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 CONSIDERATIONS 
 
 THE REPORT 
 
 MADE TO HIS MAJESTY UNDER A COMMISSION, 
 
 AUTHORISING THE COMMISSIONERS TO MAKE CERTAIN 
 
 INQUIRIES RESPECTING 
 
 THE COURT OF CHANCERY. 
 
 LONDON: 
 
 JOHN HATCHARD AND SON, PICCADILLY. 
 
 1826.
 
 Ex Libris 
 C. K. OGDEN
 
 Stack 
 Annex 
 
 CONSIDERATIONS, 
 
 A COMMISSION having been issued by his Majesty, 
 to inquire whether any and what alterations can 
 be made in the practice established in the Court of 
 Chancery, or in the several offices of the Court, 
 either as a court of law or equity, in causes, suits 
 or other matters, in which that court has, or the 
 Lord Chancellor, Lord Keeper, or Lords Com- 
 missioners of the Great Seal have, jurisdiction, 
 from the commencement of the proceedings to the 
 termination thereof, whereby the expenses at- 
 tending such proceedings, and the time during 
 which they depend in court, may be abridged, 
 usefully and beneficially to the suitors of the 
 said Court ; and also whether any and what part 
 of the business now subject to the jurisdiction 
 aforesaid can, usefully and beneficially, be with- 
 drawn from the same, and committed to the 
 jurisdiction of any and what other courts or 
 tribunals: a report has been made under the 
 authority of that commission, and laid before the 
 two Houses of Parliament. 
 
 it
 
 ,-.-"v 
 
 Complaints that unnecessary delay and unne- 
 cessary expense have frequently attended pro- 
 ceedings in the Court of Chancery, and in the 
 several jurisdictions which belong officially, or 
 have been usually entrusted, to the persons from 
 time to time holding the Great Seal, appear to 
 have induced the issuing of this commission; and 
 it was the duty of those who acted under its 
 authority to inquire, first, whether the imputa- 
 tions of unnecessary delay, and unnecessary ex- 
 pense, were well founded ; and, if well founded, 
 what were the causes of such delay, and of such 
 expense, and what remedies might be applied to 
 the evils arising from sucli delay and expense. 
 
 As the subject of the report made under the 
 authority of this commission most importantly 
 concerns the administration of justice in England, 
 in Ireland, and in all the countries dependent on 
 the crown of the United Kingdom, which have 
 adopted the English system in the administration 
 of justice, it is an object of very extensive inter- 
 est, though the report is particularly applied 
 only to the Court of Chancery of England, and 
 to the proceedings in that court, and under juris- 
 dictions connected with it. 
 
 In this report the commissioners by whom it 
 has been made state, that in the proceedings in 
 the Court of Chancery as a court of common
 
 3 
 
 law, they had not discovered any ground for 
 proposing any change. But with respect to 
 proceedings in the same court, as a court 
 of equity, they have suggested certain measures 
 as fit to be adopted, which they appear to have 
 conceived might tend to remove some of the 
 causes of delay and expense imputed to pro- 
 ceedings in that jurisdiction; and some regula- 
 tions with respect to proceedings in the several 
 other jurisdictions belonging, or usually intrusted, 
 to the persons holding the Great Seal, so far as 
 the proceedings in such jurisdictions have relation 
 to the duties discharged by officers properly be- 
 longing to the equitable jurisdiction of the court. 
 
 Some measures are also suggested as tending 
 to relieve the persons presiding in that court 
 from the burthen of some duties now usually 
 thrown upon them. 
 
 In an appendix to the report are stated certain 
 propositions for remedy of some of the evils 
 complained of; and also the evidence taken on 
 oath under the commission, and certain papers 
 delivered to the commissioners, as explanatory of 
 the propositions which were subjoined to the re- 
 port, or as assisting in the consideration of some 
 of those propositions. 
 
 This report applies to subjects of so much im-
 
 portance that it ought to be fully and dispas- 
 sionately considered, before any measures (espe- 
 cially of a legislative nature) shall be founded 
 upon it. 
 
 In the report itself, so far as it relates to the 
 equitable jurisdiction of the Court of Chancery, 
 and still more in the matter given as evidence in 
 the appendix, there appears a strong inclination to 
 impute much of the delay and expense complained 
 of to certain rules of practice long established 
 in that court. As many of those rules were 
 adopted when the internal communication through- 
 out the country was not in its present improved 
 state, some alterations in those rules may be 
 made without inconvenience. But some of the 
 propositions for that purpose seem to require 
 much consideration, and some modification, be- 
 fore they shall be adopted. 
 
 An inclination also appears, both in the re- 
 port and in the appendix, to throw discredit on 
 certain ancient institutions, by which the business 
 of the Court of Chancery, as a court of equity, 
 was, for a long time, principally conducted, and 
 by means of which it is still, in a certain degree, 
 carried on. 
 
 Whether these ancient institutions merit the 
 blame attempted to be thrown upon them, and
 
 whether the regulations proposed by the report, 
 with respect to them, are fit to be adopted, in 
 the whole, or in part, are important subjects of 
 inquiry by those whose duty it may be to act 
 upon the report. Changes in ancient establish- 
 ments are generally attended with a degree of 
 hazard, and may introduce greater evils than 
 those which the changes proposed may be in- 
 tended to remove. 
 
 The great evils complained of are delay and 
 expense in proceedings in the equitable jurisdic- 
 tion of the Court of Chancery; and it is most 
 important before adopting any measures pro- 
 posed for the removal of those evils, to ascertain 
 from what causes those evils have originated. 
 
 In pursuing this inquiry, there may be found 
 ground for doubt, whether the suggestions con- 
 tained in the report, and the propositions an- 
 nexed to that report, have struck at the root 
 of the evils complained of; and whether, in 
 the evidence, in the report, and in the propo- 
 sitions annexed, the circumstances to which the 
 expense and delay complained of may be prin- 
 cipally, and most justly, imputed, have not 
 been passed by, or very slightly noticed; and 
 also, whether, in framing the report, due con- 
 sideration has been had of the difficulties 
 which may belong to the application of positive
 
 6 
 
 rules, to a very extensive,, complicated, and 
 varied subject; involving the administration of 
 justice in one of its most difficult and most im- 
 portant branches,, affecting rights of property 
 more extensively than any other original juris- 
 diction in England. 
 
 In considering such a subject, it should be 
 viewed in the whole, and in all its parts ; with 
 all the circumstances which may belong to it, 
 either necessarily, or incidentally; with all the 
 variations which may unavoidably occur, and to 
 which positive rules cannot be made to bend. 
 
 Evils necessarily incidental to any system 
 adopted in any part of the administration of the 
 government of a country, must be considered as 
 evils which cannot be avoided, except by a 
 change of system ; but before any such change 
 should be adopted, it would be proper to con- 
 sider whether the change proposed would remove 
 the evils experienced under the rejected system, 
 and whether it might not produce other evils, 
 and perhaps greater evils, than those com- 
 plained of. 
 
 Evils not necessarily incidental to an estab- 
 lished system, but arising from accidental cir- 
 cumstances, may probably be in some degree 
 avoided ; and as far as the inquiries of the 
 commissioners have been applied to such evils,
 
 they seem to have been properly applied : though 
 it may be doubted, whether all which they have 
 proposed, either in the body of their report, or 
 in the propositions annexed to it, are calculated 
 to meet those evils; and whether some of the 
 changes which they have suggested may not 
 probably produce greater evils than the evils 
 intended to be removed; and especially, whether 
 numerous special applications to the court, tend- 
 ing to obstruct and delay all its regular proceed- 
 ings, and increase instead of diminishing ex- 
 pense, may not be the inevitable consequences 
 of some of the measures proposed. Perhaps, 
 too, upon a full investigation of the subject sub- 
 mitted to the commissioners, in all its parts, it 
 may be found, that delay and expense are, in 
 a certain degree, necessarily incidental to that 
 part of the system adopted in England in the 
 administration of justice, which has thrown a 
 great load of business on those courts called 
 courts of equity, as distinguished from those 
 courts usually called courts of the common 
 law ; and yet it may be also found, that greater 
 evils would probably arise from rejection of 
 that system, than from adherence to it. This, 
 indeed, the framers of the report seem to have in 
 some degree felt, and have not ventured to pro- 
 pose the destruction of that system, by substi-
 
 8 
 
 tuting some other mode of administering justice 
 in those cases which now fall under the jurisdic- 
 tion of courts of equity. 
 
 The comparative expedition with which causes 
 may be decided in the English courts of common 
 law ; in questions of fact, by the verdicts of juries ; 
 in questions of law, by the judgments of those 
 courts ; is unquestionable. But, upon fullinvesti- 
 gation of the subject, it would be found that this 
 expedition is obtained by means of the courts of 
 equity; by retaining the simple forms, of great 
 antiquity, adopted in the courts of common law, 
 and throwing the burthen of more complicated 
 cases, requiring different forms of proceeding, on 
 the courts of equity. The courts of common law, 
 in Westminster Hall, are already sinking under 
 the weight of the burthen thrown upon them. An 
 additional weight would only impede their pro- 
 gress, and render them unfit even for the pur- 
 poses which they now fulfil. 
 
 Perhaps also, upon inquiry it may be found, 
 that accidental circumstances have greatly con- 
 tributed, both to the delay and expense com- 
 plained of; and that those evils have increased to 
 the magnitude which has excited clamour, riot so 
 much from the constitution of the jurisdictions 
 which are the subject of inquiry not so much 
 from the rules by which their proceedings have 
 
 -
 
 been regulated not so much from the vast ex- 
 tent, variety, and importance of the matters 
 under their cognizance, (although all these must 
 have contributed to produce the evils complained 
 of,) as from certain circumstances, springing 
 out of the character of the times ; from modern 
 changes in the general conduct of business of 
 every description ; and perhaps, most especially, 
 from the introduction of new characters into the 
 transaction of law-business, and new modes of 
 conducting such business all having a tendency 
 to produce delay, and increase expense in the 
 transaction of the extensive, varied, and compli- 
 cated subjects of litigation, which often fall under 
 the cognizance of the several jurisdictions com- 
 plained of. For, although the equitable jurisdic- 
 tion exercised in the Court of Chancery has been 
 made the direct subject of complaint, the various 
 courts of equity in England, and in Ireland, and 
 in the several dependencies of the Crown which 
 have adopted the English system of jurisprudence, 
 probably afford similar grounds for complaint; at 
 least, in proportion to the extent of their several 
 jurisdictions. 
 
 In attempts at reform of evils, it has been 
 generally found most beneficial to the public 
 service to look, as much as possible, prospectively 
 only ; and to endeavour to remedy evils by pro-
 
 spective regulations, rather than to impute bhinie 
 to individuals for what has passed. But to dis- 
 cover the causes of acknowledged evils, it is ne- 
 cessary to look in some degree retrospectively ; 
 and, in a retrospective view for this purpose, it 
 is not necessary to impute blame to any indi- 
 vidual, as such. Evils may exist, of which the 
 most worthy men may be ministers ; and which, 
 by their owii individual exertions, they cannot 
 remedy. 
 
 It ought also to be considered, by those who 
 impute evil to courts of justice, that the neces- 
 sity for the establishment of courts for the ad- 
 ministration of justice, is in itself an evil but an 
 unavoidable evil. Even if all men were disposed 
 to do right without compulsion, the question 
 would often remain, "What is right?" espe- 
 cially where questions may depend on the just 
 construction and application of laws, established 
 by usage, or by positive enactment, often clash- 
 ing, and perhaps founded on discordant princi- 
 ples; where dispute may arise on the proper 
 construction of instruments, ignorantiy framed, 
 or obscurely expressed, though free from all im- 
 putation of fraud; and questions of fraud are 
 generally subjects of difficult investigation, often 
 requiring long and patient labour to separate 
 truth from falsehood ; and these are subjects on 

 
 11 
 
 which courts of equity are frequently called upon 
 to exercise their peculiar jurisdiction, by means 
 of powers confided to them, and adapted to that 
 purpose, and to which the forms of proceeding 
 in the Courts of Common Law are not appli- 
 cable. 
 
 Difficulties must also occur, when any of the 
 persons interested in the discussion of any ques- 
 tion, are incapable by law of binding them selves; 
 and where contingent rights may be affected, 
 which no person at the time may be competent 
 to sustain. In such cases, particularly, the inter- 
 position of a court of justice, though an evil, is 
 often an evil unavoidable. 
 
 Whoever also considers the administration of 
 justice by courts of civil jurisdiction, of any de- 
 scription, with a view only to the personal in- 
 terests of the parties engaged in litigation, has a 
 very imperfect view of the subject. In very few 
 cases, comparatively, ought the parties litigating 
 to be considered as the only persons interested 
 in the result. Generally, the whole people, go- 
 verned by the same laws, are interested; and 
 their interests ought always to be an important 
 subject of consideration in transactions in courts 
 of justice, far more than the interests of the 
 actual litigants. Expense and delay are evils 
 often severely felt by the litigating parties ; but
 
 12 
 
 they may be evils suffered for the public good,, 
 and for that reason must be submitted to by 
 those who immediately suffer. 
 
 In regulating the proceedings of a court of 
 justice,, it is therefore necessary to consider, not 
 only the particular interests of the persons who 
 may be actually engaged in litigation in that 
 court, but the general interests of the public at 
 large, as those interests may be affected by the 
 proceedings of the court in each case falling 
 under its cognizance ; and though it may be as- 
 sumed that, generally, what will be beneficial to 
 the immediate suitors, will be beneficial also to 
 the public at large, and particularly to those who 
 may in future become suitors, yet this assump- 
 tion must be considered as subject to much qua- 
 lification. 
 
 It is for the benefit of immediate suitors that 
 the business should be transacted with the ut- 
 most possible expedition, and at the least pos- 
 sible expense ; and to them, or at least to one of 
 them, delay may be the greatest of evils. The 
 dispatch of business, and saving of expense, in 
 particular cases, may be also generally beneficial 
 to future suitors, and to the public at large ; but, 
 in their consequences, they may be prejudicial 
 to future suitors, and to the public at large, to 
 whom it must be of the greatest importance that
 
 13 
 
 questions in litigation should be rightly de- 
 cided, whatever the immediate litigants may 
 suffer; that the principles guiding- every de- 
 cision should be clearly just, and that the de- 
 cision should therefore be a rule in future cases, 
 often preventing future litigation,, and affording a 
 clear guide for decision, if litigation on a similar 
 question should afterwards^ arise. 
 
 The rules, therefore, which ought to be adopt- 
 ed for regulating the proceedings of any court of 
 justice,, should be consistent with a full inves- 
 tigation of the facts on which every case ought 
 to be decided, with a full investigation of the 
 law as applied to such facts, and with such in- 
 terposition of time as may be necessary for those 
 purposes, and prevent any hasty and improvi- 
 dent decision. 
 
 In every thing, and more especially in the 
 proceedings in a court of justice, there may be 
 more haste than good speed; more saving of 
 expense than just economy. One hasty and 
 improvident decision may do infinite mischief. 
 If not reversed, on rehearing or appeal, it may 
 long remain as a false light, misleading many, 
 and producing, in its effects, inconveniencies 
 which may compel the legislature to interpose, 
 and which the legislature itself may be unable, 
 after a lapse of time, effectually to remedy.
 
 14 
 
 These observations apply with particular 
 force to those subjects of litigation on which 
 several different courts of justice may have juris- 
 diction. Many of the subjects of jurisdiction in 
 a court of equity may fall also under the cogni- 
 zance of a court of common law. In deciding 
 upon the legal effect of an instrument, the courts 
 of equity and courts of common law ought to de- 
 cide alike ; for though the courts of equity may 
 assume a jurisdiction, on proper grounds, to 
 controul the legal effect of that instrument, they 
 are bound to allow to it that legal effect which 
 the judgments of courts of law have given to it. 
 
 In the assumption also of equitable jurisdic- 
 tion, all courts of equity, adopting the English 
 system of jurisprudence, ought to decide alike 
 upon the same subjects. 
 
 Therefore, in regulating the proceedings of 
 the Court of Chancery, as a court of equity, at- 
 tention should be paid to the importance of ren- 
 dering every decision of that court a guide to 
 future decisions ; not only in that court, but in 
 all other courts in which the judicial polity of 
 England, distinguishing courts of equity from 
 courts of common law, has been adopted; a 
 guide also to those whose duty it may be to 
 judge whether any question, proposed for their 
 opinions, may or may not be a fit subject of liliga- 

 
 15 
 
 tion. A guide also for the legislature in framing 
 any law applicable to a similar subject. 
 
 The deliberate decisions of all courts admini- 
 stering justice on the same principles of law, 
 are, and must be, considered, in all such courts, 
 as rules of law ; and therefore as proper guides 
 for decision on similar questions ; and the deci- 
 sions of all courts of justice, bound by the same 
 law, ought on all questions of controversy to be 
 guided by the same rules of law, according to 
 the nature of their respective jurisdictions. 
 
 The legislature must also consider the uni- 
 form decisions of courts of justice, declaring the 
 law, to be the law, until it shall think fit to inter- 
 pose by enactment to the contrary. 
 
