security were scanty, the mortgagee might demand a sale, but the Court never assumed a general jurisdiction to decree it. In Equity the mortgagor was looked upon as owner in fee, save as against the mortgagee, and a husband was consequently, and according to Lord Hardwicke's decision in Casborne v. Scarfe*, entitled to curtesy out of his wife's mortgaged lands. On the other hand, the mortgagee's interest was considered as personal assets, and Lord Nottingham decided that the mortgage money repaid after the mortgagee's death passed as personal estate to his executors, and not to his heir. It is interesting to notice that in the case where this question first arose, the Master of the Rolls modestly refused to give judgment because it was like to be a leading case 8 . Tacking. The doctrine of tacking, to which reference has already been made, owes its establishment to Hale, C. B., who first 1 Phillips v. Vaughan, 1 Vern. 336 Act, 1881, 19. (1686). Williams v. Springfield, 1 Vern. 4 2 W. and T. 1171 (1737). 476. 5 Thornborough v. Baker, 2 W. and 2 Morret v. Paske, 2 Atk. 53. T. 1165. Tarbor v. Tarbor, 3 Swan, p. 3 Kinnoul v. Money, 3 Swan, 202 n. 636. 23 and 24 V. c. 145, 71, Conveyancing MORTGAGES. 231 admitted it in the Exchequer 1 , and then, sitting with Bridgman L. K. in Chancery, in Marsh v. Lee 2 , again based his judgment upon it, but it appears from this case that the doctrine had been suggested earlier. A mortgagor had mortgaged his estate successively to three persons, of whom the first held the legal estate, and the third had advanced his money without notice of the second mortgage, but had, upon advice of counsel, after a redemption suit by the second mortgagee against the mortgagor had been commenced, purchased the interest of the first mort- gagee, and, as he had thus both law and equity, the Court decided he might shut out the second mortgagee until his own claims were satisfied. The Chief Baron described the legal estate bought from the first mortgagee as 'tabula in naufragio.' Some of the early cases went an extreme length in admitting the protection of the legal estate, even where it was obtained by fraud, but this was restrained 3 , and it is now settled that the puisne mortgagee cannot avail himself of the advantage of the legal estate unless he obtain it without anything to put a personal bar upon his user of it 4 . Lord Eldon went further, and said that notice to the first mortgagee of the second mortgage ought to make a conveyance of the legal estate from him useless for tacking, but this is now 5 decided the other way. The whole doctrine was formulated in seven propositions in 1728 by Jekyll, M. R. 6 , and, subject to the development just stated, these rules remain good. They provide, in addition to what has been said, that the puisne mortgagee who desires to tack must have a lien on the property for the debt for which he is seeking to obtain priority, created as such without notice of the mortgage to be tacked against. Even if the mortgagee have expressly agreed to make a further advance upon the security, if before making the advance he receive notice that a second mortgage has been made to some other person, he will not be 1 Hedworth v. Primate, Hardress, 5 Peacock v. Burt. 4 L. J., N. S. 33. 318, 14 Car. 2. 6 Brace v. The Duchess of Marl- 2 1 W. and T. 696. borough, 2 P. W. 491. (A summary of 3 Per Hardwicke in Garth v. Cotton, the rules upon this subject is given 1 W. and T. 806. in Coote on Mortgages, 5th Ed. p. 4 Pitcher v. Eawllngs, 7 Ch. 259. 900.) 232 MORTGAGES. allowed to tack his further advance. This was decided by the House of Lords in 1861 \ The doctrine was never extended so as to give special virtue to anything but the legal estate, for a conveyance of an equitable interest is an 'innocent conveyance.' And even as regards the legal estate the Court shrank from carrying it to its full extent, and where the legal estate and the subsequent lien were held in different rights it would not allow tacking 2 . The importance of the doctrine was much diminished when mere judgments were no longer allowed to create a charge on the lands of the debtor 3 , and by the Vendor and Purchaser Act of 1870 the doctrine was temporally abolished, but it was revived in 1875 by the Land Transfer Act. It owes its origin, as Lord Hardwicke, who approved of it, said, to our divided system of judicature, for though " Courts of Equity break in upon the common law, where the necessity and conscience require it, still they allow superior force and strength to a legal title to estates 4 ." Consolidation. Where a debtor owes to the same creditor two debts secured upon different properties of the debtor he is not allowed, against the wish of the creditor, to redeem one property without also redeeming the other, and this whether the creditor were the original lender in each case or an assignee of the debt and security in one or both of the cases only. This rule dates from the beginning of the present period, and it was founded upon the maxim that 'he who seeks equity must do equity' 5 . The right to consolidate availed against a purchaser of either of the equities of redemption from the mortgagor, and thus an ad- ditional risk was added to the many dangers which such a pur- chaser incurs. The extent of this risk has only quite recently, after some conflict of judicial opinion, been accurately and 1 Hopkinson v. Eolt, 9 H. L. C. 514. 3 27 and 28 Vic. c. 112. Bradford Banking Co. v. Briggs, 12 4 Wortley v. Birkhead, 2 Ves. Sur. Ap. Ca. 29. 574. 2 Barnett v. Weston, 12 Ves. 130 5 Francis, Maxims q/ Equity, p. 1. (Eldon). MORTGAGES. 233 definitely determined. The rule is that as against an assignee of the equity of redemption the right to consolidate must have existed as a present right in esse at the time of his purchase, and thus a subsequent mortgage by the mortgagor to the mort- gagee cannot affect the right of the assignee to redeem 1 . The doctrine of consolidation, so far at least as it affects assignees, is now looked upon with disfavour, and the Convey- ancing Act of 1881 enacts that, unless it is expressly provided in one of the mortgage deeds to the contrary, no consolidation of any mortgages made after the coming into operation of the Act shall be allowed. Vendors Lien. A particular species of tacit mortgage constructed by Equity is worthy of notice. Where land is sold and the purchase- money remains unpaid there is, said the Court in 1684 2 , "a natural equity that the land should stand charged with so much of the purchase-money as was not paid ; and that with- out any special agreement for that purpose." On this was founded the vendor's lien. There was considerable conflict in subsequent cases as to what would serve to oust this implied lien, until the rule was settled by Lord Eldon in a judgment, which is an admirable example of its kind 3 . The lien, he said, is probably derived from the rule of the civil law, that on a sale the property does not pass without either payment or an agreement to give credit, and he expressed regret that it had ever been allowed without express contract. It is, according to this decision, a question of fact to be determined on all the circumstances, whether the lien was intended to be reserved or not, and the mere fact that a bill or other security is taken for the unpaid balance is not conclusive against the existence of the lien. I have stated on a previous page reasons for dis- senting from the view that this lien is derived from the Roman Law. A reference to the originating case shows that though the 'natural equity' may have been consciously or unconsciously suggested by the civil rule, it was upon that, i.e. upon assumed 1 Jennings v. Jordan, 6 Ap. Ca. 698. 3 Mackreth v. Symmondx, 1 W. and Chapman v. Tanner, 1 Veru. 267. T. 355 (1808). 234 MORTGAGES. moral considerations arising out of the circumstances of the case, that the conception of the lien was founded. Equitable Mortgages. Mortgages by deposit of title-deeds were known at least from Lord Nottingham's time 1 . After the Statute of Frauds the question arose whether such a mortgage of realty was still permissible, and Lord Cowper held that it was 2 , but the point was not finally settled until, long after part performance had been decided to take contracts out of the statute, a case came before the Court in 1783 3 , in which Lord Loughborough said the delivery of the deeds was "a delivery of title to the plaintiff for valuable consideration." The Court he added " has nothing to do but supply legal formalities. In all these cases the contract is not to be performed but is executed," and so, according to Lord Eldon, the Chancellors repealed the statute so far as equitable mortgages are concerned. The facility of mortgaging established under this decision has proved to be a great convenience to land-owners, and by it some of the incon- veniences arising from the difficulties of English law in regard to the conveyance of real estate have been made more tolerable. So common has the custom of borrowing money upon deposit become, that the unexplained absence of the documents of title is taken to be notice to a purchaser or mortgagee, upon a sale or mortgage of property, of the existence of an out- standing lien upon it. Notice. The doctrines of notice are of great importance in many departments of equity : purchase from a trustee with notice causes the buyer himself to be bound by the trust ; a later incumbrancer advancing his money with notice cannot tack against an earlier ; and many other instances might be given. Cases occurred at an early period where actual notice to the party to be affected, that is to say, that the fact in question 1 Fitzjames v. Fitzjames, Ca. temp, 2 Hales v. Van Bereham, 2 Vern. Finch, p. 10. 617. 3 Russel v. Russel, 1 W. and T. 780. NOTICE. 235 was brought to his knowledge, was not proved and yet he was held to have had 'notice.' Thus the Court under Lord Coventry, declared, in a passage 1 already quoted, that where lands were bought from a mortgagee it would take the purchaser to have notice of the mortgage, apparently because he would find it on the vendor's title-deeds if he made a proper examination, and notice by reference in deeds has been binding notice ever since Lord Nottingham's time, at least 2 . Another ground of constructive notice is the unexplained absence of deeds which the party bound ought to have expected to see, and, conversely, in Peter v. Russel 3 , in 1716, Lord Harcourt refused to treat a loan to the mortgagor of the deeds, (a lease) borrowed on a plausible excuse, as notice of his intention to remortgage the property so as to postpone the first mortgagee, who had lent them, to a second mortgagee who was induced to advance his money upon seeing them. So notice of occupation has been deemed to be notice of the terms of it since Lord Thurlow's time 4 . These rules have been said to rest upon " evidence of notice raising a presumption of notice so violent that the Court will not allow it to be rebutted," but it is obvious they really rest on negligence, the Court has erected an ' average conveyancer,' and it penalises every one who takes less care than he. It is absurd to say the case rests on evidence of actual notice where the clearest evidence to disprove it would be ineffectual, and the effect is attained without reference to the opinion of the Court as to whether it existed or not. Another kind of constructive notice, that of notice to the party's agent, rests on different grounds: it is a necessary precaution, and the identification of the principal . . , . Notice to agent. and his deputy in this and many other cases is an incident of the extension of personalty which agency permits. This rule and the main exception to it can be traced to the beginning of the present period : " though notice to a man's counsel be notice to the party, yet where the counsel comes to 1 Bacon v. Bacon, Toth. 133. 4 Taylor v. Stibbert, 2 Ves. Jur. 2 Bisco v. Banbury, 1 Ch. Ca. 287. 437. 3 1 Eq. Ca. Ab. 321. 236 NOTICE. have notice of the title in another affair, which it may be he has forgot when his client comes to advise with him a case with other circumstances ; that shall not be such a notice as to bind the property," said Lord North in 1684 1 . Bridgman, L. K., in an earlier case had asked, with the feeling of one who had been a fashionable conveyancer, whether counsel could be ex- pected to remember for ever ? Lord Hardwicke approved the exception and it is well established 2 . It has even been sug- gested that it should be extended to personal notice also 3 . A distinction that there may be notice in a different transaction if it be near the other was adopted by Langdale, M. R., but this was exploded by the Court of Appeal 4 . Where the subject of notice is the fraud of the agent him- self, of which he is of course aware, the principal is held not to be bound. This is a curious anomaly of recent date and hardly reconcileable with the reason given by Lord Hardwicke for the rule, that "he who trusts most should suffer most." 5 Constructive notice has been recently put upon a statutory footing, but without any considerable alteration of the rules affecting it having been made 6 . Soon after the Registration Act of 7 Anne, it was held 7 that registration of a later conveyance should not secure priority over an earlier conveyance of the same land, if the later had been taken with notice of the earlier, for, said Lord Hardwicke, "taking the legal estate after notice of a prior right makes a person a mala fide purchaser," in accordance with Labeo's definition of dolus mains 8 . The legal estate has always been postponed when it has been taken with actual or constructive notice of an outstanding interest, save where, as in 'tacking', the purchaser has in- nocently obtained an equitable right of his own. But the legal estate will only be postponed to an equitable interest acquired 1 Preston v. Tubbin, 1 Vern. 286 699. (1684). 6 Conveyancing Act, 1882, 3. See 2 Warwick v. Warwick, 3 Atk. 294. Hood and Challis, 3rd Ed. p. 166. 3 Hamilton v. Royse, 2 S. and L. ? Blades v. Blades, 1 Eq. Ab. 358, 327. Redesdale, C. King C. 4 JIargreares v. Eothice.ll, 1 Kee. 159. 8 Le Neve v. Le Neve, 2 W. and T. 5 Kennedy v. Green, 3 My. and K. 26 (1747). NOTICE. 237 subsequently to the conveyance of the legal estate to the holder against whom relief is sought, on the ground of fraud. This rule was acted upon by Lord Harcourt in an early case 1 . At the end of the last century, however, Mr Justice Buller stated that it was "an established rule in a Court of Equity that a second mortgagee who has the title-deeds, without notice of any prior incumbrance, shall be preferred ; because, if a mortgagee lends money upon mortgage without taking the title-deeds he en- ables the mortgagor to commit a fraud," and it appears that this was a correct statement of the practice of the Court at the time 2 . Lord Eldon repudiated this practice and returned to the view of Lord Harcourt, which had been adopted also by the judges who sat in the great case of Ryall v. Rolles*, that the absence of the deeds when the money is lent is matter of evidence only, and this has been reaffirmed in a recent case 4 . Thus mere negligence in keeping the title-deeds or lending them to the mortgagor will not serve to postpone the legal owner. Of course, if his conduct amounted to an authority to some third person to sell or mortgage to the party claiming relief, the latter will have acquired a good title, but under, not against him. 6. Fraud. The Court not only relieved against gross and palpable cases of fraud, where the party relieved had been intentionally deceived, but extended its interference to all cases of unfair dealing, even where there was an appearance of deliberate contract. The judges have always refused to define the boun- daries of this interference, lest they should thereby suggest devices by which their jurisdiction might be evaded, but from the numerous decisions of the last two centuries some leading principles can be deduced. From the year 1787 an action on the case for fraud, uncon- nected with any contract between the plaintiff and the defendant 1 Peter v. Rmsel, 1 W. and T. 780. 3 2 W. and T. 799. 2 See Evans v. Bicknell, 6 Ves. p. 4 Northern Counties &c. v. Whipp, 183. Burnett v. Weston, 12 Ves. 130. 26 C. D. 487. 238 FRAUD. has been allowed at law 1 , and after that time the Court of Equity was reluctant to give relief in cases where it could be fully obtained by an action for damages. Moreover, such an action was often more beneficial to the plaintiff than procedure in Equity, for a rule had long existed in that Court, a rule born of the essential viciousness of written evidence in disputed cases, by which the Chancellors refused to act upon the evidence of a single witness for the Plaintiff if it were directly contradicted by the Defendant, while at law the Defendant could give no evidence at all 2 . Where, however, rescission of a contract, or delivery up and cancellation of a deed was required, it still could be sought in Equity alone. The equitable doctrine of estoppel by 'standing by' was laid down by Lord Macclesfield in these terms 3 : "when anything in order to a purchase is publicly transacted, and a person knowing thereof, and of his own right to the lands intended to be purchased, doth not give the purchaser notice of such right, he shall never afterwards be admitted to set up such right to avoid the purchase ; for it is an apparent fraud in him not to give notice of his title to an intended, purchaser, and in such case infancy or coverture shall be no excuse." And in a case, already cited, where a mortgagor of a lease, borrowed it from the mortgagee, who innocently lent it, and remortgaged it, Lord Harcourt gave as his reason for not postponing the first to the second mortgage that " he neither actively encouraged the Plaintiff to lend his money, nor pas- sively, as by standing by and concealing the mortgage knowing the Plaintiff was about to advance money on the premises "*. The length to which this doctrine had been carried in the earlier cases 8 was curtailed to some extent by later decisions. Thus it was decided at the beginning of the 18th century that a party will not be prejudiced by his silence unless the circum- stances, known to him, call upon him to speak. The rule is 1 Pasley v. Freeman, 3 Term. Rep. reports. See Hunsden v. Cheyney, 2 51, 2 Smith, L. C. 74. Vern. 150 and note. 2 Evans v. Bicknell, 6 Ves. 183. 4 Peter v. Russel, 1 Eq. Ca. Ab. 321 3 Savage v. Foster, 2 W. and T. (1716), 1 W. and T. 780. G80, (1722). There are a great number 5 Edlin v. Battaly, 2 Leo. 152 (27 of these cases in the later 17th century Car. 2). Hobls v. Norton, 1 Vern. 136. FRAUD. 239 " qui potest et debet vetare jubet 1 ," and in modern cases this is taken to mean that the party to be prejudiced must have known of the other's mistake as to his, the former's, rights 2 . There is therefore no equity to recover the money expended if the spender lays it out over what he knows is another's land, as if a tenant, under no obligation to do so, and without agreement with his landlord, effects improvements on the land. This was so held early in the present century, and has since been approved in the House of Lords 3 . The recent Agricultural Holdings Acts, which have empowered a tenant under certain circumstances to charge the landlord with such improvements, rest on a different principle with which fraud has nothing to do. In the cases just referred to the offending parties' right was postponed on the ground of his unduteous silence, but the principle was extended beyond this by a decision of Grant, M. R., that a trustee who represented to an intended mortgagee of the trust estate that there were no incumbrances upon it, whereas there was in fact already an incumbrance of which the trustee had had notice but which he had forgotten, must himself recoup the mortgagee the loss occasioned to him by the incumbrance, although the trustee had no interest in the estate 4 . This decision was founded upon a dictum of Lord Eldon in Evans v. Bicknell 5 that "it is a very old head of equity, that if a repre- sentation is made to another person going to deal in a matter of interest upon that representation, the former shall make that representation good, if he knows it to be false." Since Lord Eldon's time the doctrine of 'making repre- sentations good' based upon this case has been the subject of much discussion, and the modern view is, that, putting aside estoppel, no claim for relief can be based upon any repre- sentation unless it either is a warranty or a term of contract or amounts to deceit at common law 6 . 