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 iiar0l|aU Equttg (Holhttxan 
 
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 http://www.archive.org/details/cu31924084264252 
 
HISTORY 
 
 OF THE ...^U'^ 
 
 COURT OF CHANCERY 
 
 AND OF JTHE 
 
 RISE AND DEVELOPMENT 
 
 OF THE 
 
 DOCTRINES OF EQUITY. 
 
 By A. H. MAESH, 
 
 One of Her Majesty's Counsel. 
 
 TORONTO : 
 
 CAESWELL & CO., PUBLISHERS-! 
 1890. 
 
^6oZ 
 
 Entered according to Act of the Parliament of Canada, in the year one thousand 
 eight hundred and ninety, by CAUBWBiiii & Co., in the office of the Minister 
 of Agriculturb. 
 
 PRINTED BY 
 
 Thos. Moobe & Co., Law Pbintebs 
 
 22 & 24 AdeiiAtde St. East 
 
 TOBOHTO. 
 
TO 
 
 THE HONOEABLE WILLIAM PEOUDFOOT, 
 
 Late Vice-Chancellor of the Court of Chancery of Ontario, 
 
 AND 
 
 Late Justice of the Supreme Court of Judicature for Ontario, 
 
 oEhig ^ittle look 10 ^ebkattb 
 
 Remembrance of the many kind words of suggestion, counsel, 
 and encouragement extended by him to the author, and as 
 a shght token of esteem for the ripe scholarship, the unvary- 
 ing courtesy, and the conscientious life-work of one who 
 may here be fittingly referred to as one of the last of the 
 Chancery Judges. 
 
PEEFACE. 
 
 TT7HEN the Law School in connection with the 
 Law Society of Upper Canada was re-estab- 
 lished upon a new basis the writer was appointed 
 Equity Lecturer to the school, and his duties as 
 such lecturer made it necessary for him to sketch 
 the early history of the Court of Chancery, for the 
 purpose of explaining to the class the origin and 
 development of the equitable jurisdiction of that 
 Court. This little book contains the historical and 
 introductory lectures delivered for that purpose. 
 Free use has been made of Mr. Spence's admirable 
 work upon the "Equitable Jurisdiction of the 
 Court of Chancery," which contains a mine of in- 
 formation for the student; and yet is scarcely 
 fitted for class room work. An endeavour was 
 made to make the lectures interesting as well as 
 instructive, and this accounts for some of the 
 peculiarities observable in the book. The writer 
 has ventured to think that perhaps some persons 
 outside of his class might desire to refresh their 
 memories relating to the' matters herein touched 
 upon, hence this publication. 
 
 A. H. M. 
 July, 1890. 
 
TABLE OF CONTENTS. 
 
 PAGE. 
 
 The King Administeeed Justice in Person 2 
 
 The Curia. Eegis 6 
 
 The Office op Chancellor 12 
 
 The Origin of the Cobcbon Law Courts 15 
 
 Chancery as a Common Law Court 16 
 
 Original Writs 17 
 
 Statute OF Westminster Second 21 
 
 Failure of this Statute 21 
 
 The Chancellor's Extraordinary Jurisdiction 22 
 
 Form of Pleading 84 
 
 Writ of Subpcena 45 
 
 Preventite Jurisdiction 46 
 
 Afforded Protection to the Poor and Weak 47 
 
 Examined Parties on Oath 49 
 
 Pliable Forms OF Judgment 53 
 
 Absence of Fines 57 
 
 Length of Suits 61 
 
 Abuse of Chancery Procedure by Vexatious Suits... 65 
 
 Parliamentary Eecognition of the Court 66 
 
 Influence of the Eoman Law 68 
 
 Clerical Chancellors 71 
 
 Conflict between Chancery and Common Law Judges 78 
 
Vlll TABEB OF CONTENTS. 
 
 PAGE. 
 
 Salaries OF THE Judges 94 
 
 Limits of Equity Jurisdiction 101 
 
 Instances of Equitable Interference Ill 
 
 Undue Interference ofEquity 125 
 
 Court of Chancery; rendered necessary by the Con- 
 servatism of the Common Law Judges 128 
 
 Legal Doctrines Modified by Equity Doctrines 132 
 
 Law AND Equity are both Progressive 137 
 
 Law and Equity Merged in one System 140 
 
THE 
 
 EISE AND DEVELOPMENT 
 
 OF THE 
 
 DOCTRmES OF EQUITY. 
 
 Hrhat is Equity? 
 
 The best answer to this question is to be found 
 in the history of the origin and establishment of 
 the Court of Chancery, and of the rise and develop- 
 ment of the equity jurisdiction and the practice of 
 that Court. 
 
 From this history we shall learn the circum- 
 stances which gave rise to the organization of that 
 Court ; the evils which were intended to be 
 remedied thereby ; the methods adopted to afford 
 those remedies; the jealous opposition of the 
 Common Law lawyers; the struggle for jurisdic- 
 tion which took place between the Courts of Equity 
 and the Courts of Common Law, and the triumph 
 
 D.EQ. — 1 
 
2 History of the Courts of Equity. 
 
 of the Court of Chancery, followed by the ultimate 
 prevalence of Equity? 
 
 King Administered Justice in Person: 
 
 During the Norman Period the Kings of Eng- 
 land as the " fountain of justice," occasionally at 
 least, administered justice in person and sat as a 
 court of justice, or as a constituent part of such 
 court, for the purpose of administering the laws 
 and redressing the wrongs of their subjects. 
 
 Madox doubts whether the Anglo-Saxon Kings 
 ever sat in a judicial capacity, and he thinks that 
 in Anglo- Saxon times justice was administered ex- 
 clusively in courts within the several counties', "^ 
 Towns or Districts, and that the King's Court is 
 an institution of the Norman Period. 
 
 1 Madox' History of the Exchequer 92. 
 
 As the courts and judges in course of time be- 
 came comparatively independent of royal control, 
 and as their jurisdiction became more fully mapped 
 out and recognized, it was held that although 
 the King is entitled to sit in his courts with the 
 judges, yet he is not entitled to take any part in 
 the administration of justice; and when James the 
 Eirst sat personally in court, and desired to take 
 part in the administration of justice, he was told 
 that he was not entitled to " determine any, cause 
 
King administered Justice in Person. ^ 3 
 
 but by the mouth of his judges to whom he has 
 committed the whole of his judicial authority." 
 
 4 Inst. 73 ; and See 1 Spence's Equitable 
 Jurisdiction of the Court of Chancery 
 330. 
 
 An account of the controversy between King 
 James and the judges, upon this point, is given by 
 Coke in 12 Eep. 63, where it is stated that " It ap- 
 pears in our books that the King may sit in the Star 
 Chamber ; but this was to consult with the justices 
 upon certain questions proposed to them, and not 
 in judicio ; so in the King's Bench he may sit, but 
 the Court gives the judgment ; and it is commonly 
 said in our books, that the King is always present 
 in Court in the judgment of law, and upon this he 
 cannot be non suit ; but the judgments are always 
 given per. curiam ; and the judges are sworn to exe- 
 cute justice according to the law and custom of 
 England. * * And the judges informed the 
 King that no King after the Conquest assumed to 
 himself to give any judgment in any cause whatso- 
 ever, which concerned the administration of justice 
 within this realm, but these were solely determined 
 in the Courts of Justice." Further on in the re- 
 port Coke says : — " A controversy of land between 
 parties was heard by the King, and sentence given. 
 
4 History of the Courts of Equity. 
 
 which was repealed for this, that it did belong to 
 the Common Law; then the King said that he 
 thought the law was founded upon reason and that 
 he and others had reason as well as the judges ; to 
 which it was answered by me that true it was that 
 God had endowed his Majesty with excellent 
 science and great endowments of nature, but his 
 Majesty was not learned in the laws of his realm 
 of England, and causes which concern the life, or 
 inheritance, or goods, or fortunes of his subjects 
 are not to be decided by natural reason, but by the 
 artificial reason and judgment of law, which law is 
 an act which requires long study and experience 
 before a man can attain to the cognizance of it ; 
 and that the law was the gold metwand and meas- 
 ure to try the causes of the subjects, and which 
 protected his Majesty in safety and peace ; with 
 which the King was greatly offended, and said that 
 then he should be under the law, which was treason 
 to affirm, as he said ; to which I said that Bracton 
 saith quod Bex non debet esse sub homine, sed sub 
 Deo et lege." 
 
 By 28 Ed. I., Stat. 3, cap. 5, it was enacted 
 as follows : — " The King will that the Chancellor 
 and the Justices of his Bench shall follow him, so 
 that he may have at all times near unto him some 
 sages of the law, which be able duly to order all 
 
King administered Justice in Person. 5 
 
 such matters as shall come unto the court at times 
 "when need shall require." 
 
 Madox shows that in early times the Kings of 
 England did administer justice in person and says : 
 " Let no man suppose it to be a novel usage for 
 Kings to sit personally in judicature. On the con- 
 trary it is a very, ancient one, and conformable to 
 the law and practice of nations in many ages ; of 
 this it may suffice to produce here a few instances. 
 Solomon, King of Israel, a wise and magnificent 
 Prince, adjudged personally in the cause of the two 
 women, one of whom had a living child and the 
 other a dead one ; " and Madox then cites numer- 
 ous instances, both in ancient and mediaeval his- 
 tory, in which Kings were accustomed to admin- 
 ister justice in person. 
 
 I Madox' History of the Exchequer 88 et seq. 
 
 Sir William Dugdale in his Origines Juridici- 
 ales says : — " The King and no other ought to 
 be judge, if he alone were able to perform that 
 task, being thereunto obliged by the tenor of his 
 oath ; to him therefore it belongs to exercise the 
 power of the law, as God's vice regent and officer 
 on earth. But if the King cannot of himself de- 
 termine every controversy, to the end his labour 
 may be the less by dividing the trouble amongst 
 
6 History of the Courts of Equity. 
 
 divers persons, hie ought to choose men of wisdom, 
 
 fearing God, and out of them to constitute judges." 
 
 Dugdale's Orig^iwes Juridiciales (3 Ed.) 19. 
 
 And further on the same author says : — "When 
 by the multiplying of people inequity so increased 
 as that contentions and dififerences did daily more 
 and more abound, it was impossible that any one per- 
 son should hear and determine all of their causes, or 
 any one place be of capacity sufficient to receive 
 all, the suitors. Hence was it therefore that Jethro 
 advised Moses whom God had set over the Israel- 
 ites (the first people of the world unto whom any 
 written laws were delivered) as their chief ruler, to 
 commit the distribution of justice, under himself, 
 unto several persons and in sundry places, as in the 
 xviii. chapter of the Book of Exodus appeareth." 
 lb. 32. 
 
 The Curia Regis : — 
 
 During the Norman period the Witenagemot 
 of the Anglo-Saxons, in its feudalized form, was 
 known as the Curia Begis, or the King's Court. 
 
 From as far back as we are able to trace the 
 history of England we find that the Kings of Eng- 
 land have governed that country with the aid and 
 advice of select and trusty counsellors, chosen for 
 
The Curia Regis. 7 
 
 their wisdom in the various branches of government, 
 in connection with the administration of which 
 their advice was specially sought. These advisers 
 of the King varied in number from time to time, 
 but in a general way they were divided into various 
 distinct bodies or councils, having separate and 
 distinct functions, and being composed of those 
 persons whose wisdom and experience best fitted 
 them for service in the particular council to which 
 they were called. The aggregate body of these 
 councils was during the early portion of the Nor- 
 man period known as the Curia Regis. 
 
 During the Norman period the Curia Begis in 
 its broadest signification, included at least four dis- 
 tinct councUs : — 
 
 (1) The Consilium Privatum. 
 
 (2) The Consilium Ordinarium. 
 
 (3) The Magnum Consilium. 
 
 (4) The Commune Consilium. 
 
 The Consilium Privatum (sometimes called 
 the Select Council) consisted of certain select per- 
 sons of the nobility and great officers of the State, 
 specially called and sworn, with whom the King 
 usually advised in matters of State and government. 
 This Council exists in modern times under the 
 name; of the Privy Council. 
 
8 Histoi-y of the Courts of Equity. 
 
 The Consilium Ordinarium consisted of those 
 persons who were thereunto called by the King, 
 9,nd these persons were usually so called, namely : 
 
 (1) Commonly and generally all those who 
 were members of the Privy Council. 
 
 (2) The great officers and Ministers of State, 
 as the Chancellor, Treasurer, Lord Steward, Lord 
 Admiral, Lord Marshal, the Keeper of the Privy 
 Seal, Chamberlains of the Household, Chancellor 
 to the Exchequer and Duchy, which officers were 
 likewise most commonly of the Privy Council. 
 
 (3) The Master of the Wardrobe, Treasurer 
 and Comptroller of the Household and Chamber- 
 lains of the Exchequer. 
 
 (4) The Judges of both Benches, Barons of 
 of the Exchequer, divers Masters of the Chan- 
 cery, the King's Sergeant and Attorney General. 
 
 (5) Sometimes were added the Judges itiner- 
 ant. Master of the EoUs and other men of prudence, 
 ability and experience in business of importance. 
 
 Upon great and important occasions all the 
 persons composing the Council were called together 
 to advise the King, but when the business was of 
 more contracted nature, and fell more specially un- 
 der the cognizance of some of this Council, then 
 
The Curia Regis. 9 
 
 those were called to it that were the fittest to ad- 
 vise about it ; as the Chancellor and judges when 
 the advice concerned matters in law ; the Treas- 
 urer of England and Chancellor of the Exchequer 
 concerning the state of the revenue and the like. 
 