 It is therefore of the utmost importance that 
 there should be (as far as circumstances will 
 conveniently permit) a supreme court of appeal, 
 by which the decisions of all inferior courts may 
 be reviewed and controuled, and the judgments 
 of all rendered, in principle, uniform, even when 
 varying in effect, according to the different na- 
 tures of the different jurisdictions to which the 
 original cognizance of a question in litigation 
 may have been submitted. 
 
 Without such a court of appeal, there might 
 be conflicting decisions on subjects exactly simi- 
 lar, but discussed before different and indepen-
 
 16 
 
 dent tribunals ; and though the legislature might, 
 by frequent declaratory laws, in some measure 
 check this evil, it would be acting itself, though 
 prospectively, as a court of appeal, and yet 
 would be unable, without the assistance of a 
 court of appeal, to provide for the sure execu- 
 tion of its own declaratory acts. 
 
 The controul arising from the appellate ju- 
 risdiction of the House of Lords, as far as it 
 extends, thus operates most beneficially in the 
 administration of justice. The object of it is to 
 retain all jurisdictions, from which appeal lies to 
 its judgment, in a constant uniformity of prin- 
 ciple in decision, according to the nature and 
 objects of the several jurisdictions of those 
 courts respectively. Hasty and improvident de- 
 cision in that court is an evil of the first magni- 
 tude iu the administration of justice. Being sub- 
 ject to no superior court, its decisions, so far as 
 its authority extends, become settled rules of 
 law, however at variance with the decisions of 
 other courts ; and the decisions of every other 
 jurisdiction, though subject to appeal, must, if 
 not questioned by appeal, also be generally 
 deemed, in the administration of justice in the 
 same court, settled rules of law, unless justly 
 impeached as hasty decisions, without due con- 
 sideration of facts, of principles of law, or of the 

 
 17 
 
 authority due to prior decisions; an impeach- 
 ment necessarily requiring great care, attention, 
 and caution. 
 
 Every court, therefore, from which there is 
 no appeal, may be considered as in some degree 
 possessing a legislative character. The law of 
 any country can only give general rules. Those 
 general rules are to be applied by courts of jus- 
 tice according to the circumstances appearing in 
 the course of litigation in each cause. But the 
 decisions of eveiy court, applying those rules 
 in particular cases to particular circumstances, 
 ought to be authorities to guide, at least, the 
 same court; and, generally, other courts admini- 
 stering the same law in future decisions under 
 similar circumstances. Otherwise, the decisions 
 of courts of justice would form no guide for the 
 conduct of men in their mutual transactions on 
 similar subjects ; no rule by which they may be 
 advised what are and what are not fit subjects of 
 question in that court which must decide upon 
 their differences. 
 
 It is highly important, therefore, to the due 
 administration of justice, to the quiet of men, 
 and to the saving of expense in litigation) that 
 powers amounting, in any degree, to such spe- 
 cies of legislative power, should not be vested in 
 any court, beyond absolute necessity, and to 
 
 c
 
 avoid greater inconvenience ; and that such 
 powers, if entrusted to any court, should be as 
 strictly limited as circumstances will permit. 
 
 But it is more particularly important that 
 there should not be more than one jurisdiction, 
 affecting in the same manner the same subject, 
 the decisions of which should be without appeal; 
 and above all, that there should not be two 
 judges of the same court, sitting separately, 
 whose respective judgments should be of equal 
 force, and both supreme. It is scarcely possible 
 that such a constitution in a court of justice 
 should not produce contrariety of decision upon 
 cases perfectly or nearly similar, and that the effect 
 should not be highly mischievous; more particu- 
 larly if every suitor were at liberty to bring his 
 case before whichever of the two judges he might 
 conceive (from what had been done by that 
 judge in preceding cases, or for any other reason) 
 would be most favourable to the wishes of this 
 suitor ; and especially if the other judge, in similar 
 cases, had pronounced judgments or indicated 
 opinions adverse to the claim of this suitor. 
 
 The jurisdiction of the persons holding the 
 Great Seal in matters of bankruptcy has been 
 constituted without appeal, under an apprehen- 
 sion that more injury would arise from allowing 
 appeals from that jurisdiction to the House of 

 
 19 
 
 Lords, than from improper decision by the judge 
 of the original jurisdiction. 
 
 This extraordinary power of jurisdiction with- 
 out appeal is at present confined to the person 
 holding the Great Seal. To give to another 
 person, as a judge of the same court, the 
 same power of decision without appeal, must 
 have a tendency to produce great inconvenience. 
 Different decisions might be given in the same 
 court, perhaps on the same day, on cases ex- 
 actly similar. Even under the same commission 
 of bankrupt, one creditor might be admitted to 
 prove a debt against the bankrupt, whilst the 
 claim of another creditor, depending exactly on 
 the same circumstances, might be rejected. If 
 the commissioners, named in a commission of 
 bankrupt, admitted twenty creditors to prove 
 their debts under the same circumstances, ten of 
 those proofs might be expunged by the order of 
 one of the judges, and ten might be confirmed 
 by the other. Which of these discordant deci- 
 sions would, under such circumstances, be deemed 
 the rule of law, to guide the judgment of those 
 who might be called upon to advise in similar 
 cases, or to guide even the judgment of the com- 
 missioners in the same commission of bankrupt, 
 who might be called upon to admit proofs in 
 other cases exactly similar to those in which, of 
 
 c2
 
 twenty proofs before admitted by the commis- 
 sioners, ten had been confirmed, and ten had 
 been ordered to be expunged ? The commis- 
 sioners must either admit or reject the proofs so 
 offered. If the judgment of the Chancellor had 
 been in conformity to their own former opinion, 
 and they admitted the debts so claimed in defer- 
 ence to his opinion agreeing with their own, and 
 if the assignees, or any adverse creditors, peti- 
 tioned the Chancellor to order the proofs so ad- 
 mitted to be struck out; must he bow to what 
 may have been the decision of the Vice Chan- 
 cellor on the former application, and order the 
 proofs to be struck out; or must he abide by 
 his own former decision, and reject the petition of 
 the assignees, or other creditors, to expunge the 
 proof? In such a case, if the commissioners, 
 bowing to the authority of the Vice-Chancellor, 
 in preference to that of the Chancellor, had re- 
 jected the proof of these debts, and the credi- 
 tors, whose claims were thus rejected, knowing the 
 former decision of the Vice-Chancellor on simi- 
 lar cases, should petition the Chancellor that the 
 proof of their debts might be admitted, notwith- 
 standing the decision of the commissioners, 
 ought the Chancellor, in deference to the opi- 
 nion of the Vice-Chancellor, to reject the debts 
 so claimed ; or ought he, adhering to his own
 
 former opinion, to admit them? The result 
 would be, that the creditors whose case had come 
 before one of the two judges would lose the 
 whole of their debts, under circumstances ex- 
 actly similar to those under which other credi- 
 tors, whose cases had come before the other 
 judge, would be intitled to receive dividends of 
 the bankrupt's e fleets. Nothing could be more 
 mischievous than such a constitution of a court of 
 justice, and the report does not appear to have 
 ventured to adopt propositions suggested to that 
 effect. 
 
 The jurisdiction of the Vice-Chancellor in 
 matters of bankruptcy ought therefore to be, as 
 it now is, subordinate, and subject to revision 
 by the Chancellor, that there may be uniformity 
 of judgment. Sitting as judges in bankruptcy, 
 both must consider themselves as bound by the 
 uniform decisions of courts of common law, on 
 questions properly to be decided by the common 
 law; both must consider themselves as bound by 
 the uniform decisions of courts of equity, on 
 questions properly to be decided by such courts ; 
 so far as any matter of law or equity may come 
 in question before them, in a matter of bank- 
 ruptcy : otherwise, there can be no uniformity 
 of decision in the administration of justice. So 
 also in matters purely depending on the bank-
 
 22 
 
 rupt law, both must be guided by the decisions 
 of those who have preceded them in the same 
 jurisdiction; and to obtain uniformity of deci- 
 sion on questions arising in bankruptcy, one of 
 the judges must be superior, and the other 
 subordinate : the decisions of the subordinate 
 judge being subject to appeal to the judgment 
 of his superior, which can alone produce uni- 
 formity of judgment. 
 
 So if the judgments of the Master of the 
 Rolls, or of the Vice- Chancellor, as judges in 
 the equitable jurisdiction of the Court of Chan- 
 cery, were to be exempted from appeal to the 
 Chancellor, though subject to appeal to the 
 House of Lords, the Chancellor must be con- 
 sidered as bound to treat their judgments as 
 rules of law, unless, and until, reversed on such 
 appeal ; otherwise there would be no uniformity 
 of judgment in that Court. What, also, must 
 be the authority of those judgments in the mean 
 time ? If the Chancellor doubted their propriety 
 must he decide accordingly ; or, if no appeal to 
 the Lords had been lodged, must he order the 
 cause before him, on which those decisions 
 might be cited, to stand over until the time for 
 appeal should elapse; or, if an appeal should 
 be lodged, until that appeal, if prosecuted, 
 should be determined? The cause might in
 
 K 
 
 the meantime become abated by the death of a 
 material party, and the law of the Court, on the 
 particular subject, must then remain in further 
 suspense, until the cause should be revived ; and 
 if an appeal should be lodged, the Chancellor, 
 pending the appeal, must be in a very distress- 
 ing situation. Surely nothing could tend more 
 to degrade the office of Chancellor than to place 
 him in such a situation, however it might tend 
 to elevate the inferior judges. 
 
 If these observations have any force, with 
 respect to the higher officers of the court, must 
 they not apply also to the jurisdiction, without 
 appeal, proposed to be given to the Masters in 
 Chancery ? especially on the important subject 
 of exceptions to the sufficiency of an answer, 
 and more particularly if power should be given 
 to a defendant, in all cases, to insist by answer 
 on a defence which, according to the present 
 practice of the court, he can make only by 
 plea or demurrer ; a proceeding on which the 
 judgment of the court may immediately be had, 
 according to the present practice, and which 
 in many cases is of the greatest importance. 
 Such a power of decision, without appeal, given 
 to the Masters in Chancery, must throw the 
 proceedings into the utmost confusion. It is 
 true, if the Master should doubt of his own
 
 24 
 
 judgment, he may (according to the proposition 
 as it now stands) so certify ; and then the ques- 
 tion may be brought before the court, by appeal 
 from his judgment. A confident and presump- 
 tuous man has no doubt; a diffident man may be 
 over doubtful ; and in cases, exactly similar, one 
 Master might certify that his own opinion ought to 
 undergo further examination, and another might 
 refuse such certificate. Under such contrariety 
 of judgments as may thus take place, and not be 
 subject to correction, how are those who are to 
 prepare defences to bills to find a rule for their 
 guidance. If one Master should decide one way, 
 and another Master should decide the direct 
 contrary ; and, both confident in their own opi- 
 nions, should refuse to submit to refer the ques- 
 tion to the court, what are the other Masters to 
 do in similar cases ? How are the counsel to act 
 who are to advise on pleadings? Which of 
 these two judgments, from which there can be 
 no appeal, is to be esteemed the law ? 
 
 Can such a proposition have other conse- 
 quences than to produce confusion, and to create, 
 instead of diminishing, expense ? 
 
 In every view of this important subject, and 
 especially to preserve uniformity of practice as 
 well as uniformity of decision, it seems abso- 
 lutely necessary that the Chancellor's authority
 
 should, in the Court of Chancery, be in all 
 things, and especially over all the judges and 
 officers of his court, supreme. 
 
 All such innovations have a direct tendency to 
 prevent that uniformity of decision which it is of 
 the utmost importance to preserve as much as 
 possible ; and that uniformity can only be effec- 
 tually preserved by the awe, as well as by the 
 authority, of a supereminent head; that uni- 
 formity which of itself has a clear tendency to 
 prevent expense in numerous cases, though, to 
 attain it, expense may be incurred in one, or in 
 a few. The inconvenience which may be suf- 
 fered by one or more individuals ought not to 
 weigh against the general good. 
 
 Supposing, however, the suggestions con- 
 tained in the Report, and the propositions an- 
 nexed to that Report, to be throughout proper 
 to be adopted, it still seems important to con- 
 sider whether those suggestions and propositions 
 apply to the only, or even to the principal 
 causes of delay and expense in proceedings in 
 the Court of Chancery, as a Court of equity ; 
 whether there are not other causes for the 
 consequences of which those suggestions and 
 propositions offer no remedy, probably be- 
 cause the coininissioners have found themselves
 
 26 
 
 unable to suggest a remedy, though they seem 
 to have been, in a certain degree, sensible of the 
 evil. 
 
 Perfectly to understand this subject in all its 
 parts, it seems necessary to take an extensive 
 view of the nature of the jurisdictions attributed 
 to those courts which are called, distinctively, 
 courts of equity in England, of the various 
 matters brought under their jurisdiction, of the 
 modes of proceeding adopted by those courts, 
 differing from proceedings in the courts called 
 courts of common law, and for what reasons the 
 courts of equity, and the modes of proceeding in 
 those courts, have been adopted ; subjects which 
 have been in some degree, though not very largely, 
 considered in framing the Report referred to. 
 
 In England, and in all the countries which 
 have adopted the jurisprudence of England, the 
 distinction between courts called courts of the 
 common law, and other courts, of various de- 
 scriptions, which have been termed courts of 
 equity, has prevailed ; and it may be important, 
 in considering the subject of inquiry submitted 
 to the commissioners in its full extent, to ascer- 
 tain, as far as possible, what has occasioned 
 this distinction : why there are in England, and 
 those countries which have followed its example,
 
 courts administering the same laws, but differ- 
 ing so much in their frame, and in their several 
 courses of proceeding. 
 
 The origin of courts of equity in England, 
 distinct from courts of the common law, is cer- 
 tainly involved in obscurity ; but the distinction 
 has long prevailed, and has probably arisen 
 from those circumstances which have produced 
 the present form of the English constitution of 
 government, and finally brought all the powers 
 vested in the Crown, executive as well as legis- 
 lative, under the controul of the two houses of 
 parliament : from that just spirit of a free con- 
 stitution of government, which requires all 
 powers employed in the administration of the 
 laws to be kept, as much as possible, within 
 clear and determined bounds; and, therefore, 
 in the administration of civil justice, precisely 
 marking the limits of all the courts of ordinary 
 jurisdiction, and reserving the administration of 
 justice, where extraordinary interposition might 
 be necessary, to distinct tribunals ; that it might 
 clearly appear whether an act done in the ad- 
 ministration of justice was in conformity to the 
 strict rules of established law, or a departure 
 from those rules, warranted only by extraordi- 
 nary circumstances : by that system of equity 
 which is essential to the full administration of
 
 2* 
 
 justice, but which it may be dang'erous to in- 
 trust to those tribunals to which the ordinary 
 administration of justice belongs. The existence 
 of the extraordinary jurisdiction of the courts of 
 equity is rendered necessary by the constitution 
 of the courts of ordinary jurisdiction, proceeding 
 according to the common law; it contributes 
 greatly to the due administration of justice in 
 those courts ; and it enables those courts to pro- 
 ceed with dispatch, which they could not attain 
 if loaded with the business now transacted in 
 courts of equity. It is also, perhaps, essential 
 to the continuance of the free constitution of 
 English government. 
 
 From the Norman conquest to the reign of 
 Edward the First, much obscurity rests on the 
 whole frame of English government. Whatever 
 was the constitution of the superior courts of 
 justice during the reigns of the three first Nor- 
 man princes, that constitution seems to have 
 suffered a rude shock in the disturbed reign of 
 Stephen ; during great part of which the func- 
 tions of that court, which seems to have been in 
 the three preceding reigns the supreme court, 
 assuming the most extensive jurisdiction, were 
 suspended ; and the whole administration of jus- 
 tice appears to have been thrown into confusion, 
 by the consequences of a long and bloody civil
 
 war. And though in the reign of Henry the 
 Second a degree of order was restored, the long 
 absence from England of his son Richard, and 
 the contests which prevailed in the reigns of 
 John and Henry the Third, appear to have 
 again produced much disorder in the administra- 
 tion of justice, as well as in every other depart- 
 ment of government. 
 
 It has been generally supposed, that, under 
 the Norman princes, there existed a superior 
 court of the king, before alluded to, which exer- 
 cised a very general original, as well as appel- 
 late jurisdiction ; and that this court, following 
 the person 'of the sovereign, great inconve- 
 nience arose to suitors. By the charter of John it 
 was stipulated, that the jurisdiction in common 
 pleas, the pleas by which the ordinary questions 
 between man and man were to be decided, 
 should be fixed in a certain place ; and that the 
 judges, by whom that jurisdiction should be ad- 
 ministered, should no longer follow the person of 
 the King. Those pleas were founded on writs 
 purchased in the King's Chancery, and framed 
 according to prescribed forms ; and the same 
 charter which fixed the Court of Common Pleas 
 in a certain place, forbade the sale of justice by 
 the Crown, (an enormity particularly charged on 
 the government of John, though probably attri-
 
 30 
 
 butable nearly in the same degree to some of his 
 predecessors,) and compelling the issue of those 
 writs on payment of certain fees. 
 