1 Osborne v. Lees, 9 Mod. 96. Hun- 4 Burrows v. Lock, 10 Ves. 470, ning v. Ferrers, Gilb. 85 (1711). Grant M. R. 2 Willmot v. Barker, 15 C. D. 96. 5 6 Ves. 182. 3 Pulling v. Armitage, 12 Ves. p. 85. 6 Pollock on Contracts, Note N. Grant, M. R. Ramsden v. Dyson, 1 L. Peek v. Derry, 14 Ap. Ca. 337. Alder- R. H. L. 129. son v. Maddison, 8 Ap. Ca. 467. 240 FRAUD. Catching Bargains. In his celebrated judgment in Chesterfield v. Janssen 1 Lord Hardwicke in the classification of the frauds against which Equity would relieve, gave a special division to ' catching bargains with heirs, reversioners or expectants,' against which he said Equity had always relieved, even though no circum- vention were charged, fraud being inferred from the transaction if " there were weakness on the one side (and) advantage taken of it on the other," and this partly on the ground of the deceit practised upon the father, ancestor or other relative of the heir, reversioner or expectant. Cases where heirs who had pledged their future estates for present advances were released from their bargains, occurred in Equity from the time of Lord Ellesmere, but no definite rule was adopted, the relief being granted or rejected according as the individual Chancellor thought the case constituted an ' extremity ' or not. Lord Nottingham expressed regret that the Civil Law rule of reopening bargains where less than half the value was given had not been applied, and he might well wish for some rule where the lack of it was so marked that again and again a Chancellor reversed the decree of his pre- decessor and left his own to be reversed by his successor, as happened in these cases at the end of the 17th century 2 . The favourite method of avoiding the usury laws of the period was to ' take up goods ' at a high price for which credit was given, and immediately resell them for a much lower one in cash, a device so often illustrated in the Restoration drama, and against such bargains it was fairly settled the Court would generally relieve. The whole doctrine was discussed in Chesterfield v. Janssen 3 with the care and ability its importance demanded. A man of full age, in possession of 7000 a year, but embarrassed by debt, borrowed 5000 in the open market from the Defendant on a bond to repay 10,000 at the death of the Duchess of 1 1 W. and T. 624. v. Pitt, 2 Vern. 15. - Nott v. Johnson, 2 Vern. 26. 3 1 W. and T. 624 (1750). (Nottingham, Jeffries, North). Birney FRAUD. 241 Marlborough, from whom he had expectations. After his death his representatives applied to have the bond set aside. The plaintiff's counsel relied on the precedents, and the analogy of the usury laws and of the Macedonian decree. The Defen- dant's counsel put their case on the broad ground that a "man's own act, without fraud, in full senses, and having absolute disposal," ought to bind him. Interest on money, they said, was then admitted to be legal and its allowance to be for the public benefit, and on the latter point they cited the opinion of the philosopher Locke, so long as the statutes against usury were not infringed; moreover the case, they urged, was analogous to a ' bottomry bond,' in which great profit had always been permitted on account of the risk of the principal ; and finally they appealed to the Court to dismiss the suit, for " this Court," they said, " does not exercise or assume a legis- lative power, but disclaims it, and never will make a law to set aside contracts on public principles out of that cause, if good in law and conscience, let the convenience or inconvenience be what it will," for " misera est servitus ubi jus vagum" The judges advised that there was no fraud proved, and the contract was riot usurious, and with this the Chancellor agreed, but, on the ground of the position of the parties, he would nevertheless have set the contract aside, had not the expectant confirmed it after the death of the Duchess. The Court, he said, had undoubted jurisdiction to relieve against every species of fraud, and, though he ' utterly disclaimed ' the power of legislation, the precedents had decided that in equity such a bargain as that in question must be ranked as fraudulent. Subsequent Chancellors have often disapproved of the doctrine, but it was thoroughly established by the case just considered. It has not, however, been extended to contracts relating to interests in possession 1 , for, if inequality be the sole ground of objection, to set aside these "there must be an inequality so strong, gross and manifest that it must be im- possible to state it to a man of common sense without producing an exclamation at the inequality of it." On the other hand, in the case of reversions it was pressed so far that the question 1 Gwynne v. Beaton, 1 Bro. C. C. 8 (Thurlow). K. 16 242 FRAUD. counsel asked in Chesterfield v. Jannsen, " shall the heir starve ob heredis causam ?" was in danger of receiving an affirmative answer. The suggestion in Lord Hardwicke's judgment that the ground of the interference was the deceit practised on the ancestor was acted upon by Lord Brougham, who refused to set aside a contract approved by the ancestor 1 , but this was considered contrary to precedent 2 , and the validity of the suggestion has been recently denied 3 . The usury laws have been repealed, and a modern statute 4 has enacted that no bona fide purchase of a reversionary interest shall be set aside merely on the ground of undue value, but the principles laid down by Lord Hardwicke remain living doctrines of the Court 5 . They have indeed been extended to protect a borrower who had only ' general expectations ' upon the credit of which the loan was made 6 . The terms upon which the bargain is set aside are generally the payment of the money actually advanced, with ordinary interest upon it, and the costs of the action. Undue Influence. Another characteristic doctrine of equity is that applied in cases of ' undue influence.' Obligations entered into under duress have always been unenforceable at law, but equity goes much further, and interferes wherever ' confidence is reposed and betrayed/ to set aside the obligation or conveyance obtained by unfair advantage. Probably the earliest cases were, where purchases or other advantages were obtained by guardians from their wards by a misuse of the guardians' influence or authority, but early in the 18th century the Court went beyond these simple cases, and decreed that a bond given by a poor and ignorant man to one who had given him slight assistance in some litigation should be taken as security for the money advanced only 7 , and Lord 1 Ring v. Hamlet, 2 My. and K. 4 31 and 32 Vic. c. 4. 456. s Benzon v. Cook, 10 Ch. 392. 2 Sugden, Law of Property, p. 66. 6 Neville v. Snelling, 15 C. D. 679. 3 Aylesford v. Morris, 8 Ch. 492. 7 Proof v. Nines, Ca. Talbot, 116 (Selborne). (1735). FRAUD. 243 Talbot said the Court would " not suffer any advantage to be taken of the extravagance and want of judgment, in the one case, and of the strong bias to obtain what (was) desired in the other," and he added that, had the Defendant been the Plaintiff's Solicitor, the decree would have been made without question. The principle on which relief would be given was not settled till Hugenin v. Baseley 1 came before Lord Eldon, in 1807. There a widow had made a voluntary settlement upon a clergy- man who had obtained great influence over her, and she had deliberately refused to allow a power of revocation to be in- serted 2 ; Lord Eldon set the settlement aside, but, he said, adopting an opinion he had probably heard Lord Thurlow express, "it is not upon the feelings which a delicate and honourable man must experience, hearing these instruments taken altogether as I think myself bound to take them, nor upon any notion of discretion in this Court to prevent a volun- tary gift by a man stripping himself entirely of his property, if undue influence is not imputed, that any judge sitting here has ever thought himself at liberty to interpose." Sir Samuel Rornilly in his argument in the case had said " the relief stands upon a general principle, applying to all the variety of relations in which dominion may be exercised by one person over an- other," and this has been ever since approved. The Courts in recent times, however, under this head as under others, have been less ready than they formerly were to interfere, in the way Coke so bitterly resented, " to break men's contracts 3 ." Mistake*. No branch of Equity retained the indefmiteness character- istic of an extra legal and discretionary relief longer than that which dealt with mistake. This was chiefly because questions turning on mistake, unaccompanied by fraud or misrepre- sentation, came but rarely before the Court, except in suits for specific performance or for the rectification of settlements, 1 2 W. and T. 600. 145. 2 See Ellison v. Ellison, 1 W. and 4 On this head see Specific Perform- T. p. 291. ance, Fry, L. J., ch. xv., and Pollock 3 See Allcard v. Skinner, 36 C. D. on Contracts, ch. ix. 162 244 MISTAKE. though in these suits such questions had often to be considered. Contracts, other than those of which Equity would decree specific performance, were usually proceeded Tipon in the courts of common law alone, and it was in these courts therefore that the effect upon the liability of the party in error of mistake, affecting the substance of a definite contract, was, for the most part, worked out, though some of the later decisions in Equity pushed the relief afforded, by the plea of non est factum for instance 1 , somewhat further than the common law allowed. Mistake (1) may affect the expression in an instrument intended to have a legal operation of the agreement actually made, or the record of an actual transaction, or (2) it may go to the substance of the agreement or other transaction itself. (1) Under the first head come the cases in which the Court granted the rectification of writings and instruments in order to make their terms correspond with the real meaning and intentions of the parties. This was constantly the expression of granted from the earliest time as against volunteers, but not, in accordance with the general practice of Equity, at least after Lord Hardwicke's time 2 , so as to prejudice anyone who purchased upon the actual terms of the settlement without notice of the mistake affecting them. It must of course be shown that an agreement in the terms sought to be substituted for the written terms was actually arrived at, and the Chancellor just referred to refused relief where the evidence was not clear and definite 3 , and, in later times, Lord St Leonards refused to act upon parol evidence only in the face of the defendant's denial 4 . The commonest cases were concerned with marriage settlements 6 , and in these there was usually no dispute, and often the marriage articles, which, after marriage, the wife was incompetent to consent to vary, plainly demon- strated what the real agreement between the parties was. 1 See Pollock on Contracts, p. 444, ranee Co. 1 Ves. Snr. p. 318. 5th Ed. Vorley v. Cooke, 1 Gift. 235 4 Mortimer v. Shortall, 2 Dr. and (1857). W. 374 (1842). 2 Warwick v. Warwick, 3 Atk. p. 5 Legg v. Goldwire, 1 W. and T. 17 293. (1736). 3 Henkle v. Royal Exchange Assu- MISTAKE. 245 At law the rule that parol testimony cannot be received to contradict, vary, add to, or subtract from the terms of a valid written instrument, had been adopted from remote antiquity 1 , but where it was alleged that by mistake or surprise a term of the actual agreement was omitted from, or wrongly stated in the instrument, such testimony was always received ' * Parol evidence. in Equity on behalf of a defendant resisting a claim for specific performance based upon the instrument in its actual form. At the end of the last century several attempts were made to introduce the stricter rule of law into Equity, but even Lord Thurlow, though he expressed strong approval of the rule, and said that he thought that so much weight ought to be attached to the writing that it would in practice always prevail, recognised that error in the writing, though shown by parol evidence only, if due to mistake or surprise was a ground for equitable relief, and Lord Eldon, in Townshend v. Stangroom*, stated that it was clearly settled that such matter could be relied on in defence, and he added, "I will not say that there are not cases in which it may be received to enable the Court to rectify a written agreement upon surprise and mistake, as well as fraud." Such cases had, as already shown, long before arisen and they still occur. At the beginning of this period the Court still did not scruple to alter a will to make its wording conform to the testator's presumed intentions. If "there falleth Rectification out an unseen accident, which if the testator had o Wllls - foreseen, he would have altered his will, I shall consider it," Lord Nottingham declared 3 , but this was not approved in the following century 4 , and in 1798 the modern rule, that a will cannot be varied on the ground of mistake, unless the words alleged to be mistaken are clearly inconsistent with the in- tention shown by the will itself, was definitely laid down by Sir Pepper Arden, M.R. 5 To this may be added, though it 1 Taylor on Evidence, 8th Ed. p. (1679). 963. 4 See Mostyn v. Mostyn, 5 H. L. Ca. - 6 Ves. 339. See Specific Perform- 155. ance post, p. 253. 5 Hellish v. Mellish, 4 Ves. 44. 3 Winkjield v. Combe, 2 Ch. Gas. 16 246 MISTAKE. properly falls under the second division of 'mistake,' that, where a disposition purports to have been made entirely on the assumption that a state of circumstances exists which in fact does not exist, it will be treated as not made. Thus, where, by a codicil, a testator revoked legacies on the ground that the legatees were dead, while in fact they survived him. Lord Eldon ordered the legacies to be paid 1 . The peculiar construction of releases in Equity, which restricts their operation to matters within the contemplation of the parties, rests also partly on mistake of ex- Releases. - 7 . pression, and partly on mistake going to the sub- stance of the transaction. This construction accorded with principles settled before the present period, and was, in fact, a development of the rule that words are to be understood secundum subjectam materiam, for " the chief and governing rule of construction is drawn from the end or cause," and it was so put by Francis in 1737 2 . He states the rule thus : "general words in a release of all demands, or the like, shall be restrained by the particular occasion, and shall be intended only of all demands concerning the thing released." Equity will go even further and set aside a release made on the footing of accounts which turn out to be seriously inaccurate 3 . (2) The jurisdiction to set aside a release just mentioned is a small survival of extensive powers once wielded by the Court. "Another impediment of assent," says the author of the ' Treatise of Equity 4 ,' " is ignorance and error whether in fact or in law ; if it be the cause and motive of the matter of sub- agreement. And if the mistake is discovered be- stance. _ . tore any step is taken towards performance, it is just that he should have liberty to retract ; at least upon satis- fying the other of the damage that he has sustained on losing his bargain. But if the contract is either wholly or in part performed, and no compensation can be given him,... then it is absolutely binding notwithstanding the error. Yet this 1 Campbell v. French, 3 Ves, 321. 2 Treatise of Equity, p. 50. Pollock on Contracts, p. 707, 5th Ed. 3 Gandy v. Macaulay, 31 C. D. 1. cf. the ' dependent relative revocation ' 4 p. 10. of wills. MISTAKE. 247 is not to be understood when there proves to be an error in the thing or subject, for which he bargained. For then the business is null itself, by the general laws of contracting, inas- much as in all bargains, the matter, about which they are con- cerned, and all the qualities of it, good or bad, ought to be clearly understood ; and without such a distinct knowledge the parties cannot be supposed to yield a full consent." The Court, moreover, as the same writer shows in his Maxims 1 , would interfere to set aside a bargain if, by subsequent ' acci- dent,' it turned out to be unexpectedly onerous, or if it was 'unreasonable 2 ,' "as forty years' purchase for lands, or an ex- travagant price for stock, as was given in the South Sea year." Gradually, however, relief, in many of these cases ceased to be obtainable. If there is a mutual mistake going to the essence of the agreement 3 then equity would set the agreement aside, and still will do so 4 . Thus in Bingham v. Bingham 5 where the Defendant had agreed to sell to the Plaintiff an estate which turned out to be, in fact, the Plaintiff's own, the purchase-money was ordered to be refunded ; " for though no fraud appeared, and the Defendant apprehended he had a right, yet there was a plain mistake such as the Court was warranted to relieve against, and not to suffer the Defendant to run away with the money in consideration of the sale of an estate, to which he had no right." This decision has been followed in recent times by the House of Lords". The mistake may be that of one party only. If there is no agreement, " if the Court is satisfied that the true intent of one of the parties was to do one thing, and he by Uni i ateral mistake has signed an agreement to do another, that mistake - agreement will not be enforced against him, but the parties will be restored to their original position, and the agreement will be treated as if it had never been entered into 7 ," a modern 1 VII. 5 1 Ves. Snr. 126 (1748 M. B. sitting 2 Treatise, p. 11. for Lord Hardwicke). 3 (" the cause and motive of the 6 Cooper v. Phibbs, L. B. 2 H. L. agreement.") 149. 4 Earl Beaucliamp v. Winn, L. B. 6, 7 Paget v. Marshall, 28 C. D. 263. H. L. p. 233. 