 The Magnum Consilium (which in modern 
 times is known as the Lords' House in Parliament) 
 was of two kinds, viz. : a Magnum Consilium, out 
 of Parliament, and a Magnum Consilium in Parlia- 
 ment. The Great Council had the Ordinary Coun- 
 cil annexed to it as a councU within a council, or a 
 council attached to a council, and sometimes had 
 also an annexation of many more to them. 
 
 The Great Council soufietimes, though not 
 often, met out of Parliament and enacted ordin- 
 ances which were usually afterwards re-enacted in 
 Parliament. Lord Chief Justice Hale says that 
 the only great Council out of Parliament, which 
 hath in his remembrance been called, was at York 
 at the coming in of the Scots. When this Council 
 sat in Parliament it consisted of the Lords spirit- 
 ual and temporal, who usually sat in conjunction 
 with the Ordinary Council before referred to. 
 
 ■ The Commune Consilium consisted of both 
 the Houses of Parliament, which, together with 
 the King, says Lord Chief Justice Hale, is the 
 
10 History of the Courts of Equity. 
 
 highest and greatest court in England and hath a 
 plenitude of power, as well legislative as delibera- 
 ative and executive, or power of jurisdiction in its 
 full comprehension. 
 
 Hale's The Lords' House in Parliament, 
 pages 4 to 13, and see 1 Spence's Equi- 
 table Jurisdiction of the Court of Chan- 
 cery, 328-9. 
 
 Madox gives this account of the mode of dis- 
 pensing justice in the King's Court : — " We may 
 consider the King as Sovereign or chief Lord of 
 this Eealm, and the fountain of justice to his sub- 
 jects, residing in his royal palace and attended by 
 his Barons and great officers, both of the clergy 
 and laity ; the liege-men of his kingdom bring their 
 complaints or causes before him as supreme arbi- 
 trator and judge, to be determined in his court or 
 palace, wherein was the seat of the supreme judi- 
 cature. Their causes were heard and judged either 
 before the King himself, or else (most usually) be- 
 fore his Chief Justicier, or before him together with 
 some others who were styled Justiciae or Justiciers. 
 When the King went beyond the sea (which fre- 
 quently happened during the period of time we are 
 now considering) he was wont to constitute some 
 one or more great men to represent him in govern- 
 ment and administration of justice. * * And 
 
The Curia Regis. 11 
 
 such Justicier in the King's absence had a power 
 resembling the regal. For he presided both in 
 government and administration of justice. How- 
 beit that power of his, in point of administration 
 of justice, was sometimes in particular cases 
 restrained or superseded, if the King thought fit. 
 For the King, whilst he was beyond the Sea would 
 sometmies interpose and either by his Writs De 
 ultra mare, or in some other manner, direct what 
 should be done in some causes, or suspend the 
 judgment of his Justicier therein, till his next 
 return into England, or till some other time 
 which he thought meet to prescribe." 
 
 1 Madox' History of the Exchequer, 84. 
 
 " If the cause brought into the King's Court 
 was of ordinary importance, 'tis probable that it 
 was usually dispatched by the High Justicier or 
 other Barons and Justiciers, who had leisure from 
 the King's other business to attend upon it ; but 
 that if it was of great importance it was considered 
 and judged in a fuller assembly. For as things of 
 weight were, according to the usage of those times, 
 generally done with solemnity ; so it is likely that 
 they were done with greater or lesser solemnity 
 according as they were of greater or lesser weight." 
 
 1 Madox' History of the Exchequer, 88. 
 
1'2 History of the Courts of Equity. 
 
 " It is to be understood that the King's Court 
 was a sure asylum for the oppressed. In the great- 
 ness of this Court consisted the subject's security. 
 And the more full and solemn this court was, the 
 greater was the injured complainant's safety and 
 assurance of relief. When the Sovereign, or his 
 vicerregent the chief Justicier, sat in judicature then 
 the King's Court was full and solemn ; when they 
 were absent it was more private and unsolemn. In 
 their presence, especially the Sovereign's, no place 
 was left for injustice or wrong. Their judgment 
 was venerable and not to be suspected of partiality 
 or error. So that it was not a light privilege to 
 have one's cause determined in the presence of the 
 King, the supreme judge, or the Chief Justicier 
 who was next to the King in judicial power. That 
 privilege was usually and most properly annexed to 
 important causes. And if I observe right (says 
 Madox) it was generally granted either to persons 
 of high rank or to such as wanted effectual protec- 
 tion against some powerful oppressor." 
 
 1 Madox' History of the Exchequer, 120. 
 Office of Chancellor : 
 
 Blackstone says that : — " The office and name 
 of Chancellor (however derived) was certainly 
 known to the Courts of the Eoman Emperors; 
 where it originally seems to have signified a Chief 
 
Ofice of Chancellor. 13 
 
 Scribe or Secretary, who was afterwards invested 
 with several judicial powers and a general superin- 
 tendency over the rest of the officers of the prince. 
 From the Eoman Empire it passed to the Eomish 
 Church, ever emulous of imperial state ; and hence 
 every bishop has to this day his chancellor, the 
 principal judge of his consistory. And when the 
 modern Kingdoms of Europe were established upon 
 the ruins of the empire almost every state preserved 
 its Chancellor, with different jurisdictions and dig- 
 nities according to their different constitutions. 
 But in all of them he seems to have had the super- 
 vision of all charters, letters and such other public 
 instruments of the Crown as were authenticated in 
 the most solemn manner ; and therefore when 
 seals came in use he had always the custody of 
 the King's great seal. So that the office of the 
 Chancellor or Lord Keeper (whose authority by 
 Statute 5 Eliz., cap. 18, is declared to be exactly the 
 same) is with us at this day created by the mere 
 delivery of the King's great seal into his custody ; 
 whereby he becomes, without writ or patent, an 
 -officer of the greatest weight and power of any now 
 subsisting in the Kingdom." 
 3 Blk., Com. 46-7. 
 
 As early at least as the tenth year of Bichard 
 II. the Lord Chancellor was required to take an 
 
14 History of the Courts of Equity. 
 
 oath, which in a very general way comprehended 
 his functions, and which was in the following terms : 
 " That he shall well and truly serve the King and 
 his people in the ofl&ce of Chancellor ; that he shall 
 do right to all people, poor and rich, after the law 
 and usages of the realm ; that he shall truly coun- 
 sel the King and his counsel laine [i.e., conceal] 
 and keep ; that he shall not know or suffer the hurt 
 or disheriting of the King, or that the rights of the 
 Crown be decreased by any means, so far as he may 
 let it [i.e., prevent it] ; and if he may not let it, he 
 shall make it clearly and expressly to be known to 
 the King with his true advice and counsel ; and 
 that he shall do and purchase the King's profit in 
 all he reasonably may." 
 4 Inst., 88. 
 
 In the course of time the Chancellor acting as 
 delegate of the King came to exercise a very con- 
 siderable portion of the royal prerogative authority 
 pertaining to the administration of justice, and 
 more especially that portion of the royal preroga- 
 tive which warranted the King in ameliorating the 
 rigor of the common law, in all cases in which nat- 
 ural justice, equity and good conscience required 
 his intervention, and thus the Chancellor came to 
 be called the keeper of the King's conscience. 
 Hence it is that the Chancery has been termed 
 
Origin of Common Law Courts. 15 
 
 "the secret closett of his Majesty's conscience 
 where his oppressed and distressed subjects hope to 
 find mercy and mitigation against the rigour and 
 extremitye of his lawes." 
 
 Hargrave's Law Tracts, 427. 
 
 Madox, referring to the Norman period, says • 
 " The King's Chaneellor was usually in those times 
 a Bishop or other Prelate, or an ecclesiastical per- 
 son. * * In truth in England the Chancellor 
 was the Eling's chief Chaplain, and had the superior 
 care both of the King's Chancery and of his Chapel." 
 
 1 Madox' History of the Exchequer, 60. 
 
 Origin of the Common liair Courts : 
 
 The judicial business coming before the Curia 
 Regis, or a large portion of it, was divided between 
 three permanent committees of that body, which 
 afterwards became known as the Courts of Ex- 
 chequer, Common Pleas and King's Bench, the 
 Court of Exchequer assuming jurisdiction over 
 matters connected with the revenue ; the Court of 
 Common Pleas assuming jurisdiction over all civil 
 disputes, where neither the King's interest nor any 
 matter savouring of a criminal nature was involved, 
 and the Court of King's Bench retaining all the 
 remaining business which had originally been heard 
 
16 History of the Courts of Equity. 
 
 and determined before the three Committees of the 
 Curia Begis. 
 
 See Hale's Lord's House in Parliament, 23, 
 61, 65. 
 
 Chancery as a Common liair Court : 
 
 The Chancellor as a member of the Curia 
 JRegis, and more particularly as a member of the 
 King's Select or jpermanent Council, acquired an 
 ordinary or Common Law judicial jurisdiction be- 
 fore he acquired the extraordinary or equitable 
 jurisdiction in which we are now more particularly 
 interested in connection with this inquiry. This 
 ordinary or Common Law jurisdiction, which Lord 
 Chief Justice Hale speaks of as the legal or Latin 
 side of the court, included amongst other things 
 the power to repeal the King's letters patent, to 
 hear petitions of right against the Crown, to hear 
 all personal actions to which the King or his oflB.cers 
 were parties, and to issue all original Writs by 
 which all actions in the Common Law Courts were 
 commenced. 
 
 1 Spenoe, 336-7; Hale's Lords' House in 
 
 Parliament, 47 ; 
 3Blk., Com. 47-8; 
 
 Bacon's Abr. Title "Court of Chancery "B. 
 Com. Dig. Chancery, C. I. 
 
Original Writs. 17 
 
 When we find it stated that the Court of 
 Chancery is an original and fundamental court as 
 ancient as the Kingdom itself we must remember 
 that the reference is made to the Court of Chancery 
 as a Common Law Court and not as a court exer- 
 cising the equitable jurisdiction which is the lead-' 
 ing feature of the Court of Chancery in more 
 modern times. 
 
 Com. Dig. — Chancery A. 1, A. 2. 
 
 Original Writs : — 
 
 All actions, in the Common Law Courts re- 
 ferred to, had to be commenced by what was called 
 an " Original Writ," which was a writ under the 
 Great Seal, issued in the name of the King and 
 directed to the sheriff of the proper county, stat- 
 ing the cause of the plaintiff's complaint and requir- 
 ing the sheriff to command the defendant to satisfy 
 the plaintiff's claim, or to appear in one of the 
 Common Law Courts to answer for his default. 
 These writs all issued out of the Court of Chancery 
 (as a Common Law Court) and the framing of these 
 writs was a part of the duty of the Chancellor's 
 Clerks, who were afterwards called Masters in 
 Chancery. The duties of these clerks were to hear 
 and examine the complajjnts of those who sought 
 
 D.EQ. — 2 
 
18 History of the Courts of Equity. 
 
 redress in the King's Courts and to furnish them 
 with the appropriate writs. 
 
 1 Spenoe 238. 
 
 Professor Maitland has recently written a most 
 interesting article upon the history of the Eegister 
 of Original Writs, which begins as follows : — "De 
 Natura Brevium. Of the Nature of Writs.^ — Such 
 is the title of more than one well known text hook 
 of our mediseval law. Legal remedies, legal pro- 
 cedure, these are the all-important topics for the 
 student. These being mastered, a knowledge of 
 substantive law will come of itself. Not the nature 
 of rights, but the nature of writs, must be his 
 theme. The scheme of " Original Writs " is the 
 very skeleton of the Corpus Juris. So thought our 
 forefathers, and in the universe of our law books, 
 perhaps in the universe of all books, a unique place 
 may be claimed for the Eegistrum Brevium — the 
 register of writs current in the English Chancery. 
 It is a book that grew for three centuries and more. 
 We must say that it grew ; no other word will de- 
 scribe the process whereby the little book became a 
 big book. In its final form when it gets into print 
 it is an organic book; three centuries before it was 
 an organic book. During these three centuries its 
 size increased twenty-fold, perhaps fifty-fold ; but 
 
Original Writs. 19 
 
 the new matter has not been just mechanically 
 added to the old ; it has been assimilated by the 
 old ; old and new became one." 
 
 3 Harvard Law Eev. 97. 
 
 This Eegister of Writs contains the forms of the 
 Original Writs by which all actions in the Common 
 Law Courts were eommenced, and one of the most 
 important functions of the early Chancery was the 
 framing of these writs. 
 
 Madox gives the following account of the com- 
 mencement of the use of these Original Writs : — 
 " If the King, when he was present in the realm 
 and sat in judgment did not determine all the causes 
 that were brought before him, his Justicier (or 
 . Justioiers) determined the same. However, if the 
 Justicier did not do right justice, the party might, 
 as I take it, afterwards resort to the King himself. 
 In this case of application to the King's Court we 
 may suppose the party suing for relief did usually 
 obtain it in this manner. He paid or undertook to 
 pay the King a fine or fines to have Justicium or 
 Bectum in his Court; and thereupon he obtained 
 Writs or precepts by means whereof he pursued and 
 recovered or settled his right. Those Writs or pre- 
 cepts were made out under the King's Seal. And 
 for the making and issuing of them (and for other 
 
20 History of the Courts of Equity. 
 
 services) the King used to have near his person or 
 in his Court some great man (commonly a Bishop 
 or Clergyman) who was called his Chancellor, and 
 had the keeping of his Seal. The Chancellor had 
 under him certain clerks, employed in making out 
 those writs. Whence it came to pass in process of 
 time that in law proceedings the King's Chancery 
 was the spring or first mover, and the principal or 
 original writs (for the introducing of causes) were 
 called Writs pf the Chancery." 
 