 The jealousy which obtained these conces- 
 sions from the Crown, probably produced a 
 watchful jealousy, both on the issue of writs by 
 the Chancery, and on the proceedings on those 
 writs by the Court of Common Pleas. Both 
 were regulated by prescribed forms ; and though 
 the great Court of the King still continued to 
 exercise its remaining functions for a consider- 
 able time, they were probably sometimes inter- 
 rupted by the civil wars in the reign of Henry 
 the Third, often checked and controuled by the 
 jealousy of the barons opposed to the king, and 
 sometimes probably overborne by the usurpations 
 of the royal power by those barons, and some- 
 times by that power, when free in the hands of 
 the king. 
 
 At length, the king's great court seems to 
 have lost a large portion of its powers ; the office 
 of its presiding judge, the chief justiciar, was 
 abolished; probably, as the Crown itself was 
 jealous of the authority of that great officer, espe- 
 cially when that authority was under the influence 
 of a faction, hostile to the king : and though there 
 are traces of the continued existence of this 
 great court in the first part of the reign of Ed
 
 31 
 
 ward the First, it seems to be the general opi- 
 nion, that before the close of that reign, not only 
 the Court of Common Pleas, but the Court of 
 King's Bench, having originally principally juris- 
 diction of the pleas of the Crown, and acting as 
 a court of criminal jurisdiction ; and the Court of 
 Exchequer superinteni ng the king's revenue, and 
 entertaining a distinct jurisdiction respecting 
 matters concerning that revenue, and confined 
 by the provisions of a statute passed at the in- 
 stance of the people, in the reign of Edward the 
 First, to that jurisdiction; were all separate, dis- 
 tinct, and independent jurisdictions, for separate 
 and distinct purposes, guided by the rules of the 
 commmon unwritten law, and by the written 
 statute law of the realm. The Chancery, ori- 
 ginally a part of the King's great Court, re- 
 mained a distinct office for the purposes of state, 
 and for the issuing of writs, as well for the ad- 
 ministration of justice, as for various other pur- 
 poses ; and when the King summoned a legis- 
 lative assembly, which had then obtained the 
 common appellation of his Parliament, (consisting 
 certainly, during a great part of the reign of 
 Edward the First, of spiritual and temporal 
 lords, summoned by the King's special writs, 
 and of commons, elected by counties, cities, and 
 boroughs, in pursuance of the King's writs,) the 
 Chancery was an office of the Crown, for the
 
 m 
 
 purposes of that assembly. In that assembly, the 
 lords, probably originally members of the King's 
 great Court of Justice, seem to have exercised 
 the functions of that court, both in original and 
 appellate jurisdiction, not only in the reign of 
 Edward the First, but in some degree in the two 
 succeeding reigns ; and attending to complaints of 
 those who thought themselves injured, not only by 
 erroneous judgments of the courts of common 
 law, but also by the course observed in proceed- 
 ings in those courts, which produced defects in 
 the full administration of justice, the lords endea- 
 voured to administer remedies for the grievances 
 alleged in the first case, as a court of error, in 
 the latter as a court of original jurisdiction. 
 The courts of common law at the same time 
 proceeded generally on the authority of writs 
 framed according to ancient forms, and adapted 
 to prescribed cases ; those forms being preserved 
 in the Chancery, and the writs issued by the 
 clerks of the Chancery according to those forms. 
 And although authority had been given by sta- 
 tute to extend the old writs, under certain restric- 
 tions, according to the exigencies of particular 
 cases, this authority was exercised with much 
 caution and reserve. When a new law intro- 
 duced a new right, or a new remedy for a pre- 
 viously existing right, new writs were formed 
 according to the exigence of the case.
 
 33 
 
 The courts of common law,, acting under the 
 authority of such writs, also acted with caution 
 and reserve ; probably in some degree in conse- 
 quence of the severity with which, in the reign 
 of Edward the First, some of the judges had 
 been treated, who were supposed to have exer- 
 cised a latitude in the administration of justice 
 which the law did not allow. 
 
 Proceeding under such trammels, the courts 
 of common law were sometimes unable to 
 effect that remedy for injury which justice 
 seemed to require, and which extensions of 
 the old forms of writs might, perhaps, in some 
 degree, though certainly not in many cases, 
 have enabled them to do. It was evident that 
 such strict forms of proceeding, were, in some 
 cases, inadequate to the purposes of justice. 
 Petitions were therefore presented to the King, 
 and to the Parliament when assembled, repre- 
 senting the grievance which had occurred in 
 each particular case ; and sometimes the lords in 
 Parliament interposed their authority : but the 
 short duration of Parliaments not allowing them 
 time for investigation of a difficult case, the ad- 
 ministration of a remedy was sometimes remitted 
 to the King's ordinary council, and sometimes to 
 the Chancellor alone; and sometimes the Chan- 
 cellor was ordered to frame a new writ, to give 
 
 D
 
 34 
 
 jurisdiction to the court of common law in the par- 
 ticular case. By degrees, applications were pro- 
 bably made directly to the Chancellor for remedy, 
 in various cases of wrongs to which the courts of 
 common law could apply no remedy, according to 
 the forms of writs and the modes of proceeding by 
 which those courts were guided, and to which they 
 (sometimes, perhaps, too scrupulously) adhered. 
 Such has been supposed to have been probably 
 the origin of the extraordinary jurisdiction of the 
 Court of Chancery, as a court of equity, which 
 is certainly, in a degree, a singularity in the ad- 
 ministration of justice in England. But it is 
 difficult to account for the same assumption of 
 power by other courts ; by the Court of Ex- 
 chequer, the Court of the Chancellor of Durham, 
 of the Duchy of Lancaster, and other particular 
 jurisdictions, if there had not been some original 
 principle, adopted in the administration of justice 
 in England, which necessarily led to such as- 
 sumption of power by some court, to effect the 
 full purposes of justice. That singularity may 
 have been produced by a jealous attention to the 
 pure administration of justice, and by the prin- 
 ciples of freedom which have always marked the 
 constitution of the government of England, and 
 which allowed of no discretion in the administra- 
 tion of law, without an avowed assumption of
 
 35 
 
 discretion, on clear and unquestionable grounds, 
 a discretion which it may not have been thought 
 fit to intrust to the ordinary courts of justice. 
 
 It was late in the reign of Edward the Second, 
 when the constitution of the legislative power of 
 the realm was finally fixed by a declaratory law ; 
 and it does not appear that the distinction be- 
 tween courts of the common law and courts of 
 equity, was clearly marked, till towards the close 
 of the reign of Edward the Third; or was fully 
 settled even in the time of his grandson, Richard 
 the Second. There are traces of the exercise of 
 the ancient jurisdiction of the King's great Court 
 even in the reign of Edward the Third. That 
 court seems always to have assumed some degree 
 of equitable jurisdiction in extraordinary cases; 
 and perhaps the equitable jurisdiction of the 
 Court of Chancery, and of the several other 
 courts exercising such jurisdiction, may have 
 been substitutions, in the place of that great 
 Court of the King, when its functions ceased, 
 except as they are still retained by the House of 
 Lords, acting as a court of justice, and particu- 
 larly as a court of appeal. 
 
 The applications for redress, in cases Far which 
 the course of the common law afforded no re- 
 medy, when made immediately to Parliament, 
 were by petition ; stating the case of the pe-
 
 36 
 
 titioner, the grievance complained of, and the 
 want of remedy, or of adequate remedy, by the 
 course of the common law ; and praying that re- 
 lief which the exigence of the case might require. 
 Bills in Chancery, and in all the other courts as- 
 suming equitable jurisdiction, have always been 
 conceived in the same form. But the frame of 
 such petitions could not be regulated by strict 
 and settled forms ; each petition being adapted 
 to a special case, generally founded on the neces- 
 sity of departure from the strict forms of proceed- 
 ing by which the courts of common law were 
 bound. This often led, unavoidably, to loose 
 statement, according to the fancy of the framer 
 of the petition; often to unnecessary prolixity; 
 and often indeed to proposing the assumption of 
 extravagant powers, for relief of a particular in- 
 jury- 
 
 At first, the applications for redress in such 
 extraordinary cases, were probably few ; but as 
 the population of the country, its cultivation, its 
 manufactures, its trade, its wealth, and its re- 
 sources, increased, a vast extent of jurisdiction 
 devolved on courts of equity, and made them of 
 great importance in the administration of jus- 
 tice; and the value of the property now gene 
 rally in litigation in those courts, probably greatly 
 exceeds the value of property at the same time in
 
 37 
 
 litigation in the courts of common law. The 
 Court of Chancery alone has now, under the care 
 of its officer, the Accountant General, nearly 
 forty millions sterling of stock in the public 
 funds, belonging to the suitors of that court. 
 The creation of trusts, affecting both real and 
 personal property, (and of which the courts of 
 common law cannot conveniently take cogni- 
 zance) has of itself greatly increased the business 
 of courts of equity. Testamentary dispositions, 
 both of real and personal estate, and the admini- 
 stration of personal property in cases of intes- 
 tacy, and the various and complicated transactions 
 in trade, and in other dealings, have brought upon 
 those courts a vast load of business, to which the 
 courts of common law are incompetent, without 
 a total change in their modes of administering 
 justice. 
 
 As the business of the Court of Chancery in- 
 creased, the machinery employed in the conduct 
 of that business also necessarily increased. New 
 offices were created, and by degrees a system was 
 established, in which time and circumstances 
 have produced considerable changes, and which, 
 as far as it now remains, it is proposed by the 
 report, in some degree to alter and new model; 
 and even as far as the report proposes to leave 
 it undisturbed, a considerable degree of doubt of 
 its utility is by the report thrown upon it.
 
 38 
 
 Adverting,, at the same time, to a great mass of 
 business transacted by the Chancellor, or persons 
 holding the Great Seal, not connected with the 
 equitable jurisdiction of the Court of Chancery, 
 but in certain parts administered with the as- 
 sistance of the officers of that jurisdiction, the 
 report has also proposed some measures, with a 
 view to relieve the Chancellor, or persons hold- 
 ing the Great Seal, from part of this burden 
 thrown upon them. 
 
 To form a judgment of what has been proposed 
 and of what may be properly done in conse- 
 quence of the report, or of what, if any thing, 
 may be done beyond what is suggested by the 
 report; it seems necessary further to inquire, 
 what has been the machinery by which the busi- 
 ness transacted in the Court of Chancery, as a 
 court of equity, has been from time to time con- 
 ducted, and what it now is ; whether any evils 
 have arisen from the construction of that ma- 
 chinery, and whether such evils, if any, can be 
 removed by a reform of, or change in, that ma- 
 chinery; and especially according to the sug- 
 gestions in the report. 
 
 Perhaps, in alterations made of late years in 
 that machinery, the origin of some of the evils 
 complained of may be found ; though, perhaps, 
 much may have been unavoidably incident to the 
 nature of so extended, so varied, and so im-
 
 portant, a jurisdiction; exercised in a country 
 possessed of considerable external dominions; 
 having immense trade with all parts of the world, 
 numerous manufactures, great variety of esta- 
 blishments, public and private, a great national 
 debt, vast wealth, much ingenuity, with a dis- 
 position to unbounded speculations, and a con- 
 stitution of government allowing of the pursuit 
 of those speculations, for attainment of wealth, 
 without any controul, except what the courts of 
 justice, as now constituted, may be enabled to 
 exercise, or the legislature may think fit to 
 impose. 
 
 The person holding the Great Seal of the 
 United Kingdom, with the title of Chancellor, 
 or Keeper, (except when the seal is held by 
 several commissioners appointed for that pur- 
 pose,) is the chief judge of the Court of Chan- 
 cery, in all its several branches; of which, 
 however, the most important is the jurisdiction 
 exercised by the court as a court of equity. 
 To assist the Chancellor, or Keeper, in the dis- 
 charge of his duties, he has several officers ; 
 amongst whom, the most eminent is the Master 
 or Keeper of the Rolls, or Records of the court ; 
 who is one of twelve officers, called Masters of the 
 court, of whom he is the head. The Master of the 
 Rolls has long acted as an assistant judge; sitting
 
 40 
 
 generally in a separate court, but occasionally 
 sitting also for the Chancellor in the Chancellor's 
 court,, or with him as an assistant judge. Of late 
 years, further assistance has been given to the 
 Chancellor by the creation of a new office, that of 
 Vice-Chancellor an office, in its creation, made 
 perfectly subordinate to the Chancellor. One of 
 the Masters of the court is, under the authority of 
 an act of parliament, and with the appellation of 
 Accountant General of the court, intrusted with 
 the care of certain property belonging to suitors 
 of the court ; and the ten other masters assist 
 the court in various ways. 
 
 A commission has been usually issued, for 
 many years past, appointing the judges of the 
 courts of King's Bench, Common Pleas, and 
 Exchequer, assistant judges, on the requisition 
 of the Chancellor, or the superior of the Court 
 of Chancery, in case of his inability to attend 
 the court, in place of the Chancellor, or other 
 Chief Judge ; and when one of these judges sits 
 in the court, the commission requires the attend- 
 ance of two of the Masters in Chancery, for his 
 assistance. But of late years, the judges have 
 been too much engaged in their own courts, and 
 elsewhere, to allow of their attendance in the 
 Court of Chancery, under the authority of this 
 con) mission ; the business of their courts having
 
 41 
 
 also increased, with the general riches, and pros- 
 perity of the country. 
 
 Many other persons have various duties as offi- 
 cers of the Court of Chancery, in all its various 
 branches. Amongst these, are the clerks, called 
 the Six Clerks in Chancery, and their under clerks; 
 and in their office, called the Six Clerks' Office, a 
 great portion of the business of the court, as a 
 court of equity, is still formally conducted. The 
 manner in which these officers are considered in 
 the report, in the propositions annexed to that 
 report, and in the evidence inserted in the ap- 
 pendix, renders a more minute enquiry, with 
 respect to them, necessary. 
 
 When the Chancery first became an import- 
 ant court in the administration of justice as a 
 court of equity, the six clerks seem to have 
 been the only solicitors practising as such in that 
 court; having generally immediate communica- 
 tion with the suitors, whose business they trans- 
 acted. As the business extended, they found it 
 necessary to have the assistance of under clerks. 
 By degrees, as the business farther increased, 
 the number of these under clerks was increased; 
 and at length, by order of the court, the number 
 of these assistant clerks was fixed, and there 
 were allowed to each six clerk, ten sworn 
 clerks, and two other clerks, called waiting
 
 42 
 
 clerks, that is, expectants of a vacancy in the 
 office of a sworn clerk, to which they might suc- 
 ceed. The conduct of the business then fell 
 chiefly into the hands of these under clerks, who 
 became the persons immediately communicating 
 with the suitors. The six clerks thus be- 
 came rather superintendents, having the care of 
 the records of the court, which were under their 
 immediate custody, and were filed by them in 
 proper order as they were brought into their 
 respective offices, and were delivered out by them 
 for the purpose of being copied by the under 
 clerks, who were employed to appear and act for 
 the several suitors as their solicitors. 
 
 As long as this establishment remained entire, 
 it contributed much to the order and regularity 
 of the proceedings in the court. The whole 
 business was transacted in one office ; in which 
 each six clerk had his separate apartment, for 
 the purpose of transacting his business, and each 
 of his ten sworn clerks, and two waiting clerks, 
 had a seat in the public office, in which the busi- 
 ness entrusted by the suitors to their care, was 
 transacted. The office was near the residence 
 and office of the Master of the Rolls, who had a 
 general superintendence over the six clerks and 
 their under clerks ; and the offices of the several 
 Masters in Chancery, and of the several other
 
 43 
 
 officers connected with the Chancery, were all 
 established nearly on the same spot : so that the 
 whole business was conducted within a space of 
 ground of small extent, and the communication 
 of every office of the Court of Chancery, with 
 every other office of the same court, was short 
 and easy. 
 
 On this footing, the establishment of the court, 
 for the purposes of its equitable jurisdiction, 
 long remained. The increase of business which 
 had produced the establishment of the under 
 clerks in this office, gradually led to a further 
 increase of the number of persons necessarily 
 employed. The attornies in the several courts 
 of common law, having immediate communica- 
 tion with their clients on other business, were 
 consulted by those clients when involved in suits 
 in Chancery. The attornies had recourse to the 
 under clerks in the Chancery office, who had, 
 from education and practice, familiar acquaint- 
 ance with the business there transacted; and 
 the attornies employed those clerks as their 
 agents, dividing the fees according to a mutual 
 arrangement. The country attornies acted in 
 the same way, corresponding immediately with 
 their clerks in Chancery. Thus the direct 
 communication with the suitor was, by degrees, 
 transferred from the clerks in Chancery to the
 
 44 
 
 attornies of the courts of common law, in a 
 large proportion of the suits depending in the 
 court ; and the attornies so employed assumed 
 the appellation of solicitors in Chancery. At 
 length, in 1729, a statute was passed, author- 
 ising the admission of such attornies., as sworn 
 solicitors, in the several courts of equity, under 
 certain regulations ; and from that time, the 
 clerks in the Chancery office have lost their im- 
 portance, and their numbers have now dwindled 
 from seventy-two to eighteen ; the profits arising 
 from the business falling almost entirely into the 
 hands of the solicitors. 
 