248 MISTAKE. judge has said, and on this point there has been no difference between the earlier and the later equity. In such a case Lord Romilly offered the Defendant the alternatives of taking what the Plaintiff had, in fact, agreed to give, or having the whole rescinded. In these cases, as elsewhere, if an instrument pur- porting to contain the true agreement were executed, it could not be varied or cancelled to the prejudice of a purchaser without notice 1 . Where a real agreement has been entered into, but one of the parties would not have agreed but for a mistake, the rule is less clear. If the error related to matter of importance, down to recent times Equity would certainly have set the agreement aside, or, at least, would have refused to enforce it. Nearly all the cases where the question was discussed were cases in which ' mistake ' was raised as a defence to a suit for specific performance. " No doubt, if one party thought he had purchased bona fide, and the other thought he had not sold, that is a ground to set aside the contract," Lord Thurlow declared 2 , but in many cases, where this defence was raised, the Chancellors, and especially Lord Eldon 3 , merely stayed their hands, and " left the Plaintiff to pursue his remedy at law." " Perhaps some of the cases on this subject go too far," said James, L. J., in a recent case 4 , "but, for the most part, the cases where a Defendant has escaped on the ground of a mistake, not contributed to by the Plaintiff, have been cases where a hardship amounting to injustice would have been inflicted upon him by holding him to his bargain, and it was unreason- able to hold him to it." And so the current has now set against allowing a mistake, affecting only the party's motive for agreeing, of which the other party had no suspicion, and to which he did not contribute, in cases where there is no fiduciary relation between the parties to raise an independent equity, to diminish the liabilities of the party mistaken, or the rights of the other. It is difficult to see why the latter should not be treated as a purchaser without notice, for such he is, 1 Garrard v. Frankel, 80 B. 445 3 See Stapylton v. Scott, 13 Ves. (1862). p. 427. 2 Calverley v. Williams, 1 Ves. 210. 4 Tamplin v. Jones, 15 C. D. 215. MISTAKE. 249 and so be unaffected by the possible ' equity ' affecting the contract. In the passage quoted above from the ' Treatise of Equity ' mistakes of fact and law are classed together as . P , . , , . . , Mistake of law. if no regard were paid to the common principle ' ignorantia juris hand excusat,' but Lord Hardwicke refused to admit an error as to the legal consequences of known facts, in the particular case the construction of a will, as a ground for relief 1 ; and in the Exchequer in Equity, it was said in 1835, that, though "it is a maxim of equity that parties making a mistake of fact shall not be held bound ", (yet) " when they make a mistake in law they cannot afterwards be heard to say that the contract shall on that account be set aside 2 ." In Cooper v. Phibbs*, already referred to, Lord Westbury narrowed down the exception which he admitted to exist, so as to make it apply to public general law only, not to matters of private right, while in other modern cases 4 there has been considerable discussion as to whether the exception exists at all, and in 1876 Hellish, L. J., declared that Equity " has power to relieve against mistakes in law as well as against mistakes of fact ; that is to say, if there is any equitable ground which makes it under the particular facts of the case inequitable that the party who received the money should retain it 5 ." Compromise. Where doubtful rights are compromised, though it after- wards prove that the rights lay, in fact, wholly on one side, Equity has refused to allow the compromise to be disturbed, and a case of this is found so early as 19 Car. II. 6 Family arrangements too were specially protected by the 18th century Chancellors 7 : the Court, said Lord Hardwicke 8 , " will be glad to lay hold of any just ground to carry (them) into 1 Fallen v. Ready, 2 Atk. 591. The reporter remarks that there was 2 Marslmll v. Collett, 1 Y. and C. no consideration, but see Miles v. New Ex. p. 238. Zealand dc., Co. 32. C. D. 266. 3 2 L. B. H. L. 149. 7 Conn v. Cann, 1 P. W. 727. 4 3 C. D. 350. Macclesfield. 5 Rogers v. Ingham, 3 C. D. p. 357. 8 Stapilton v. Stapilton, 2 W. and T. 6 Frank v. Frank, 1 Cas. in Chy. 34. p. 931. 250 PENALTIES. execution and to establish the peace of a family." But, on the other hand, no concealment of anything known to the parties to the arrangement, and relevant to its subject can be allowed, and, if any such exist, it will be fatal, as Lord Talbot held, and Lord Eldon agreed, to the whole settlement 1 . 8. Penalties. Relief against penalties was given by the earlier Chancel- lors, without any definite rule, where the cases brought before them seemed unduly hard, but when, during the present period, Equity settled down to more judicial fashions, this relief was confined between stricter limits, but within those limits it was freely given. The refusal to allow a bond creditor to exact the penalty was of earlier date than the relief given to the mortgagor, and in Lord Somers' Act 2 it was recognised by fulfilment of the condition, though after the day fixed, being made pleadable at law. It was the regular practice of the Court whenever a penalty to secure payment of money came before it, to retain the cause until an issue ' quantum damnificatus ' had been tried at law, and then to allow relief on payment of the amount so found. On the other hand, when application was made to Lord Macclesfield 3 , in 1721, to relieve against a forfeiture of copy- holds, for waste and leasing against the custom of the manor, he refused, for, he said, " it is recompense that gives this Court a handle to grant relief. The true ground of relief against penalties is from the original intent of the case, where the penalty is designed, only to secure money, and the Court gives him all that he expected or designed," and he went on to distinguish penalties imposed by law from those founded on the agreement of parties, and against the former, Equity, he said, would never relieve. There is no doubt the rule was here too strictly put, and the Chancellor subsequently often relieved against penalties even where they were not intended merely to secure the payment of money, for example penal- 1 Pusey v. Desbouverie, 3 P. W. 315. 3 Peachy v. Duke of Somerset, 2 W. Gordon v. Gordon, 3 Swan, 400. and T. 1245. 2 1C Anne, c. 1C, 20. PENALTIES. 251 ties in leases sanctioning covenants therein contained. This particular kind of relief was regulated by a statute of 4 George II. 1 Lord Thurlow 2 placed the rule on its modern basis, when, in continuing an injunction against the enforcement of a bond entered into to secure the use of a room to the Defendant, according to an agreement, he said, "the only question was whether this was to be considered as a penalty, or as assessed damages." And he added, "The rule that, where a penalty was inserted merely to secure the performance of a collateral object, the enjoyment of the object is considered the principal intent of the deed, and the penalty only as accessional, and therefore only to secure the damages really incurred, is too strongly established in equity to be shaken." The common law courts themselves ultimately refused to enforce agreements for penalties, and adopted the principle enunciated by Lord Thurlow 3 . The chief question, in modern cases, has always been whether a sum fixed in an agreement as payable in default of compliance with .its primary terms is to be taken as a penalty, or as liquidated damages, and, after much discussion, the principles of the distinction have now been fairly settled by an elaborate judgment of Jessel, M. R 4 9. Sureties. It has already been shown that sureties were regarded with peculiar favour in Equity, and during the present period further doctrines for their protection were introduced, and the old ones were extended and established so as to greatly improve their position. Lord Cowper refused to allow a master to sue a surety for the good conduct of his apprentice, partly on the ground that the master's ordinary diligence would have prevented the loss 5 , but Lord King decided in 1725 that a principal creditor would 1 c. 28, 3. See now Conveyancing Astley v. Weldon, 2 B. and P. 346. Act, 1881, 14. 4 Wallis v. Smith, 21 C. D. 245. 2 Sloman v. Walter, 2 W. and T. 5 Montague v. Tidcome, 2 Vern. 518. 1257. The master had given a counterbond. 3 Kemble v. Farren, 6 Bing. 141. 252 SURETIES. not be barred against a surety by mere negligence unac- companied by fraud 1 . At the end of the century, in Rees v. Berrington*, Lord Loughborough laid down the rule as to the discharge of the surety by the creditor's acts in these words, " there shall be no transaction with the principal debtor, without acquainting the person who has a great interest in it... It is the clearest and most evident equity not to carry on any transaction without the privity of him (the surety) who must necessarily have a concern in every transaction with the principal debtor. You shall not keep him bound, and transact his affairs without consulting him." Under Lord Eldon there was a reaction from the previous anxiety to assist the surety, and a little more regard has since been paid to the rights of the creditor. Mere passiveness, Lord Eldon 3 held, extending Lord King's ruling, would not prejudice the creditor, for if the surety desired to be quit of his contract he could pay the debt and sue the debtor for repayment, or, ever since Lord Guilford's time 4 , he could sue the debtor without first paying the debt himself. And he also held that an agreement to give the debtor time would not release the surety unless it were a positive contract between the debtor and the creditor, for that only would prevent the surety from suing the former himself 5 . And ever since, a contract to give the debtor time, but saving the creditor's rights against the surety, has left the latter's position unchanged. The right of a surety to contribution from his co-sureties after paying more than his share of the debt was, in 1787, extended to cases where the co-sureties became such by separate instruments 6 , and soon afterwards the action of as- sumpsit was moulded by the liberal-minded lawyers who then presided in the common law courts to enable them to give this, as several other species of equitable relief, at law. 1 Sliepherd v. Beeclier, 2 P. W. 288. principles governing the liability of 2 2 W. and T. 1106. sureties had then been adopted at 3 Eyre v. Everett, 2 Russ. 381. common law. 4 Ranelaugh v. Haynes, 1 Vern. 189 6 Dering v. Winchelsea, 1 W. and T. (1683). 114. Eyre, L. C. B. Steel v. Dixon, 6 Samuel v. Howarth, 3 Her. 272. 17 C. D. 325. Iii this case Lord Eldon said the SURETIES. 253 At law, however, one who was principal debtor on the face of the bond was not allowed to show that he was intended to be surety only, whereas in equity, where the principles of technical estoppel, which Lord Ellesmere had characterised as ' lying fictions,' never prevailed, he could always do this. On paying the debt the surety is entitled to stand in the creditor's shoes, and to sue on all his securities, and this without any agreement, though, until the case next cited, at least, it was the custom for him to take counter bonds from the debtor for indemnity. The early case of Parsons v. Briddock 1 goes very far in this respect, for in it the surety was allowed to recover against the debtor's bail, who had become bound in an action which the creditor had commenced against the debtor. Lord Eldon 2 refused to enforce for the surety securities actually discharged at law by the payment, but a section was inserted in the Mercantile Law Amendment Act of 1856 to remove the difficulty this refusal created. It enacts that bonds paid by a surety shall be enforceable by him against the other obligors, notwithstanding the technical discharge of the obli- gation. 10. Specific Performance. The performance in specie of obligations, particularly those arising out of contract, was during the 18th century, bub especially under Lord Eldon at the close of that period, de- veloped into the most important branch of equitable juris- diction after trusts and administration. It would not be enforced, Lord Macclesfield decided, where the agreement was for the delivery of unspecified chattels or choses-in-action (in the case before him 1000 What g^,,. stock) 3 , not even though the parties had expressly dficaiiy ar enforc- agreed to reject the alternative of payment of ed ' the difference in the market price on the day. This is ac- 1 2 Vern. 608 (1708). 3 Cuddee v. Butter, 1 W. and T. 2 Copis v. Middleton, 1 T. and E. 906 (1720). 229. 254 SPECIFIC PERFORMANCE. cording to Lord Hardwicke 1 , because the value of goods varies according to time and circumstances, and, by compelling specific performance, Equity might ruin a defendant, although the plaintiff's damages might not exceed a shilling. Lord Redesdale, half a century later, returned to the older reason, the original basis of equitable interference, and placed the refusal of specific performance in the cases referred to above on the ground that damages were adequate ; but the logical ground, and that upon which in recent times the test of the grant or refusal of specific performance rests, is that when specific property is sold, it becomes in equity forthwith the purchaser's property 2 , but where the property is not specified its ownership cannot pass. Lord Hardwicke displayed some inclination to depart from the rule laid down in Cuddee v. Rutter, but by Lord Eldon's time it had become well established. The converse rule was acted upon in Somerset v. Cookson 3 , where the claim was for delivery of a Greek patera, the property of the Plaintiff, and Lord Talbot overruled a demurrer objecting to the suit on the ground that a bill would not lie " for anything merely personal any more than it would for a horse or a cow." Lord Guilford in the case of the " Pusey horn 4 ," fifty years before, had stated his view, that the delivery of a chattel of special value might be enforced in equity. By the Statute of Frauds, an agreement for the sale of an interest in lands is unenforceable, unless there be a written memorandum- of the contract, but in 1701 the House of Lords decided 5 that, where a verbal contract, though otherwise within the statute, had been partially performed, specific performance of the whole contract might be granted, and so the rule has Part perform- ever smce remained. The same conclusion, that part performance takes the agreement out of the statute, was, as has been shown above, adopted many years 1 Buxton v. Lyster, 3 Atk. 382 962 (1735). (1746). 4 Pusey v. Pusey, I W. and T. 961 8 Holroyd v. Marshall, 10 Ho. Lo. (1684). Ca. 209 (Westbury), and see Official 5 Lester v. Foxcroft, 1 W. and T. Receiver v. Tailby, 13 Ap. Ca. 523. 881. Maddison v. Alderson, 8 Ap. Ca. 3 Somerset v. Cookson, 1 W. and T. 467. SPECIFIC PERFORMANCE. 255 later in regard to equitable mortgages also. The statute prevents a plaintiff who is suing for specific performance of an agreement within its terms, from proving a parol variation of the written contract, or showing that, by fraud, mistake or surprise, the writing does not contain the true agreement, and asking for relief according to the variation or true agreement. So the Master of the Rolls held in 1802 1 . But a defendant may give evidence of fraud or mistake in the agreement as written, or of a subsequent variation of its terms, by way of defence, for the statute operates only to prevent the enforce- ment of the agreements it affects, it does not enable agreements, otherwise invalid, to be insisted upon. In Joynes v. Statham* Lord Hardwicke had said that such evidence was frequently given, and, he had added, that it would be equally available if the Defendant were Plaintiff, but this, as has just been shown, was subsequently overruled. Following the main rule, however, it was decided that a plaintiff might obtain specific performance of a parol variation if the variation be evidenced by part per- formance 3 of its terms. In the case of penalties the Court had at an early period refused to look upon failure to keep to an agreed day as of vital importance ; for ' time is not of the essence of a contract ' was its ordinary rule. And, in accordance with this principle, a plaintiff was allowed to sue for performance though he had himself failed to be ready by the day fixed, i 11 -ill iii Time not of even though the agreement provided that it should the essence of i . , - , . -r, .,, . , . the agreement. be void in such a case. Sir S. Romilly in his argu- ment in Seton v. Slade 4 , admitting that the old latitude as regards time was by his day restrained in equity, yet urged that the Plaintiff's failure to keep the day was no defence, and, he said, Lord Thurlow had scouted the suggestion that it was. Lord Eldon agreed to this, but he suggested that a clause might be inserted in contracts to make time essential, and, although Lord Thurlow would not have allowed such a clause to have effect, he thought it would be good. Ever since, the 1 Wollam v. Hearn, 2 W. and T. 3 Legal v. Muller, 2 Ves. 279. 508. (Grant, M. R.) * 2 W. and T. 542. 2 3 Atk. 388. 256 SPECIFIC PERFORMANCE. agreement of the parties making time of the essence of the contract, has been respected 1 . Before this dictum time had sometimes been held to be essential on account of the nature of the property sold, if, for instance, it were a reversionary interest 2 . In Seton v. Slade Lord Eldon said that many hard cases had occurred through specific performance with compensation being directed, where the vendor had not got what he had agreed to convey, so that the purchaser missed the object of his purchase. The rule was, however, settled during his own chancellorship that either vendor or purchaser could insist on specific per- formance, where the vendor could convey substantially, but not exactly, the interest he had agreed to sell 3 . In the earlier part of this period the Court repeatedly refused specific performance of agreements of which it did not approve. Guilford, L. K., said that " he would not carry (the agreement) into execution for the benefit of a stranger ": and he added that articles, out of which an equity could be raised for a decree in specie, ought to be obtained with all imaginable fairness, and without any mixture tending to surprise or cir- cumvention 4 , and Lord Macclesfield was " clear of opinion, that this Court was not bound to decree a specific execution of articles where they appeared to be unreasonable, or founded on A discretion- a fraud, or where it would be unjust, or unconscion- able to assist them ; that, though there was no direct fraud proved, yet from the great undervalue of the land, and that without any expense on the Plaintiff's part, (the agree- ment before him) appeared to him to be an unreasonable and shameful contract 8 ." And the relief was sometimes refused on the ground of the excess or inadequacy of the sale price alone 6 . Unfairness, hardship, want of mutuality, and inadequacy of consideration still appear as defences to claims for specific performance, but they are now bound down within narrow 1 Hudson v. Bartram, 3 Madd. 440. 10 Ves. 315. Eldon. Leach, V. C. 4 Phillips r. Duke of Bucks, 1 Vern. 2 Newman v. Rodgers, 4 Bro. C. C. 228 (1683). 393, Loughborough. 5 Young v. Clerk, Free. Ch. 538. 3 Guest v. Homfray, 5 Ves. 818. G Francis, Maxims, 11. Grant, M. R. Mortlock v. Homfray, SPECIFIC PERFORMANCE. 257 limits, and would not be allowed to prevent the Court enforcing an agreement fully understood and deliberately entered into by the Defendant and unaffected by fraud. Inadequacy of con- sideration, it has been expressly decided, amounts to nothing more than evidence of fraud 1 . Lord Eldon did much to mark out the lines on which the grant of this relief would be allowed, and from his time the discretion always claimed in allowing it has been 'judicial,' and, in fact, the epithet has long been entirely unwarranted. He also introduced 2 the practice of sending references as to the title to the property to be conveyed straight to the Master, wherever the title alone was in question between the parties. It has been pointed out in the preceding pages that Equity, following the civil law, and indeed the common law also, looked upon restraints on marriage with much disfavour, and in the exercise of their discretion with regard to specific performance, on similar grounds, the Chancellors tween husband refused to enforce agreements for the separation of husband and wife 3 . At the beginning of this century, however, giving way to the necessities of social life, Equity began to enforce "the minor and auxiliary parts of the agreement to separate, while (it still professed) to repudiate the principal and essential part and motive of it 4 ." Ultimately, in 1847, the House of Lords decided that agreements to separate were no longer against ' the policy of the law 8 .' Agreements between husband and wife could not be entered into directly, and it was necessary that trustees for the wife should contract on her behalf 6 , but this formality has been dispensed with in recent years, first, where the one consort was actually suing for a divorce 7 , and then in all cases 8 . Now the difficulty has been entirely removed by statute 9 . . 