 1 Madox' History of the Exchequer 85-6. 
 
 Although all the Original Writs were framed 
 and issued by the Chancery Clerks, yet the Common 
 Law Courts assumed exclusive jurisdiction to decide 
 upon their validity and they disregarded the sanc- 
 tion of the Chancellor and his College of Clerks. 
 Moreover, the Chancellor had no power to declare 
 what should be a sufiicient defence to any of the 
 actions so commenced. 
 
 1 Spence 325. 
 
 The natural tendency of lawyers to establish 
 and follow precedents brought about the result that 
 in the course of time special forms of Original' Writ 
 were established for all the ordinary causes of action 
 and the Common Law judges refused to allow these 
 forms to be in any way altered or modified, and 
 
Statute of Westminster the Second. 21 
 
 finally they refused to sanction any new forms of 
 writ for the purpose of assisting any new or novel 
 causes of action, and they refused to entertain any 
 causes of action which were not covered by the 
 known and approved forms of writ. 
 
 1 Spence 240. 
 
 iStatnte of IVestmiiister the Second : — 
 
 This state of affairs led to legislative inter- 
 ference, and the Statute of Westminster the Second 
 (13 Ed. 1 cap. 24) was passed, by which it was en- 
 acted that : " Whensoever from henceforth it shall 
 fortune in Chancery that in one case a writ is found 
 and in like case (consimili casu) falling under like 
 law, and requiring like remedy, is found none, the 
 clerks of the Chancery shall agree in making the 
 writ, or adjourn the plaintiffs into the next Parlia- 
 ment ; and let the cases be written in which they 
 cannot agree, and let them refer themselves to the 
 next Parliament, by consent of men learned in the 
 law a writ shall be made, lest it might happen after 
 that the Court should long time fail to minister 
 justice unto complainants." 
 
 Failure of* this Statute :— 
 
 Blackstone says that this provision with a 
 little more accuracy in the clerks of the Chancery 
 
22 History of the Courts of Equity. 
 
 and a little liberality in the Judges, by extending 
 rather than narrowing the remedial effects of the 
 Writ, might have effectually answered all the pur- 
 poses of a Court of Equity, except that of obtaining 
 discovery by the oath of a defendant. 
 
 3 Blk. Com. 51. 
 
 Mr. Spence says : — " This Statute opened the 
 means of obtaining remedies in numerous cases, 
 which were before excluded by the rules of the 
 Common Law ; and other Statutes were passed to 
 supply many of the deficiencies in the Common 
 Law as new circumstances, unprovided for by the 
 law, arose. But in fact a lex scripta grew up in the 
 interpretation of the apparently large and flexible 
 provisions of the Statute of Westminster the 
 Second itself. To supply the yet existing deficien- 
 cies in the law the remaining expedient presented 
 by the Eoman judicial system, namely, the exercise 
 of the royal prerogative in particular cases, and on 
 
 their own circumstances as they occurred, was 
 resorted to." ' 
 
 1 Spence 326-6. 
 
 The Chancellor's Extraordinary Jurisdic- 
 tion : — 
 
 Before dealing with the methods by which 
 equitable relief was afforded to suitors, to supply the 
 
The Chancellor's Extraordinary Jurisdiction. 23 
 
 defects of the Common Law system, it wilUse 
 necessary for us to go backward in point of time 
 and inquire into the origin of the Chancellor's ex- 
 traordinary jurisdiction. 
 
 We have already pointed out that the Courts 
 of Exchequer, Common Pleas and King's Bench, 
 branched off from and sprang out of the Curia 
 Begis, and that the Chancellor, as a constituent of 
 the Curia Ttegis, exercised judicial functions as a 
 court of Common Law, but it is necessary for us to 
 remember that the Curia Begis, whether sitting as 
 the King's Great Council or Parliament, or acting 
 through the King's Select or Privy Council, still 
 continued to exercise judicial functions with respect 
 to suitors presenting their petitions for relief. 
 
 "In the time of Edward I., and for some time 
 afterwards, the Parliaments, excepting as regards 
 the granting of taxes, were not so much legislative 
 assemblies, as the King's Great Council, in which 
 subjects applied for judicial relief against their 
 fellow subjects. In early times petitions of all kinds 
 and descriptions were presented to the King, or to 
 the Great Council on the occasion of their meet- 
 ing. The Parliament or Great Council itself dis- 
 posed of many of the cases brought before it ; 
 amongst the rest those which had been referred to 
 it, from their difficulty by the ordinary tribunals. 
 
24 History of the Courts of Equity. 
 
 If the case required a new law, an award was made 
 by the King and Barons, who alone at this time * 
 * ■-* interfered in regard to matters connected 
 with the administration of justice. This award in 
 early times had the force of a statute ; afterwards 
 the Commons * * * * established the right 
 of concurring in all legislative Acts, and by con- 
 sequence, in these awards, which then became 
 what are now called Private Acts of Parliament." 
 1 Spence 332. 
 
 As the King's Great Council or Parliament 
 met only in obedience to special writs of summons, 
 and as the King's Select Council, or what would 
 now be called the Privy Council, was always sit- 
 ting for the dispatch of business, and as this body 
 was presided over by the King himself, or in his 
 absence by the Chancellor or some other person 
 delegated by the King, it was but natural that 
 suitors should petition the King in Council for the 
 special exercise of his royal prerogative, in regard 
 to matters relating to the administration of justice, 
 and it appears that the King in Council did exer- 
 cise a prerogative jurisdiction in cases of fraud, 
 deceit and dishonesty, not so tangible as to be 
 within the reach of the Common Law, including 
 matters both civil and criminal. 
 1 Spence 829, 330, 331. 
 
The Chancellor's Extraordinary Jurisdiction. 25 
 
 Speaking of the coercive authority exercised 
 by the Select Council of the King, Hallam says : 
 — "It may be divided into acts legislative and 
 judicial. As for the first, many ordinances were 
 made in Council ; sometimes upon request of the 
 Commons in Parliament, who felt themselves 
 better qualified to state a grievance than a remedy; 
 sometimes withoftt any pretence, unless the usage 
 of government, in the infancy of our constitution, 
 may be thought to afford one. These were always 
 of a temporary or partial nature, and were consid- 
 ered as regulations not sufl&ciently important to 
 demand a new statute. Thus in the second year 
 of Richard II., the Council, after hearing read the 
 statute roll of an Act recently passed, conferring a 
 a criminal jurisdiction in certain cases upon 
 Justices of the Peace, declared that the intention 
 of the Parliament, though not clearly expressed 
 therein, had been to extend that jurisdiction to 
 certain other cases omitted, which accordingly they 
 caused to be inserted in the commissions made to 
 these Justices under the Great Seal. But they fre- 
 quently so much exceeded what the growing spirit 
 of public Liberty would permit that it gave rise to 
 complaint in Parliament. The Commons' petition 
 in 13 E. II., that 'neither the Chancellor nor the 
 King's Council, after the close of Parliament may 
 
26 History of the Courts of Equity. 
 
 make any ordinance against the Common Law, or 
 the ancient customs of the land, or the statutes 
 made heretofore or to be made in this Parliament ; 
 but that the Common Law have its course for all 
 the people, and no judgment be rendered without 
 due legal process.' The King answers, ' Let it be 
 done as has been usual heretofore, saving the pre- 
 rogative ; and if any one is aggrieved, let him show 
 it specially and right shall be done him.' This 
 unsatisfactory answer proves the arbitrary spirit in 
 which Eichard was determined to govern." 
 
 Hallam's Middle Ages, cap. VIII., part 3. 
 
 Again, in speaking of the ordinary functions of 
 the Select or Privy Council of the King, Hallam 
 
 says : — 
 
 " The business of this Council out of Parlia- 
 ment may be reduced to two heads : its deliberative 
 office, as a council of advice, and its decisive power 
 of jurisdiction. With respect to the first it obvi- 
 ously comprehended all subjects of political deliber- 
 ation, which were usually referred to it by the 
 King; this being in fact the administration or 
 governing Council of State, the distinction of a 
 Cabinet being introduced in comparatively modern 
 times. But there were likewise a vast number of 
 petitions continually presented to the Council, upon 
 
The Chancellor's Extraordinary Jurisdiction. 27 
 
 which they proceeded no farther than to sort as it 
 were and forward them by indorsement to the 
 proper courts, or advise the suitor what remedy he 
 had to seek. Thus, some petitions are answered, 
 ' this cannot be done without a new law ' ; some 
 were turned over to the regular Courts, as the 
 Chancery or King's Bench; some of greater moment 
 were indorsed to be heard ' before the great Council ' ; 
 some concerning the King's interest were referred 
 to the Chancery or select persons of the Council." 
 
 Hallam's Middle Ages, cap. VIII., part 3. 
 See Hale's Lord's House in Parliament, 26. 
 
 Not only was the Select Council in the habit 
 of referring the petitions of suitors to the appro- 
 priate courts, when no extraordinary interference 
 on the part of the Council appeared to be necessary, 
 but the Great Council or Parliament was also ac- 
 customed to pursue a similar course. 
 
 Mr. Spence says: — "In cases not requiring 
 special interference the same course seems to have 
 been adopted as on the applications which were 
 made to the Council. If the matter were 
 remediable at law, and there were no obstacle to the 
 remedy being obtained, the petitioner was sent to 
 the Common Law Courts ; if it were a matter of 
 revenue he was sent to . the Exchequer ; if the 
 
28 History of the Courts of Equity. 
 
 matter related to the King's grants or other mat- 
 ters cognizable tinder the Chancellor's ordinary 
 jurisdiction, he was sent to the Chancery." 
 1 Spence, 332. 
 
 "In the reign of Edward I., the English 
 Justinian in more than one sense, we begin to ob- 
 serve unequivocal marks of an extraordinary juris- 
 diction exercised in the Chancery in civil cases. 
 It was a custom with this monarch to send certain 
 of the petitions addressed to him praying extra- 
 ordinary remedies, to the Chancellor and Master 
 of the EoUs, or the Chancellor or the Master of the 
 Eolls alone, by writ under the privy seal (which 
 was the usual mode by which the King delegated 
 the exercise of his prerogative to the council) 
 directing them to give such remedy as should ap- 
 pear to be consonant to honesty (honestati). * * 
 When the Chancellor administered relief inde- 
 pendently of the Council it was by express delega- 
 tion from the King, and given as it would seem, by 
 the advice of the Council. It will be remembered 
 that it was in the 13th year of the same King that 
 the Statute of Westminster the Second, which 
 authorised the granting of writs in consimili casu, 
 was enacted, by which the necessity for many of 
 these applications must have been superseded." 
 1 Spence, 336-6. 
 
The Chancellor's Extraordinary Jurisdiction. 29 
 
 It was in the 8th year of this King (Ed. I.) 
 that an ordinance was passed, wherein it is recited 
 that the people who came to Parhament were 
 often delayed and disturbed to the great grievance 
 of them, and of the court, by the multitude of 
 petitions laid before the King, the greater part 
 whereof might be dispatched by the Chancellor, 
 and by the Justices ; therefore it is provided that 
 all the petitions which concern the Seal shall come 
 first to the Chancellor ; and those which touch the 
 Exchequer, to the Exchequer; and those which 
 concern the Justices and the law of the land to the 
 Justices ; and those which concern the Jews, to 
 the Justices for the Jews, and if the affairs are so 
 great, or if they are of grace, that the Chancellor 
 and others cannot do it without the King, then 
 they shall bring them with their own hands before 
 the King to know his pleasure ; so that no peti- 
 tions shall come before the King, and his Council, 
 but by the hands of the said Chancellor, and other 
 chief Ministers ; so that the King and his Council 
 may without the load of other business, attend the 
 great business of his realm and of other sovereign 
 countries. 
 
 In the reign of Edward III., the Court of 
 Chancery appears as a distinct court for giving 
 relief in cases which required extraordinary 
 
30 History of the Courts of Equity. 
 
 remedies. " The Eling being, as may well be con- 
 ceived, looking at the history of, his busy reign, 
 unable from his other avocations to attend to the 
 numerous petitions which were presented to him, 
 he, in the twenty-second year of his reign, by a 
 Writ of Ordinance, referred all such matters as were 
 of grace to be dispatched by the Chancellor or by 
 the Keeper of the Privy Seal. 
 
 The establishment of the Court of Chancery 
 as a regular Court for administering extraordinary 
 relief is generally considered to have been mainly 
 attributable to this or some similar ordinance. It 
 will be observed that it conferred a general 
 authority to give relief in all matters of what 
 nature soever requiring the exercise of the pre- 
 rogative of grace, differing from the authority on 
 which the jurisdiction of the Courts of Common 
 Law was founded ; for there the court held juris- 
 diction, in each particular case^ by virtue of the 
 delegation conferred by the particular writ, and 
 which could only be issued in cases provided for 
 by positive law. This is one of the great and 
 fundamental distinctions between the jurisdiction 
 of the Courts of Common Law and that of the 
 Court of Chancery." 
 
 1 Spence, 337-8. 
 
 The ordinance or proclamation of 22, Edward 
 
The Chancellor's Extraordinary Jurisdiction. 31 
 
 III., above referred to, ran as follows: — "The King- 
 to the Sheriffs of London, greeting : Forasmuch as 
 we are greatly and daily busied in various affairs 
 concerning us and the state of our realm of Eng- 
 land, we will that whatsoever business, relating as 
 well to the Common Law of our Kingdom as our 
 special grace, cognizable before us, from henceforth 
 be prosecuted as Tolloweth, viz : — The common 
 law business, before the Archbishop of Canterbury 
 elect, our Chancellor, by him to be dispatched ; 
 and the other matters, grantable by our special 
 grace, be prosecuted before our said Chancellor ot 
 our well beloved clerk, the Keeper of the Privy 
 Seal, so that they, or one of them, transmit to us 
 such petitions of business which without consult- 
 ing us they cannot determine, together with their 
 advice thereupon, without any further prosecution 
 to be had before us for the same ; that upon in- 
 spection thereof we may further signify to the 
 aforesaid Chancellor or Keeper.our will and pleasure 
 therein ; and, that none other do for the future pur- 
 sue such kind of business before us, we command 
 you immediately upon sight hereof to make procla- 
 mation of the premises." 
 