 When the clerks in the Chancery office con- 
 ducted the whole business, either as employed 
 by the parties, or as agents for attornies who 
 were in the more immediate employ of the 
 parties, that business was conducted by persons 
 always on the spot, in habitual intercourse with 
 each other, familiar with the business which 
 they were to transact, and with the several 
 offices in which it was to be transacted, and in 
 constant attendance for that purpose. When 
 the new arrangement was completed, and soli- 
 citors in Chancery, who were not clerks in the 
 Chancery office, became the immediate managers 
 of important parts of the business of the court, 
 the difficulties which have occupied the attention
 
 of the commissioners began, and have ever since 
 rapidly increased. Those persons have, gene- 
 rally, various other business to transact in all 
 the other courts of justice; with public offices of 
 various descriptions, and with the several offices 
 of the very numerous body of solicitors, scat- 
 tered over that vast space which is now com- 
 monly called London, though the city of London 
 occupies only a very small part of that space. 
 
 The difficulties produced by the increase of 
 the business of the court, by the still greater 
 increase of the number of persons by whom that 
 business is transacted, and by the scattered and 
 distant positions of the several places in which 
 those persons have their separate offices, for the 
 purposes of their multitudinous business, of, 
 which the Chancery business often forms only a 
 comparatively small part ; have been, for several 
 years, gradually increasing ; and they will increase, 
 in spite of any regulations which may be devised 
 to controul the evil. In truth, the dispatch of 
 business depends almost entirely on the skill, the 
 diligence, and attention of the solicitors; who 
 are become a body, closely and intimately united 
 as solicitors, and too powerful, as well as too 
 numerous, to be effectually controlled. But they 
 are the chief objects of advantageous controul. 
 
 To form some judgment on this subject, it is
 
 46 
 
 necessary to inquire, what a great solicitor's 
 office commonly is. 
 
 To discharge properly the various duties of 
 the several engagements with which a great 
 solicitor is intrusted, he ought to be intimately 
 acquainted with the business of all the courts of 
 common law and equity; to have a considerable 
 degree of knowledge of law in general, and 
 especially of the law of property, personal and 
 real. Such acquirements must be rare j perhaps 
 they are scarcely completely attainable, even by 
 persons of superior talents. Solicitors, there- 
 fore, generally act, in the transaction of the 
 several parts of their extensive and multifarious 
 business, by delegation. They delegate their 
 duties in their practice in the courts of common 
 law, in a great degree, to persons denominated 
 special pleaders ; and their business in the courts 
 of equity to persons called equity draughtsmen ; 
 whilst, in matters of practice, they generally re- 
 sort to the more immediate officers of the several 
 courts in their several departments. In another 
 part of their business, they are assisted by per- 
 sons called conveyancers ; by whom, not only all 
 deeds, supposed to have been prepared in a 
 solicitor's office, are generally drawn ; but even 
 the preparatory business, which may enable the 
 conveyancer to draw a deed, is often his work,
 
 47 
 
 and not the work of the solicitor. This is be- 
 come already a great evil ; but it is a growing 
 evil, and may become an evil of the first mag- 
 nitude. It requires, therefore, most particular 
 attention. 
 
 It is true, that although the business of soli- 
 citors is generally so conducted by delegation, 
 there are still solicitors of great knowledge in 
 their profession, and high character. The re- 
 port notices, and truly, that some do still dili- 
 gently give their personal attention to their busi- 
 ness in courts of equity: But it observes, that 
 others generally leave their business to be trans- 
 acted by clerks, and sometimes by ignorant clerks ; 
 and it particularly notices the business transacted 
 in the offices of the Masters in Chancery, upon 
 references to them, which the report observes, 
 are often upon subjects most important to the 
 parties interested, and which are often left to the 
 management of young clerks totally incompetent 
 to the business intrusted to them. 
 
 It is evident, that this mode of conducting 
 business, by delegation, may ultimately lead to 
 a general want of that knowledge of their busi- 
 ness which solicitors ought to possess ; and it is 
 evident that the knowledge required to enable 
 any man to conduct the business of a solicitor, 
 will, finally, only be the knowledge to which of
 
 48 
 
 his several assistants he ought to resort for the 
 purpose of having his business done for him. 
 
 But even this limited degree of knowledge is 
 sometimes delegated to another description of 
 persons, called managing clerks, who are the 
 real workers of all the under parts of the busi- 
 ness. Under these, again, are other clerks ; often 
 mere boys, who are daily sent about with a 
 paper, containing written directions, to go with 
 that paper to the several places therein specified, 
 to ask the several questions therein proposed, 
 and to take down the answers in writing : and if 
 an attendance on a Master in Chancery should 
 be part of the business to be done, the boy is 
 furnished with a bundle of papers, of the con- 
 tents of which he knows nothing, and he is 
 ordered to attend the Master; not with the ex- 
 pectation of any benefit to the client, but merely 
 to warrant a charge for that attendance in a bill 
 of costs. 
 
 This mode of conducting the business of all 
 courts, and especially of the Court of Chancery, 
 necessarily leads to evil ; and will probably finally 
 lead to greater evils than those now complained 
 of. It cannot, however, be expected, that it will 
 be abandoned ; for it enables 'a solicitor to trans- 
 act, by his deputies, business to an extent far 
 beyond what an old practitioner could have con-
 
 49 
 
 templated, or a modern practitioner, doing him- 
 self the business of his clients, could accom- 
 plish. A solicitor, so assisted, may be, in the 
 persons of his deputies and assistants, engaged, 
 at the same moment, in business of various 
 sorts, in various places ; and yet he may him- 
 self know nothing of the business thus trans- 
 acted. He has a large part of the bar at his 
 command, in the characters of special pleaders, 
 equity draughtsmen, and conveyancers; together 
 with a large body of persons assuming the same 
 several characters as practisers under the bar. 
 These latter, especially, will have gradually 
 thrown upon them every part of all the business 
 which a solicitor has to transact, and which some 
 solicitors of the old school did transact, especially 
 in the courts of equity. Finally, every notice of 
 motion, every petition, indeed every proceeding, 
 will be prepared by these persons, who must be 
 paid for their trouble ; and (as the case now is 
 with respect to bills, and answers, and instru- 
 ments of all descriptions) the payments to these 
 assistants will be charged to the client, as fees 
 paid to the assistants for perusing and settling, 
 or under some other pretence ; whilst the 
 solicitor will charge the client with drawing, 
 what he has not drawn, and with which perhaps 
 he has in .no manner taken any trouble of any
 
 50 
 
 sort ; and be may add a charge Cor a fair copy 
 for signature by counsel, though no such copy 
 may be made ; the paper, to which that signature 
 may be affixed, being the original draft produced 
 by the labour of the counsel,, whose name is affix- 
 ed to it, and whose sole labour has produced it. 
 This mode of practice will naturally lead to 
 great length ; not only in bills and answers, and 
 in deeds, and other instruments, but in all sorts 
 of business. The ingenuity of the under-work- 
 man will be employed for the advantage of him- 
 self, and his employer. The longer his draft 
 may be, the more emolument will arise to both. 
 But to the solicitor in a much greater proportion 
 than to his under- workman ; for the latter can 
 have the benefit of the length to which he may 
 have spun out the article under his hand but 
 once/, but the solicitor may have the benefit of 
 it ten times over, in various ways, in the course 
 
 of business. 
 
 ? 
 
 The enormous length of modern conveyances 
 may be principally attributed to this mode of 
 transacting business. In ancient times, a piece 
 of parchment, scarcely the size of the palm of a 
 man's hand, would convey a large estate. Now, 
 the parchment employed in deeds might often 
 be said to be almost equal to cover the land con- 
 veyed. This extreme length of deeds, and the
 
 variety, and intricacy of the provisions contained 
 in them, often inserted more for the benefit of 
 the conveyancer and solicitor than for that of the 
 persons interested, tends, greatly, not only to 
 lengthen the pleadings in courts of equity, but to 
 lengthen the time necessarily occupied by those 
 who are employed in framing those pleadings, or 
 to argue a case, or determine in judgment upon it. 
 The mere reading of one of these vast heaps of 
 parchment is a heavy task ; and the real merits 
 of a cause in equity may be almost lost in the 
 quantity, variety, length, and complexity, of the 
 instruments forming the subjects of discussion. 
 It is difficult, often, to render the substance of 
 such deeds by abridgement; and yet setting them 
 forth at length, in a bill or answer, would be 
 deemed impertinence. 
 
 For various purposes, and particularly when a 
 cause is to be brought to a hearing in a court of 
 equity, a duty devolves on the solicitors em- 
 ployed on both sides to abbreviate the pleadings, 
 and the depositions of witnesses if there should 
 be any. This business was formerly done by 
 the solicitor himself, or by an experienced clerk, 
 whose work was corrected by the solicitor. It is 
 now usually delegated to a stationer, who often 
 delegates it again to his boy. What is called a 
 brief, is therefore no longer a brief. It is a 
 
 E2
 
 mere transcript, in a sort of form, which gives 
 it something of the appearance of a brief. It is 
 no longer an abridgement. Many years ago, in 
 a celebrated cause respecting certain lead mines 
 in Yorkshire, after a trial at law, in which there 
 was a verdict for the defendant, the bill was 
 finally dismissed with costs. Upon taxing the 
 costs, before Mr. Pechell, then one of the masters 
 of the court, the defendant's solicitor, a very able 
 man of the old school, had charged in his bill of 
 costs, as usual, for drawing a brief of the bill, an- 
 swer, and depositions in the cause; and had also 
 made an additional charge of five guineas for 
 abbreviating the brief. This charge being ob- 
 jected to by the plaintiff's solicitor, the master 
 called on both parties to produce the briefs used 
 at the hearing. The plaintiff's brief (drawn in 
 the modern style) was one hundred and five brief 
 sheets ; and the defendant's, only thirty-five ; 
 the latter containing (but ably abbreviated) all 
 the matter contained in the former. The master 
 allowed the five guineas, on this ground ; that 
 by the labour of the defendant's solicitor the 
 plaintiff had been highly benefited in the article 
 of costs ; as the charges for fair copies had been 
 reduced seventy sheets, and the fees to counsel 
 for the defendant, and the time required to render 
 the counsel and the court acquainted with the
 
 true merits of the case, had been abridged in 
 proportion. From this it may be easy to judge 
 how important it may be to the suitors, to the 
 court, and indeed to the purposes of justice, that a 
 solicitor should carefully attend to all parts of the 
 business submitted to his management, instead 
 of leaving it to others ; and especially, that he 
 should not delegate the duty of abbreviating the 
 proceedings, to an ignorant stationer, or his 
 more ignorant boy. 
 
 Complaint is made of the length of decrees 
 in Chancery, and this complaint is levelled at the 
 registers of the court ; but the fault is originally 
 in the solicitor. The brief used by the leading 
 counsel, at the hearing of a cause, is generally 
 carried to the register to enable him to state the 
 case in drawing up the decree. How different 
 must be his labour, if the brief carried to him 
 were carefully made by an intelligent solicitor ^ 
 and contained only thirty-five sheets, than it 
 would be if the brief were made by a stationer's 
 boy, and contained one hundred and five sheets. 
 All the labour for which master Pechell allowed 
 the charge of five guineas, must, in the latter 
 case, be undergone by the register, without any 
 remuneration. 
 
 But, perhaps, the greatest evil which may pro- 
 ceed from the present mode of conducting busi- 
 ness in a solicitor's office, will be, the total igno-
 
 54 
 
 ranee of business which it may lead to. A great 
 solicitor's office may become, like a great banker's 
 shop ; a family estate, providing for all the 
 branches of the family, who may become part- 
 ners in it ; and who, if they can read and write, 
 and cast up a bill, and give a receipt, may know 
 all that may be necessary to be known for con- 
 ducting the business of the shop, with the as- 
 sistance of a good managing clerk. 
 
 The necessity for the transaction of the busi- 
 ness of a suit in Chancery, in some degree, in the 
 several ancient offices, established for different 
 purposes, in the progress of the suit, alone pre- 
 serves, at present, regularity in the proceedings. 
 Yet there is much matter contained in the evidence 
 annexed to the report, which shows that the solici- 
 tors are impatient even of this control ; that they 
 wish to be able to transact the business wholly 
 amongst themselves, in their several offices, 
 scattered over a circuit of twenty or thirty miles, 
 called London. This would greatly increase their 
 profits ; but it may be worthy of consideration 
 whether more control may not be necessary, in- 
 stead of removing the control which remains, 
 however imperfect it may have become. 
 
 A considerable check to the misconduct of busi- 
 ness, and to excessive charges, might be effected 
 by establishing taxers : not only of costs of all 
 suits in law or equity, but of all solicitors' bills ibr
 
 55 
 
 business of any description; and particularly for 
 conveyancing business, which has become enor- 
 mously expensive. It should be provided, that 
 no charge should be allowed to the solicitor for 
 drawing what is really drawn by a barrister, 
 conveyancer, or special pleader, to whom a fee 
 is given for his labour. That fee is charged as 
 paid for the labour of perusing and settling only ; 
 whilst the solicitor charges for drawing, as if he 
 actually did that business ; and also charges for 
 a fair copy of the draft, which he has not drawn, 
 to be laid before the person whom he represents 
 as employed to peruse and settle only, though 
 no such copy has been made by the solicitor ; 
 and the draft, made by the barrister, convey- 
 ancer, or special pleader, and signed by him, is 
 the copy represented as made by the solicitor, 
 to be perused and settled by the barrister, con- 
 veyancer, or special pleader. 
 
 The taxers of costs should inquire into the 
 necessity for such length of drafts, either of 
 pleadings or of deeds, as might appear to them 
 unreasonable. Attendances by a clerk should 
 not be allowed as attendance by the solicitor, 
 except for mere matter of course ; or unless the 
 officer, attended by a clerk, should certify that 
 the clerk was properly qualified, and sufficiently 
 instructed, to do the business. Such further re-
 
 56 
 
 gulations should be also established, in the taxa- 
 tion of costs, as should tend to compel the soli- 
 citor generally to understand, and attend to, the 
 business in which he may be employed. His 
 emolument would be less, but the business 
 would probably be much better conducted. 
 
 Whether such regulations can be adopted, 
 perhaps, may be doubtful j but unless some im- 
 portant change can be made in the mode in 
 which business is now conducted, no material 
 relief can be afforded to the suitors of the Court 
 of Chancery, either as to expense or delay ; for 
 the great cause of expense and delay is the mode 
 in which business is now conducted; not only in 
 suits in Chancery, but in all matters under the 
 management of solicitors : in which indulgence, 
 by solicitors, to the idleness, ignorance, or inat- 
 tention, of each other, may be included. Indeed, 
 much of the evils complained of arises from mere 
 negligence, or perhaps forgetfulness ; of which 
 every solicitor is, almost unavoidably, in some de- 
 gree, guilty. Mutual indulgence is a necessary 
 consequence ; but this negligence, or forgetfulness, 
 often increases the business to be done ; and, 
 when that is the case, it is of itself profitable 
 to the solicitors, or at least to one of them, and 
 therefore indulgence naturally follows. 
 
 Perhaps some of the regulations proposed by
 
 57 
 
 the commissioners, and perhaps some further 
 regulations may have some effect ; but they can- 
 not go to the root of the evil. It lies too deep 
 to be so destroyed. No rules can prevent that 
 indulgence of which every solicitor must be con- 
 scious he may himself have need. 
 
 The bar cannot be absolved from a share in 
 producing the evil. In framing pleadings, bre- 
 vity is not always an object: brevity is not 
 beneficial to a solicitor, and the bar perhaps has 
 sunk below its proper station. But brevity also 
 is a difficult task. Pleadings in equity are often 
 founded on deeds ; and here the conveyancers 
 must take their share of blame. Judging from 
 their productions, it must be supposed that their 
 main object, in framing a deed, usually is, to use 
 as many words as possible to express the most 
 simple thing. The wordiness of modern deeds 
 almost unavoidably swells the bulk of bills and 
 answers in equity. The complication and variety 
 of their provisions puzzle the equity draftsman ; 
 especially if he is not skilled in the conveyancer's 
 art ; and contribute to puzzle the court when the 
 cause is brought on to be heard there. The mere 
 reading of a modern deed is often a heavy task. 
 This task falls first on the draughtsman, who is 
 to frame a bill or answer founded upon it. ; and 
 finally the load falls on the court required to
 
 58 
 
 decide on its effect. It is the duty of the court 
 to have the whole deed read upon the hearing ; or 
 perhaps the most important clause may be over- 
 looked in the attempt to have only the important 
 parts read. This must occupy a considerable 
 portion of time at the hearing of a cause. The 
 very wordiness of a deed frequently makes it 
 difficult to collect its meaning. In its vast vo- 
 lume something may be overlooked, or some- 
 thing misunderstood; and the time required to 
 comprehend all the provisions of a modern deed, 
 compiled from the collections of conveyancers, 
 containing the result of the art of successive 
 practisers, accumulating words on words and 
 provisions on provisions, cannot be short. Its 
 length, and intricacy, necessarily tend to delay in 
 preparing the pleadings in an equity suit founded 
 upon it, and to render those pleadings long 
 and intricate. Such deeds produce embarrass- 
 ment to the courts called upon to decide upon 
 their effect, and occupy a large portion of the 
 time of those courts, in all stages of their pro- 
 ceedings. The difficulties produced by such a vo- 
 lume of words, having rendered a suit in equity 
 perhaps unavoidable, those difficulties must be 
 overcome by the adviser of the suit, and of the 
 defence ; by the framer of the bill founded upon 
 the deed, and by the trainer of the answer to
 
 59 
 
 that bill; by the counsel who are to argue upon 
 the effects of the deed; and, finally, by the 
 court called upon to give its judgment, as- 
 sisted, as it ought to be, by the industry and 
 attention of all those who have been engaged in 
 the previous proceedings, and at the final dis- 
 cussion of the subject in dispute. Perhaps that 
 industry may not have been sufficiently active, 
 that attention not sufficiently persevering; and 
 the court itself may be misled, if it does not 
 descend from the seat of judgment, to do for 
 itself that which ought to have been done for it 
 by others ; to read in the closet, and to study 
 there the effect of the deed, in all its parts, and 
 in the whole of its context. 
 