1 Stilwe.ll v. Wilkins, Jac. 282. M. R.). 2 3 Twiss, Life of Eldon, p. 443. 7 Vansittart v. Vansittart, 4 K. and Fullcujer v. Clarke, 18 Ves. 482. J. 62 (Hatherley, C.). 3 Wilkes v. Wilkes, 2 Dick. 791 8 Besant v. Wood, 12 C. D. 622. (1757, Clarke, M. B.). (Jessel, M. R. In this case the whole 4 Frampton v. Frampton, 4 B. 293 law with regard to such agreements is (Langdale, M. B.). carefully considered.) 5 Wilson v. Wilson, 1 H. L. C. 538. !) Married Women's Property Act, fi Hope v. Hope, 22 B. 351 (Romilly, 1883. K. 17 258 11. Injunction. The weapon of injunction was wielded by the Court until the present century with little of its later effect. Wherever a prima facie case for the exercise of equitable interference to stay actions at law was established, the ' common injunction ' might be obtained, on motion or at the hearing, but special injunctions for the preservation of property and the like, though well known, were little used. "Prevention of mischief by injunction is a head of Equity upon which instances few and far between are to be found before (Lord Eldon's) time. Lord Thurlow would hardly grant an injunction where the parties had a remedy at law. Before his time there are not more than half-a-dozen instances of each species of injunction, and in these relief was as often denied as granted. Now injunction is, it is well known, the right arm of the Court, pervading the workshop of the artizan, the studio of the artist, entering alike into the miner's shaft and the merchant's counting-house. Almost all the principles upon which this relief is granted or refused, the terms and conditions upon which it is dissolved, revived, continued, extended and made perpetual are to be found in Lord Eldon's judgments alone 1 ." Lord Eldon's panegyrist in the passage just quoted rather underrates the work of earlier Chancellors on this head, and he had no conception, of course, of the advance made since Lord Eldon's time, which has so extended the jurisdiction that the grant of injunctions, especially in ' light and air ' cases, has come to be a great part of the most important work of the equity courts on 'motion days,' but the passage is still sub- stantially accurate. The Copyright Act of Anne and the discovery, (for it is con- sidered it was a discovery not a creation,) of copyright under it, was the occasion of many applications for injunctions to the Court ; for the protection of copyright, it is plain, Copyright. ' y depends on the summary suppression of piracies by offenders who are probably impecunious, and whom it would be therefore useless to sue for damages. 1 Eldon as a Law Eeformer, Law Review, vol. 2, p. 282. INJUNCTION. 259 In assenting to such applications the Court strictly pre- served the discretionary power it always claimed over the remedies exclusively administered by it, as specific performance and injunction 1 . Thus Lord Eldon exercised practically a censorship of the press, which Lord Macclesfield had previously claimed, by refusing to protect from piracy books of which he disapproved, among others Southey's Wat Tyler and Byron's Cain 2 . Lord Hardwicke on the occasion of applications for injunc- tions to protect copyright, decided the important points, that an abridgement of a book, provided it be made with the exer- cise of care and labour, is not an infringement of the copyright 3 , and that the writer of a letter may restrain the publication of it by the person to whom he has addressed it, although it is made by his own act, the property of the latter 4 : a rule of which Lord Eldon disapproved, but which would surely have been made by Parliament if the Chancellor had not an- ticipated it. Equitable Waste. The subject of equitable waste, to prevent which injunctions were granted by Equity from Lord Nottingham's time, and, as already shown, in some instances, at least, so early as the reign of Elizabeth, is worthy of separate consideration, and chiefly on account of Lord Hardwicke's celebrated judgment in Garth v. Cotton", which not only fully confirmed the doctrine, that waste permitted at law might be restrained in equity, but established and secured the strict settlement of lands in the form it till recently retained. It was settled before that case occurred that a tenant in tail after possibility of issue extinct, or a tenant for life without impeachment of waste, 1 Sec. 25 (8) of the Judicature Act of of an immoral, indecent, seditious, 1873, has not altered the principles libellous or irreligious nature. upon which injunctions are granted. 3 Gyles v. Wilcock, 2 Atk. 142 (cited N. L. Ry. Co. v. G. N. Ry. Co. 11 Q. B. in Campbell). D. 30. 4 See Gee v. Pritchard, 2 Swan, 414 2 Camp. Vol. 7. p. 663. Lord Byron (cited in Campbell). r. Dti(]dnle, 1 L. J. Ch. 239. There 5 1 W. and T. 820. can be no copyright in a publication 172 260 EQUITABLE WASTE. would not be allowed to destroy the mansion house or to cut ornamental timber 1 . In Garth v. Cotton a settlement had been made on the tenant for life, for 99 years, if he should so long live, with remainder to trustees to preserve contingent remainders, with remainder to the eldest son in tail and other remainders, and with remainder over to the Defendant's testator. The tenant for life was impeachable for voluntary waste, but, before any son was born, he made an arrangement with the Defendant's testator to cut the timber and divide the proceeds. The Plaintiff, the eldest son of the tenant for life, now sued to recover the money paid under this arrangement. Lord Hardwicke said the case turned entirely on the ex- istence of the trustees to preserve contingent remainders, the addition of whom to the settlement had been devised about 100 years before in consequence of the decision, in Chiulleigh's case 2 , that if there were no estate interpolated between that of the tenant for life and that of the remainderman, they two, before the contingent remainders vested, could combine to destroy them. Lord Harcourt had decided, in 1710, that an assignee with notice from these trustees would himself be bound by the trust 3 , and Lord King, in 1732, that, "in common sense, reason and justice," and therefore in equity, if the trustees assisted to destroy the contingent remainders they were guilty of a breach of trust 4 . The question in the present case was whether the trustees might have applied to the Court to stay the committal of the waste, because, if they might, they ought to have done so, and their neglect of duty could not be allowed to prejudice their cestui-que trust, although he was then unborn. Lord Hard- wicke decided that they might have done so, and consequently gave judgment for the Plaintiff. The fact that the life tenant and the remainderman had a legal right he paid no heed to, for he said, "in all cases where a legal right is acquired or 1 1 W. and T. p. 841. Lord Barnard's 3 Pye v. Gorges, 1 P. W. 128. Case, 2 Vera. 738. (Cowper.) 4 MameU v. Mansell, 2 P. W. 676. 2 1 Co. 120. DISCOVERY. 261 exercised by fraud or collusion, contrary to conscience, it is the office of this Court to enjoin it, or to decree a compensation." And, as to a further objection on account of the death of the Defendant's testator, he said, "E(^ity disclaims the maxim that a personal remedy dies with the person wherever the remedy is proper for that jurisdiction," and he adduced prece- dents from Lord Nottingham's time in support of this propo- sition. The restraint of equitable waste where the life tenancy is given 'without impeachment of waste' and the settlement creating the tenancy does not expressly show an intention to confer a right to commit it, has received statutory sanction in the Judicature Act 1 . 1 2. Discovery. The grant of discovery in aid of actions at law became a regular branch of the practice of the Court, for at law, though the method of examining the witnesses whom the parties were* allowed to call, was far superior to that adopted in Chancery, the rules of evidence, which Bentham described as devised to exclude the testimony of every one who was likely to" know anything about the matter, were strictly adhered to until the second quarter of the present century. Therefore, when the evidence of the Defendant was required by the Plaintiff, or that of the Plaintiff by the Defendant, a bill had to be filed in equity, and the same course was necessary if evidence had to be taken abroad, or, before the hearing, at home. The practice was to file a bill in the ordinary way, but never to bring it to a hearing, unless the whole dispute was retained in Chancery, and in later days this would only be done where an ' adequate, complete and beneficial remedy ' was not to be had at law. All through the present period the evidence on behalf of each party was taken without any information being allowed to reach him with regard to the evidence which was concurrently taken on behalf of the other. The necessary consequence of 1 Sec. 25 (3). Baker v. Sebright, 13 C. D. 179. 262 DISCOVERY. a departure from this principle, the Chancellors believed, would be perjury,... "if after publication (of the evidence) passed, and people seeing where a cause pinched, they should then be at liberty to look out witnesses to bolster up a faulty part of the cause 1 ." Following out this principle what is now the funda- mental rule of discovery was arrived at: that the right of a party to the benefit of the other party's oath is limited to a discovery of such facts as relate to his own case, and does not extend to a discovery of the manner in which the other party's case is to be established, or to the evidence which relates exclusively to it 2 . This rule was not however fully settled, and regularly applied in every case, till the end of the period or even later. The practice of attaching interrogatories to the bill, which, unless the Defendant could establish a good plea or demurrer, he was bound to answer, enabled the " plaintiff in Equity to obtain from the Defendant a discovery upon oath as to all matters of fact which, being well pleaded in the bill, were > material to the plaintiff's case about to come on for trial, and which the Defendant (did) not by his form of pleading admit 3 ." One of the most important rules in regard to discovery was laid down by Lord Nottingham in Basset v. Nosivorthy*, namely, that discovery would not be decreed against a vahll r bie as con f i- purchaser for value without notice of the claim oSt a noce. wlth ~ which the discovery was sought to support. The rule arose out of a doctrine which had from the earliest time been adopted in equity, and was always after- wards accepted down to the Judicature Act, that no relief should be given against a purchaser for value without notice, but in later times the protection afforded by the rule was considerably attenuated. Lord Thurlow would not allow the plea against a legal right, as dower, pursued under the concurrent jurisdiction in equity 5 , and Lord Loughborough described the plea as only a shield 1 Jones v. Purefoy, 1 Vern. 46 Blake, 1 Atk. 52. (Hardwicke.) (1682). < 2 W. and T. p. 1 (1673). 2 Wigram on Discovery, Prop. in. 3 Williams v. Lambc, 3 Bro. C. C. 3 Wigram, Prop. in. Duncalf v. 2G4, and Belt's note. DISCOVERY. 2G3 to the possession of land, but this Lord Eldon overruled, allowing a mortgagee to plead it against a tenant in tail who was seeking to recover the deeds from him 1 . Lord Romilly made a further inroad upon the doctrine by refusing to admit it as a defence by a second mortgagee against a foreclosure suit by a first mortgagee, and the House of Lords supported his decision on the extraordinary ground that foreclosure was not relief 2 . Since the Judicature Act it has been held that the plea is no longer good even as a bar to discovery in aid of an eject- ment action 3 , for it only availed, since Lord Thurlow's time, where recourse was had to the auxiliary jurisdiction of the Court of Chancery, and the jurisdiction of the Supreme Court is in every branch independent and complete. One plea allowed to excuse an answer has just been referred to; another that the answer would subject the Defendant to a penalty or a forfeiture, which like the first dated from long before the present period, has always been maintained as a general principle 4 though in particular cases it has been de- clared by statute to be no longer a reason for refusing dis- covery 5 . Since the amalgamation of the Courts of Chancery and Common Law, subsidiary suits for discovery only are no longer required or permitted, but orders for discovery are made on interlocutory application in the substantive action 6 . 1 Walwyn v. Lee, 9 Ves. 24. 3 Ind Coope and Co. v. Emmersen. 2 Collyer v. Finch, 5 H. L. C. 905. 12 Ap. Ca. 300. Lord Cranworth said, "it (foreclosure) 4 Bird v. Hardioicke, 1 Vern. 109, is calling on the party to exercise his (1682). right now or never." Its result, how- 5 e.g. 6 and 7 W. IV. c. 24. ever, is to deprive the mortgagee of 6 Rules of the Supreme Court, 0. 31. his property, if he cannot redeem. CHAPTER XIII. REFORM IN CHANCERY. THE last years of Lord Eldon's Chancellorship were marked by the commencement of a persistent and determined attack upon the abuses which had grown up in the Chancery, or, inherent in its practice from the first, had developed until they could no longer be tolerated. Complaints, as we have seen, had been made almost continuously from the reign of Elizabeth of the manner in which equity was administered, but they had, except in the time of the Commonwealth, and on the occasion of Lord Macclesfield's disgrace, neither been very wide-spread, nor been pressed with any great vigour. The case now was entirely different. On the one hand, the evils complained of had greatly increased, on the other, far more searching enquiry The demand now began to be made into public abuses, and far for reform. j ess patience was shown in enduring them. Within Parliament a number of public spirited reformers had arisen, who were neither bound to silence by attachment to the Government of the day, nor exclusively occupied by endeavours to secure the defeat of all its undertakings, and their own succession to its place. Some of them were members of the common law Bar, for during Lord Eldon's time a sharp division had arisen between the counsel who practised in equity, and no longer went circuit, and those who practised in the common law courts, and these were peculiarly alive to the absurdities of the Chancery procedure ; some of them were men, like Sir Samuel Romilly, who had been bred in the Court of Chancery, but who had escaped the blindness that familiarity with abuses is apt to generate ; and some were laymen, who were shocked THE DEMAND FOR REFORM. 265 at the ruin in which they saw litigants involved, and the inconveniences which the lack of efficient legal institutions entailed. Outside Parliament too a keen interest in legal reform had arisen. The great success of the Code Napoleon, and the writings of Bentham and his followers had much to do with this 1 , and the growing wealth of the country and its increasing trade brought forcibly home to every man of business the need for Courts where rights could be plainly declared and speedily secured. During the last century the great estates of the country had at irregular intervals struggled slowly through Chancery, and their proprietors had come to regard the delays and expenses of the process as inevitable, if unpleasant incidents of ownership, but the merchant and middle classes were less patient, and, moreover, the Court was even less fitted for the decision of the disputes in which they were likely to be interested than for the administration of estates. " The number of suitors in Chancery is nothing compared to the community, or this Court would long ago have been abolished as a nuisance," Sir Samuel Romilly asserted 2 , and the number of persons inte- rested was now rapidly increasing. It was not indeed the Chancery only that needed reforming ; the procedure and practice of the common law courts had become buried under a mass of technicalities and fictions such that the steps which were really necessary for the discovery of the parties' rights were generally but a small proportion of those which had actually to be taken in an action, while the remaining steps, not only increased the cost and duration of the litigation, but formed so many traps for an unwary pleader or advocate, and caused the time of the judges to be constantly occupied in the discussion of the merest legal conundrums, which bore no "relation to the merits of any controversies except those of pedants," or " in the direction of a machinery which wholly belonged to the past V 1 Parkes' History of the Court of Birmingham solicitor, did his best to Chancery, to which frequent refer- collect all that was known, or had euce has been made in these pages, been said, against the one or -the was published in 1828. It is a vigor- other. ous indictment of the Court and its 2 Camp. Vol. n. p. 379 n. administrators, in which the author, a 3 The Reiyn of Queen Victoria ' Ad- 266 UNCERTAINTY. Uncertainty as to the result of his suit, inevitable expense, which often made judgment in his favour more disadvantageous than abandonment of the right declared to be his, and almost incredible delays before the end of the suit was reached awaited any one who was unfortunate enough to be involved in litigation in Equity. The uncertainty was not the consequence of any arbitrari- ness of the decisions of the Equity judges, for, as we have seen, it was now thoroughly settled that the rules of Equity, as they were found in the Keports, were to be observed. The difficulty arose in part from the mass of these reports, and the contra- dictions of the dicta they contained. The mass of reports at Uncertainty the present time is far greater, but contradictions, of the law. j n cases O f recognised authority, have become few, and. thanks to the simplification of the law and the excellence of the modern digests and text-books, the number of the reported cases does not now often occasion any very grave difficulty in ascertaining beforehand the probable decisions of the Courts. But the case was very different at the beginning of the century. Sir Samuel Romilly, who was the greatest equity lawyer of his day, described the responsibility of advising his clients as un- bearably great, and Mr Park, who was also a lawyer in con- siderable practice, wrote, in 1828, the following plaintive passages 1 . " It is scarcely possible to conceive of the anxiety, the oppressiveness, the burdensomeness of the life of an English jurisconsult in active practice. His mind is never free, it is always groaning under a load of mental labour in which he can never find a resting-place." " The interminable accumu- lation of the materials of law prospectively, an accumulation beyond the natural strength of man to keep pace with, added to the unavoidable defection of the memory, retrospectively, places the chamber lawyer always in the condition of a horse who is carrying beyond his weight." But an even greater source of uncertainty was the state of the law of real property, with which the questions debated in Chancery were so much in- volved. " No person can have had much experience in Courts of ministration of the Law.' Bowen, 1 Contre-Projet to the Humphrey- L. J. sian Code, p. xxn. EXPENSIVENESS. 