 1 Story Eq. sec. 44, note ; 
 And see The Legal Judicature in Chancery 
 Stated, 30-31. 
 
32 History of the Courts of Equity. 
 
 A somewhat different origin of the Chancellor's 
 jurisdiction was suggested by Mr. Yorke, (who 
 afterwards became Lord Hardwicke) in his argu- 
 ment in Bex v. Hare (1 Strange, 150) where he 
 says: — "The jurisdiction of this Court, as it is a 
 court of equity, is perhaps of all others the most 
 difficult to be traced, both as to its foundation and 
 the time when it had its origin. But I think there 
 have been very great opinions, and I am apt to 
 believe a strict search into antiquity might enable 
 one to show that this jurisdiction also has taken 
 its rise from the Great Seal. Por the Chancery 
 being, upon the division of the King's Courts, 
 naturally the officina justiticB from which all orig- 
 inal writs issued, and where the subject was to 
 come for remedy in all cases, the Chancellor was 
 applied to in all cases for proper Writs, where 
 the subject wanted a. remedy for his right or redress 
 for a wrong that had been done him. But in the 
 execution of this authority, he was confined by the 
 rules of the Common Law, and could award no 
 writs but such as the Common Law warranted; 
 therefore, when such a case came before him, as 
 was matter of trust, fraud or accident (which are 
 the subjects of an equity jurisdiction) the Chan- 
 cellor could award no writ proper for the plaintiff's 
 case, because the common law afforded no remedy. 
 
The Chancellor's Extraordinary Jurisdiction, 33 
 
 Upon this it is not improbable that the Chancellors 
 who were most commonly churchmen, men of 
 conscience, when they found those cases grew 
 numerous, in order to prevent the suitors from 
 being ruined against right and conscience, and that 
 no man might go away from the King's Court with- 
 out some relief, summoned the parties before them, 
 and partly by their authority and partly by their 
 admonitions, laid it upon the conscience of the 
 wrong doer to do right." 
 
 Mr. Madox observes that " The Chancellor- 
 ship from a small beginning became in process of 
 time an oflS.ce of great dignity and pre-eminence. 
 When the number of royal charters began to 
 multiply, when the pleas and causes in the King's 
 Courts grew numerous, and when the grandeur of 
 the High Justicier came to decline, the power of 
 the Chancellor waxed (as it seems) greater than 
 it had formerly been. And (if I have observed 
 right) the Chancellor's ofl&ce received a consider- 
 able accession of power and dignity from the 
 greatness of some of the persons who had borne 
 
 it." 
 
 1 Madox' History of the Exchequer, 62. 
 
 After the ordinance of Edward III., already 
 
 . referred to, it became the practice to institute suits 
 
 in equity by a petition or bill addressed to the 
 
 D.EQ. — 3 
 
34 History of the Courts of Equity. 
 
 Chancellor, without the issue of any preliminary 
 Writ, and if the case was one calling for equitable 
 interference, a writ of subpoena was then issued by 
 command of the Chancellor, but in the name of 
 the Bang, commanding the defendant to appear 
 before the Court of Chancery to answer the com- 
 plaint and abide by the order of the Court. 
 
 1 Spence, 338-344. 
 
 Form of the Pleading. 
 
 The bill of complaint consisted of a simple 
 statement of the facts upon which the plaintiff 
 based his claim for relief and from an early period 
 in the history of the court the bill was in English, 
 while the Common Law pleadings until a much 
 later date were in Latin. 
 
 The earliest case that has been discovered in 
 which we have the complete proceedings on a bill 
 addressed to the Chancellor is a case of Hals v. 
 Hyncley, in the reign of Henry Y., in which case 
 the plaintiff sought to be restored to the possession 
 of lands of which he claimed to have been wrong- 
 fully disseised. The proceedings in this action or 
 suit are set forth in an article in 1 Law Quar. Eev. 
 443. 
 
 Sir William Dugdale, referring to the early use 
 of the French language in pleadings, says : — "These. 
 
Form of the Pleading. 35 
 
 were first introduced here by King William the 
 First, who having made a full conquest of this 
 realm, for the better establishing thereof, thought 
 it good policy utterly to abolish the English 
 language, and instead thereof plant the French ; 
 and therefore ordained that not only the pleadings 
 in Courts should be in that tongue, but that all the 
 children put to school should first learn French and 
 then Latin. But Fortescue addeth another reason 
 for the above, viz., that the French becoming by 
 that conquest masters here might not be deceived 
 in the amount of their revenues." 
 
 Dugdale's Origines Juridiciales, (3rd Ed.) 95. 
 
 " This continued till the reign of Edward III. ; 
 who having employed his arms successfully in sub- 
 duing the Crown of France, thought it unbecoming 
 the dignity of the victors to use any longer the 
 language of a vanquished country. By a Statute, 
 therefore, passed in the 36th year of his reign, it 
 was enacted, that for the future all pleas should be 
 pleaded, shown, defended, answered, debated and 
 judged in the English tongue, but be entered and 
 enrolled in Latin.'' 
 
 3 Blk. Com. 318. 
 
 In the Common Law Courts " This technical 
 Latin continued in use from the time of its first 
 
36 History of the Courts of Equity. 
 
 introduction, till the subversion of our antient 
 Constitution under Cromwell ; when, among other 
 innovations in the law, some for the better and 
 some for the worse, the language of our records 
 was altered and turned into English. But at the 
 restoration of King Charles this novelty was no 
 longer countenanced ; the practisers finding it 
 very difiicult to express themselves so concisely or 
 significantly in any other language but the Latin. 
 And thus it continued, without any sensible incon- 
 venience till about the year 1730, when it was 
 again thought proper that the proceedings at law 
 should be done in English, and it was accordingly 
 so altered by Statute 4 Geo. II., cap. 26." 
 
 3 Blk. Com. 322. 
 
 Lord Campbell, in a note to chapter 72 of his 
 Lives of the Lord Chancellors, says: — "The propo- 
 sition for conducting all law proceedings in English 
 was most strenuously opposed, and seemed to 
 many a more dangerous innovation than the aboli- 
 tion of the House of Lords or the regal office. 
 Whitelock in introducing it was obliged to fortify 
 himself with the example of Moses, and a host of 
 other legislators who had expounded their laws 
 in the vernacular tongue. The reporters who 
 delighted in the Norman-Erench were particularly 
 
Form of the Pleading. 37 
 
 obstreperous. ' I have made these reports speak 
 English," says Styles in his preface, 'not that I 
 believe they will be thereby more generally useful, 
 for I have been always and yet am of the opinion 
 that that part of the Common Law which is in 
 English hath only occasioned the making of 
 unquiet spirits, contentiously knowing, and more 
 apt to offend others than to defend themselves; 
 but I have done it in obedience to authority, and to 
 stop the mouths of such of this English age, who, 
 though they be confessedly different in their 
 minds and judgments, as the builders of Babel 
 were in their language, yet do think it vain, if not 
 impious, to speak or understand more than their 
 mother tongue.' Bulstrode, in the preface to the 
 second part of his reports, says ' that he had 
 many years since perfected the work in French, in 
 which language he had desired it niight have seen 
 the light, being most proper for it, and most con- 
 venient for the professors of the law.' But the 
 Kestoration brought back Norman- French to the 
 reports, and barbarous Latin to the law records, 
 which continued to the reign of G-eorge II." 
 
 See also " Lives of Lord Chancellors," cap. 
 126. 
 
 From an early period in the history of Chan- 
 cery procedure the signature of counsel was 
 
38 History of the Courts of Equity. 
 
 required to every bill, which sanction for the 
 issuing of the writ of subpoena was substituted 
 for the personal examination of the bill by the 
 Chancellor, and it was also a security against the 
 introduction of scandalous and irrelevant matter. 
 1 Spence, 368-9. 
 This precaution, however, did not always pre- 
 vent bills from being improperly presented. Thus 
 we are told that a bill was presented by a high- 
 wayman seeking relief against his partner an4 ask- 
 ing for an account of their plunder. The bill 
 stated that the plaintiff was skilled in dealing in 
 several commodities, such as plate, rings, watches, 
 etc. ; that the defendant applied to him to become 
 a partner ; that they entered into partnership, and 
 it was agreed that they should equally provide 
 all sorts of necessaries, such as horses, saddles, 
 bridles, and equally bear all expenses on the 
 roads and at inns, taverns, alehouses, markets 
 and fairs ; that the plaintiff and the defendant 
 proceeded jointly in the said business with good 
 success on Hounslow Heath, where they dealt 
 with a gentleman for a gold watch; and after- 
 wards the defendant told the plaintiff that Finch- 
 ley, in the County of Middlesex, was a good and 
 convenient place to deal in, and that commodities 
 were very plenty at Finchley, and it would be 
 
Form of the Pleading. 39 
 
 almost all clear gain to them; that they went 
 accordingly and dealt with several gentlemen for 
 divers watches, rings, swords, canes, hats, cloaks, 
 horses, bridles, saddles and other things ; that 
 about a month afterwards the defendant informed 
 the plaintiif that there was a gentleman at Black- 
 heath who had a good horse, saddle, bridle, watch, 
 sword, cane and other things to dispose of which 
 he believed might be had for little or nothing; 
 that they accordingly went and met with the said 
 gentleman, and after some small discourse they dealt 
 for the said horse, etc. ; that the plaintiff and the 
 defendant continued their joint dealings together 
 until Michaelmas, and ^ dealt together at several 
 places, viz., at Bagshot, Salisbury, Hamstead and 
 elsewhere to the amount of £2,000 and upwards. 
 The rest of the bill was in the ordinary form for a 
 partnership account. The bill is said to have been 
 dismissed with costs to be paid by the counsel 
 who signed it ; and the solicitors for the plaintiff 
 were attached and fined £50 apiece. The plaintiff 
 and the defendant were, it is said, both hanged, 
 and one of the solicitors for the plaintiff was after- 
 wards transported for some crime. 
 
 Everet v. Williams. 
 
 Lindley on Partnership, 6th Ed., 93, note ; 
 20 Eq. 230, note ; 11 Chy. D. 195. 
 
40 History of the Courts of Equity. 
 
 There was no practice of the Court requiring 
 the plaintiff's replication to the defendant's answer 
 to be signed by counsel, and as a consequence 
 replications were frequently referred to the Masters 
 of the Court to report as to those portions of the 
 pleadings which were scandalous and impertinent, 
 and severe punishment was meted out to the per- 
 sons who inserted the scandalous and impertinent 
 matter. Mr. Spence has extracted from the Eegis- 
 trar's books some of the orders made upon such 
 occasions. One of these orders was made in 1596, 
 and after reciting that it appears by the report of 
 the Master of the EoUs that the plaintiff's replica- 
 tion doth amount to six score sheets of paper, 
 and yet all the matter thereof which is pertinent 
 might have been well contrived in sixteen sheets 
 of paper, wherefore the plaintiff was appointed to 
 be examined to find out who drew the same repli- 
 cation and by whose advice, it was done, to the end 
 that the offender might for example's sake, not 
 only be punished, but also be fined to her Majesty 
 for that offence; and that the defendant might 
 have his charges sustained thereby, it proceeds in 
 these words: — "And for that it now appears to his 
 Lordship, by the confession of Eichard Mylward, 
 alias Alexander, the plaintiff's son, that the said 
 Eichard himself did both draw, devise and engross 
 
Form of the Pleading. 41 
 
 the same replication, and because his Lordship is 
 of opinion that such an abuse is not in any sort to 
 be tolerated — proceeding of a malicious purpose to 
 increase the defendant's charge and being fraught 
 with much impertinent matter not fit for the 
 Court. It is therefore ordered that the Warden of 
 the Fleet shall take the said Eichard Mylward, 
 alias Alexander, 'into his custody, and shall bring 
 him into Westminster Hall on Saturday next 
 about ten of the clock in the forenoon, and then 
 and there shall cut a hole in the midst of the 
 same engrossed replication, which is delivered to 
 him for that purpose, and put the said Eichard's 
 head through the same hole, and so let the same 
 replication hang about his shoulders with the 
 written side outward, and then, the same so hang- 
 ing, shall lead the said Eichard round about West- 
 minster Hall while the Courts are sitting, and 
 shall show him at the Bar of every of the three 
 Courts within the Hall, and then shall take him 
 back again to the Fleet and keep him prisoner 
 until he shall have paid JEIO to her Majesty for a 
 fine, and 20 nobles to the defendant for his costs 
 in respect of the aforesaid abuse, which fine and 
 costs are now adjudged and imposed upon him by 
 this Court for the abuse aforesaid." 
 1 Spence, 376, note. 
 