 An anecdote on this subject has been com- 
 monly related. A suit was long depending, 
 founded on a long deed. It was heard before 
 the Master of the Rolls, and a decree made, 
 from which an appeal was brought. On hearing 
 the appeal, it was discovered that there was a 
 clause iu the deed, which at once decided the 
 question, but which had been overlooked in 
 Ihc immense volume of words, not only in 
 framing the bill, and in preparing the answers, 
 but also on the 'first hearing. Being accidentally 
 discovered on hearing of the appeal, this disco- 
 very necessarily occasioned a reversal of the de- 
 cree, and showed that the expense of the suit,
 
 60 
 
 from the beginning- to the end, had been need- 
 lessly incurred ; for that clause was decisive of 
 the rights of the parties, and if before discovered 
 must have prevented the suit. 
 
 If voluminous deeds thus often improperly oc- 
 cupy the time and attention of a court of equity 
 in a work of labour and difficulty, testamentary 
 dispositions frequently create still more embar- 
 rassment. There seems to be no end of the ca- 
 price of men in making testamentary dispositions ; 
 of the anxiety of some testators to prevent any 
 other person from having that power of disposi- 
 tion which they are in the act of exercising; 
 of the whimsical attempts, by shifts and con- 
 trivances, to do what the policy of the law will 
 not permit to be done ; of the obscurity of the 
 language which testators use to express whatever 
 may be their intent; sometimes, perhaps, scarcely 
 knowing themselves what is their intent ; and thus 
 producing a bundle of words to which it is scarcely 
 possible to attribute any rational meaning, mid 
 justifying the exclamation of Lord Hardwicke, 
 "that the chief object of testators sometimes 
 " seemed to be, to puzzle courts of justice in at- 
 " tempts to give to their wills some meaning." 
 
 But facts as well as instruments are often 
 complicated ; and laborious industry is often ne- 
 cessary to untie the knot. That industry may 
 not be always employed as it ought to be, and
 
 61 
 
 particularly not in due time. A bill in equity 
 may be prepared in a hurry, even of necessity ; 
 and especially to stay proceedings at the com- 
 mon law by injunction. An answer may be put 
 in in a hurry, before all that is necessary for 
 defence can be properly investigated and ascer- 
 tained. The cause may be hurried on to a hear- 
 ing in this imperfect state ; and such hurry is 
 likely to produce mistake in every part of the 
 proceedings ; and, finally, to embarrass and dis- 
 tress the court, called upon to pronounce judg- 
 ment on a case imperfectly understood, per- 
 haps by all parties. To increase such hurry 
 has been the object of many of the propositions 
 annexed to the report; and, however well in- 
 tentioned, however plausible in appearance, it 
 may be very doubtful whether all those proposi- 
 tions, intended to prevent unnecessary delay, will 
 in the end tend to the dispatch of business ; and 
 whether some of them may not produce great 
 injustice, great expense, and, finally, increase 
 of delay. 
 
 Error is too often the offspring of hurry. 
 When error occurs it ought to be rectified, if it 
 can be rectified. This may be a laborious task, 
 occupying much time, and compelling parties to 
 trace back their steps, and to set out again from 
 the point where error has occurred. No fixed
 
 rules can be properly applicable to all cases ; and 
 where inconvenient hurry is the consequence of 
 such rules, the court, to avoid error, and conse- 
 quent injustice, must listen to special applica- 
 tions; and business proceeding regularly, in a 
 slow course, may often be concluded in a shorter 
 time, and with less expense, than the same business 
 carried on with more rapidity, if error should be 
 the consequence. All regulations, therefore, re- 
 quiring that to be done in all cases within a 
 limited time, which in many cases cannot be 
 properly done within that time, should be adopted 
 with much caution. 
 
 To curtail, as far as possible, pleadings in 
 courts of equity, is certainly an object worthy of 
 attention ; and certain formal words, still con- 
 stantly, but perhaps unnecessarily, used, may be 
 omitted. But the omission of unnecessary form 
 will do little ; to curtail such pleadings in a con- 
 siderable degree much must be done which no re- 
 gulations in the form of rules of court can effect. 
 The accomplishment of this object must depend 
 on the previous curtailing of all instruments em- 
 ployed in the conduct of the affairs of men; but 
 not only all deeds, and all instruments of every 
 kind, but epistolary correspondence, and even 
 conversation, must be rendered laconic ; for they 
 often form part of a case, on both sides, in suits
 
 68 
 
 in equity. In fine, brevity must be introduced 
 into all the transactions of men which may be- 
 come the objects of suits in equity. The person 
 who frames a bill in equity ought to be previously 
 fully informed of all that belongs to the subject 
 of the bill, if that information can be previously 
 obtained ; and if that information is to be obtained 
 from the answer of the defendant, which is fre- 
 quently the case, much ingenuity may be required 
 in framing the bill, so as to extract from the de- 
 fendant the required information; and at the 
 same time great discretion may be necessary, to 
 limit the extent of the disclosure required, and 
 to confine it to what may be necessary. The 
 voluminous papers produced and printed in every 
 session of parliament, in consequence of want of 
 discretion in limiting the terms of the motion 
 for the production of those papers to such as may 
 be necessary, or for want of that previous in- 
 formation on the subject which might guide such 
 discretion, offer some excuse for the errors of 
 equity draftsmen in this respect. A bill or an 
 answer may be too short as well as too long : and 
 perhaps, on the hearing of a cause, the defect may 
 be discovered, when no remedy can be applied. 
 It cannot be supposed that every person, em- 
 ployed to draw a bill or an answer, has all the 
 talents which may belong to the judge who is to
 
 64 
 
 decide on the case. The draughtsman, therefore, 
 may be unwilling to trust to his own judgment in 
 omitting any thing which may be relevant to the 
 subject, though, in his own opinion, the decision 
 of the cause may not depend upon it. The judge 
 may think differently ; and much may therefore, 
 in prudence, be inserted in a bill or an answer, 
 on which the judge in his decision may lay no 
 stress; and at the same time, perhaps, some- 
 thing may have been omitted, which, if the framer 
 of the pleading had foreseen on what grounds the 
 judge was finally induced to decide, he would 
 have thought it prudent to have inserted, and 
 possibly the decision might have been different. 
 A confident man may do what a diffident man 
 will not dare to do. The talents of men are also 
 various. Some have the talent of expressing 
 themselves briefly in writing or in speaking. If 
 two men are employed to write a letter on the 
 same subject, one may express, in one page, all 
 that the other has been unable to compress in less 
 than three or four pages. If two men are en- 
 gaged, in different places, to tell the same story ; 
 one may give the whole in ten minutes, whilst the 
 other may detain his auditors a full hour. 
 
 Redundancy is the vice of the age, and it ap- 
 pears in every thing. Perhaps it is no where 
 more striking than in the length of modern re-
 
 65 
 
 ports. What Peere Williams would have com- 
 prised in a single page, in a modern report may 
 occupy half a volume. The length, indeed, of mo- 
 dern reports is a serious evil, and a great ob- 
 struction in the dispatch of business. A case in 
 Peere Williams may be read in five minutes, and 
 its import perfectly comprehended. It may take 
 as many hours even to read over a modern re- 
 port ; and, in the mass of matter, it may be diffi- 
 cult to discover the import of the whole. In citing 
 a modern case at the bar the counsel can scarcely 
 avoid adopting something of the prolixity of the 
 reporter; and if, in curtailing, he omits what his 
 adversary may think or choose to think, important, 
 the court may be compelled to hear a restate- 
 ment of the same long case ; and perhaps the 
 judge may be finally obliged to read the case 
 himself, to enable him to decide between the dif- 
 ferent representations of the two advocates. 
 
 The prolixity complained of is not attributable 
 only to those subjects already noticed; it is to be 
 found every where in parliament as well as in 
 courts of justice. Almost every modern act of 
 parliament is an example ; and it should be re- 
 membered that six days were occupied by a 
 celebrated orator in opening one article of an 
 impeachment.
 
 GO 
 
 The Chancery draftsman may fairly say, te Let 
 him that is without sin cast the first stone." 
 
 In looking through the several propositions 
 annexed to the report, it seems evident that they 
 were originally framed under an impression that 
 delay in a suit in equity was generally to be at- 
 tributed to the plaintiff; that the plaintiff was 
 generally merely litigious, and had no good 
 cause of suit, and that the defendant was gene- 
 rally unjustly oppressed by the pendency of the 
 suit ; and, indeed, that in every suit there was 
 only one plaintiff and one defendant. The ori- 
 ginal error has been in a great degree corrected 
 in new-modelling the propositions ; but it still 
 hangs on many of them. 
 
 Most frequently there are several defendants 
 to a suit in equity, and often more than one 
 plaintiff. When there are several defendants, they 
 have often different interests, some adverse to the 
 claims made by the bill, and others indifferent ; 
 such as trustees, mortgagees, or other parties, to 
 whom it may be of no importance whether the 
 right be with the plaintiff, or with the adverse de- 
 fendant or defendants. Those defendants who 
 have no personal interest to contest the claims 
 of the plaintiff may immediately answer the bill, 
 whilst the adverse defendant or defendants may
 
 (57 
 
 use every means of delay to prevent the pro- 
 gress of the suit. The propositions have been 
 generally qualified, in some degree, with a view 
 to the embarrassment which might thus be pro- 
 duced. But this has been done very imperfectly, 
 and the plaintiff may be harassed by the terms of 
 some of the propositions, and continual special 
 applications to the court may be unavoidable. 
 
 All the propositions which apply to this sub- 
 ject have probably been produced by the hard- 
 ship which, according to the present practice, a 
 defendant may suffer when a bill is filed, either 
 for mere delay of proceedings at common law, 
 or on a mistaken supposition of right, where the 
 plaintiff, when an answer has been given to his 
 claim, finding himself in the wrong, endeavours 
 to avoid the payment of costs consequent on a 
 dismission of his bill, taking the chance of his 
 own death, or that of the defendant, before a final 
 order of dismission can be obtained. 
 
 To avoid this hardship in such cases, general 
 rules are proposed, which may be very embar- 
 rassing in many cases to which the objection 
 does not apply. Perhaps general rules ought 
 not to be adopted, but to prevent general mis- 
 chief. Establishing general rules to prevent a 
 particular mischief, may lead to more injury than 
 they will prevent.
 
 6$ 
 
 There is,, however, one class of cases to which 
 the strict rules proposed may, perhaps, properly 
 apply, and with little danger of general injury : 
 namely, to bills filed for the purpose of obtain- 
 ing an injunction to stay trial at law, or proceed- 
 ings in any court; or to stay waste, or any other 
 injury, and particularly the use of any machinery, 
 or invention, for which the plaintiff claims a right 
 to exclusive benefit by patent, and other similar 
 cases. In such cases, if the plaintiff fails in ob- 
 taining an injunction, the fair object of his suit is 
 generally at an end ; and he can continue the pro- 
 secution only to delay the dismission of his bill. 
 
 In many of the propositions probable acci- 
 dents have been apparently overlooked. Where 
 there are several parties, the abatement of a suit 
 by death of one, may render it impossible to 
 comply with some of the positive rules which 
 the propositions tend to establish. 
 
 Some of the propositions seem to extend too 
 far. Referring to the judgment of the Master 
 before whom exceptions to an answer have been 
 argued, to ascertain the quantity of time to be 
 allowed to the defendant to put in a further an- 
 swer, seems to be proper, as the master must 
 generally be the person best qualified to judge 
 of the time necessary for the purpose : but making 
 that judgment final seems improper: first, be-
 
 69 
 
 cause the Master may err in judgment, and in 
 that case there can be no remedy, as the Master 
 cannot review his report, without a special order 
 for the purpose; and if such an order can be 
 made, notwithstanding the positive rule that the 
 Master's judgment shall be final, the judgment 
 will not be final. But is it fit that the judgment 
 of the Master should in such a case be final? 
 There are ten Masters to whom exceptions to 
 answers may be referred, and each, if the case 
 were before him, might have a different view of 
 the time necessary to answer exceptions; for 
 the proposition leaves the decision wholly to the 
 discretion of the Master. The court too, if the 
 the matter were open to its judgment, might 
 form a different opinion. It may be of the ut- 
 most importance to a defendant that he should 
 have sufficient time to answer exceptions. The 
 whole merits of the cause may depend upon that 
 answer. Attempts to exclude the final judgment 
 of the court itself on appeal from the judgment 
 of inferior officers, in matters of any importance, 
 seems liable to great objections; it may make the 
 issue of a cause depend, not on the decision of 
 the superior judge, but on that of an inferior. 
 A power of judgment without appeal, is always 
 a dangerous power, especially when to be exer- 
 cised, not in open court, subject to general ob-
 
 70 
 
 servation, but in the private chamber of one of the 
 ten Masters in Chancery, when the other nine, in 
 the same case, or in a case exactly similar, would 
 perhaps have decided otherwise ; and the court, if it 
 could be appealed to, would also decide otherwise. 
 Limiting the plaintiff to six weeks time for 
 amending his bill after the answer or answers to it, 
 according to circumstances, may be deemed suffici- 
 ent, ought not to be a positive rule. The answer 
 or answers to a bill may open an entire new case, 
 disclosing perhaps much matter before totally 
 unknown to the plaintitf. His first proceeding 
 must probably be to take the opinion of counsel 
 upon it ; and for that purpose to make inquiries 
 as to the truth of the new matter stated in the 
 answer or answers ; inquiries which may neces- 
 sarily occupy much time. A very simple state- 
 ment in an answer may produce great embar- 
 rassment to the plaintiff. He may have stated 
 in his bill, conceiving it to be the fact, that A. 
 was the heir of B. The defendant may deny 
 that fact. The plaintiff' may have to inquire on 
 what ground that fact was denied. Perhaps A. 
 had been generally considered as the heir of B. 
 in consequence of his relationship to B. But it 
 may be, that, though nearly related, A. was only 
 of the half blood ; and consequently could not 
 be heir to B. No person who has not expevi-
 
 71 
 
 euced such a difficulty may probably be able to 
 form a judgment of the time which may be ne- 
 cessary to ascertain who was the heir of B : and 
 yet it may be an important circumstance in the 
 case. A special application to the court in such 
 a case would be unavoidable. 
 
 But without adverting to any particular case, 
 if any matter disclosed by a defendant's answer 
 should compel a plaintiff* to amend his bill, six 
 weeks will generally be found too short a time' 
 for the purpose ; and a special application to the 
 court will be necessary, in almost every case of 
 any importance. It may nevertheless be advise- 
 able to adopt a limitation of time ; but such li- 
 mitations of time, if very strict, will probably 
 produce many special applications to the court, 
 and the time of the court is already perhaps too 
 much occupied in hearing of motions, instead of 
 deciding causes brought to a regular hearing ac- 
 cording to the old course of proceeding; and it 
 may, perhaps, eventually be found, that too much 
 strictness in general rules have a tendency rather 
 to prevent, than to accelerate the dispatch of the 
 most important business of the court, namely, 
 the deciding of causes regularly brought to a 
 hearing. Indeed the time of the Chancellor 
 seems now to be more occupied with hearing- 
 motions than with hearing causes, which was for- 
 merly the principal occupation of that officer.
 
 T2 
 
 The limitation of one month after all the an- 
 swers to a bill are to be deemed sufficient, within 
 which time, if the plaintiff proposes to set down 
 his cause to be heard on bill and answers (that 
 is, admitting the answers to be true, and offering 
 no proof in support of the case made by the 
 bill) he is required to set down his cause for 
 hearing, is evidently so short a time that it is 
 scarcely possible to obtain the opinion of any 
 counsel, much employed in business, to warrant 
 the solicitor for the plaintiff in such a proceeding. 
 The consequence will probably be that the soli- 
 citor will be compelled to file a replication, and 
 thus increase the ex pence of the suit. 
 