267 Equity," says the Report of Lord Eldon's Commission, " without feeling that many suits owe their origin to, and many others are greatly protracted by questions arising from the niceties and subtleties of the law and practice of conveyancing 1 ." The costliness of proceedings in Equity was due partly to the number of unnecessary officials who had been foisted upon the Court, or had remained there proceeding in long after their original usefulness had ceased ; partly to the manner in which the evidence in contested cases was taken ; and partly to the prolixity of the pleadings. The 'Six Clerks' furnish a striking example of the 'harpies of office' who not only taxed the hapless suitors, but, from fear for their privileges, offered a most strenuous opposition to improvement of every kind. They had once, as we have seen, been the attornies of the Court, but, as business increased, and the original simplicity of procedure vanished, parties The Six found it necessary to employ special agents to take CIerks - charge of suits on their behalf. These agents, Solicitors as they were called, were formally recognised by the Legislature in 1729", but before that they had practically superseded the Six Clerks as the litigants' representatives. At the beginning of the century the latter had become utterly useless : what work remained in their offices was done by deputy, and it was quite possible for a solicitor engaged in extensive practice to pass his life without ever seeing any of them. Their spokesman, who attended before the Commission of 1825, said that their duties consisted in filing and preserving records, entering them, certifying to the Court respecting them, and signing copies, that for the discharge of these each Clerk attended two months in the year, and that they might occasionally all have to consult over matters so important as the form of an engrossment, but he could not say that an occasion for consultation had ever occurred 3 . 1 Report of 1826, p. 34. The Com- Commission thought that suitors did missioners were careful to add that not derive adequate benefit from the any alteration in the system " must fees paid to the Six Clerks, and sug- be made with the greatest caution." gested that these officials should be -' 2 Geo. II. c. 23. used to tax bills of costs. Report of 3 Parkes, p. 576. Even Lord Eldon's 1826, p. 33. 268 THE EVIDENCE. The Six Clerks had, however, or rather their underclerks had, opportunities for facilitating or hindering the weary progress of a cause, and it was therefore deemed advisable by solicitors to take a certain number of office copies of docu- ments, which were otherwise unnecessary, that the profit on the copying might serve the purpose of the 'expedition money' which the orders of the 18th century Chancellors had sup- pressed. Thus the intention of a salutary order of Lord Hardwicke, that no unnecessary copies need be taken, was defeated. The manner in which the evidence in Chancery was taken had always been a serious discredit to the Court ; it remained at the beginning of the 19th practically the same as it was at the end of the 17th century, although all the fire of the criticism of the Commonwealth Reformers had been directed upon it. If the witnesses were examined in London they were taken before one of the Examiners of the Court, and, in the absence of anybody representing . either party to the suit, a set of interrogatories previously prepared 1 , and often couched in Evidence in technical and precise language which the witnesses Chancery. could not understand, was put to them. Inas- much as one witness might refuse to answer, or fail to give the evidence expected, as a matter of precaution, several were usually called to prove each point, though had the evidence been taken by the agent of the parties orally, one would generally have sufficed. After the examination in chief the witness might be cross-examined, by the same examiner 2 , upon interrogatories prepared without any knowledge of, or reference to, his previous answers, but, as the Commissioners of 1850 reported many years after 3 , such cross-examination was "so 1 Blackstone, in. p. 449. Parkes, p. mode of taking evidence." Report of 456. Lord Eldon's Commission could 1826, p. 14. think of no alteration " which would, 2 This was an innovation in Lord upon the whole, operate as an improve- Eldon's time, the old rule required a ment/' They were satisfied that " the different examiner. It was expressly instances are very rare, in which there allowed by Order 26 of Ap. 1828. is even any suspicion of ultimate in- 3 Report of 1852, p. 8. justice, in consequence of the existing THE EVIDENCE. 269 ineffective and dangerous that it (was) seldom resorted to, except where the witness (was) known to be friendly to the cross-examining party, and (had) previously communicated facts to be the subject of a friendly cross-examination." When the examination took place in the country its cost and in- effectiveness were even greater, for then the examination was by a commission 1 of untrained persons, who had to be paid and supported by the parties at the town or towns to which the commission was directed, often for weeks together. This evil was to some extent modified by the appointment of solicitors only upon these commissions after the Report of the Commission of 1825. The inadequacy of such examinations, in really contested cases, to procure satisfactory evidence for a judge to act on, who saw, and had power to call before him, none of the witnesses, is obvious. The suppression of the depositions taken for formal defects or because the interrogatories were leading, and the grant of further commissions, frequently occurred, and when to the depositions were added the affidavits, which were admitted to prove subordinate points, and the bill and answer, the cause, it was truly said, was buried beneath a sea of paper. Often the discovery of truth by these means was so hope- less that parties were sent to try an issue 2 at law, and some- times again and again in the same cause. The bill and answer were portentous documents. The first " stated the Plaintiff's case at full length and three times over. There was the first part, in which the story The pi^. was circumstantially set forth. Then came the mgs- part which charged its truth against the Defendant, or," in other words, which set it forth all over again in an aggrieved tone. Lastly, came the interrogating part which converted the original allegations into a chain of subtly framed inquiries addressed to the Defendant, minutely dovetailed and circuit- 1 Two commissioners were appointed is a good description of it in Ten by each party. They and their clerks Thousand a Year. were sworn to secrecy until after pub- ~ It was at this time a fictitious lication. The procedure in the Eccle- issue on a wager, siastical Courts was the same. There 270 DELAY. ously arranged so as to surround a slippery conscience and to stop up every earth. No layman, however intelligent, could compose the 'answer' without professional aid 1 ." "I remember," said Lord Campbell in 1859 2 , "when bills in Equity told the same story over and over again, and each time more obscurely than on the previous occasion. When the answer came, the great object in drawing it up was, that, how- ever long it might be, it should form only one sentence, in order that, if part of it had to be read, it should be necessary to read the whole." An almost continuous complaint of the delays of Chancery had existed from the reign of Elizabeth. Now and then an energetic Chancellor had, by great exertions, swept away the accumulation of causes waiting to be reached, and, according to their biographers, at least two Chancellors of the 18th Delays in century had fallen victims to their efforts to do Chancery. this 3 . But the postponements of Lord Hardwicke's judgments made it finally impossible for any of his successors to ever get level with their cause-lists, and Lord Eldon had been even more dilatory than his predecessors. It is unneces- sary to dwell upon the complaints made in the House of Com- mons and in the press of the day of the number of causes waiting after hearing for Lord Eldon's judgment, on the tales of cargoes rotting while he considered to whom they belonged, and of frantic appeals from ruined families that some end might be put to the fatal continuance of their suits, or to consider the defence made by Mr Twiss 4 to these charges. The facts are indisputable 8 , that a common administration suit, where the parties were not hostile, took from three to five years ; that eminent counsel stated that no man could begin a contested suit and hope to see its end ; that clients were advised to compromise good claims, and to yield to bad ones, rather than risk a suit ; and that, on the average, causes took 1 Bowen, L. J. The Reign of Queen 4 Life of Eldon, 2nd Ed. Vol. m. p. Victoria. 'Administration of the Law." 359. 2 Ho. Lo. 1 July, 1859, quoted by 5 See the Report of 1826, pp. 9 and Warren. "Law Studies. 13, and C. P. Cooper's Proceedings in 3 Guilford, L. K., and Talbot, C. Parliament, p. 86. See Parkes, pp. 223 and 319. INSUFFICIENT JUDICIAL STRENGTH. 271 at least three years to reach the top of the list after they were ready for hearing. The delays after the cause was ready for hearing, which, as it was said, were the worst delays of all, for the litigants were then making a direct demand for the Court's assistance, were due to the insufficiency of the judicial strength of the Court for its work. To these had to be added the delays due to the cumbersome procedure neces- sary to get ready for hearing, of which some idea may be gathered from what has already been said 1 , and the greater delays, after hearing, in the Master's offices, if, as happened at some stage in almost every cause, enquiries were di- rected 2 . The work of the Court had long far outrun its capacity for discharging it. The average number of bills filed in Lord Hard- wicke's time was about 2150, in 1801 it had sunk to 1225, but by 1824, after the appointment, in 1813 of a Vice-Chancellor, it had risen again to about the old number, and it was now in- creasing 3 . But whereas the money in Court in 1745 was under If million pounds, it was in 1825 over 39 millions. From these figures, from the absolute decrease in the number of suits during the latter half of the 18th century and its slow increase after an additional judge was added to the Court, while the wealth and population of the country were steadily and rapidly grow- ing and the amounts at stake in the suits actually litigated became so much greater, the reformers argued that the ineffi- ciency of the Court, its delays and expense, had driven suitors from its doors; that they, in fact, amounted to a denial of justice, and this inference was undoubtedly just. Lord Eldon's time was greatly taken up by his political avocations, byhis duties as president of the House of Lords, the necessity of his attendance there to hear appeals, the important business in Bankruptcy cast upon him as Chancellor, and by other multi- farious occupations, so that he had but little time left at his 1 See ante, p. 155. As an instance real step in it. Report of 182G, p. 13, of the delays permitted a defendant and see pp. 68. ... could not, in general, dismiss a vexa- 2 Report of 1826, p. 18. tious suit for want of prosecution till 3 C. P. Cooper, Proceedings in Par- After lg years from the Plaintiff's last liament, Ac., p. 103, (1828). 272 INSUFFICIENT JUDICIAL STRENGTH. disposal to attend to his work as an equity judge 1 . The Master of the Rolls, carrying out the theory that he was only the Chancellor's deputy, never sat when the Chancellor was sitting, and therefore did not sit in the morning, except for a few days in the year, but sat, for three or four days a week, from 6 to 10 in the evening. So that, at the best, he and his chief did the work of a single judge between them. It may be stated at once how this particular defect was met. First came the appointment of a Vice-Chancellor in 1813, then, soon after Lord Eldon's retirement, it was arranged that the Master of the Rolls should sit in the morning, and by an Act of 1833 2 he was empowered to hear motions and conduct all Court work, instead of hearing causes only, and about the same time the Bankruptcy business, other than appeals, was removed from Appointment *he Chancellor's shoulders 3 . In 1841 4 two new j'udK^iH 3 "' 11 Vice-Chancellors were created, and lastly, ten Equity. years later 5 , two Lords Justices were appointed to hear appeals from the Master of the Rolls and the Vice-Chan- cellors, and to them the remainder of the Bankruptcy business, the hearing of appeals, was committed also. By these changes the judicial force of the Court was ultimately, that is, by 1851, increased more than five-fold. Very few cases, said the Commissioners in 1826 6 , could be brought to a final decision without inquiries before a Master. A large portion of the business of the Court was administrative, and the inquiries for creditors and next of kin, the ascertaining of classes of legatees, the sales of estates and distributions of the proceeds, and the taking of accounts, which the administra- tion involved, were conducted in the Masters' offices, and there too discussions on the sufficiency of answers, objections to 1 He attended from two to five morn- importance." Eeport of 1826, p. 16. ings a week in the House of Lords. 2 3 and 4 W. IV. c. 94. Even when he was in Court but little 3 1 and 2 W. IV. c. 56. Lord Eldon's of his time was devoted to hearing Commission reported against this re- equity causes. It was taken up by form, p. 35. bankruptcy and lunacy matters, and 4 4 and 5 V. c. 52. "the incessant intervention of other 5 14 and 15 V. c. 83. business specially brought before him (l Report, p. 18. on the plea of immediate urgency and PROCEEDINGS IN PARLIAMENT. 273 pleadings for scandal, and many other interlocutory matters were heard. The offices were under no direct control by the judges, and their business was conducted privately without the salutary influence which an open court always Th Magt , exerts on the administration of justice, but their offlces - chief defect was the frequent misconduct and incapacity of the Masters themselves, who had, and whose clerks had, a direct interest in the protraction of the proceedings before them 1 , and who, when they had the desire, lacked the necessary dignity and authority to check the delays and irregularities of shuffling or dishonest litigants. They, as the Chancellor and his deputies, could not take the direct evidence of witnesses, but were obliged in every case to search through masses of affidavits for the facts on which they founded their reports to the Court. The method of appeal from their decision, by motion to the Court, leading, if successful, to fresh enquiries, added to the expenses and delays the system entailed. Repeated motions were made in Parliament for returns of the causes awaiting judgment in Chancery, and for commissions to enquire into the state of the Chancery procedure, and into the condition of law and legal procedure generally. Mr Michael Angelo Taylor, for instance, session after session called the attention of Parliament to the delays in Chancery 2 ; and, in 1828, Lord Brougham, then Mr Brougham, the most ardent and celebrated of the pioneers of legal reform, moved for a Commission " to enquire into the defects occasioned by time or otherwise in the laws of this Realm, and into the measures necessary for reforming the same," and made a speech 3 in support of his motion which, though dealing mainly with the Courts of Common Law, forcibly attracted public attention to the abuses and absurdities prevailing in the administration of every branch of our law. Before this, in 1825, the Commission, 1 Lord Eldon's Commission said they advised, for suitors to pay the that payment for office copies was the Masters a fixed salary, but that would principal source from which the Mas- be unjust to the public. Report of ters' remuneration was drawn, but this 1826, p. 23. they were convinced, though the con- 2 See Hansard, 2nd ser. xvin. p. 315. trary was loudly asserted, led to no 3 ibid. p. 127. abuse. It would be more beneficial, K. 18 274 LORD ELDON'S COMMISSION. whose report has been already referred to, had been appointed to enquire into the Chancery practice and procedure. It was composed of Chancery lawyers and Masters, and presided over by Lord Eldon. This Commission made its Report in 1826, after taking an enormous mass of evidence, from which many of the facts stated in the preceding pages of this chapter have been taken 1 . The Report dealt in a very timid and partial manner with the abuses the evidence disclosed, and the 188 propositions which were attached to it were described at the time as framed merely to prune the luxuriance of these evils, and in no way to touch their roots. And the Times, not unfairly, spoke of it as an apology for all the abuses of the Chancery 2 . No alteration had been made, said the Commissioners, in the general system of the practice of the Court since Whitelock's orders of 1656, and they The Report ^ad none to suggest 3 . For the amendment of the of 1826. method of taking evidence, the Report suggested only that skilled Commissioners be chosen for country commis- sions, and, to meet the delays of causes ready for hearing, it suggested no reform at all. A few miserable shillings might have been saved and causes advanced a week or two in the lists if all the propositions had been carried out, but no measure would have been taken to get judgments through in a time more conformable to the expedition indispensable in a good administration 4 . But even such improvements as the Com- mission thought necessary were not then obtainable, for what- ever chance of being immediately carried into effect their recom- mendations had, was lost by an attack which Lord Redesdale, next to Lord Eldon the most influential member of the Com- mission, made upon them. He attributed most of the failures of the Court to the ignorance and misdeeds of the solicitors, and he expressed regret that they had ever been admitted to practice in it at all, and many of the inconveniences which were not attributable to them, he considered irremediable. 1 The Times newspaper published a 2 Parkes, p. 530. series of articles upon the Eeport, and 3 Eeport, p. 10. a summary of the evidence. These 4 C. P. Cooper, Lettres sur la are printed in the appendix to Parkes, Chancellerie. THE ACT OF 1838. 