42 History of the Courts of Equity. 
 
 A few of the Bills presented in the early 
 days of the Court are set forth in 2 C. P. 
 Cooper, 528 et seq., and 30 et seq. One of these 
 was presented in the reign of Eichard II., and 
 runs as follows: — "To their very gracious Lord 
 the Chancellor of England — Beseech humble your 
 poor orators, Thomas Swan and Johan, his wife, 
 late wife of Eobert Sprunt, of Oxford. That 
 whereas one John Sprunt, father of the above said 
 Eobert, on his dying bed at Oxford, the 7th day of 
 June, in the 7th year of the reign of our Lord the 
 King that now is, made his will and according' 
 to the custom and usage of the said town of 
 Oxford, devised his lands and tenements in the 
 said town of Oxford, because that the tenements 
 in the said town are devisable by the said custom, 
 to the said Johan and to the children of her body 
 by the said Eobert begotten, of the which tene- 
 ments he was then seized, and also his goods and 
 chattels as appeareth by the said will more plainly, 
 and made his executrix the said Johan, now the 
 wife of the said Thomas Swan, and died ; after 
 whose death came one Thomas Chesterfield, of 
 Ireland, parson of the Church of St. Peter in the 
 bailly of Oxford, curator of the soul of the above 
 said Johan, and specially of her counsel, imagining 
 falsely and by deceit to deceive the said Johan 
 
Form of the Pleading. 45 
 
 and undo the said true testament long time after 
 the death of the said John Sprunt, made and 
 forged at Oxford a false will written by his own 
 hand, making himself sole executor to the above 
 said testator, and that the above said testator had to 
 him devised and given the residue of all the goods 
 and chattels beyond his devise in the said false 
 will devised, as appears by the above false will, 
 which amounts to six marcs and more. And 
 afterwards, by the colour of the said false will, the 
 houses of the said Johan as she was sole at Oxford, 
 broke into, and £160 in gold numbered, being in a 
 bag, and forty cloths of scarlet, violet and mixed 
 and other cloths of the above said Johan, to the 
 value of £100 there found, against the peace of our 
 Lord the King, took and carried away to the 
 wrong and retardation of the said true will of the 
 said testator ; and to the final destruction and 
 disinheriting of the said Johan and her children, 
 issue of the said Eobert, son of the said testator. 
 Whereof they pray remedy for God, and in work of 
 charity, having consideration that other remedy 
 they cannot have in destruction of the aforesaid 
 false will, if not by examination and your gracious 
 aid. Nicholas Hinchon and William Wynnesbury 
 pledges to prosecute." 
 
44 Histoi-y of the Courts of Equity. 
 
 There is a striking similarity between this and 
 and a modern Bill in Chancery in every respect 
 save only that the plaintiffs' do not pray for their 
 costs of suit. Possibly this is accounted for by 
 the fact that it was not until the 17th year of this 
 reign that the Chancellor by virtue of a Statute 
 (cap. 6), was authorized to award costs even as 
 against a plaintiff whose bill was dismissed. 
 
 Dealing with the question of costs, and refer- 
 ring to the time of Queen Elizabeth, Lord Camp- 
 bell in his Lives of the Lord Chancellors, (cap. 48), 
 says : — " Full power was now assumed of granting 
 costs in all cases — which gradually superseded the 
 practice introduced by 17 Kich'ard II., cap. 6, and 
 15 Henry VI., cap. 4, of requiring before issuing 
 the subpoena, security to pay damages to the 
 defendant if the suggestions of the bill should turn 
 out to be false ; and the scruple was at last got 
 over of allowing costs to the defendant on a 
 demurrer to the bill for want of equity, although 
 the suggestion contained in it were thereby 
 admitted to be true." 
 
 Another of the bills reproduced in Cooper's 
 Eeports was presented in the 17th year of Eichard 
 II., by the the Mayor and citizens of Chichester, 
 praying remedy against the defendants who, coming 
 
Writ of Subpoena. 45 
 
 with great crowds of armed people, disturbed the 
 bailiffs of the plaintiffs in collecting the customs. 
 
 Another Bill seeks to recover a messuage and 
 lands " the beseecher not being of might and 
 power to bear a writ of right." 
 
 l¥rit of* !Sabp«eua : 
 
 During the reign of Eichard II. the writ of 
 subpoena was invented, and this writ played a con- 
 siderable part in the struggle for jurisdiction which 
 was maintained by the Court of Chancery in the 
 early days of its existence. The writ is said to 
 have been invented by John Waltham, who was 
 Master of the Eolls in the 5th year of the reign of 
 Eichard II. The writ was issued by the command 
 of the Lord Chancellor, in the name of the King, ' 
 and it commanded the defendant to appear before 
 the Court of Chancery and answer the plaintiff's 
 complaint, and abide by the order of the Court, and 
 a penalty was added in the event of disobedience, 
 from which the writ obtained the name subpoena. 
 If the defendant did not after service of the writ 
 appear personally before the Court, at the day 
 named, to answer the plaintiff's complaint and abide 
 by the order of the Court, he was treated as acting 
 in contempt of the Court and an attachment was 
 issued against him. In early times the sheriff 
 
46 History of the Courts of Equity. 
 
 was ordered to distrain upon the goods of the 
 defendant for the recovery of the penalty if he 
 made default, but the later practice was that the 
 defaulting defendant was taken into custody and 
 fined at the discretion of the Court. In one case 
 the plaintiff prayed in his bill for a subpoena 
 to the sheriff to serve the ordinary subpoena in the 
 action upon the defendants, as he, the plaintiff, 
 did not dare to serve it himself. Among the 
 people there was great antipathy to this writ, and 
 it was a common thing to inflict personal violence 
 upon the servers. One of these process servers 
 complained to the Court that he had been forced 
 to eat the subpoena which he was attempting to 
 .serve. 
 
 3 Blk. Com. 51 : 443-4. 
 
 1 Spence, 338, 345, 369, 370. 
 
 Preventive Jurisdiction : 
 
 Another reason, which lead to the rapid 
 growth of this Court's influence, was that it was 
 the only Court which exercised a preventive juris- 
 diction, and by means of injunctions prevented the 
 happening of threatened wrongs either of omission 
 or of commission. The Courts of Common Law 
 on the other hand were unable, by any practice 
 known to those Courts, to do more than award 
 
Protection to the Poo- and Weak. 47 
 
 damages for a wrong, which might in its nature be 
 irreparable. 
 
 1 Spence, 344. 
 
 Afforded Protection to tlie Poor and Weak : 
 
 Mr. Spence thus states another cause which 
 increased the business of the Court : — " In tlae 
 reign of Eichard the unsettled state of the country 
 tended to encourage every sort of violence ; the 
 necessity for more than the ordinary means of pro- 
 tection from oppression and spoliation was obvious. 
 The Justices were overawed, and in some instances 
 the very powers which were confided to them, were 
 employed as instruments of oppression, so that ill 
 a subsequent reign it was found necessary to place 
 the Justices themselves under the especial super- 
 vision of the Chancellor. The Chancellor, there- 
 fore, at the very outset of Eichard's reign, the 
 King being himself of tender years, with the sanc- 
 tion no doubt of the council, exercised an authority 
 especially in favor of the weak, for repressing dis- 
 orderly obstructions to the course of the law and 
 punishing the defaults of the officers who were 
 intrusted with its administration, and affording a 
 civil remedy in cases of violence and outrage, 
 which, for whatever might be the reason, could 
 not be effectually redressed through the ordinary 
 
48 History of the Courts of Equity. 
 
 tribunals. » * * The Commons seem to 
 have taken great umbrage at this exercise of 
 authority on the part of the Chancellor, particu- 
 larly as the Chancellor did not scruple to entertain 
 jurisdiction in case of violent dispossession of land, 
 which was an interference with franc tenement, of 
 which they were very jealous. The Commons 
 required that all such cases should be left to the 
 Common Law ; but the Chancellor, supported by 
 the Council, and under the shield of the clerical 
 character, persevered against all opposition in 
 exercising this branch of the prerogative in the 
 Council and in the Court of Chancery, and a resort 
 to the Chancellor, under his extraordinary jurisdic- 
 . tion, was thus secured for the- poor, the weak and 
 the friendless, to protect them from the injuries to 
 which they were exposed." 
 
 1 Spence, 343, and see note 1, page 358. 
 As to criminal jurisdiction see page 685 
 et seq. 
 
 Lord Chancellor Ellesmere, describing the 
 Court, says : — " It is the refuge of the poor and 
 afflicted, it is the altar and sanctuary for such as 
 against the might of rich men and the counte- 
 nance of great men, cannot maintain the good- 
 ness of their cause and the truth of their title." 
 See 1 Spence, 343, note. 
 
Examined Parties on Oath. 49 
 
 Exaniiued Parties on Oath : 
 
 An important difference between the method 
 of procedure in Chancery and that in the Common 
 Law Courts was that the former was the only 
 Court in which the defendant could be forced to 
 verify his defence by his oath, and could be per- 
 sonally examined upon oath touching the subject 
 matter of his defence. 
 
 1 Spence, 339, 343. 
 
 1 Blk. Com. 382-3, 437-8, 446-7. 
 
 Hallam, referring to the origin of the jurisdic- 
 tion as to injunctions to restrain proceedings at 
 law, says: — "This originated in the practice of 
 feoffment to uses, by which the feoffee who had 
 legal seisin of the land, stood bound by private 
 engagement to suffer another, called the cestui que 
 use, to enjoy its use and possession. Such fidu- 
 ciary estates were well known to the Eoman 
 jurists, but inconsistent with the feudal genius of 
 our law. The Courts of justice gave no redress, if 
 the feoffee to uses violated his trust by detaining 
 the land. To remedy this, an ecclesiastical Chan- 
 cellor devised the writ of subpoena compelling him 
 to answer upon oath as to his trust. It was evi- 
 dently necessary also to restrain him from proceed- 
 ing, as he might do, to obtain possession; and 
 
 D.EQ. — 4 
 
50 History of the Courts of Equity. 
 
 this gave rise to injunctions, that is, prohibitions 
 to sue at law, the violation of which was punish- 
 able by imprisonment as a contempt of Court. 
 Other instances of breach of trust occurred in per- 
 sonal contracts, and cases also wherein, without 
 any trust, there was a wrong committed, beyond 
 the competence of the Courts of Law to redress, to 
 all which the process of the subpoena Was made 
 applicable. This extension of a novel jurisdiction 
 was partly owing to a fundamental principle of our 
 Common Law, that a defendant cannot be exam- 
 ined ; so that, if no witness or written instrument 
 could be produced to prove a demand, the plain- 
 tiff was wholly debarred of justice." 
 
 1 Hal. Const. Hist. 339. 
 
 Dr. Woodeson in his Lectures deals with this 
 matter as follows : — " The Common Law forbids 
 any man to be sworn in his own cause, because, 
 adhering to general principles, it will not adminis- 
 ter temptation to perjury ; and in Courts of Equity, 
 certain bounds are set to the requisition. Whether 
 the due limits are defined is very difficult to ascer- 
 tain. The principal restrictions are, that no man 
 is compellable to give any answer whereby he 
 might confess an indictable crime, or incur a 
 penalty, nor in general to divulge the title of his 
 
Examined Parties on Oath. 51 
 
 estate. But to discover the consideration of a 
 bond, charged to be fraudulently obtained, and to 
 unravel other tissues of deceit, conduces, we may 
 reasonably hope, to more good than evil, and is 
 much oftener instrumental to the ends of justice 
 than subservient to perjury and surreptitious con- 
 cealment." 
 
 1 Woodeson's Lectures, 123. 
 
 Lord Eldon in his judgment in Evans v. Bick- 
 nell, (6 Ves. 174), delivered in 1801, discusses at 
 some length the effect of the difference between 
 the Common Law rule and the Chancery rule as 
 to the admission of the evidence of parties, and 
 among other things he says, (at page 184) : — " A 
 defendant in this Court has the protection arising 
 from his own conscience in a degree, in which the 
 law does not affect to give him protection. If he 
 positively, plainly and precisely, denies the asser- 
 tion, and one witness only proves it as positively, 
 clearly and precisely, as it is denied, and there is 
 no circumstance attaching credit to the assertion 
 overbalancing the credit due to the denial, as 
 a positive denial, a Court of Equity will not 
 act upon the testimony of that witness. Not 
 so at law. There the defendant is not heard. 
 One witness proves the case ; and, however 
 
52 History of the Courts of Equity. 
 
 strongly the defendant may be inclined to deny 
 it upon oath, there must be a recovery against 
 him." 
 
 It was not uhtU 1861 that in the Common 
 Law Courts a defendant was either competent or 
 compellable to give evidence in an action. 
 
 It must be borne in mind that although the 
 Courts of Equity would from a very early period 
 compel a defendant to verify his defence upon oath 
 and would allow the plaintiff to cross-examine the 
 defendant upon his answer, yet they did not per- 
 mit the defendant to search the conscience of the 
 plaintiff in a similar manner. If the defendant 
 desired to get the plaintiff's evidence upon oath it 
 was necessary for him to file a Cross Bill against 
 the plaintiff, in which proceeding the original 
 plaintiff became a defendant, and as a defendant 
 he was liable to have his conscience probed accord- 
 ing to the practice of the Court. 
 
 In 1851 Lord Brougham's Act, (14 & 15 Vic, 
 cap. 99), was passed, by which the Courts of Equity 
 and of Common Law were placed upon an equal 
 footing in this respect. 
 
 The second section of that Act provides that 
 " On the trial of any issue joined, or of any mat- 
 ter or question, or any inquiry arising in any suit. 
 
Pliable Forms o/ Judgment. 53 
 
 action or other proceeding in any Court of justice, 
 or before any person having by law, or by consent 
 of parties, authority to hear, receive and examine 
 evidence, the parties thereto, and the persons in 
 whose behalf any such suit, action or other pro- 
 ceeding may be brought or defended, shall except 
 as hereinafter excepted, be competent and com- 
 pellable to give evidence, either viva voce or by 
 deposition, according to the practice of the Court, 
 on behalf of either or any of the parties to the said 
 suit,, action or other proceeding." 
 