 This is the 22nd proposition. Its import seems 
 to have been somewhat forgotten in the 23d pro- 
 position; for it may happen that a month may 
 not have elapsed when, according to the 23d 
 proposition, a defendant may move to dismiss the 
 plaintiff's bill for want of prosecution; or if, 
 more than a month shall have elapsed, the plain- 
 tiff, according to the 23d proposition, may avoid 
 the effect of the 22nd. The 23d proposition too 
 gives the power to dismiss to one of many de- 
 fendants, though the answers of the other de- 
 fendants may not have been filed, and therefore 
 the plaintiff may be unable to determine whether 
 he can safely hear his cause on bill and answers, 
 or not. The 24th proposition was probably in-
 
 73 
 
 tended to obviate this objection ; but it compels 
 the plaintiff to maintain his bill by obtaining- an 
 order for further time to file a replication, though 
 he might otherwise have properly heard the cause 
 on bill and answer with respect to the defendant 
 who may so apply for the dismission of the bill. 
 
 The 25th proposition puts the plaintiff who 
 files a replication before he receives a notice of 
 motion to dismiss his bill in a worse situation 
 than he would be in if he waited for that notice; 
 for the whole proposition is made to depend on 
 the plaintiffs filing a replication before he receives 
 a notice of motion to dismiss his bill. 
 
 These propositions, indeed, might have been so 
 framed, as probably to meet the intentions of 
 those who framed them, without being exposed 
 to these observations ; but, as the propositions 
 stand, they show the difficulty of framing such 
 strict rules to guide the practice of a court in 
 which the proceedings are in their nature so 
 various, and so dependent on circumstances ; and 
 these observations are made only for the purpose 
 of showing the difficulty. In practice these pro- 
 positions, if adopted, will be little attended to, ex- 
 cept for the purpose of vexation. The solicitors 
 are so much in the habit, and indeed are so much 
 under the necessity, of mutual indulgence, that 
 such rules will seldom be put in practice.
 
 74 
 
 The 27th and 28th propositions have a clear 
 tendency to multiply special applications to the 
 court ; that is, to render special motions more 
 numerous than they now are ; and they already 
 confessedly occupy too much of the time of the 
 court, impeding the more important business ; 
 namely, the hearing of causes. But, combining 
 the 28th proposition with the 19th, 20th, 23d, 
 and 27th, many cases may be suggested in which 
 it may be difficult to say, in what manner a plain- 
 tiff is to proceed to amend his bill a second time, 
 however necessary the amendment may be, espe- 
 cially where the amendment may become neces- 
 sary, in consequence of some matter stated in 
 the answer of a defendant, of which the plaintiff' 
 may have been before wholly ignorant, and may 
 not have instant means of obtaining information. 
 Regulations so precise and positive as those con- 
 tained in the 28th proposition, may lead to gross 
 injustice; unless the court shall think fit to dis- 
 pense with the rule proposed for its guidance, 
 and act as if no such rule had been made. 
 
 It is probable, that in ninety-nine causes out of 
 one hundred, amendments are not made for de- 
 lay or vexation, but because they are really ne- 
 cessary, or are deemed expedient ; and the rule 
 will therefore probably extend to a great many 
 cases in which the object of the rule will not ex-
 
 75 
 
 ist, and in which the rule will only create em- 
 barrassment and expence. 
 
 There is somewhat of absurdity in apply ing- 
 part of the 29th proposition to every order for 
 liberty to amend a bill ; as in case of a second 
 order, the amended bill is, by the 28th proposi- 
 tion, required to be perfectly prepared before the 
 motion for liberty to amend can be made. But 
 in framing such regulations, the effect of a pre- 
 ceding, or subsequent regulation, is likely to 
 be overlooked; and this slight circumstance 
 seems to prove the necessity for great caution in 
 forming very precise regulations on the subject 
 of practice. 
 
 The 30th proposition requires some qualifica- 
 tion. An amended bill often produces a new 
 case, and may require more time for preparing 
 an answer to it than was necessary to answer 
 the original bill. If the difficulty is to be re- 
 lieved by a special application, this rule will pro- 
 duce, probably, many such applications. 
 
 The 31st proposition is liable to the same 
 objection. It may be very advantageous to a 
 plaintiff that no answer should be put in to an 
 amended bill; but it may be highly necessary for 
 the defendant to answer that bill, and put in 
 issue such matter as may avoid its effect. Ten 
 days do not allow sufficient time to obtain a copy 
 of a long amended bill, submit the subject to the
 
 76 
 
 opinion of counsel, frame the proper answer, and 
 procure it to be sufficiently considered by the 
 defendant, who is to swear to the truth of its 
 contents ; and if he happens to be resident two 
 or three hundred miles from London, he must 
 also, within the ten days, travel to London for 
 the purpose, or obtain and execute a commission 
 to take his answer in the country. A special 
 application must in such a case be absolutely 
 necessary; but ten days are scarcely sufficient 
 even for that purpose, considering the time 
 which may be unavoidably consumed in deter- 
 mining whether an answer will be necessary or 
 not, particularly if it should be necessary to ob- 
 tain information on the subject of any new mat- 
 ter introduced by amendment of the bill, and to 
 put in issue, by the answer, new matter, to avoid 
 the effect of new matter introduced by amend- 
 ment of the bill. 
 
 The 32nd proposition indeed may, accidentally, 
 extend the time allowed for putting in an answer 
 to an amended bill, where the plaintiff* requires 
 no answer, to a great length ; for if the amended 
 bill should be filed nine days only before the last 
 seal after Trinity term, the defendant will have to 
 the first seal before Michaelmas term, a period pro- 
 bably of above three months, for the purpose. 
 
 The 32nd proposition is a necessary conse- 
 quence of <he attempt by other propositions to
 
 77 
 
 draw the string too tight; and in this, as in other 
 instances, shews the difficulties which belong to 
 the subject in which the commissioners have been 
 engaged, and the necessity for caution in adopt- 
 ing their suggestions. 
 
 The 54th proposition interferes in a very ex- 
 traordinary manner with the conduct of a cause, 
 and if adopted may be highly injurious. It may 
 be of the utmost importance to those who claim 
 under a will, and to those who claim against 
 that will, to preserve the testimony of witnesses, 
 either in favour or against the will. The sanity 
 of the testator, the influence under -which a will 
 may have been executed, the existence of a sub- 
 sequent will, the proof of some material docu- 
 ment affecting its operation, or of the destruc- 
 tion of such a document, may be necessary to 
 be made to enable the court to do right on hear- 
 ing of the cause. Any such evidence must be at 
 the expence of the party who offers it, accord- 
 ing to the present course of the court ; and no 
 sufficient reason is given for this extraordinary 
 interposition of a positive rule to take away from 
 the parties interested that discretion which the 
 present practice allows to them. It is true, that 
 either party may file a separate bill to perpe- 
 tuate the testimony of witnesses to facts tending 
 to support or impeach the will ; of which the
 
 78 
 
 party filing- the bill must pay the costs, if the 
 other party shall only cross-examine the wit- 
 nesses produced, and shall not examine wit- 
 nesses in chief. But such a supplementary bill 
 would be an absurd increase of expence, incur- 
 red only to avoid the effect of this rule. 
 
 The 55th proposition may tend to diminish 
 expence, but the propriety of adopting it seems 
 very doubtful. Where there are many parties 
 to a suit, and particularly if abatements happen, 
 or if upon the happening of a contingency a sup- 
 plemental bill may have become necessary, 
 much time may have intervened between the 
 time when a defendant has put in his answer,, and 
 the time when the cause may be ripe for hear- 
 ing. For this reason, probably, the old prac- 
 tice required service on the parties of the sub- 
 poena to hear judgment, that every one might 
 have certain notice, that the cause was in course 
 for hearing. To adopt a different practice re- 
 quires consideration. 
 
 The 61 stand 62nd propositions are framed, in 
 the spirit of the report, to degrade the office of 
 the Chancellor, by putting him under the con- 
 troul of those who have been hitherto deemed 
 his inferior officers. Every order respecting the 
 practice of the court has, from the earliest times, 
 been made by the chancellor, keeper, or persons
 
 79 
 
 holding the great seal. Even Lord Hardwicke's 
 order respecting- the fees of the court is his order 
 alone, though expressed to have been made with 
 the advice and assistance of the Master of the 
 Rolls ; but the order is not an order made by 
 the Master of the Rolls ; it is the order of the 
 Chancellor. 
 
 The 63d proposition is intended to avoid an 
 inconvenience originating in a departure from the 
 ancient practice of the court. 
 
 Formerly, the judge always, after he had pro- 
 nounced his judgment on the case before him, as 
 it affected the rights of all parties, dictated to 
 the register the minutes of his decree in confor- 
 mity to the judgment which he had pronounced 
 on the merits of the case. This was done openly ; 
 and the counsel for the different parties, attending 
 to what was so dictated, if any thing occurred to 
 them as improperly inserted in the minutes, or 
 as omitted by the judge, suggested the necessary 
 variation or addition respectfully to the judge, 
 who either altered or added to the minutes ac- 
 cordingly, or gave his reasons for not making 
 the variation or addition suggested. The minutes 
 were then read over by the register, as taken 
 by him in writing ; and the judge, in a case of 
 any difficulty, usually put the question to the 
 counsel whether they had any alteration or addi-
 
 80 
 
 tion to suggest. The judge and the counsel, 
 were thus trained to the habit of giving and sug- 
 gesting correct directions, according to the judg- 
 ment pronounced by the judge on the merits of the 
 case, and according to the rights and interests of 
 the parties, and the practice of the court. As for- 
 merly a judge of a common law court sometimes 
 sate for the Chancellor, with the assistance of 
 two of the Masters in Chancery, the judge might 
 not be familiar with the ordinary form of framing 
 a decree to execute his judgment upon the rights 
 of the parties ; and one of the Masters in that 
 case usually assisted the judge, by suggesting the 
 proper form. The counsel also considered, it 
 as their duty to lend their assistance, the prac- 
 tice of the court, at that time, rendering them 
 familiar with the proper forms, necessary to give 
 effect to the judgment according to the rights of 
 the parties founded on the opinion given by the 
 judge on the merits of the case. When Lord 
 Camden first sate as Chancellor, he had been for 
 some years Chief Justice of the Common Pleas, 
 and had lost the familiarity with the business of 
 the courts of equity, which he might have ac- 
 quired when Attorney General. He therefore, 
 until he became more familiar with the business, 
 generally called on the counsel to assist him in 
 framing minutes of his decree, in conformity
 
 81 
 
 with the opinion which he had delivered on the 
 merits of the case ; and Mr. Yorke and Mr. De 
 Grey, who were both familiarly acquainted with 
 the subject., readily and candidly gave that assist- 
 ance, in conformity to the judgment on the me- 
 rits which had been pronounced by the Chan- 
 cellor. The clerk in court also then frequently 
 attended the hearing of any cause of import- 
 ance, at the desire of the solicitor ; especially if 
 the solicitor was not familiarly acquainted with 
 the practice of the court ; and, indeed, much of 
 the business was then transacted by the clerks in 
 court, either as immediately employed by the 
 suitors, or as agents for country solicitors, and 
 even for town solicitors who were not in the 
 habit of conducting suits in equity. 
 
 But many of the solicitors at that time under- 
 stood, and personally attended to, their business 
 in the Court of Chancery, and were themselves 
 capable of suggesting any direction which might 
 be necessary, and which might have escaped the 
 attention of the Chancellor or of the counsel ; 
 and, through the medium of their counsel, they 
 suggested to the court any alteration or addition 
 which occurred to them as necessary or proper. 
 Thus the minutes were generally correctly 
 framed, according to the intentions of the judge ; 
 and very little time was occupied in the business ;
 
 82 
 
 for the counsel were all generally in those habits 
 of business which led them to be aware of the 
 proper directions consequential on the opinion 
 on the merits of the case pronounced by the 
 court ; and the leading counsel for the plaintiff 
 in opening the cause, and sometimes in his re- 
 ply, if what had passed in argument appeared 
 to him to have varied the case, usually stated 
 to the court the substance of the decree which 
 he thought his client entitled to ; and the counsel 
 for other parties, in the course of their argu- 
 ments, suggested what they thought necessary, 
 according to the rights of their clients, either in 
 addition to, or instead of, the suggestions of the 
 plaintiffs' counsel. Thus the minutes of every 
 decree were rapidly and correctly formed, whilst 
 the whole subject was fresh in the minds of the 
 judge, the counsel, and the solicitors for the 
 different parties, all in the habits of transacting 
 such business, and attentive to the correct 
 formation of the minutes, as an important part 
 of their respective duties. Unfortunately, this 
 practice has fallen into desuetude. The judge 
 now receives no assistance from the counsel or 
 the solicitors ; and the report seems to suppose, 
 that it is the duty of the register to frame the 
 minutes of every decree or order, collecting 
 what those minutes ought to be from observation
 
 83 
 
 of the general tendency of the judgment on the 
 merits pronounced by the court. Such however 
 was not formerly the duty of the register. 
 He did not presume to form his opinion of 
 the effect of the opinion of the judge on the 
 merits of the case. He waited to receive the 
 particular directions of the judge on the subject ; 
 and if the old practice were restored, if the 
 minutes were carefully dictated to the register, 
 and were then read over openly by the register, 
 and if the counsel were then called upon to 
 suggest any variation or addition according to 
 the rights of their clients, all the confusion and 
 difficulty which now takes place, and leads to 
 frequent applications to vary the minutes pre- 
 pared by the register out of court, would be 
 avoided. But as the business is now conducted, 
 neither the counsel nor the solicitor might be 
 present ; they might be in some other court ; or 
 other business then occupying their attention, 
 the cause which had been immediately decided 
 as to the merits, might not be any object of their 
 care. To set this matter right, by restoring 
 the ancient practice, the judge, the counsel, 
 and the solicitors, must all do their respective 
 duties, and not throw on the register a duty 
 which does not properly belong to his office. 
 In consequence of this desertion of the old 
 
 G 2
 
 84 
 
 practice of the court, it is said that applications 
 to vary minutes of a decree, are frequent. . For- 
 merly they were rare. It has been commonly 
 said, that the late Sir Thomas Sewell, Master 
 of the Rolls, never would listen to any applica- 
 tion to alter minutes of his decree, which he 
 always dictated with great care, and great accu- 
 racy ; and then, having ordered the register to 
 read them over, he called on the counsel to object 
 to any thing which they might deem incorrect. 
 If any application was afterwards made to him to 
 vary the minutes of his decree, his answer was, 
 " Rehear the cause. I dictated the minutes as 
 they stand, immediately after I had decided on 
 the rights of the parties ; they were openly read 
 over by the register, and I called on the counsel 
 to object to any thing which they might think 
 improper : then was the time to make objection, 
 and having dismissed the subject from my mind, 
 I will not trust myself to make an alteration 
 now.." 
 
 The remedy for the evil complained of is, to 
 return to the old practice, and to compel the 
 counsel and solicitors to give proper attention 
 when the minutes of a decree shall be pro- 
 nounced. No application to vary the minutes of 
 a decree, (except perhaps as to a mistaken date, 
 or other matter of mere form,) ought to be
 
 85 
 
 allowed ; not only after three weeks, but even 
 after three days from the day on which the decree 
 had been pronounced. 
 
 The proposition extends to orders as well as 
 to decrees, and this probably arises also in a 
 great degree from a change in the ancient prac- 
 tice of the court. It is said to be now a common 
 practice to contrive some motion, at an early 
 period in a cause, the result of which may pro- 
 bably amount to a decision of the cause, without 
 the expense of bringing the cause to a regular 
 hearing. It has been very much doubted whe- 
 ther this practice has the merit attributed to 
 it. It is a practice according to which a cause 
 may be perhaps more rapidly decided, but per- 
 haps also not on the true merits of the case. 
 The practice must lead to much talking and much 
 confusion ; and the true merits of a case may be 
 lost in the confusion. It leads also to a hurried 
 decision; and in the confusion thus produced, 
 the minutes taken by the register may be fre- 
 quently inaccurate. It is scarcely possible, that 
 in the hurry of a day of motions, when all the 
 bar usually attend the court, and all are anxious 
 to bring forward their own motions in all the dif- 
 ferent causes in which notices of motions of va- 
 rious descriptions have been given for the same 
 day, the minutes of an important order, intended
 
 86 
 
 to decide the whole merits of a cause, should be 
 correctly given, correctly taken, or properly at- 
 tended to by the counsel engaged in the particular 
 motion on either side. As long as this practice 
 shall be continued, there must probably be fre- 
 quent motions to vary minutes of orders. 
 
 The remedy is, to abolish the practice, which 
 is highly injurious to the parties in those causes 
 which are proceeding to a regular hearing ; and 
 to them the practice is unjust, however conve- 
 nient it may sometimes be to those who take 
 advantage of it; though of this convenience, 
 upon the whole, there may be reason to doubt. 
 