275 No Act was passed until 1833 for the improvement of the Court, but the publication of the evidence and report, and the discussion to which this gave rise, prepared the way for reform. In 1827 Lord Lyndhurst, who as Copely, M. R., had intro- duced into Parliament a bill for the amendment of orders of 1828 Chancery procedure, became Chancellor, and in and1831 - the next year he published a set of orders, which, without making any fundamental changes, in some degree improved the practice in the Masters' Chambers, and expedited the progress of causes before the hearing 1 . And in 1831 Lord Brougham, who had succeeded Lord Lyndhurst, published additional orders, still further curtailing the times allowed for some of the interlocutory steps of the suit 2 . In 1833 the first important procedure amendment Act 3 was passed. It abolished some of the unnecessary offices, and provided that, for the future, the fees (which were diminished and regulated) should be paid to the Suitors' Fund, the emolu- ments of the officials being henceforth to be by way of salary 4 , and the officials were forbidden under pain of prosecution to take gratuities. The old deputy Registrars, it was provided, should do duty nominally as well as actually as Registrars, and should attend the judges and draw up decrees, which were no longer to contain the long recitals that had made them as lengthy and expensive as the rest of the paper proceedings. Suits in Equity were to be commenced by an open writ pre- pared by the Plaintiff and issued under an office seal, analogous to the Writ of Summons simultaneously introduced , , . The Chancery at law, instead of the old subpoena under the Great Regulation Act 18M. Seal. No one was to be compelled to take office copies, arid thus further necessary expense was avoided. To save the time of the Court, applications for time to answer and for 1 Code of Chancery Practice. Ken- party if Plaintiff do not proceed dili- nedy, p. 185. (0. 4. Plaintiff to gently ; 58. and may proceed de die in deliver his exceptions to the answer diem ; and may examine witnesses, on within two months. 48. Decree to be the inquiry, viva voce, ) taken into the Master's office within 2 Kennedy, p. 209. two months. 51. Master may fix 3 3 and 4 Will. IV. c. 94. time for proceeding on it ; 56. and 4 This reform was not fully carried may give conduct of enquiry to another out till 1852. 182 276 FROM 1830 TO 1850. leave to amend bills, &c., were to be made to the Masters, and to reach the judges only when the Masters' decisions were objected to ; and, to control the dilatoriness of the Masters' offices, they were directed to report annually to the Chancellor on the work pending before them. It was by this statute also that the Master of the Rolls, as already stated, was made an efficient judge. The Act provided too that the number of the Six Clerks should be gradually reduced to two, but they were soon after swept entirely away, along with a host of other useless officials by an Act 1 of 1842. During the twenty years following these reforms, numerous orders were, from time to time, issued, the more important of them with the sanction of Parliament 2 , for the improvement of Chancery practice and procedure, and, without making any alteration in the general plan described above, they effected considerable amendments in detail, especially by reducing the pleadings to more reasonable limits, restricting the times allowed for taking the different steps, minimising the delay and expense which the necessity for a bill of revivor upon the death of any of the numerous parties to a suit entailed, and facili- tating the process of getting a suit taken pro confesso where the defendant absconded. No substantial further improvement, however, was made until 1850. In the meantime great changes had taken place in the common law courts, and in the law itself. The old fictitious forms had been, for the most part, swept away, the practice of the three courts assimilated, and, by the Acts passed on the Reforms in reports of the great Real Property Commission, SmSlSi'fa? 8 tne Fines and Recoveries Act, the Inheritance courts. Ac - t> tne Willg Act> and tne Real p r0 p er ty Amend- ment Act of 1845, the law of Real Property had been greatly 1 5 and 6 V. c. 103. where defendants absconded, or, being 2 3 and 4 V. c. 94. Brougham's in custody, refused to appear was given Orders 1833, Cottenham's 1841, Lynd- by 5 Geo. II. c. 25. 45 Geo. III. c. 124, hurst's 1842 and 1845. For list see extended it to cases of privileged de- Daniell's Ch. Practice, 2nd ed. p. xxv. fendants who refused to appear, and 11 3 Orders of 1841 and 1845. A par- Geo. IV. c. 36, extended it still further, tial power to take bills pro confesso Daniell's Ch. Practice, 2nd ed. p. 473. COTTENHAM'S ORDERS AND TURNER'S ACT. 277 rationalised and simplified, its main principles being pre- served. The judicial staff of the Court of Chancery had, as we have seen, been greatly increased, but its business had grown greater also. The ancient equity jurisdiction of the Ex- * J J Increase of chequer, which in the present century had become very ineffective, had, in 1841, been transferred to the Chancery 1 . And the early Joint-Stock and Winding-up Acts 2 , and the enormous multiplication of Joint-Stock Com- panies, had introduced into Equity a mass of new business which bade fair to equal all the other work of the Court put together. Notwithstanding the important improvements effected, the procedure of both equity and common law courts was still quite unsuited for the expeditious and satisfactory disposal of the questions that came before them, and the Commissioners were appointed upon whose labours the Common Law Procedure Acts of 1852 and 1854 and the Chancery Amendment Acts of 1852 were founded. Some immediate steps however were taken in 1850, pending the appointment and return of the Chancery Commission ; Lord Cottenham's orders were issued, and Sir George Turner's Act "to diminish the delay and expense of proceedings in the High Court of Chancery 3 '* was passed. In introducing his bill, Sir George Turner stated that it had originally comprised a scheme for rearranging the preliminary proceedings of suits, and the Masters' Offices, but that, on the issue of the orders referred to, with the same object, that part of the bill had been dropped. In explaining the purpose of the clauses that remained he said 4 , "hitherto it has been the rule of the Court to administer complete justice in all cases in which it interferes ; for instance, the Court would not deal with a portion of the property, it would have the whole property before it, as well as all the parties in any way in- SirGe r terested in it, although they might not be in any Turner's Act. manner interested in the particular question which had 1 5 V. c. 5. 3 13 and 14 V. c. 35. 2 7 and 8 V. c. 110, 11 and 12 V. c. 4 Headlam's Supplement to Daniell's 15, 12 and 13 V. c. 108. Practice, p. 174. Hansard, cxi. p. 1128. 278 TURNER'S ACT. brought the case under the notice of the Court. The conse- quences of this endeavour on the part of the Court to do complete justice, was that in many instances it incurred the opprobrium of doing injustice. The heavy expenses of Chancery proceedings chiefly resulted from this attempt to work out a perfect system of justice 1 ." "Take, for example," he continued, "a simple case, that of a question arising as to the right to a share in a residuary estate : the claimant files a bill, and all persons interested in the estate, though having no interest whatever in the particular question, are made parties to the suit, and served with an order of the Court. The suit comes on for hearing, and is referred to the Master's Office, where all accounts are required to be taken, and a great expenditure of time and money takes place before a very simple point can be settled." These were the evils that the Act 2 was intended to remove, and, in spite of the apologetic language in which they are explained, it is plain they were gross and oppressive evils, the more intolerable because of their utter gratuitousness. The plan adopted was to allow any one who desired a decision of the Court upon a question of construction arising out of a will, a question of title on a purchase, or other similar matter, to obtain it by stating a ' special case ' without pleadings. Another source of unnecessary litigation, the impossibility of executors ., and administrators distributing the estate so as Summary relief. to k e sa f e against unexpected claims of creditors, without the cumbersome and expensive process of an adminis- tration suit, was, to some extent, met by allowing them to obtain a decree for administration, by a ' motion of course ' without any preliminary proceedings, but this was rendered obsolete a few years later by the passing of an Act which made the administration itself unnecessary. Lord Cottenham's orders, which were issued in the same 1 " It is one principal advantage of gation respecting the same rights of our system of Equitable jurisdiction property." Report of 1826, p. 26. that, by embracing the interests of all The rule was relaxed if the parties parties who can possibly be affected were very numerous ; e.g. in the early by its decision in any suit, it not only unincorporated company cases. does complete justice in every suit 2 13 and 14 V. c. 35. instituted, but prevents all future liti- INTRODUCTION OF SUMMARY PROCEDURE. 279 year 1850, effected other important improvements, especially by the introduction, or rather the very great extension, of means for obtaining relief upon summary application. The old rule had been very strict, that no final relief could be given till, after all the preliminary stages had been duly gone through, the hearing was reached. An Act of 1734 1 had enabled the Court, before the hearing, to make a binding decree in foreclosure suits on the Defendant's motion ; during Lord Eldon's time all sorts of devices by way of motion were adopted to draw a decree from him 2 ; in 1812, as already men- tioned, Sir Samuel Romilly's Charity Act had allowed summary applications to be made by petition in Charity cases, and just before this time the Trustee Act had extended this boon to simple applications connected with the appointment of new trustees, but this was all. The Orders of 1850 there- 11111 Claims. fore made a great innovation when they allowed nu- merous applications by 'claims,' to be made direct to the Court 3 . A creditor or legatee seeking payment of a debt or legacy out of the assets of a deceased person ; a next of kin seeking an account ; an executor seeking administration ; a mortgagee or mortgagor seeking foreclosure or redemption ; and any claimant who was entitled to specific performance of an agreement, dissolution of a partnership, the appointment of a trustee, or liberty to use his trustee's name, without leave, and any other claimant, with leave, could file a 'claim' for the relief he desired, and serve on the respondent a summons to show cause why such relief should not be granted, without bill and without answer being necessary, unless the claimant desired, or the Court directed it. The claim was then considered by the Court on motion, the evidence being given upon affidavit. Claims were at once so largely employed that, as the Com- missioners of 1850 reported, between the end of May 1850 and the beginning of January 1852, 1969 were filed; upon these 863 decrees and orders had been made, and 245 of them only 1 7 Geo. II. c. 20. cognizable in equity, almost entirely 2 See p. 272, ante, note. to supersede the use of written plead- 3 " The effect of these orders is, as ings." Headlam's Supp. p. 199. respects a very large number of cases 280 LAST REFORMS OF THE MASTERS* OFFICES. remained in the list for decision at the end of January 1852, the remainder having been withdrawn or compromised 1 . The claims however, useful as they were, were but a step towards a further improvement, and were little used after the Chancery Reform Acts of 1852, and were finally abolished in 1860. The orders just referred to also extended the powers of the Masters upon references, and further orders of the same year abolished appointments before them, limited to one Reforms of 2 i i i i i i the Masters' houi , which it had been the custom to make, but Offices. . -iii which had entailed the greatest inconvenience in conducting complicated enquiries, and directed them to proceed with their enquiries continuously. And the same orders gave the Masters valuable additional powers of proceeding in the absence of parties who neglected to attend before them, and effected a very considerable saving by directing parties to references to be classified according to their interests. This was the last attempt to make Masters' Offices work satisfactorily, for, two years later, the Masters themselves were entirely abolished so far as regarded the future working of the Court. That was the commencement of effective reform. Delay and expense were the necessary concomitants of the administration of 'parlour justice,' in which the Master and the opposing solicitors were all anxious to accommodate each other, and there was neither publicity nor any definite rule as to time to urge them to activity. And while the practice in the Masters' Offices remained in such a state as to destroy all hopes of speedy justice, and they were unable to dispose of ordinary contested matters in less than three or four years, it might well be said of the introduction of claims, and the other reforms, that "it is a mere mockery to entice parties into a slough of despond by making the entrance easy of access, if the months and years of struggle to which suitors are doomed serve only to prove the facilis descensus Averni 3 .'' The Commission appointed in 1850 to enquire into the procedure of the Chancery, and the fees paid by the suitors, to 1 Report, 1852, p. 13. 3 Miller's ' Orders of the Court of 2 Headlam's Supp. p. 235. Chancery. ' Supp. p. iv. THE COMMISSION OF 1850. 281 which subjects of enquiry, in the following year, the jurisdiction itself was added, was an exceedingly strong one. It consisted of Lord Romilly, the Master of the Rolls, Turner and James, afterwards Lords Justices, Bethell and Page Wood, , The Chancery who as Lord West bury and Lord Hatherley re- Commission of spectively were afterwards Chancellors, and several others. They were, as the earlier Commission had been, dis- tinctly representative of the Court whose, jurisdiction and procedure they undertook to investigate, but the spirit of the two Commissions was very different. The work of the early reformers, the addresses of Brougham and his friends, and the evidence taken before the first ' Commission had forced the existence of the grave inconveniences and abuses in Chancery upon every one's notice, and the increasing study of foreign systems, as well as the success of the great but partial im- provements already effected in our own, had removed the hopeless acquiescence with which many who recognised these inconveniences and abuses had once regarded them. Several of the Commissioners, and particularly Sir Richard Bethell and Mr Turner, were indeed pronounced reformers, and had already submitted measures for the improvement of our legal in- stitutions to Parliament. The name of the former will ever stand along with the names of Romilly and Brougham at an earlier, and of Cairns and Selborne at a later day, identified with much that marks the difference between the organised failure of our judicial institutions in the first quarter of this century and their comparative success in the fourth. "From the commencement of our investigation," says their first report 1 , "we have felt that considerable alterations in the jurisdiction of the Court of Chancery must form part of any complete scheme for improving the administration r . , . m, . , . f \ | , f ,i Jurisdiction. of justice. The mischiefs which arise from the system of several distinct Courts proceeding on distinct and in some cases antagonistic principles are extensive and deep rooted. It happens that in many cases parties in the course of the same litigation are driven backwards and forwards from Courts of Law to Courts of Equity, and from Courts of Equity 1 1852, p. l. 282 THE REPORT OF 1852. to Courts of Law." The Commissioners refused to discuss the question of fusing the rival jurisdictions, postponing it for a future report, but meanwhile they declared, as Lord Brougham, who despaired of the attainment of the greater undertaking, had declared years before, that "a practical and effectual remedy for many of the evils in question may be found in such a transfer or blending of jurisdiction, coupled with such other practical amendments, as will render each Court competent to administer complete justice in the cases which fall under its cognizance 1 ." In accordance with this suggestion, for the next twenty years, reforms took the direction of steadily extending the common ground of the jurisdictions of the Common Law and the Chancery Courts, seeking to make each completely capable of dealing with suits properly begun in it, and, where the suit might be commenced in either, leaving the greater convenience of the procedure of the one or the other to settle in which it should in fact be commenced. The Commissioners then turn to the manner of taking evidence in Chancery, which still remained as it is described at the beginning of this chapter. They advised that the system of examining witnesses upon written interrogatories should be abolished, that affidavit evidence should be generally admissible, but that any party should have a right to have the witness produced for viva voce examination, and that either party, and also the Court, should have power to compel witnesses to give evidence in any proceeding. Where a witness was examined viva voce it should be, they advised, in the presence of both parties, or their agents, who should be at liberty to examine and cross-examine, and before a competent person, who should take a note of the answers given 2 . The Commissioners referred in forcible and indignant language to the cumbersome and expensive character of the proceedings before the hearing. There was, they said, no difference between friendly and hostile suits in this respect, although after the preliminary proceedings were concluded, the former could, by consent, be expeditiously heard as 'short causes 3 .' The 'claims' and 'special cases,' to which reference has 1 p. 3. 2 p. 40. 3 p. 10. THE REPORT OF 1852. 283 been made, had effected considerable improvement, but their usefulness was marred by the lack of any compulsory process for obtaining evidence upon them. "We are of opinion," they said, "that the proper progress of Chancery Reform is in the same direction, that is to say, to substitute in every case which admits of it, the shortest and most summary process, with the least amount of preliminary written pleadings, and to bring the parties by themselves or their counsel to state their cases with as little delay as possible to the tribunal summary pro- which has to decide. It is a matter of frequent cedure - occurrence in the Court to see cases encumbered with state- ments and counter-statements, evidence and counter-evidence, with which the parties have been for years harassing each other, although there has been throughout no substantial dis- pute as to the facts ; and the real question lies within a very narrow compass, and would have been probably evolved in the first instance, if the Court had had the power summarily to ascertain and deal with the facts 1 ." The Report from which these passages have been taken is a careful and elaborate document, dealing with many defects in Chancery procedure besides those here referred to. Its sug- gestions were carried into effect without delay by three statutes of 1852, and by a series of general orders published in the same year 2 . By these the office of Master in Chancery was wholly swept away, and it was provided that, for the future, the Chancery judges should sit in chambers for a portion of their time for the dispatch of business, as the Common Law judges had long done. The Chamber business was to be conducted, for the most part, as it had been under the Masters, by Chief Clerks, but every litigant was to have the right to adjourn Abolition of any question, with the decision of which he was not the Masters - satisfied, directly to the judge, and the judges, that is, the Master of the Rolls and the Vice-Chancellors, were to have respectively complete control of the Chambers attached to their Courts. So vanished one of the oldest, and certainly the best 1 p. 14. Orders, 1852. Law Review, vol. 17, - 15 and 16 V. cc. 80, 86, 87. General p. 165. 