 There were certain exceptions to the opera- 
 tions of the Act which it is unnecessary to notice 
 here. 
 
 An interesting account of the introduction of 
 that Act is given in the notes to sections 1348 and 
 1349 of Taylor on Evidence. 
 
 Pliable Forms of Judgment : 
 
 " The judgments of the Common Law follow- 
 ing the writ on which the action was founded, 
 were uniform, simple and invariable, according to 
 the nature of the action, as that the said William 
 recover seisin, or his term of years, or his damages, 
 (specifying the sum) by occasion of the not perform- 
 ing the alleged promises and undertakings. In the 
 Court of Chancery no writ or formula of action 
 
54 History of the Courts of Equity. 
 
 imposed any fetter of form; and the Court not 
 being tied to forms, was able to modify the relief 
 given by its decrees to answer all the particular 
 exigencies of the case fully and circumstantially — 
 to make binding and authoritative declarations 
 concerning the rights alleged — to direct many 
 things to be mutually done and suffered, and to 
 trace out the conduct to be respectively observed 
 by the several parties to the suit, the parties being 
 frequently very numerous, and sustaining various 
 relations, some of those who were named as 
 defendants having, perhaps, the like interest and 
 object as the plaintiff. This alone created a wide 
 difference between proceedings in a suit in Chan- 
 cery and an action at law ; besides which the 
 Court of Chancery might retain the cause till, by 
 means of successive orders, all the ends of justice 
 in reference to all the parties interested were 
 effectually carried out." 
 
 1 Spence, 390. 
 
 And see 1 Woodeson's Lectures, 121. 
 
 Mr. Spence referring to this subject before the 
 adoption of an uniform practice in law and equity, 
 which now prevails in this Province, and in some 
 other jurisdictions, says : — "It is this pliability of 
 the decrees and orders of the Court of Chancery 
 
Pliable Forms of Judgment. 55 
 
 added to the power which the Court has of bring- 
 ing all parties having claims on any given subject 
 before it, and of ascertaining by inquiry before its 
 own officers or otherwise, every fact necessary for 
 a final adjustment of every question that may 
 arise in respect of the matter of the suit, that has 
 brought to the Court of Chancery a vast proportion 
 of the business rfver which it entertains a jurisdic- 
 tion, and which could not possibly be left to any 
 of the Courts of Law unless their constitution and 
 modes of procedure in every respect were entirely 
 reconstructed, or a separate Court for administra- 
 tive business were added to their present establish- 
 ment." 
 
 1 Spence, 390-391. 
 
 Examples of judgments of the sort referred to 
 may be found in the ordinary forms of judgment 
 for partition of lands, or the administration of an 
 estate, or setting aside a fraudulent conveyance, 
 or enforcing a (mechanic's lien, or in the various 
 classes of naortgage actions. 
 
 The poet Cowper has humorously illustrated 
 the pliable nature of judgments in equity in his 
 
 Meport of an Adjudged Case not to be found in 
 any of the books. 
 
 " Between Nose and Eyes a strange contest arose ; 
 The spectacles set them unhappily wrong ; 
 
56 History of the Courts of Equity. 
 
 The point in dispute was, as all the world knows, 
 To which the said spectacles ought to belong. 
 
 So the Tongue was the lawyer and argued the cause 
 With a great deal of skill, and a wig full of learning. 
 
 While Chief Baron Ear sat to balance the laws 
 So famed for his talent in nicely discerning. 
 
 ' In behalf of the Nose, it will quickly appear, 
 And your Lordship,' he said, ' will undoubtedly find, 
 
 That the Nose has had spectacles always in wear. 
 Which amounts to possession, time out of mind.' 
 
 Then holding the spectacles up to the Court, 
 ' Your Lordship observes they are made with a straddle. 
 
 As wide as the ridge of the Nose is, in short, 
 Designed to sit close to it, just like a saddle. 
 
 Again would your Lordship a moment suppose, 
 ('Tis a case that has happened and may be again). 
 
 That the visage or countenance had not a nose. 
 Pray, who could or who would wear spectacles then ? 
 
 On the whole it appears, and my argument shows. 
 With a reasoning the Court will never condemn. 
 
 That the spectacles plainly were made for the nose. 
 And the nose was as plainly intended for them. 
 
 Then shifting his side, as a lawyer knows how, 
 He pleaded again on behalf of the Eyes, 
 
 But what were his arguments few people know, 
 
 For the Court did not think they were equally wise. 
 
 So his Lordship decreed, with a grave, solemn tone. 
 Decisive and clear, without one if or but, — 
 
 That whenever the Nose put his spectacles on, 
 By day light or candle light, Eyes should be shut." 
 
Absence of Fines. 57 
 
 Absence of Fines : 
 
 Another reason which doubtless contributed 
 to popularize this Court and increase the volume 
 of its business was the absence of those vexatious 
 fines, which were usual at Common Law, and 
 which were so burdensome as to induce the Barons 
 to insist upon the clause in Magna Charta whereby 
 the Eing promises that " To none will we sell, to 
 none will we deny or delay right or justice." 
 
 At the Common Law it was usual for suitors to 
 have to pay a fine to the King for the writ by which 
 their action was commenced, and to pay further 
 fines for the taking of almost every important step 
 in the cause. Thus they had to pay fines to pro- 
 cure leave to plead certain facts or to estop their 
 adversaries from pleading certain facts, and to 
 expedite the trial of their action, and to procure 
 the delivery of judgment therein ; and when the 
 action was to recover a debt, they were fined for 
 recovery thereof in proportion to the amount 
 recovered, amounting often to a fourth part or a 
 third part, or even to half of the debt sued for ; and 
 after the plaintiff had paid his fine to expedite any 
 particular step in the cause, he was liable to have 
 his proceedings either stayed or delayed by his 
 opponent outbidding him and procuring the King's 
 writ for delay. 
 
58 History of the Courts of Equity. 
 
 Madox, in chapter XII of the first volume of 
 his History of the Exchequer, collects numerous 
 instances of these fines, which he classifies under 
 the following heads : — 
 
 1. Of fines to have justice and right. 
 
 2. Of fines for writs, pleas, trials and judg- 
 ment. 
 
 3. Of fines for expedition of pleas, trials and 
 judgments. 
 
 4. Of fines for delay thereof. 
 
 5. Of fines payable out of the debt recovered. 
 After dealing fully with this question of fines, 
 
 Madox says : — " Although fines for writs and pro- 
 cess of law in many cases were always a part of 
 the Crown Revenue (viz., from the time of the 
 Conquest or soon after) and were constantly paid, 
 as well after the making of the great charters as 
 before ; yet, if my observation does not fail me, 
 the fines which were paid for writs and process of 
 law, were more moderate after the making of those 
 great charters than they used to be before ; and, I 
 think the actual denial of right and the stopping 
 and delaying of it, which before, upon paying of 
 money or fines, used to be practiced, were by 
 those charters quite taken away, or by degrees 
 brought into disuse." 
 
 1 Madox' History of the Exchequer, 455. 
 
Absence of Fines. 59 
 
 This system of fining suitors appears to have 
 afforded one of the chief reasons for the mainten- 
 ance of such Courts as the Manorial Courts in 
 which justice was sold for the benefit of the Lord 
 of the Manor. The Selden Society has given us a 
 volume of " Select Pleas in Manorial Courts," and 
 from the records therein published it is evident 
 that the imposition of fines was looked upon as the 
 most important functions of those Courts. Thus 
 we find for example at page 17 of the said volume 
 that at a sittings of a Manorial Court, held in 
 1248, " John Henry's son gives 3s., and if he 
 recovers he will give three marks for having a jury 
 of twelve men to inquire whether he has the greater 
 right in a moiety of a virgate of land," which is 
 claimed by the three defendants. The record 
 then sets out the names of the twelve persons, 
 " who being sworn come and say that the said 
 John has no right in the said land. Therefore it 
 is considered that the said tenants do go thence 
 without day and that the said John, do pay 3s. for 
 which Godfrey Francis and Godfrey Taylor are 
 pledges." 
 
 At page 19 of the same volume we find that 
 in 1249, " It was presented that Stephen Shepherd 
 by night struck his sister with a knife and griev- 
 iously wounded her. Therefore let him be com- 
 
60 History of the Courts of Equity. 
 
 mitted to prison. Afterwards he made fine with 
 2s." 
 
 At page 24 of the same volume we find, that 
 in 1275, " A certain unknown man gives the Lord 
 20s. for leave to contract marriage with a certain 
 widow ; " but William Fleming was less fortunate 
 as he had in the same year to pay ^4 for leave to 
 contract marriage, with widow Susan. 
 
 These examples are taken almost at random, 
 but they arq fair examples of the records which fill 
 a large portion of the volume and which show that 
 whether the judicial proceeding was had with 
 regard to licence, property rights, contracts, torts 
 or crimes, the main feature in the proceeding was 
 the imposition of the fine. 
 
 Dealing with this question of fines Hallam 
 says : — " But of all the abuses which deformed the 
 Anglo-Norman government none was so flagitious 
 as the sale of judicial redress. The King, we are 
 often told, is the fountain of justice ; but in those 
 ages it was one which gold alone could unseal. 
 Men fined to have right done to them ; to sue in a 
 certain Court ; to implead a certain person ; to 
 have restitution of land which they had recovered 
 at law. From the sale of that justice which every 
 citizen has a right to demand, it was an easy tran- 
 
Length of Suits. 6 1 
 
 sition to withhold or deny it. Fines were received 
 for the King's help against the adverse suitor ; 
 that is, for perversion of justice, or for delay. 
 Sometimes they were paid by opposite parties, 
 and of course, for opposite ends. These were 
 called counter-fines ; but the money was, some- 
 times, or as Lord Littleton thinks, invariably 
 returned to the* unsuccessful suitor." 
 
 Hallam's Middle Ages, cap. YIII, part II. 
 
 Iiength of Suits : 
 
 It was frequently made a subject of adverse 
 criticism that suits in Chancery were not speedily 
 determined and that it was not an uncommon 
 thing for twenty or thirty years or more to elapse 
 between the commencement and the final ending 
 of a suit in that Court. This prolongation of suits 
 however, in many cases, resulted necessarily from 
 the nature of the subject matter of the suit, and 
 was not due to any fault of the Court or its officers, 
 or to any defect in the practice of the Court. A 
 large proportion of the business of the Court was 
 of an administrative rather than of a strictly liti- 
 gious character, and the Court filled in great 
 measure the position of an administrator or trus- 
 tee, and superintended the conversion and collect- 
 ing in of the assets of an estate, and caused 
 
62 History of the Courts of Equity. 
 
 inquiries to be made as to all persons interested 
 in the estate, and caused all such persons to be 
 made parties, and ascertained and declared the 
 rights and obligations of all such parties, and 
 distributed the estate among the parties found 
 entitled, and retained the shares of those parties 
 who were under disability, and caused the same to 
 be invested, and appointed trustees, committees 
 and guardians, and paid out moneys from time to 
 time for the support, maintenance and education 
 of minors, lunatics and others, and made all 
 inquiries, directions and orders necessary for the 
 protection of the funds in Court and of the rights 
 and interests of all persons interested in those 
 funds, until by devolution or lapse of time the 
 title to the funds became vested in persons 
 who were sui juris and entitled to the immediate 
 possession thereof. 
 
 This subject is dealt with in a report made in 
 1826 by Lord Bldon, Lord Gifford, Sir John Leach 
 and others, who had been appointed Commis- 
 sioners to make inquiry, among other things, 
 whether any and what alterations should be made 
 in the practice established in the Court of Chan- 
 cery. They say : — " We think it indeed obvious 
 from the nature of these subjects and of the relief 
 which the Court of Chancery administers, that, in 
 
Length of Suits. 63 
 
 very many cases, its proceedings cannot be ren- 
 dered short or summary, and that, in considering- 
 its rules of practice, little analogy can be drawn 
 irom the Courts of Common Law. 
 
 To unravel a long chain of fraud and by a 
 comprehensive decree to counteract the unjust 
 consequences which have arisen or may arise from 
 it ; — To investigate accounts, frequently compli- 
 cated, between persons who employ all their arts 
 to perplex and resist ; — To enforce agreements for 
 the conveyance or transfer of property, in which 
 many persons are interested and long examinations 
 of title are necessary ; — To compel the correction 
 of mistakes by which rights have been acquired,, 
 according to the strict letter of the Common Law, 
 but contrary to justice; — To administer a large 
 property encumbered with debts and involved in 
 various difficulties, and to draw out a surplus, to 
 be distributed according to the complicated rights- 
 of creditors and various other claimants ; — To 
 attain these and similar important objects, and to 
 attain them by means, in great measure, of dis- 
 covery and admissions, which are to be extracted 
 from unwilling or prevaricating defendants, must 
 be the work of time. 
 
 The term 'Delay' has indeed been so fre- 
 quently misapplied, as to convey a very incorrect 
 
64 History of the Courts of Equity. 
 
 idea with respect to the duration of a suit in 
 Chancery. Besides the considerations to which 
 we have already adverted, it is material to observe 
 that a large portion of the suits in Chancery 
 embrace the administration of Trusts; and that 
 such suits must beneficially endure as long as the 
 trust continues. It is obvious that, in the com- 
 mon case of bills filed for the protection of the 
 property of infants, the suit must last until such 
 infants attain their ages of twenty-one years ; and 
 many trusts are of much longer duration ; and the 
 protection of property by the Court and conse- 
 quently the existence of the suit, is necessarily 
 continued until some person becomes the absolute 
 owner of the property administered. And, as the 
 law permits property to be so limited that it may 
 become inalienable for any number of lives in 
 being and twenty-one years more, it may therefore 
 happen, and often does happen, that, in this sense, 
 a Chancery suit will usefully endure for more than 
 half a century." 
 