 It is observed in the report, that the register 
 ought to have a familiar and extensive acquaint- 
 ance with the principles as well as the practice 
 of the court; and a comprehensive view of the 
 whole subject of the suit in which he is required 
 to take minutes of the judgment of the court, 
 either on the deliberate hearing of a cause, or on 
 a motion materially affecting the merits of the 
 case. These are qualifications not easily ac- 
 quired. But according to the present practice, 
 the register ought to have these qualifications in 
 an eminent degree. According to the old prac- 
 tice, the court dictated the minutes of every 
 decree or order, so particularly, that the regis- 
 ter's duty was, principally, to express, in words
 
 87 
 
 of form, the substance of the matter which he 
 took from the judge. But now the register is 
 under the necessity, in a great degree, of de- 
 ciding, from a few loose words, what decree or 
 order the court intended to pronounce. He 
 ought, therefore, to have the qualifications of a 
 judge of the court, and not merely those of a 
 subordinate officer, which was formerly consi- 
 dered as his proper situation in the court. 
 Hence arises a great obstruction to dispatch in 
 framing a decree or order. The solicitors attend 
 the register upon the minutes; they may dispute 
 his judgment as to what he may have supposed 
 to have been the intention of the court ; he has no 
 minute dictated by the judge, and clearly express- 
 ing that intention ; he can refer only to his own 
 conception of that intention, collected from short 
 notes; the solicitors may assert their own opinions 
 of that intention, and each solicitor, confident in 
 his own opinion, may refuse to abide by the deci- 
 sion of the register, and apply to the court by 
 motion to rectify the minutes, as prepared by the 
 register from the loose hints given by the court. 
 
 There can be no doubt that such motions 
 create expense to the suitors, and are very 
 vexatious to the court, especially if any 
 length of time elapses between the pronouncing 
 of the decree or order, and the application to
 
 88 
 
 rectify the minutes, as drawn out by the register 
 from his conjecture of the meaning of the court. 
 Without an accurate recollection of the whole 
 matter, as it appeared when the decree or order 
 was made, the court cannot ordinarily do justice 
 without going through the labour of a re-hearing. 
 But if the old practice of carefully dictating to 
 the register accurate minutes of every decree or 
 order, were restored, all this expense, trouble, 
 and delay would be avoided. 
 
 It is said in the report, that the increased bu- 
 siness of the court does not allow of the resump- 
 tion of the old practice, without much inconveni- 
 ence. The inconvenience apprehended can arise 
 only from the disuse of the old practice. The 
 judge, the counsel, the solicitors are not used to 
 attend to the subject. The old practice saved 
 the time of the court,, and prevented unnecessary 
 expense ; and if the judge, the counsel, and the so- 
 licitors would do their duty, instead of delegating 
 it to others, they would find that a return to the 
 old practice would now save the time of the court, 
 as it formerly did. Any one who practised under 
 Sir Thomas Sew ell, must be convinced that his 
 accuracy, when in the full vigour of his mind, 
 saved the time of the court. 
 
 The 64th proposition, extending to .all peti- 
 tions, will be attended with considerable ad-
 
 m 
 
 clitional expense, and some inconvenience. The 
 words " filed in the report office," apparently 
 mean deposited there, to remain in the custody 
 of the clerk of the reports, who must of course 
 have a fee for the discharge of that duty, and a 
 copy must be taken by the solicitor who presents 
 the petition, if he is to act upon it. The pur- 
 pose for which this is required is not stated in 
 the proposition; nor is the proposition itself, 
 (the 64th) noticed in the body of the Report. 
 The reasons which have induced this proposition, 
 therefore, remain with the commissioners. 
 
 The 65th proposition prohibits the Master, to 
 whom any matter may be referred by any decree 
 or order, from proceeding upon it, unless the de- 
 cree or order shall be brought into his office within 
 six weeks from the time when it was pronounced. 
 But the 63rd proposition allowing three weeks for 
 a motion to vary minutes, which motion may not 
 be immediately decided, or perhaps, though notice 
 of the motion may have been given, the motion 
 may not have been even made in court, in con- 
 sequence of the precedency of other motions, 
 until six weeks shall have elapsed, there must 
 then be another motion for liberty to the Master 
 to proceed, and consequently a considerable in- 
 crease of expense. What is the precise mean- 
 ing- of the words tf other party entitled to pro-
 
 90 
 
 secute the decree or order," may be subject of 
 much dispute; and that party is, in the case 
 supposed, to be considered as to all proceedings 
 in the Master's office, as the party first entitled 
 to prosecute the decree or order. This proposi- 
 tion appears to open a wide field for increased 
 expense and dispute, in various ways. 
 
 The 67th proposition requires " immediate 
 notice to the several parties in the cause," as an 
 operation distinct from service of the Master's 
 warrant on the clerks in court of the respec- 
 tive parties. The disposition of the framers of 
 others of the propositions has been to substitute 
 service on the clerks in court for service on the 
 parties in different cases, in which the present 
 practice requires service on the parties; and 
 there seems to be no case in which service on the 
 parties is less necessary, than for the purpose 
 specified in the 67th proposition. 
 
 The control intended to be given by this and 
 several subsequent propositions, on the conduct 
 of a cause before the Master to whom it may be 
 referred, may be of advantage ; but the 73rd 
 proposition involves a palpable absurdity, and 
 so evident an absurdity that no Master will 
 probably act upon it. The negligence of a soli- 
 citor may thus deprive the parties most inte- 
 rested in prosecuting a decree of all control over
 
 91 
 
 the proceedings, which may be carried on by 
 parties whose interests may be adverse to their 
 interests. 
 
 The 79th proposition will be probably found, 
 in many cases, impracticable in the form in which 
 it is made ; and the 80th proposition will often be 
 found inadequate to the purposes of justice. The 
 accounts of the receiver of the rents of an estate, 
 which these propositions propose to make the 
 model for all accounts under a decree or order, 
 are of so different a nature from many cases of 
 account directed to be taken in a cause, that it 
 will not be practicable to do justice by accounts 
 delivered in the same form. The accounting 
 party, who, according to these propositions, is 
 to charge himself, will never charge himself with 
 any thing for which he does not admit himself to 
 be chargeable. To charge him therefore with 
 what he ought to be charged some other person 
 must bring the matter before the Master in the 
 shape of a further charge, which will only be an 
 increase of expense. 
 
 The 8*2d proposition is highly objectionable, if 
 the result of the account is to affect infants, or 
 persons not before the court. It ought not 
 therefore to extend to any case but where 
 the parties before the court, and consenting to 
 this mode of taking an account, are the only
 
 parties whose interests can be affected by the 
 Master's report. It cannot therefore be properly 
 applied to accounts of executors,, or trustees, or 
 guardians of infants, or assignees of a bankrupt, 
 or any account in which the parties could not, 
 out of court, refer their disputes to an accoun- 
 tant, by the result of whose decision no one but 
 the parties consenting to the reference could be 
 injured ; and in such a case the parties may now 
 clo the same thing by consent. But the 83d 
 and 84th propositions show that the 82d propo- 
 sition is intended to apply to cases to which it 
 would be highly improper to suffer it to be ap- 
 plied. No person who has had the opportunity 
 of knowing the usual effect of referring accounts 
 to accountants can approve of their ordinary 
 modes of proceeding. It must be proposed to 
 apply these propositions to cases of difficulty, 
 and they are the very cases in which the strict 
 rules of proceeding before a Master most advan- 
 tageously apply. The accountant will cut the 
 G ordian knot ; the Master must submit, accord- 
 ing to the present practice, patiently to untie it. 
 The control of the court will be wholly lost. 
 The grounds of proceeding before the accountant 
 cannot appear in the shape of evidence, which 
 can be brought before the court. The award of 
 accountants will be like the award of arbitrators,
 
 93 
 
 in which it is often impossible to detect errors, 
 however gross they may have been. In all 
 cases, therefore,, in w r hich any person, (except the 
 parties who agree to the measure, and who are 
 competent so to bind themselves, and whose acts 
 can do no injury to others) may be interested, 
 these propositions ought to be rejected. An ac- 
 count so taken ought not to protect an executor, a 
 trustee, an assignee of a bankrupt, or any person 
 who is responsible to the demands of others ; and 
 especially the court ought not, on the authority 
 of an account so taken, to proceed to a sale of a 
 real estate, or application of any other fund, 
 chargeable in default of personal estate, or of any 
 fund previously chargeable, of which an account 
 may have been taken, and its deficiency ascer- 
 tained, in this manner. 
 
 These propositions also would render it highly 
 improper that the Masters should be paid by 
 salaries, and should have no profit from fees in 
 passing accounts. The labourer is worthy of 
 his hire ; but the labourer will look to his hire. 
 If a Master is to receive no benefit from the toil 
 he must endure in investigating difficult ac- 
 counts, it must be ignorance of the nature of 
 man to suppose that these clauses will not afford 
 strong temptation to the best men to avail them- 
 selves of these clauses to avoid a laborious task
 
 94 
 
 for which they are to receive no reward ; espe- 
 cially when the advance of age shall render a 
 Master less inclined to labour than he may have 
 been in the vigour of youth, when less exertion 
 would have been necessary to enable him to en- 
 dure the labour. 
 
 The 85th proposition is at least highly danger- 
 ous. It tends to remove a very wholesome control 
 over all proceedings in the offices of the Masters ; 
 namely, the power of revision of their proceedings 
 by the court. The only ground for the proposition 
 must be to save expense, but it will be a saving 
 of expense at great hazard of justice. It might 
 be important to learn, before this proposition 
 shall be adopted, how often exceptions have 
 been taken to the reports of Masters, to which 
 this proposition can properly apply. Suppose 
 a Master should allow or disallow twenty ar- 
 ticles, each article under 50/. and all depending 
 on different questions, and each article should 
 amount to 40/. only, the sum allowed or dis- 
 allowed would amount to 800/. a sum which 
 might be of the utmost importance to a party. 
 It might decide the question of costs, the ba- 
 lance being against the party instead of for him. 
 It might involve a question of interest for a 
 great number of years. In fine it is scarcely 
 possible to foresee to what injustice such a rule
 
 95 
 
 might lead. Strict justice is the most important 
 point to be attained in the decisions of courts 
 of justice. Palpable injustice, by the operation 
 of capricious rules, is that which must most in- 
 jure the administration of justice in public opi- 
 nion; is that of which the suffering party has 
 just right to complain. There is nothing there- 
 fore which ought to be more carefully avoided 
 than by strict rules to give just ground for com- 
 plaint, that justice has not been done. 
 
 The 87th proposition will require some modi- 
 fication, particularly to ascertain the meaning of 
 " manage," independent of setting and letting. 
 In small properties the expense of management, 
 under the direction of the court, may consume 
 the whole income. Some regulation is necessary 
 on this subject, but much caution will be neces- 
 sary in framing it, to prevent unnecessary ex- 
 pense. Even in large properties, management, 
 under the direction of the court, is often a very 
 expensive operation ; and the apprehension of 
 that expense sometimes produces very bad con- 
 sequences. Much ought to be left to the discre- 
 tion of the Master, subject to the control of the 
 court. 
 
 Upon the several propositions tending to make 
 the judgment of one of the Masters of the court
 
 96 
 
 final upon any subject which may not properly 
 depend on the mere discretion of the Master, 
 observations have been already -made., which 
 may be applied to the 97th, 98th, 99th, and 
 100th propositions. 
 
 With respect to the 110th proposition, the 
 inconvenience which may arise from the pay- 
 ment to the Masters depending on salary, has 
 been already pointed out in observations on the 
 82d, 83d, and 84th propositions, so far as re- 
 spects business which requires a considerable 
 degree of exertion of mind, and may occupy 
 much time, and for which fees are the proper 
 incentive to industry and attention, and there- 
 fore the proper reward. For other parts of the 
 business salary may be the most proper pay- 
 ment : but the principal payment should be by 
 fees. It is fit that those who are litigants should 
 pay for litigation, if no other reasons occurred 
 than that expense may deter from vexatious 
 litigation, and that affording means for litigation 
 without expense is encouraging litigation. It is 
 particularly important in this point of view, 
 as much of the evidence in the appendix to the 
 report will induce any person, acquainted with 
 business, to observe. Much of the evidence, 
 and some of the propositions founded upon that
 
 97 
 
 evidence, have a clear tendency to relieve the 
 solicitors from payments out of pocket for the 
 fees of others ; and, on the contrary, both the evi- 
 dence and propositions have a general tendency 
 to increase the profits of the solicitors in propor- 
 tion to their expenses. If solicitors can reduce 
 their payments to others, and at the same time 
 retain all their own fees and emoluments of every 
 description, including their ad libitum charges 
 for attendance on their clients, for letters, mes- 
 sages, &c., a solicitor's bill will be almost wholly 
 profit ; and nothing can tend more to encourage 
 litigation. Payment of money out of pocket is 
 what the solicitor most anxiously seeks to avoid ; 
 and all the propositions, which tend to throw the 
 whole conduct of the business into the hands of 
 the solicitors, have a direct tendency to increase 
 their profits , not only by diminishing their ex- 
 pense, but by giving to them what is now the 
 profit of others. 
 
 To the 117th proposition, the objection that it 
 is degrading to the office of the Lord Chancellor, 
 is strongly applicable, putting him under the 
 controul of his inferior officers. But the whole 
 report shows a strong inclination to elevate infe- 
 rior officers, and degrade the Chancellor. 
 
 The 120th proposition either means something 
 not clearly expressed, or it has no meaning.
 
 The 123d proposition, proposing to substitute 
 a proceeding by petition instead of by bill, re- 
 quires much consideration. The authorising 
 proceedings by petition in cases of charities has 
 been attended with consequences which ought to 
 deter a rash adoption of such summary mode of 
 proceeding. It is not stated who are to be par- 
 ties to the proposed petition ; which is a very im- 
 portant subject of consideration, if such a pro- 
 ceeding is to be considered as affording complete 
 indemnity to an executor who may pay a legacy 
 according to an order on such a petition; and 
 unless that shall be the effect, the purpose will 
 not be answered. The rule should therefore be 
 qualified at least by a saving of the rights of 
 those who shall not be parties to the proceeding, 
 and who may be injured by the decision. 
 
 The 124th proposition goes to an extent, the 
 bounds of which ought to be clearly defined. 
 This will be a difficult task; but the prayer of 
 the bill, which may be artfully contrived for a 
 fraudulent purpose, should not be the guide. It 
 would be better to provide, generally, that the 
 Court should act according to its discretion in 
 such cases, having regard to the nature of each 
 case, and the parties before the Court. After 
 all, it may be doubtful whether this will prove a 
 wholesome provision. It is a proposition appa-
 
 Ml 
 
 rently calculated to save expense ; but it may be 
 very doubtful whether it will answer that pur- 
 pose, and whether it will really produce security 
 to trustees and executors. It is for the advantage 
 of solicitors, having obtained the judgment of the 
 Court on any point of difficulty, to conduct the 
 business of an executorship or trust out of court; 
 because all the proceedings will then be under 
 their sole management, and for their sole benefit. 
 In the course of the propositions suggested by the 
 report great jealousy is shown of the acts of one 
 solicitor concerned for all parties in any suit, 
 and there are occasionally grounds for such jea- 
 lousy : but a proceeding under the authority of 
 this proposition will be liable much more strongly 
 to this objection. Where the proceedings under 
 a decree, in execution of the decision pronounced 
 by it on the rights of parties, are in the court, 
 though conducted by one solicitor, they are 
 still under the control of the court, and in great 
 part under the eye of one of the Masters of 
 the court, whose superintend ance may check im- 
 propriety. But if the proceedings in a suit are 
 to stop at the judgment of the court deciding 
 only those difficult questions which may arise on 
 the constructions of wills or deeds, or on parti- 
 cular events or circumstances, and then the exe- 
 cution of the effects of that decree is to be ma- 
 il 2
 
 100 
 
 naged out of court, the whole must be entrusted 
 to the fidelity perhaps of that very solicitor of 
 whose integrity former propositions have ex- 
 pressed so much jealousy. A solicitor will al- 
 ways be more desirous of executing a trust out 
 of court than in court, if he consults only his own 
 profit. He will have no fees to pay, no money 
 to disburse ; all will he done by the operations 
 of his own office, absolutely without control; 
 a great temptation to the best solicitors to 
 advise trustees and executors to act out of 
 court at all times, though at the hazard of 
 those trustees and executors. But if the soli- 
 citor can say to the trustee or executor, the Court 
 of Chancery has decided all difficult questions in 
 the execution of your duty by its decree, you may 
 now safely proceed without further assistance 
 from the court, and the solicitor may hold the 
 same language to all who may be interested in the 
 subject, whether on their own behalf, or on behalf 
 of minors, or others, it is most probable that all 
 will be prevailed upon to act as the solicitor may 
 propose ; and he will be the future judge, master, 
 and officer, by whom all the business will be con- 
 ducted, and the whole will be managed for his 
 profit. 
 
 If this proposition therefore should be adopted, 
 it ought to be acted upon by the court with great
 
 101 
 
 jealousy, and the proceedings under the judg- 
 ment pronounced by such a decree ought to 
 operate no indemnity to those who may seek its 
 protection, except so far as it may explicitly de- 
 clare rights, and give construction to instru- 
 ments; and it ought perhaps to be added to 
 every such decree, that all proceedings under it 
 out of court, must be at the peril of those who 
 may so proceed, the decree affording them no 
 protection beyond the declaration of rights which 
 it may contain. 
 