284 REFORMS OF 1852. abused and the least efficient of all the institutions of the Court. The old rules as to parties, requiring in many cases hosts of unnecessary suitors to be involved in litigation which could not affect their rights, were altered. Executors and administrators had always been allowed to represent the personal estate legally vested in them, and in like manner, by an Order of 184-1, trustees with a power of sale over realty had been admitted to represent such realty, and now the principle of represen- tation was extended, a single legatee or cestui que trust being permitted to sue for administration without ioining Parties. , . . . . his fellow beneficiaries, the Court having power to add any party it thought fit, and it was provided that no suit should be dismissed for misjoinder. In place of bills of revivor on passage of interest, orders ' as of course ' were substituted. The forms of bill and answer had been somewhat improved since the descriptions given above fully applied to them, but now the bill was directed to consist of a concise narrative arranged in numbered paragraphs, without interrogatories, and power to interrogate opposite parties separately, not only where the procedure was by bill, but where it was by motion or petition, and to summon witnesses and examine Pleadings. and cross-examine them orally before examiners, was conferred. The answers, pleas and demurrers were to be sworn, whether in town or in the country, before Commissioners to take oaths, who some years before had replaced the Masters Extraordinary. Methods of summary application were largely introduced, as the Commissioners had recommended. Applications by summons at Chambers, of which in recent years we have seen so large an extension, were now first allowed, common adminis- summonsat tration decrees being made thus obtainable without chambers. anv pi ea( ji n g s a t all, and it was provided that the Plaintiff, at any time after the answer but before reply, might move, upon affidavit evidence, for any decree or order which he was entitled to, and the Court might thereupon grant or refuse the motion, or give directions as to the future conduct of the suit. The inappropriateness of the Chancery procedure and modes REFORMS OF 1852. 285 of taking evidence for the discovery of the facts of a contested case had, as we have seen, often led to parties being sent to try an issue at law, but there was no such excuse for what was an equally frequent practice, the sending of pure questions of law, which arose in equity, for argument before the common law judges. The Chancellors were generally experts in the Common Law themselves, and had often presided in the Courts where it was administered ; and the counsel who practised before them, after the distinction became marked, were more accustomed to deal with dry legal questions than those who confined themselves to the other side were ; moreover the equity judges did not profess to be bound by the result of the common law judges' deliberations and decisions, but disregarded them if they conflicted with their own views. Lord Eldon was accustomed to reflect with pride i ssue sofiaw that he had sent issues first to the King's Bench, abolished - and then to the Common Pleas, for a decision on a point of law, and had finally demonstrated to himself in Chancery that both the decisions so obtained were wrong 1 . This scandal also was put an end to by the Acts of 1852, and it was provided that a Chancery judge should decide questions of law arising before him for himself, and should decide also any questions of title relevant to the grant of equitable relief. The part of these reforms that gave least satisfaction at the time was that relating to the taking of evidence. A section 2 of the principal Act had said emphatically that the existing practice as to the examination of witnesses should be abolished, and this was acknowledged to be so far good, but the substi- tuted method, which allowed either party to insist F ur ther that the evidence be taken orally before an examiner, mocufof taking was not a success. In 1854 the Commissioners evidence - drew up a memorandum on the subject 3 , and recommended that either party should be permitted in all cases to adduce evidence in chief in support of his case either by affidavit or by the oral examination of witnesses, who refused to make affidavits, before an examiner, and that the opposite parties 1 See note to White v. Lisle, 3 Swan, 2 15 and 16 Viet. c. 86, 28. 342. Law Revieiv, vol. 17, p. 188. 3 Report of 1856, p. 23. 286 FURTHER COMMISSION UPON EVIDENCE. should have the right to cross-examine the deponents upon their affidavits or oral depositions either orally before an Examiner, or by written interrogatories, and this recommen- dation was carried into effect by an order of January 1855 \ A further Commission was appointed in 1859 specially to enquire into this subject, and it reported that the procedure before an examiner led to delay and expense. Suitors re- peatedly neglected to keep their appointments, and the examiner exercised no efficient control over the proceedings. "With respect to material facts which are disputed," the Commissioners reported, " we have come to the conclusion that the only reasonable course is to take the evidence ore tenus before the Court which is to decide on the whole case, the evil arising from the evidence being taken before one functionary and its weight and effect decided on by another is an evil of principle and not of detail," and therefore they advised that all evidence should be taken viva voce at the hearing, or by Affidavit simply. Thus at last official approval was stamped upon a view which had been repeatedly urged upon the Court from the time of Henry VIII. 2 onward. No doubt the explanation of the long- maintained refusal to admit viva voce evidence at the hearing is, that in many of the cases debated in Chancery the facts were either not seriously disputed or could be established by documentary evidence, and in these affidavits or depositions had been an inexpensive and convenient method of laying the facts before the Court, and a procedure which was suitable for these cases, was, as in other instances, applied also to others to which it was utterly unsuited. Even now the veteran Lord St Leonards, who was a member of the Commission, refused to join in the report ; " the constant demand on a judge in Equity," he said, " to decide points of law, and to consider the bearings of the evidence requires quiet and calm in the Court itself.... The course of the Court should not be interrupted by addresses to a jury, the introduction of Common Law Counsel, and all the wrangling of trials at Nisi Prius," and he advised 1 See 0. 19 of the Consolidated 2 Treatise on the Masters, ante, p. Orders of 1860. 00. Blackstone, 3, p. 374. CODIFICATION OF THE RULES OF PRACTICE. 287 that a further trial should be given to the system of taking evidence before an examiner 1 . In spite of this protest, however, the rule was introduced 2 that, though evidence was in general to be taken by affidavit, or by an ex parte examination of (unfriendly) witnesses before an examiner, the depositions being treated as an affidavit, a party might apply for an order that disputed facts be determined by oral evidence at the hearing, whether of the cause itself or of any motion or petition And it was provided that either party should be at liberty to compel the other to produce any witnesses, who had made affidavits or depositions on his behalf, for cross-examination before the Court or before an examiner, the Court retaining in all cases the power conferred in 1852, to summon witnesses before itself, at its discretion. These great reforms in the procedure and practice of the Chancery Courts were appropriately concluded by the issue in 1860, under Lord Campbell's authority, of a table of Con- solidated Orders which had been drawn up by The consoli . Lord Chelmsford's direction in the previous year. d!ltcd orders - The publication of these orders and the abrogation, with some unimportant exceptions, of all the earlier general orders of the Court, " bringing order out of confusion, and harmony out of discord,... by separating those orders which (were) subsisting from a mass of others which (had) become defunct," was well described by the consolidates 3 as likely to effect " a great and unmixed good." It comprised about six hundred rules, dating, in some instances, from as far back as the sixteenth century, and it, for the first time in the history of Chancery, presented a consistent, complete and authoritative statement of the practice as settled by express orders 4 . A great part of the existing code of rules and orders, which since the Judi- cature Acts has been drawn up for use in all the Courts, was taken from this source. 1 Report of 1860. 4 Some subsequent general orders 2 Order of February, 1861, 23 and were issued, but none of importance 24 Viet. c. 128. except those of 1861, as to evidence, 3 See their report prefixed to the already mentioned to. Orders. 288 IMPROVEMENTS AT COMMON LAW. The improvement of the Court of Chancery about this time was simultaneous with an even wider reaching Law 1 procedure improvement of the Courts of Common Law. A Acts Commission had been appointed to enquire into their working also, and a great procedure reform was effected by the Common Law Procedure Acts of 1852 and 1854 as the result of their labours. The main object of the Acts was to secure that the actual merits of every case should be brought before the judges unobscured by accidental and artificial questions arising upon the pleadings 1 , but they also did some- thing to secure that complete adaptability of the common law courts for finally determining every action brought within them, which the Chancery Commissioners of 1850 had indi- cated as one of the aims of the reformers. Power was given to the common law courts to allow parties to be interrogated by their opponents, to order discovery of documents, to direct specific delivery of goods, to grant injunctions, and to hear interpleader actions, and equitable pleas were allowed to be urged in defence to common law actions 2 . Before this, jurisdiction had been conferred on the common law courts to order evidence to be taken abroad, first in India only, by an Act of 13 Geo. III., and then generally, by 1 Will. IV. c. 22, which also enabled them to examine on commission de bene esse, before the trial, witnesses likely to be unable, from sickness or absence from the country, to attend at it, and, by the Evidence Amendment Acts 3 the restrictions upon the admission of the testimony of interested witnesses, of the parties to the litigation, and of the husband or wife of a party had been successively removed. By these The Auxiliary improvements the Auxiliary Jurisdiction of Equity Equto super-" was practically swept away, bills for discovery being seded. no } on g er rendered necessary by the nominal refusal to admit the evidence obtainable by means of them, and appli- 1 See Introduction to Day's Common 17 Viet. c. 83. See Day's C L. P. Law Procedure Acts. Acts, 4th ed. p. 261, where the history 2 C. L. P. Act 1854, 78 to 86. of the improvement of the law of 3 3 and 4 W. 4, c. 42. 6 and 7 Viet. evidence is sketched. c. 85. 14 and 15 Viet. c. 99. 16 and EQUITY POWERS IN THE COMMON LAW COURTS. 289 cations to stay actions at law were to some extent curtailed. The equity powers conferred upon the common law Courts were, however, but partially exercised, for the Courts held that they could act upon them only where the right asserted was plain, undeniable and conclusive. On the other hand, the distinctive common law power of granting damages was conferred upon the Chancery Courts wherever they had jurisdiction to grant specific performance or injunction 1 , the amount to be assessed by the judge or by a jury, but this power also was little used. In I860, Lord Campbell introduced into Parliament the bill upon which the third Common Law Procedure Act was founded. The bill proposed, in accordance with the final re- commendations of the Common Law Commission, to confer extended equitable jurisdiction upon the common The proposa i s law courts in matters coming before them, and to Ofl86 - enable them to prohibit the equity courts from interfering in common law actions. These proposals were strongly opposed by Lord St Leonards and the other law lords, and the Vice- Chancellors addressed a memorial 2 to Parliament in which they urged that the common law procedure and machinery were un- fitted for determining equitable questions, though they were sufficient to secure justice where a case was brought down to a single issue of law or fact, whether it depended upon a legal or equitable title, and this the existing statutes permitted, and they plainly hinted that the common law judges did not possess the necessary knowledge of equity to administer the proposed powers. The common law judges, on the other hand, who almost unanimously approved of the bill, in their reply, pointed out that the clauses objected to only amplified powers which for six years had been found to work well, and that they were necessary to prevent parties being driven, in many cases, to sue both at Law and in Equity, and to prevent them running the risk, if they sued on the one .side, of being themselves sued on the other. In the end the clauses were dropped, and but small ad- ditions were made by the Act to the equitable powers of the 1 Cairns' Act, 21 and 22 Viet. c. 27. 2 Warren, L. S., Ed. 1863, p. 545. K. 19 290 SUBSTANTIVE REFORMS IN EQUITY. Common Law Courts ; they were enabled to give relief against forfeiture of leases for non-payment of rent or non-insurance, and the jurisdiction to try interpleader actions conferred by the Act of 1854 was extended to cases where the rival claims had not a common origin 1 . No further advance was made towards the complete equip- ment of all the Courts with all the powers necessary to enable them to do complete justice in every case brought before them. Several years passed without any organic reform, and then the Judicature Commission of 1867 was appointed, and, as the result of its labours, the fusion of all the Courts and of the rival systems of Equity and Common Law into a single Supreme Court and a single system of civil judicature was determined upon. Meanwhile, considerable alterations were made in the substance of the law. The Trustee Relief Act, 1847 s , ex- tending an earlier Act of George III., enabled trustees and executors to bring into Court the funds subject to their care, and enabled the Court to make orders as to the application of the trust money, and the administration of the trust upon petition, as already mentioned; the Trustee Acts of 1850 and 1852 s , which replaced and extended some earlier reforms^" 1V ' Acts, enabled it to convey, by a vesting order, pro- perly vested in lunatic, absent or infant trustees or mortgagees, and to appoint and vest the trust property in new trustees wherever it was inexpedient, difficult or impracticable for this to be done without its assistance ; the Leases and Sales of Settled Estates Acts 4 cast new administrative work upon the Court, and, to some extent, anticipated the extensive control which more recent statutes 5 have given tenants for life and other limited owners over the settled property; and the earlier Joint Stock Acts, consolidated and replaced by the Companies Acts of 1862 and 1867, organised and regulated the important 1 23 and 24 V. c. 126, 118. c. 55 ; 11 Geo. IV. c. 60 ; 4 and 5 V. Day's C. L. P. Acts, 4th Ed. Intro- c. 23 ; 1 and 2 V. c. 69. duction, p. 10. 4 19 and 20 V. c. 120 ; 21 and 22 V. 2 10 and 11 V. c. 96 ; 36 Geo. III. c. 77. c. 52. B The Settled Land Acts of 1882 3 13 and 14 V. c. 60, 15 and 16 V. and 1884. SUBSTANTIVE REFORMS IN EQUITY. 291 business which had grown up with the introduction of the new trading corporations. To the Acts just enumerated must be added the Trustee and Mortgage Act of I860 1 , which embodied in a statute many of the common-form provisions of settle- ments and mortgages relating to sales, purchases and invest- ments by trustees, and to powers of sale, of appointing a receiver, and of insuring by mortgagees, a device to shorten documents which later statutes 2 have extensively adopted, and the Law of Property Amendment Acts 3 of the previous and the same year respectively. By these latter Acts it was provided that a license to commit a particular breach of a covenant in a lease should no longer avoid the whole covenant; that relief might be given once, against a forfeiture for failure to insure, if it were not due to fraud or gross negligence, equity having previously refused to relieve in any case, because of the risk the neglect had occasioned ; that where lands were charged by a will with debts, the devisee, or, if there were no sufficient devise, the executor might sell them, though no power of sale were given by the will ; that an executor who had paid everything due under a lease and set aside sufficient money to meet any sum agreed to be expended under it, might distribute the estate without personal risk ; and that, in any case, if an executor gave such notice for creditors to come in and prove their debts, as the Court was accustomed to give in an administration suit, he might safely distribute without providing for claims on the estate of which he had no notice. Trustees and executors were enabled to apply to the Court for advice, and were protected from liability on account of the trust moneys, except for what they actually received, and for losses which occurred by reason of their default, and they were permitted, subject to the terms of their trusts, to invest the trust property in any investments authorised by the Court 4 . The division of the systems of Equity and Common Law 1 23 and 24 V. c. 145. V. c. 35, and Lord Cranworth's Act, 2 Particularly the Conveyancing Act 23 and 24 V. c. 38. of 1881. 4 See now the Conveyancing Act, 3 Lord St Leonards' Act, 22 and 23 1881, and the Trustee Act, 1888. 