 It must be admitted, however, that in the 
 early days of English history neither the Court of 
 Chancery nor the Courts of Common Law admin- 
 istered justice with that expedition which is both 
 necessary and usual at the present day. In the 
 Appendix to the Eeports of C. P. Cooper at page 
 
Abuse of Chancery Procedure, etc. 65 
 
 577, there are given fragments of a plaintiff's 
 narrative of a suit in the reign of Henry II., which 
 he followed in person from A.D. 1168 until 1163. 
 The narrative is highly instructive as indicating 
 the defects and abuses of the legal procedure of 
 the day, and it would be highly amusing if one 
 could forget his sympathy for the unfortunate 
 plaintiff. * 
 
 As showing the great number of persons who 
 may be made parties to a suit in Chancery, refer- 
 ence may be had to Fordyce v. Bridges, which is 
 reported in 2 C. P. Cooper, 324. 
 
 Abuse of* Chancery^ Procedure by Texatious 
 ISiiits : 
 
 The comparative pliability of the Chancery 
 procedure afforded peculiar facilities to those evilly 
 disposed persons who desired to harass and coerce 
 their neighbors by vexatious suits. 
 
 This became an abuse in the course of time, 
 and in a pamphlet written in the reign of King 
 James I. we find the following 6omplaint : — "It is 
 to be observed that of ten bills brought into this 
 Court, hardly three have any colour or shadow of 
 just complaint. The rest are omni fundamento 
 carere and to be exhibited either by malice, or out 
 of a turbulent humour wherewith too many are 
 possessed, or else to shelter themselves for a while 
 
 D.EQ. — 5 
 
66 History of the Courts of Equity. 
 
 from some imminent storm. Wherein as manj 
 times the remedy proves worse than the disease ; 
 so if they were all 'forced as aforesaid to come ta 
 the touch (that is, to hearing where their naked- 
 ness will soon appear) and there, if their causes be 
 frivolous, were to be well lashed with costs, it will 
 make them, and others from their examples, more 
 wary how they trouble their neighbors and the 
 Court so idly as they do. Por what a miserable 
 thing it is, that the plaintiff should bring the defend- 
 ant from the fartherest part in England to answer 
 an idle bill ; which done, he will, perhaps, quarrel 
 at some point of the answer, get it referred to a 
 Master of the Chancery and subsequently over- 
 ruled for insufficient ; and so having vexed and 
 put him to great expenses, leaves him in the end 
 to wipe his nose on his sleeve for any recompence 
 he shall get, be the cause ever so ridiculous." 
 
 " The Abuses and Eemedies of Chancery," 
 published in Hargrave's Law Tracts at 
 PP.-434-5. 
 
 Parliamentary Kecognition of the Court: 
 
 We have seen that the Court of Chancery 
 originally derived its jurisdiction, not from any Act 
 of Parliament, but from the delegation by the King 
 to the Chancellor of the right to exercise the pre- 
 
Parliamentary Recognition of the Cowxt. 67 
 
 rogative of the Crown as the fountain of justice ; we 
 have also seen that the jurisdiction exercisedby the 
 Chancellor provoked the jealousy of the Commons 
 and led to protests and opposition from that body. 
 This opposition, however, failing to extinguish 
 the jurisdiction of the Chancellor, the Commons 
 set to work to remedy what they considered to be 
 the abuses of the system, and in the 17th year of 
 the reign of Kich. II. Parliament passed a Statute 
 (cap. 6) whereby it was enacted that " Forasmuch 
 as people be compelled to come before the King's 
 Council or in Chancery by Writs grounded upon 
 untrue suggestions, that the Chancellor for the 
 time being, presently after that such suggestions 
 be duly found and proved untrue, shall have power 
 to ordain and award damages according to his 
 discretion, to him which is so troubled unduly as 
 afore is said." 
 
 This Statute not only gave the Chancellor 
 power to prevent his jurisdiction being abused, but 
 it also contained a Parliamentary recognition of 
 that jurisdiction. This power of the Chancellor 
 was supplemented and made obligatory by 15 Hen. 
 VI. cap. 4, which recited that persons have been 
 greatly vexed and grieved by Writs of subpoena in 
 subversion and impediment of the Common Law, 
 and enacted that " No writ of subpoena be granted 
 
■68 History of the Courts of Equity. 
 
 from henceforth until surety be found to satisfy the 
 j)arty so grieved and vexed for his damages and 
 •expenses, if so be that the matter cannot be made 
 good which is contained in the bill." 
 
 Blackstone says that " It appears from the 
 Parliament rolls that in the reigns of Henry IV. 
 and V. the Commons were repeatedly urged to have 
 the writ of subpoena entirely suppressed, as being a 
 novelty devised by the subtilty of Chancellor 
 Waltham against the form of the Common Law ; 
 whereby no plea could be determined, unless by 
 examination and oath of the parties, according to 
 the form of the law civil, and the law of holy church, 
 in subversion of the Common Law. But though 
 Henry IV. being then hardly warm in his throne, 
 gave a palliating answer to their petitions, and 
 actually passed the Statute 4 Henry IV. cap. 23, 
 vphereby judgments at law are declared irrevocable, 
 unless by attaint or writ of error, yet his son put a 
 negative at once upon their whole application; and 
 in Edward IV. 's time the process by bill and sub- 
 poena was become the daily practice of the Court." 
 3 Blk. Com. 52. 
 
 Influence of the Roman TaAW : 
 
 From the time of the Conquest down to the 
 time of Edward III. it was customary for the 
 
Influence of the Roman Law, 69 
 
 Kings of England to pay a money tribute to the 
 Court of Eome. From time to time the payment 
 of this tribute had been refused but such refusal 
 was always followed by coercive measures and 
 further exactions on the part of the papal power. 
 The result was that among the laity of all ranks a 
 general distaste sprang up for everything connected 
 with the Holy 'See. Even the Eoman Law, which 
 had previously been in considerable favor, became 
 an object of aversion, and in the reign of Eichard 
 II. the Barons protested that they would never 
 suffer the kingdom to be governed by the Eoman 
 Law, and the judges prohibited it from being any 
 longer cited in the Common Law tribunals. 
 
 Nearly all of the early Chancellors were eccles- 
 iastics and they from their sympathies and educa- 
 tion were favorably inclined to the Eoman Law, as 
 a system of law replete with principles well fitted 
 to supplement the defects and soften the asperities 
 of the Common Law. 
 
 The result was that the Common Law judges 
 as a general rule refused to look to the Eoman 
 Law as affording any guide to be followed in the 
 development of the Common Law, while the 
 Chancery judges, on the other hand, fashioned and 
 moulded their equity system, to a great extent, out 
 
70 History of the Courts of Equity. 
 
 of principles and doctrines selected from the rich 
 storehouse of the Eoman Law. 
 
 The further result followed that a distinct code 
 of laws was formed and administered in the Court 
 of Chancery, by which the enjoyment and aliena- 
 tion of property were regulated on principles vary- 
 ing in many essential particulars from the system 
 which those who originated and carried into effect 
 the exclusion of the Eoman Law were so anxious 
 to preserve. 
 
 See I Spence 346-7. 
 
 The principal doctrines so borrowed from the 
 Eoman Law and incorporated into the English 
 Equity Jurisprudence, in a more or less modified 
 form, are the doctrines relating to trusts, equitable 
 liens, equitable election and injunctions. 
 
 The view here presented as to the Eomanizing 
 tendency of our early equity jurisprudence, and of 
 the officers of the Court of Chancery, is what may 
 be called the current view, and is in accordance 
 with what we find laid down in almost every book 
 dealing with the subject ; we also find it currently 
 stated that not only were the early Chancellors 
 dominated by this Eomanizing tendency, but so 
 also were the Masters and other Clerks in Chancery, 
 and that the whole body of Chancery officialdom 
 
Clerical Chancellors. 71 
 
 looked down upon and despised the Common Law 
 as a barbarous system unworthy of their acceptance. 
 
 Professor Maitland does not agree with this 
 statement of the case, and in a recent article upon 
 the Eegister of Original Writs, he says: — "Any 
 notion that the Chancery was a Eomanizing insti- 
 tution, that the learning of the Masters was the 
 learning of Civilians, is rudely repelled by the 
 Eegister. Whatever academic training in Eoman 
 and Canon Law the Masters may have had, they 
 vpere English lawyers, daily engaged in watching 
 the development of English law in the English 
 Courts, in reading the Year Books, and in ' writing 
 up ' decisions in the margins of their Eegisters." 
 
 3 Harvard Law Eev. 104-5. 
 
 Clerical Chancellors: 
 
 The clerical character of the early Chancellors 
 stamped itself upon the jurisprudence of the Court 
 founded by them, and we see its effect even in the 
 judgments of those Chancellors who were not 
 ecclesiastics. Lord Chancellor Ellesmere com- 
 mences his judgment in the Earl of Oxford's case 
 (I Ch. Eep. I) as follows : — 
 
 "1. The law of God speaks for the plaintiff, 
 Deut, XXVIII. 
 
72 History of the Courts of Equity. 
 
 "2. And equity and good conscience speak 
 wholly for him. 
 
 " 3. Nor does the law of the land speak against 
 him. But that and equity ought to join hand in 
 moderating and restraining all extremities and 
 hardships. 
 
 " By the law of God he that builds a house 
 ought to dwell in it ; and he that plants a vineyard, 
 ought to gather the . grapes thereof ; and it was a 
 curse upon the wicked that thay should build houses 
 and not dwell in them, and plant vineyards and not 
 gather the grapes thereof. Deut. xxvm., 30. 
 
 " And yet here in this case such is the conscience- 
 of the doctor, the defendant, that he would have 
 the houses, gardens and orchards which he neither 
 built nor planted ; but the Chancellors have always, 
 corrected such corrupt consciences and caused them 
 to render quid pro quo ; for the Common Law itself 
 will admit no contract to be good without quid jpra 
 quo, or land to pass without valuable consideration ;, 
 and therefore equity must see that a proportionable 
 satisfaction be made in this case ; " and further on 
 in the same judgment he says : — " And equity 
 speaks as the law of God speaks ; but you will 
 silence equity, first, because you have a judgment 
 at law ; secondly, because that judgment is upon a. 
 
Clerical Chancellors. 7& 
 
 Statute." And again he says : — "The office of the 
 Chancellor is to correct men's consciences for 
 frauds, breaches of trust, wrongs and oppressions 
 of what nature soever they be, and to soften and 
 mollify the extremity of the law, which is called 
 summtim jus. And for the judgment, etc., law and 
 equity are distinct, both in their courts, their 
 judges and the rules of justice ; and yet they both 
 aim at one and the same end, which is to do right ; 
 as justice and mercy differ in their effects and oper- 
 ations yet both join in the manifestation of God's 
 glory * * * * j^ Serjeant is sworn to give 
 counsel according to law, that is, according to the 
 law of God, the law of reason, and the law of the 
 land ; and upon both the laws of God and reason 
 is granted that rule, viz.. To do as one would be 
 done unto. And therefore, where one is bound in 
 obligation to pay money, payeth it, and takes no 
 acquittance, by the Common Law he shall be com- 
 pelled to pay the money again. But when it 
 appeareth that the plaintiff will recover at law, the 
 Serjeant may advise the defendant to take a sub- 
 poena in Chancery, notwithstanding his oath." 
 
 The same thing is shown in an extract from a, 
 judgment delivered by Archbishop Morton, L.C., in 
 the time of Henry YII., extracted by Reeve in his 
 History of English Law, in which the Chancellor 
 
74 History of the Courts of Equity. 
 
 says : — " I know very well that every law should 
 he consistent with the law of God, and that law 
 forbids that an executor should indulge any dis- 
 position he may have to waste the goods of the 
 testator ; and if he does and does not make amends, 
 if he is able, he shall be damned in Hell." 
 
 Eeeve's History of English Law, cap. 27. 
 
 This judgment has about it a truly clerical 
 ring, and in the suggested declaratory relief it would 
 seem to somewhat exceed even the far reaching 
 jurisdiction of a Chancellor. We may assume, how- 
 ever, that by analogy to the principle of Cadell v. 
 Palmer (I CI. & Fin. 472), which was doubtless at 
 that time in nubibus, the irate Chancellor did not 
 intend to make a declaration of right which was to 
 extend throughout eternity, but intended rather to 
 limit its effect to a life or lives in being, together 
 with a further period in gross of twenty-one years. 
 
 Lord Campbell says : — " Equity decisions at 
 this time depended upon each Chancellor's peculiar 
 notions of the law of God, and the manner in which 
 heaven would visit the defendant for the acts com- 
 plained of in the bill ; and though a rule is some- 
 times laid down as to where ' a subpoena will lie,' 
 that is to say, where there might be relief in 
 Chancery, it was not till long after that author- 
 
Clerical Chancellors. 75 
 
 ities were cited by Chancellors, or that there was 
 any steady reference by them to ' the doctrine of 
 the Court.' " 
 
 Lives of the Ld. Chrs., cap. 26. 
 