 It may also be necessary to add a saving of 
 rights ; for in many cases a court of equity pro- 
 ceeds to bind contingent interests from necessity : 
 but if, before completion of the proceedings, a 
 right which at the time of the decree was in con- 
 tingency becomes a vested right, the court re- 
 quires that the person having that right should 
 be brought before it by a supplemental suit ; and 
 upon such a supplemental suit a new defence 
 may be made, or some new question may arise, 
 which may compel a variation of the former de- 
 cree, so far as it may affect the rights thus become 
 vested. 
 
 It seems evident, therefore, that in acting on 
 this proposition, if adopted, the court ought to 
 proceed with much caution and care. 
 
 The l!25th proposition involves questions of
 
 very considerable difficulty, and there may be 
 great room for doubt of the expediency of its 
 adoption in the whole. It may be doubted too 
 whether, in execution, it will not be found to in- 
 crease instead of diminishing expense. The pro- 
 position extends only to cases where the defend- 
 ant may protect himself from discovery by de- 
 murrer or plea. But a demurrer or plea may 
 extend to relief as well as discovery, and a plea 
 may be allowed in part, and overruled in part. 
 It seems therefore extremely doubtful how this 
 proposition is to be carried into execution, and 
 very doubtful also whether it will tend to prevent 
 delay, or diminish expense. There seems also 
 difficulty in discovering to what the latter part of 
 the proposition is meant to apply. As the prac- 
 tice now stands, a plaintiff may proceed in the 
 way in which the proposition at the close appears 
 to allow him to proceed. 
 
 The 126th proposition, in its minute provisions, 
 seems to go too far, and is not very intelligible. 
 What is meant by the words, " when the plain- 
 tiff was first advised of his alleged equitable 
 title," and, " when the solicitor was first aware 
 of such equitable title," is not easy to discover ; 
 nor is it easy to discover for what purpose affi- 
 davits to such effect are to be required. An in- 
 junction bill may be filed for the purpose of dis-
 
 103 
 
 covery only, to enable the plaintiff to defend 
 himself at law ; and if this is to be considered as 
 " equitable relief/' he must have discovered his 
 equitable title when he found he had not the evi- 
 dence which the bill seeks to obtain. The affi- 
 davit that the bill is not tiled for delay, and only 
 for the purpose of obtaining that relief which the 
 bill prays, if it seeks relief, or that discovery 
 which the bill seeks, if it only seeks discovery, 
 seems to be sufficient. 
 
 The 127th proposition may be attended with 
 inconveniences of which the framers of the propo- 
 sition do not seem to have been aware, and it will 
 certainly produce, in many cases, great additional 
 expense. Every suit for a debt, or for a legacy, 
 is a suit for the administration of assets. If any 
 regulation should be founded on this proposition, 
 it will require considerable caution to frame the 
 regulation so as to avoid great inconvenience, 
 and unnecessary expense. The proposed in- 
 dorsements on bills and answers will become al- 
 most ridiculous from their frequency. For the 
 greater number of bills filed in courts of equity 
 may be considered as, in some way, bills for the 
 administration of assets. Jf the framers of this 
 proposition had taken the trouble to look at all 
 the bills filed in the preceding year, they would 
 have seen upon how many (if this proposition 
 had been then adopted) such an indorsement must
 
 104 
 
 have been made ; and it might have occurred to 
 them, that every answer of an executor or ad- 
 ministrator, in either character, to any bill, must 
 have the proposed schedules and proposed in- 
 dorsement. Cases might easily be stated which 
 would show the absurdity of this proposition, 
 and the increase of expense which it must ne- 
 cessarily produce if adopted. 
 
 The 128th and 129th propositions are in some 
 degree founded on the 127th; but some of their 
 provisions may perhaps be adopted, without 
 adopting the 127th, though it seems necessary 
 to impose more guard upon them than the pro- 
 positions import. 
 
 The 130th proposition will have most mis- 
 chievous tendency, and will greatly embarrass 
 the administration of assets. It will deter any 
 prudent man from undertaking the office of 
 executor or administrator, where there can be 
 any apprehension of deficiency ; or indeed where 
 the assets shall not be manifestly superabun- 
 dant. The effect will be, that upon the filing of 
 a bill in equity, upon any ground, where the 
 administration of assets may be part of the object, 
 the administration must instantly cease, though 
 perhaps the cause may never be brought to a hear- 
 ing, or if brought to a hearing, the bill may be dis- 
 missed, because the plaintiff has no just demand. 
 Nay, the executor or administrator cannot, if the
 
 105 
 
 demand be just, put a stop to the suit, by pay- 
 ment of the demand, without great hazard. 
 
 This and the three preceding propositions are 
 all founded on a grievance affecting a few cases, 
 and they are attempts to remove that grievance 
 in those few cases, by imposing a dreadful 
 grievance on the administration of assets gene- 
 rally. Reformers are too apt to look to one 
 grievance, and propose a remedy which would 
 produce a thousand. 
 
 The 131st proposition goes too far. At pre- 
 sent the court protects an executor or adminis- 
 trator, after a decree pronounced, upon a clear 
 principle ; namely, that any creditor may claim 
 under that decree. This proposition proposes 
 that the same protection should be given, although 
 the creditor, whose proceedings are to be re- 
 strained, can recover his demand by no means 
 but by action at law, or by filing another bill in 
 equity, unless a decree shall, at some future 
 time, be pronounced in a suit, in which he is not 
 a party, and over which he has no control. It is 
 therefore founded on no just principle. 
 
 The old practice seems to go as far as it ought 
 to go. 
 
 The 132nd proposition is founded on the for- 
 mer, and will contribute to embarrassment in the 
 administration of assets.
 
 106 
 
 This proposition, as well as the 130th and 
 131st, desert that principle on which courts of 
 equity formerly proceeded in the administration 
 of assets, and in the protection afforded to an 
 executor in thai administration. When a court 
 of equity had pronounced a decree directing 
 general accounts of debts and assets, and ap- 
 plication of those assets in payment of all 
 debts, as far as they will extend, in a due 
 course of administration, it proceeded to enforce 
 equality, amongst creditors of equal degree, ac- 
 cording to its decree. It had by its decree taken 
 on itself the administration of those assets, and its 
 decree could not be carried into execution, if cre- 
 ditors, refusing to claim under the decree, should 
 proceed at law to compel payment of their re- 
 spective demands in a different manner. To as- 
 sume the same power on the mere filing of a bill 
 is assuming it without its just foundation at the 
 time, and without any certainty that the just 
 ground on which the old practice rested will ever 
 be obtained. No decree may ever be pronounced 
 on the bill, the mere filing of which is, accord- 
 ing to these propositions, to authorise this re- 
 straint of creditors in pursuing their legal re- 
 medy. This may happen for want of prosecution 
 of the suit, and its dismission on that account ; 
 by its failure by abatement, or other circum-
 
 107 
 
 stance, or perhaps by inability on the part of the 
 plaintiff to support his demand, and final dis- 
 mission of the bill at the hearing, or after an 
 issue, or action at law directed by the court, 
 and a verdict given against the plaintiff's demand ; 
 all which may occupy several years. During this 
 period, every creditor, whose title to demand 
 his debt shall be thus suspended by injunction, 
 will be grossly injured by the mere delay; and 
 if his demand should not, from its nature, carry 
 interest, he will be grievously injured by the loss 
 of interest for so many years. Every other cre- 
 ditor too will be likewise injured; for, as he may 
 be thus restrained- by injunction, after a bill filed, 
 no creditor will venture to bring an action 
 which may be thus stopped ; and when the suit 
 on which the injunction shall be obtained shall 
 fail, many creditors may have lost the evidence 
 of their demands, or their demands may have 
 been barred by the statute for limitation of ac- 
 tions. Whilst the practice of the court rested 
 on a clear principle, that is on the existence of 
 a judgment pronounced in favour of all creditors, 
 of which all might immediately have the advan- 
 tage by going before a Master of the court, and 
 proving their respective demands, and prose- 
 cuting the account of assets if neglected by the 
 parties to the suit, the practice was just. The
 
 108 
 
 propositions objected to seem to be the offspring 
 of some fancied convenience, which may not be 
 attained, and a practice founded on those propo- 
 sitions would be founded on no just principle, 
 and might in many cases produce gross injustice. 
 
 It seems to have been forgotten too, that the 
 Court of Exchequer has also a court of equity ; 
 and that unless the Court of Exchequer shall 
 adopt these propositions, and mould its practice 
 accordingly, there may be much embarrassing 
 confusion between the two courts ; and questions 
 may arise, which of the two courts, by the filing 
 of a bill in that court, has gained a right to stop 
 all further proceedings of every creditor of an 
 estate, in any other court, until it shall appear 
 whether either of the courts shall make a decree 
 on the subject. At present, if either court has 
 pronounced a decree for a general administration 
 of assets, the other court will stop further pro- 
 ceedings on a bill for the same purpose, upon a 
 clear and just principle. 
 
 Reference to the Court of Exchequer neces- 
 sarily brings to recollection that tithes are most 
 frequently subjects of suit there ; and that a de- 
 mand for the value of tithes substracted may be, 
 and often is, made against the assets of a deceased 
 occupier of land : and such a suit is a suit for the 
 administration of assets, though for a limited ad-
 
 109 
 
 ministration of assets. It is clear, therefore,, that 
 some of the propositions objected to, if liable to 
 no other objection, have been very inaccurately 
 framed, and may materially interfere with the 
 execution of a decree in the Court of Exchequer. 
 
 The 135th and 136th propositions, if other- 
 wise proper, require much modification. Pro- 
 bably nine tenths of the bills filed in a court of 
 equity are bills for an account, and are so de- 
 scribed when the cause is set down for hearing 
 in the Six-clerks list. Indeed a court of equity 
 seldom pronounces a decree in which some ac- 
 count is not directed. " A bill for account" is 
 therefore a very loose description, and ought to 
 be qualified in some manner, if any rule shall be 
 founded on these propositions. But probably, 
 when qualification shall be attempted, it will be 
 found not a very easy task. 
 
 The 137th proposition can only lead to con- 
 fusion. It is an old saying, that often, where 
 there is the most haste, there is the worst speed. 
 If a decree can be made upon the answer or 
 answers of the defendant, or defendants, the 
 plaintiff may set clown the cause for hearing in 
 the regular course of proceeding, and it will 
 come on to be heard in the regular course. The 
 object of the proposition, therefore, must be to 
 allow, not only a defendant, or defendants, but any
 
 110 
 
 other person who may conceive lie has an interest 
 in the suit, to call upon the court, by motion, in 
 a summary way, to look into the bill and answer 
 or answers, and see whether a decree can be 
 made upon the answers as they stand. For this 
 purpose, the court must, on the motion, hear the 
 cause, as if regularly set down for hearing, and 
 pronounce a decree accordingly ; and must, there- 
 fore, on a motion, hear, perhaps, a solemn de- 
 bate, on an intricate question, elaborately argued 
 by counsel on both sides ; and in the hurry of a day 
 of motions, pronounce a decree upn the subject, 
 which may be of the utmost importance as an 
 authority in future cases, if any authority ought 
 to be allowed to a decision so obtained. Under 
 such circumstances one party might not be pre- 
 pared for such an argument as the case would 
 properly require; and the court must, in that 
 case, to do justice, order the motion to stand 
 over to a future day. 
 
 A rage for innovation could alone have sug- 
 gested this proposition, which must tend to 
 embarrass the court, to increase its trouble, and 
 increase expense, in ninety-nine cases out of one 
 hundred which may be deemed objects of the 
 proposition, without any advantage in the hun- 
 dredth case to balance these evils. 
 
 The 138th proposition is in a great degree
 
 Ill 
 
 liable to the same objections. The experience 
 of inconvenience led Lord Hardwicke, and his 
 predecessors, to hold as a general rule, that a 
 decree ought not to be made on a motion ; and 
 this was considered by them as an answer which 
 ought to be given to every motion intended to 
 to have the effect of a decree. 
 
 The 137th and 138th propositions aim at sub- 
 verting that rule, which their wisdom and their 
 experience had established; and which, till of 
 late years, was considered as an important rule 
 to guide the discretion of the court. The break- 
 ing in on that rule, by motions tending to decide 
 summarily on the meiits of a cause, is supposed 
 to have produced that occupation of time of the 
 court in hearing motions, which is considered by 
 many as a great grievance ; as tending to delay 
 the regular hearing of causes, and probably, 
 sometimes, producing more delay and expense 
 to the parties whose interests are discussed on 
 such motions than the delay and expense which 
 were intended to be avoided. 
 
 The 142d and three following propositions 
 suggest the relieving the Masters from the taxa- 
 tion of costs, and transferring that duty to the 
 six clerks. If it should be thought fit to take 
 from the Masters the duty of taxing costs in- 
 curred in the Court of Chancery, for which in
 
 m 
 
 some respects they are best qualified, it seems 
 most advisable to adopt the idea which has been 
 suggested of creating an office for taxation of 
 costs generally, consisting of persons who might 
 be qualified to judge of the propriety of all bills 
 of costs, in matters of law, of every description ; 
 that is, of the bills of attornies and solicitors, 
 whether in causes or any other business trans- 
 acted by them for their clients, and most parti- 
 cularly in conveyancing business. The transfer 
 of the taxation of costs in causes in Chancery 
 from the Masters to the six clerks, without more, 
 seems to be a measure of little utility ; and for 
 this purpose it is proposed to subvert, in a great 
 degree, the present state of the Chancery office, 
 to select new officers, and to throw a burden on 
 the public. It may be doubted whether the 
 report suggests sufficient grounds for such a 
 measure. 
 
 The 146th proposition is according to the sys- 
 tem adopted of degrading the office of the Lord 
 Chancellor, already repeatedly noticed. 
 
 Many of the propositions which follow, re- 
 specting costs, are liable to serious objections 
 as they are framed, and would fall in many cases 
 very harshly on trustees and others, to whom 
 no blame may be imputable. 
 
 What is meant by " instructions from a soli-
 
 113 
 
 citoiy" in the 157th proposition, requires to be 
 explained ; and many of the subsequent proposi- 
 tions also require explanation, particularly the 
 163d, 174th, and 175th. 
 
 The 178th proposition, respecting appeals from 
 any decree or order of the Master of the Rolls, 
 or Vice-Chancellor, is of the highest importance ; 
 placing their decisions in a situation which may 
 be highly embarrassing to the Lord Chancellor, 
 and must tend to degrade his office, with all the 
 mischievous consequences noted in a former part 
 of these observations, particularly applied to this 
 subject. 
 
 The 179th proposition, especially when com- 
 bined with the 178th, might produce great in- 
 crease of expense, and great delay, by compel- 
 ling the parties to carry the case to the House of 
 Lords; for the 183d proposition is too narrow 
 to obviate this objection. 
 
 The 1 80th proposition excludes the Lord 
 Chancellor from being the judge whether a pro- 
 ceeding in his court is to be deemed scandalous 
 or impertinent, and erects the inferior officers 
 into superior judges in derogation of his office. 
 Nay, it must make the decision absolutely final, 
 excluding the jurisdiction of the House of Lords. 
 
 The 181st and 184th propositions pursue the 
 plan of degrading the office of the Lord Chancel-
 
 114 
 
 lor, placing him, by the acts of his inferior 
 officers, in a situation of great embarrassment, 
 wherever either of those officers shall have de- 
 cided upon any point, even against his known 
 opinion, perhaps contrary to his actual decision 
 in a case precisely similar. The inconvenience 
 attending this system has been repeatedly no- 
 ticed. The 184th proposition, in words, ex- 
 cludes the jurisdiction of the House of Lords, 
 which probably was not intended. 
 
 The 186th, 187th, 188th propositions all par- 
 take of the same complexion. The 188th applies 
 to a most important subject, particularly requir- 
 ing consideration. 
 
 Upon a view of the whole of this report, and of 
 the several propositions to which it refers, a per- 
 son long conversant with the business transacted 
 in the courts of equity cannot but feel great 
 alarm at many innovations proposed, and espe- 
 cially at the attempt to degrade the principal 
 officer of the Court of Chancery, and to take 
 from his office that responsibility to which the 
 people have a right to look, considering him, as 
 he now is, the supreme authority in that court, 
 subject only to that control which has been 
 hitherto reserved to the appellate jurisdiction of 
 the House of Lords, though even that jurisdic- 
 tion is now attempted to be in some degree
 
 115 
 
 curtailed ; to that control which public opinion 
 operates upon the conduct of every great officer 
 of state; and to that further control which the 
 free constitution of our government gives to the 
 two Houses of Parliament. 
 
 These observations have been made with that 
 freedom which the importance of the subject 
 seemed to require; but, it is trusted, without 
 departing from that respect which is due to those 
 distinguished persons whose names are sub- 
 scribed to the report. They have had an arduous 
 task, which they have endeavoured to execute 
 with much zeal, and with much diligence. If, 
 in the opinion of the writer of these observations, 
 they have erred, their errors are by him imputed 
 to the difficulties which belonged to their under- 
 taking, to their anxiety, in many instances, to 
 effect what he conceives cannot be effected, and 
 to their having yielded in some points to that 
 clamour, which in others they have firmly re- 
 sisted. 
 
 THE END. 
 
 LONDON : 
 IBOTSON AND PALMER, PRINTERS, SAVOY STREET, STRAND.
 
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