192 292 FUSION OF EQUITY AND COMMON LAW. which it was now decided to abandon, was peculiar to England and the colonies and states descended from her. The incon- veniences it created, and the additional cost and risk, and the unnecessary delays it occasioned had steadily increased with the elaboration and development of the law, and the great improvements effected in procedure, which had attracted and admitted into the Courts an enormously increased mass of judicial business, had only made the evils incidental to the separation less easy to be borne. Lord Bacon and liquityand Lord Hardwicke had agreed in magnifying the Common Law. . . . . _. _. danger that the certainty 01 the Common Law, which they described as the bulwark of liberty, would be lost if the judges administered Equity: "All the arguments drawn from the ease and convenience of the suitors, the preventing vexation and delay, and saving of expense, seem to conclude to uniting (law and equity) in the same Court," Lord Hard- wicke admitted 1 , but, he added, "the arguments drawn from the necessity or utility of preserving the rules of law entire, and not leaving it in the power of judges to new mould and vary those rules at discretion, by insensibly blending law and equity together, hold for keeping them divided." The discretionary powers of the equity judges, as we have seen, had long since vanished, and the question now, therefore, was whether one-half of the rules affecting a class of subjects should be administered by one judge and the rest by another, or whether each should administer the whole. Since the practical abolition of the auxiliary jurisdiction by the grant of full powers of discovery to the common law courts, and the admission of interested witnesses, the business of Equity had, no doubt, become more than ever distinct in character from that of Common Law, administrative and protective rather than remedial or punitive, and in a great degree each Court had been enabled to bring to an end matters properly com- menced before it, but there was still the danger of beginning wrongly, and all the advantages of a division of labour could be, and in fact have been, preserved without maintaining the separation of the Courts. It was felt that the time was fully 1 Letter to Lord Kames. Appendix to Farkes. THE JUDICATURE ACTS. 293 ripe for an attempt to fuse the two jurisdictions together, and all parties were anxious that the attempt should be made. The first Judicature Act was passed in 1873 under the auspices of Lord Selborne and Lord Cairns. It provided for the consolidation of all the existing superior Courts into one Supreme Court, consisting of two primary divisions, a High Court of Justice and a Court of Appeal. The former was subdivided into several divisions of which one was to be the Chancery Division. To the High Court of Justice The Judica . were transferred the jurisdictions of all the amal- tureActs - gamated Courts, and all pending business. Law and Equity, it was provided, were to be administered concurrently by every division of the Court, in all civil matters, the same relief being granted upon equitable claims or defences, or equities inci- dentally occurring, as would have previously been granted in the Court of Chancery ; no proceeding in the Court was to be stayed by injunction analogous to the old common injunction but the power for any branch of the Court to stay proceedings before itself was of course to be retained ; and the Court was to determine the entire controversy in every matter that came before it. By the 25th section of the Act rules upon certain of the points where differences between Law and Equity had existed, deciding in favour of the latter, were laid down, and it was enacted generally that in the case of conflict, the rules of Equity should prevail. Actions upon matters of the nature previously within the exclusive jurisdiction of the Court of Chancery, were assigned to the Chancery Division, but power to transfer from one Division to another was reserved. A general system of procedure for all the Divisions was drawn up, and has since been elaborated in detail by rules of Court issued under a subsequent Act. And an appeal from the judges of each of the Divisions was allowed to the Court of Appeal. The fusion of Equity and Common Law effected by this Act and the amending Act of 1875, which preserved its plan, was followed a few years later by a rehousing of all the Courts. The common law courts had remained at Westminster in and about the Hall assigned to them by Edward III., and there also 294 CONCLUSION. the Chancellor had sat in term time. The other equity judges had been bestowed in various makeshift courts scattered about Lincoln's Inn, except the Master of the Rolls, who, after he ceased to sit in the Rolls Chapel, as he did in early times, found a court in the adjoining Rolls Yard. Each judge had had his chambers where he pleased, and the different offices attached to the Courts were scattered about in several places in and around Chancery Lane. The distances between the different courts, the chambers and the offices had occasioned great inconvenience, and it was therefore an important change for the better when on the appropriate occasion 1 of the fusion of their jurisdictions, the courts, the judges' chambers and the judicial offices were all combined in a single block of buildings. Nothing but good has resulted from the reunion of the two jurisdictions ; the administration of justice has been facilitated and made both cheaper and more certain. The rules of law have certainly not been injuriously affected because their effect has been studied, together with the qualifying effect of the corresponding rules of equity, and the spirit in which the reforms of procedure and jurisdiction were devised continues to animate the judges ; and, at length, it can be truly said that the judges are occupied in an en- deavour to discover the real merits of the cases that come before them, and to carry out the substantial intention of the rules of the system they have to administer, without allowing mere technicalities or formal difficulties to stand in the way. No one can rest satisfied with the form in which the law of our country has been allowed to lie obscured. The piles of reports and the numerous statutes, from which it has to be quarried out, make it far oftener difficult to determine what its deliverance is on a particular question, even for a lawyer, than it need or ought to be, and make it generally impossible for any one else, in spite of the excellence of the text-books written to expound it. Still its substance is generally felt to be reasonable and just, and to be adequate to the needs of the community whose concerns it regulates. A great part of its 1 The Judicature Acts camo into operation in 1875, the new Law Courts were opened in 1882. CONCLUSION. 295 excellence is due to the efforts of the judges who created and developed the rules and principles of Equity in the Court of Chancery, and when the manifold abuses of practice and proce- dure which they tolerated, and the needless complexities which, in some instances, they introduced into the law are remem- bered, their work in improving, extending and rationalising the crudity and narrowness of a mediaeval code must be remem- bered also. The further history of Equity, and of its administration, after the abolition of the Court of Chancery, does not fall within the scope of this essay. INDEX. A. Accident, 145. Account, 148. Accountant-General appointed, 174. Administration, 89, 139, 210. Answer, the in the Calendars, 66. in the 16th century, 120. Appeals to the House of Lords, 167, (and see Rehearing). Arrears in Chancery, in the 17th century, 155. in Lord Eldon's time, 270. Atkyns, Sir E., on equity, 115. Attendant terms, 137. Austin on equity, 11. on judicial legislation, 188. Auxiliary jurisdiction in equity super- seded, 288. B. Bacon, Sir N., 97. Bacon, Lord, 102. speech on taking his seat, 103. orders, 104. Becket, 23. Bill hi equity, 119. in the Calendars, 61. in modern equity, 269. Bills of peace, 149. Bills of Sale Acts, 207. Blackstone on equity, 1, 177. Boddenho's case, 14. Bridgman, Sir 0., inventor of trustees to preserve con- tingent remainders, 165. on equitable assignments, 206. on notice, 236. Brougham, Lord, on law reform, 273. orders, 275. C. Calendars, their contents, 48. Campbell, Lord, on bills in equity, 270. proposal to give further equity powers to the common law courts, 289. Cantelow's case, 80. Carbeston, petition of the tenants of, 18. Case, the action on the, and equity, 11. and the improvement of the land, 180. for fraud, 171, 181. Catching bargains, 240. Censorship of the press in equity, 259. Chambers, summons in, in equity, 284. Chancellor, the head of the Chancery, 9. his position before the reign of Bichard II., 23. references of petitions to him under Edward I., 27; Edward II., 28; Edward III., 31. petition to him, 34. power to grant a special assize, 41. not to question judgments, 43. acting committee of the Council, 57. sole judge in Chancery, 58. Chancellor, the Lord, the Lord Keeper to have the same jurisdiction as the Chancellor, 97. plan to abolish the office, 172. his multifarious duties, 271. 298 INDEX. Chancellors (and Lord Keepers) : lay Chancellors, 44. the ecclesiastical Chancellors, 94. lawyers appointed, 96. from Wolsey to the Commonwealth, 94. Wolsey, 95. Sir T. More, 96. Sir N. Bacon, 97. Sir C. Hatton, 98. Ellesmere, 98. Bacon, 102. Dr Williams, 105. Coventry, 105. Whitelock(Lord Commissioner), 156. Clarendon, 164. Sir 0. Bridgman, 169. Nottingham, 169. Guilford, 171. Jefferies, 171. Somers, 172. Cowper, 174. Macclesfield, 174. Talbot, 175. Hardwicke, 175. Northington, 179. Thurlow, 179. Eldon, 181. (and see the several titles.) Chancery, the, writs issued out of it, 9, 25. horses to carry the rolls, 31. fixed at Westminster, 31. directions to apply in, 35. common law in, 26, 49. officials, 61, 156. increase of business under Henry VIII., 97; under Elizabeth, 155. abuses at the time of the Common- wealth, 155. resolution to abolish, 159. attacks on it in 1699, 172. state of the Chancery under Lord Eldon, 264. damages in Chancery, 289. (and see Chancellor, Commission and Equity,) Charities, 142. Choses-in-action, assignments in equity, 138, 206. Claims, 279. Commission, Lord Eldon's, 267, 274. of 1850 on the Chancery, 281. of 1859 on evidence, 286. of 1867, the judicature commission, 290. Common Law, in Chancery, 26, 49. defects in the early common law, 42, 71. procedure in, under Ed. I. , 50. improvement under Henry VIII. and Elizabeth, 103. development after the Eestoration, 165. development under Lord Mansfield, 180. reforms of real property law, 276. issues sent to, 285. Common Law Procedure Acts, 288. Commons, the House of, complaints against the Chancery, 37. protest against appeals to the House of Lords, 168. Commonwealth, attempted reforms of the Chancery, 154. Compromise, 249. Consideration, 196. Contingent remainders, 165, 260. Contract, cases in the Calendars, 86. assumpsit for breach, 87. rectification and rescission for mis- take, 244, 245. penalties in, 250. time not of the essence, 255. Conversion, 202. Copyright, 258. Costliness of equity, 267. Costs, power to give, 39. security for, 46, 66, 118. on insufficient answer, 120. none on demurrers, 120. INDEX. 209 Costs, in Cromwell's ordinances, 161. deposit for, on petition for rehearing, 171, 178. full costs where bill heard on answer only, 178. Hardwicke's orders as to fees, 178. Council, the, judicial powers, 16, 37. ordinance for its governance, 17. of a lord, 7, 40. its relation to the Chancellor, 57. Court, of Chancery, see Cliancery. of Bequests, 18. of Wards, 137, 225. Courts in mediaeval England, 8. Coventry, Lord, 105. his orders, 106, 123. Cowper, Lord, 174. Cromwell's ordinances, 160. Cross-examination, none in early equity, 69, 121. by cross interrogatories, 268. oral, 286. Curia Regis reorganised by Henry II., 7. D. Damages in equity, 289. Death, remedy in equity does not abate on, 261. Deceit, action for, 181, 238. Decrees, in early equity, 57, 69. in the 16th century, 123. not to contain recitals, 275. only bound the person, 89. De Donis, the statute of, Lord Elles- mere on, 137. Delays in Chancery, 122, 270, 271. Discovery, 77, 151, 261, 263. Discretion in equity, under the early chancellors, 100. Lord Hardwicke upon it, 175. Sir Joseph Jekyll upon it, 176. Lord Eldon upon it, 182. in regard to specific performance, 256. Ecclesiastical Chancellors, 94. Ecclesiastical Courts, 79. Ejectment action, 108, 111, 149. Eldon, Lord, 181. refused to abandon the concurrent jurisdiction, 180. on discretion in equity, 182. work in regard to specific perform- ance, 256. work in regard to injunction, 258. delays in Chancery in his time, 270. small time at his disposal for sitting in equity, 271. his commission on the Chancery, 274. Election, 217. Ellesmere, Lord, 98. contest with Coke over injunctions, 109. judgment in the Earl of Oxford's case, 111. on equity, 112. letter to his client, 123. on De Donis, 137. on estoppels, 253. Equity, meanings of equity, 1. origin of English equity, 3, 20, 35. and the action on the case, 11. nature of early equity, 38. procedure in early equity, 51. in the Calendars, 71, 76, 93. under Henry VIII., 92. under the Ecclesiastical Chancellors, 95. Lord Ellesmere on equity, 100. precedents and Boman Law in early equity, 100. Lord Bacon on equity, 102. development after the establishment of the right to issue injunctions, 116. from Wolsey to the Commonwealth, 129. development after the Bestoration, 166. 300 INDEX. Equity, Lord Nottingham's part in this development, 170. Lord Hardwicke on equity, 176. Lord Eldon on equity, 182. growth of modern equity, 184. scarcity of equity reports in the 18th century, 187. arguments in the leading cases, 188. influence of Eoman Law on modern equity, 189. new judges appointed, 272. report on the jurisdiction of equity, 281. auxiliary j urisdiction superseded, 288 . in common law courts, 289. substantive reforms in equity, 290. fusion of equity and common law jurisdictions, 292. (see also Chancery, Chancellor, Discretion.) Equity to a settlement, 222. Estoppel in early equity, 92. Lord Ellesmere on, 253. Estrepment, writ of, 150. Evidence, in early equity, 67. suits to perpetuate testimony, 77, 152. in the 15th and 16th centuries, 121, 123. publication, 122, 262. ad informandum conscientiamjudicis, 123. written evidence required in some cases, 171. de bene esse, proposal to allow com- mon law courts to order this to be taken, 173. extrinsic evidence, 217. parol evidence, 245. in Chancery in Lord Eldon's time, 268. vivd voce evidence introduced, 282, 285. Commission of 1859 on evidence, 286. new rules, 287. improvement of the rules of evidence, 288. Examination of defendants in equity, 44, 66. Examiner in equity, 268. Exchequer, equity jurisdiction abol- ished, 277. Executors, 86, 89, 139. F. Fictions in law and equity, 265. Fines and Eecoveries Act, 276. Fleta, 9, 10, 24. Forfeitures relieved against, 109, 250. Forgery and duress, 73. Forma pauper is, suits in, 126. Fraud, 144, 237. Fraud on a power, 210. Freehold, where to be answered for, 7, 110. H. Hals v. Hyncley, 52. Hardwicke, Lord, 175. letter to Lord Kames, 105, 166, 175, 292. delay in giving his judgments, 177. orders, 178. Hatton, Sir C., on equity, 98. Holmes, Mr Justice, on the origin of uses, 78. I. Infant marriages, 225. Infants, discovery from, 152. custody and guardianship, 225. settlements, 227. Injunctions, to stay proceedings at law, 89, 116, 293. the contest over them, 109. in the 16th and 17th centuries, 150. at common law, 150. in modern equity, 258. Issues, of facts not tried in Chancery, 28. sent to be tried at law, 269. of law abolished, 285. INDEX. 301 Interest, compound, allowed, 229. allowed at law, 241. J. Jefferies, Lord, 171. order for full costs to be paid, 173. Jenkins on equity, 115. Joint ownership in equity, 205. Judges, additional, appointed in equity, 272. Judgments, the Statute against their reversal, 42, 114. Judicature Acts, 293. Jury, trial by, 72. Justician, the chief, 8, 24. K. King, judicial powers of the, 13. claim to power to grant privilcyia, 22. Kirkeham, M. II , directions of Ed. IV. on his appointment, 60. L. Lcesio fidei, 79, 87. Leading cases, 186. Legacies, 140, 213. Locke King's Acts, 211. Lyndhurst's orders, 275. M. Macclesfield, Lord, 174. impeached for bribery, 174. Mansfield, Lord, and the improvement of the law, 180. on consideration, 196. Marriage, restraints upon, 218. Married women, allowed to sue in equity in early times, 142. discovery from, 152. separate estate, 142, 220. restraint on anticipation, 222. equity to a settlement, 222. the wife's reversion, 223. Married women, mortgage of the wife's estate, 224. agreements between husband and wife, 257. Marshalling, 215. Master of the Rolls, 27, 60, 127, 272. Masters in Chancery, 59, 127. references to them, 125. enquiries before them, 273. last reforms of their offices, 280. abolished, 283. Masters extraordinary, 128. Mistake, 146, 243. of law, 249. More, Sir T., 96. Mortgages, 88, 143, 227. right of redemption established, 143. conditions of redemption in the Commonwealth bill, 160 rules adopted by Lord Nottingham, 227. redemption and foreclosure, 228. sale, 230. tacking, 227, 230. consolidation, 232. vendor's lien, 233. equitable mortgages, 234. Motions, 124. in Lord Eldon's time, 272, 279. N. Ne exeat, 151. Northington, Henley, Lord, 179. judgment in Burgess v. Wheate, 194. Notice, 234. to agent, 235. purchase for value without notice, 262. Nottingham, Lord, the ' father of equity,' 169. his work in regard to trusts, 192. , ,, ,, mortgages, 227. 0. Orders, Bacon's, 104, 119. Coventry's, 106. 302 INDEX. Orders, Whitelock's, 157. Cromwell's ordinances, 161. Clarendon's, 164. Hardwicke's, 178. Orders of 1828 and 1831, 275. Cottenham's, 277, 279. consolidated orders of 1860, 287. Outrage, suppressed by the Chancellor, 62, 71, 152. Oxford, case of the Earl of, 111. P. Park on English law, 266, Parkes' History of the Court of Chan- cery, 265. Parliament, judicial powers of, 19. petitions of the Commons against the Chancery, 37. proceedings in, concerning the Chan- cery, 157, 172, 273. Barebone's, 157. Parnyng, an early lay chancellor, 44. Part performance, 254. Parties, new rules as to, 277, 284. Partition, 149. Penalties, 89, 145, 250. Personalty, primarily liable for debts, 211. Petitions in Chancery, 126. Petitions to Parliament, referred to the Chancellor, 26, 28, 33, 40, 46. triers appointed, 19. Pike on common law in Chancery, 50. Pleading, in equity, 51, 61, 128, 269, 284. in the early common law, 50. Poor plaintiffs in equity, 42, 65, 126. Powers, 207. illusory appointments, 209. fraud on a power, 210. Precedent, influence of, in equity, 100, 177, 188. Publication, 122. no evidence after, 262. K. Eeal property reforms, 276. Eectification, of mistakes, 146. in settlements, 244. in wills, 245. Eedesdale, Lord, on the report of Lord Eldon's Com- mission, 274. Eegistrars, the old, abolished, 275. Eehearing, petition for, 124, 155, 171, 178. Releases, 246. Eeply, 67, 121. Reports, scarcity of, until the present century, 187. Eeversions, sales of, 242. Roman Law, influence on equity, 100, 189, 206. Romilly, Sir S. on Chancery, 265. on the uncertainty of our law, 266. S. Salman and trustee, 78. Scire facias, 54. Separate estate, 142, 220. Separation deeds, 257. Set off, 149. Six clerks, 128, 267, 276. Solicitors, 128, 267, 274. Somers, Lord, 173. law reform bill, 173. Special case, relief on, 278. Specific performance, 88, 147, 253. Standing by, 238. Statute of Frauds, 170, 192, 254. Statute of Uses, 133. Statute of Wills, 134. Stauneford on the common law juris- diction, 55. Story on equity, 2. Subpoena, petition against, 43. origin of, 45. replaced by an open writ of sum- mons, 159, 275. Summary procedure in equity, 277, 283. Sureties, 146, 251. INDEX. 303 T. Tenures, abolition of, 1G5. Thorpe, an early lay chancellor, 44. Thurlow, Lord, 179. author of the restraint on anticipa- tion, 222. Trade disputes in the Calendars, 73. Trustee, liability, 137, 199. receipt, 197. remuneration, 202. Trustee relief Acts, 290. Trustee Acts, 290. Trusts and uses, origin, 78. in the Year Books, 82. in the Calendars, 84. in the 16th century, 130. after the Statute of Uses, 135. foundation of the modern rules, 192. resulting, 195. voluntary, 196. executory, 197. precatory, 198. investment of trust money, 200. Turner, L. J., Chancery Amendment Act, 277. U. Uncertainty of the law, 266. Undue influence, 242. Uses (see Trusts and Uses). V. Vendor's lien, 232. Vice-chancellors appointed, 272. W. Waste, injunctions to stay, 150, 259. Whitelocke, 156. Wills, of land reintroduced by the aid of uses, 81, 84. Statute of Wills, 134. after the statute, 134. inofficious wills, 141. nuncupative, abolished, 212. revocation, 212. rectification, 245. Wolsey, the last of the Ecclesiastical Chancellors, 95. Writs, procedure by writ, 9. consimili casu, 10. writ to the Sheriff of London, 22 Ed. III., 31. asked for in the bills in the calen- dars, 61. Y. York, claim of the Duke to the Crown tried in Parliament, 21. CAMBRIDGE: PRINTED BY c. J. CLAY, M.A. AND SONS, AT THE UNIVERSITY PRESS.