 The hostility of the Common Law lawyers to 
 the Court of Chancery was not at all lessened by 
 the fact that the 'greater portion of the early Chan- 
 cellors were ecclesiastics. In a pamphlet written 
 in the reign of Henry VIII., as a reply to Saint 
 Germain's " Doctor and Student," the student 
 asks a serjeant at law how it is that the Chancellor 
 of England has set aside the Common Law and 
 substituted therefor his own conscience and discre- 
 tion, to which the serjeant answers: — "Verilie I 
 "thinke for lacke of knowledge of the goodness of the 
 lawes of the realme ; for moste commonly the 
 Chancellors of England have been spiritual men 
 that have had but superficial knowledge in the 
 lawes of the realme ; and when soch a byll hath 
 been made unto them, that soche a man should 
 have greate wronge to be compelled to paie two 
 times for one thinge, the Chancellour, not knowing 
 the goodness of the common law, neyther the in- 
 convenience that mighte ensue by the saide writ 
 of subpoena, hath temerouslye directed a subpcena 
 to the plaintiff in the King's name, commandinge 
 
76 History of the Courts of Equity. 
 
 him to cease his suite that he hath before the 
 King's justices, and to make annsweare before him 
 in the Chauncerie ; and he regardinge no lawe, but 
 trustinge to his owne wit and wisdom, giveth judg- 
 ment as it pleaseth himselfe, and thinketh that his 
 judgment being in soche authoritie, is farre better 
 and more reasonable than judgments that be given 
 by the King's justices accordinge to the common, 
 lawe of the realme. In my conceite in this case I 
 may liken my Lord Chaunceler, which is not learned 
 in the lawes of the realme, to him that stands in 
 the Yale of White Horse, farre from the horse and 
 holdeth the horse; and the horse seemeth and 
 appeereth to him a goodly horse and well propor- 
 tioned in every poincte, and that if he come neere 
 to the place wher the horse is, he can perceave nO' 
 horse nor proportion of any horse. Even so it 
 fareth by my Lord Chauncelor that is not learned 
 in the lawes of the realme ; for when such a bill is 
 put unto him, it appeareth to him to be a matter of 
 great conscience and requireth reformation ; and 
 the matter in the bill appeareth so to him, because 
 he is farre from the understandinge and the know- 
 ledge of lawe of the realme and the gOodness- 
 thereof; but if he drawe neere to the knowledge^ 
 and understanding of the common lawe of the 
 realme, soe that he male come to the perfeote know- 
 
Clerical Chancellors. 77 
 
 ledge and goodness of it, he shall well perceive 
 that the matter contayned in the bill put to him 
 in the Chauncerie is no matter to be refourmed 
 there, and namelie in soche wise as is used." 
 Hargrave's Law Tracts, 326-7. 
 
 Mr. Spence says with regard to the great in- 
 fluence and great presumption of the early Chan- 
 cellors : — " No one but a dignified ecclesiastic 
 would ever have thought of establishing a Court, 
 constituted in effect of one man, for the correc- 
 tion of the law, when there was a legislature, 
 consisting of King, Lords and Commons, who were 
 engaged at the very time in providing for the 
 amendment of the law and securing its due admin- 
 istration." 
 
 1 Spence, 356. 
 
 The following extract is taken from the pre- 
 face to Nelson's Eeports : — "In former ages, and 
 until the fall of Cardinal Wolsey, the Lord Chan- 
 cellor of England was usually a Bishop, or some 
 other Ecclesiastical Person, as a Dean or Arch- 
 deacon ; and sometimes the Great Seal was de- 
 livered to one of the King's Chaplains, in so much 
 that the learned Glossographer tells us, there have 
 been 160 clergymen advanced to the dignity ; and 
 that until the 26th year of the reign of King Henry 
 
78 History of the Courts of Equity. 
 
 the Eighth, all the Masters of the Eolls were 
 Churchmen. 
 
 •" The chief business of the Court of Chancery 
 at that time was to mitigate the rigour of the 
 Common Law, and clergymen were thought suffi- 
 ciently qualified for that purpose, who gave relief 
 according to their several opinions in cases where 
 the law seemed to bear too hard upon the com- 
 plainants; and because they formed their judg- 
 ments by no settled or established rules therefore 
 we have no reports of their decrees. But when 
 the business of that Court increased and the 
 Bishops could not attend the multiplicity of causes 
 there depending, because of other necessary avoca- 
 tions for men of that order, then another set of 
 men, bred up in the study and practice of the 
 Common Law, were made Judges of this Honor- 
 able Court ; and soon afterwards equity became 
 artificial reason, and hath ever since such a mix- 
 ture of law in it, that it would be much easier now 
 for a lawyer to preach than for a prelate to be a 
 Judge of that Court." 
 
 Conflict between the Chancery and Common 
 I^aw Judges: 
 
 The very nature of the jurisdiction exercised 
 by the Court of Chancery was such as would 
 
Conflict between Chancery and Common Law Judges. 79 
 
 strongly tend to produce friction between that 
 Court and the Common Law Courts, whose doc- 
 trines and judgments were interfered with and 
 overridden. 
 
 " We find that it was held in the Court of 
 Chancery, in violation of the law established by 
 legal decisions, that one executor and one joint 
 tenant might in Chancery sue his companion ; 
 that, although from loss or other accident an 
 obligee could not produce his bond, without which 
 by a positive rule of law he could have no remedy, 
 yet he might enforce the obligation in Chancery ; 
 that where the lessor entered on his tenant, and 
 thus by the rule of law, suspended the rent, he 
 could have relief in equity. So the Court of 
 Chancery in certain cases gave relief against for- 
 feiture which had been clearly incurred by the 
 rules of law ; the Court carrying its jurisdiction 
 to the extent of ordering restitution after judgment 
 at law and execution ; the Court in these cases 
 avoiding to transgress the provisions of the Stat- 
 utes before adverted to, by not examining into the 
 judgment itself, but prohibiting the party from 
 putting it in force." 
 1 Spence 409. 
 
 The twentieth article of impeachment against 
 Cardinal Woolsey ran as follows : — " Also the said 
 
80 History nf the Courts of Equity. 
 
 Lord Cardinal hath examined divers and many- 
 matters in Chancery after judgment thereof given 
 at the Common Law, in subversion of your laws, 
 and made some persons restore again to the other 
 party condemned that, that they had in execution 
 by virtue of the judgment at the Common Law;" 
 and article twenty-six ran as follows: — "Also 
 when matters have been near at judgment by pro- 
 cess at your Common Law the same Lord Cardinal 
 hath not only given and sent injunctions to the 
 parties, but also sent for your judges, and expressly 
 by threats commanding them to defer the judg- 
 ment to the evident subversion of your laws if the 
 judges would so have ceased." 
 4 Inst. 89. 
 
 The spirit in which this interference with the 
 Common Law by writ of subpoena was received by 
 the Common Law lawyers is shown in the follow- 
 ing extract from a pamphlet written in the time of 
 Henry VIII. : — "It is commonlie used nowe, so 
 that the Common Law of the realme is taken for 
 nothinge, but all the lawe that now is used is to 
 determyne what is conscience and which is no con- 
 science, and so the common lawe of the realme is 
 nowe a-daies by you that be students turned all 
 into conscience, and so ye make my Lord Chaun- 
 cellor judge in everie matter and bring the lawes 
 
Conflict between Chancery and Common Law Judges. 81 
 
 of the realme in soche an unoertaintie that no 
 man can be sure of any landes be it inheritance 
 or purchase, but every mannes title shall be by 
 this means brought in question into the Chaun- 
 cerie; and therefore it shall be tried whether it be 
 conscience or no conscience, and the lawe of the 
 realme, by which we ought to be justified, nothing 
 regarded." 
 
 Hargrave's Law Tracts, 331. 
 
 It is said in Bacon's Abridgement (Title 
 " Court of Chancery ") that " The jurisdiction of 
 this Court was not only impugned towards its 
 original creation, but even in the reign of Queen 
 Elizabeth it was strongly holden by the judges of 
 the Common Law Courts that the Chancellor could 
 not by his decree sequester the party's lands, that 
 is, could only agere in personam but not in rem ; 
 and agreeably hereto it was resolved 16 Elz. in the 
 case of Goleston and Gardner that if a man killed a 
 sequestrator in the execution of such process it was 
 no murder." 
 
 Keeve in his history of English Law (cap. 24) 
 tells us that " In the 22nd year of Edward IV., 
 after a verdict, an injunction had been obtained, 
 which hung up the cause for some time. Hussey, 
 Chief Justice, asked the counsel for the plaintiff if 
 
 D.EQ. — 6 
 
82 History of the Courts of Equity. 
 
 they would pray judgment according to the verdict; 
 but they declared their apprehensions about in- 
 Mnging the injunction. To this one of the judges 
 said, that though the injunction was against the 
 plaintiff, yet his attorney might pray judgment 
 with safety ; and so vice versa. Hussey said that 
 they had talked over the matter among themselves, 
 and they saw no mischief which would ensue to the 
 party, if he prayed judgment; for as to the penalty 
 in the injunction, they were convinced it was not 
 leviable by law ; and then there remained nothing 
 but imprisonment ; as to that the chief justice 
 said ' If the Chancellor commits any one to the 
 Fleet, apply to us for a habeas corpus and upon the 
 return of it we wUl discharge the party ; and we 
 will do everything to assist you.' It is true one 
 of the justices said he would go to the Chancellor 
 and ask him to dissolve the injunction, but this 
 probably was suggested out of tenderness to the 
 Chancellor's situation; for they agreed in declar- 
 ing that they would give judgment if the party 
 would pray it, notwithstanding the Chancellor 
 continued the injunction." 
 
 In the year 1694 Mr. Sergeant G-lanville was 
 accused of contempt in having signed a replication 
 in an action at law, after notice of an injunction 
 against the defendant, his counsellors, attorneys 
 
Conflict between Chancery and Common Law Judges. 83 
 
 and solicitors, for staying the defendant's proceed- 
 ings at law. He came before the Court and made 
 his apology, stating that he was not aware of the 
 injunction, " protesting further that he held so 
 reverend an opinion of this Court, and knoweth 
 that the injunctions thereof are so necessary for 
 restraining or qualifying of the rigor or extremities 
 of the Common Law, which by bad consciences 
 are daily offered, as that the subjects are daily 
 enforced to fly for succor and aid in equity unto 
 this Court." 
 
 1 Spence 416, note a. 
 
 Lord Campbell, referring to this state of affairs, 
 says : — " The attempts to prevent injunctions 
 against fraudulent judgments in the Courts of 
 Common Law originated from the jealousy of the 
 Common Law Judges, and their regard for their 
 own power and profit. The Statute 27 Ed. III. 
 St. I. C. I. forbidding an application to other juris- 
 dictions to impeach the execution of judgments in 
 the King's Courts, which was unfairly resorted to 
 in this dispute, had been passed merely with a 
 view to prevent appeals to Eome. In the 31 
 Elizabeth there was an indictment on this Statute 
 against a barrister for signing a bill filed in the 
 Court of Chancery, praying an injunction against 
 execution on a Common Law judgment, but it was 
 
84 History of the Courts of Equity. 
 
 not brought to a trial, and a truce was established 
 which was observed till the famous battle between 
 Lord Coke and Lord Bllesmere." 
 
 Lives of the Lord Chrs., cap. 48. 
 
 " It is to be observed that all the judges were 
 personally interested in preventing any interfer- 
 ence with their jurisdiction, as they had fees in 
 each cause that was tried." 
 1 Spence 674, note e. 
 
 Lord Campbell tells us that " For the sake of 
 fees to the Chancellor and his officers, great en- 
 couragement was given to suitors resorting to 
 Chancery." 
 
 Lives of Lord Chrs., Introduction. 
 
 Hallam gives the following account of the 
 famous battle between Lord Coke and Lord EUes- 
 mere referred to by Lord Campbell: — "The par- 
 ticular limits of this equitable jurisdiction were as 
 yet exceedingly indefinite. The Chancellors were 
 generally prone to extend them, and being at the 
 same time ministers of state in a government of 
 very arbitrary temper, regarded too little that 
 course of precedent by which the other judges held 
 themselves too strictly bound. The cases reckoned 
 cognizable in Chancery grew silently more and 
 more numerous ; but with little overt opposition 
 
Conflict between Chancery and Common Law Judges. 85 
 
 from the Courts of Law till the time of Sir Edward 
 Coke. That great master of the Common Law 
 was inspired not only with the jealousy of this 
 irregular and encroaching jurisdiction which most 
 lawyers seem to have felt, but with a -tenaciousness 
 of his own dignity, and a personal enmity towards 
 Egerton, who held the Great Seal. It happened 
 that an actioh was tried before him, the precise 
 circumstances of which do not appear, wherein the 
 plaintiff lost the verdict, in consequence of one of 
 his witnesses being artfully kept away. He had 
 recourse to the Court of Chancery, filing a bill 
 against the defendant to make him answer upon 
 oath, which he refused to do, and was committed 
 for contempt. Indictments were upon this pre- 
 ferred, at Coke's instigation, against the parties 
 who filed the bill in Chancery, their counsel and 
 solicitors, for suing in another Court after judgment 
 obtained at law ; which was alleged to be contrary 
 to the Statute of praemunire. *^ But the grand jury, 
 though pressed, as it is said, by one of the judges, 
 threw out these indictments. The King, already 
 incensed with Coke, and stimulated by Bacon, 
 thought this too great an insult upon his Chan^ 
 cellor to be passed over. He first directed Bacon 
 and others to search for precedents of cases where 
 relief had been given in Chancery after judgments 
 
86 History of the Courts of Equity. 
 
 at law. They reported that there was a series of 
 such precedents from the time of Henry VIII ; 
 and some where the Chancellor had entertained 
 suits even after execution. The Attorney-G-eneral 
 was directed to prosecute in the Star Chamber 
 those who had preferred the indictments ; and as 
 Coke had not been ostensibly implicated in the 
 business, the King contented himself with making 
 an order in the Council book declaring the Chan^ 
 cellor not to have exceeded his jurisdiction, 
 
 1 Hallam Const. History, 339, 840. 
 
 A couple of the cases decided by the King's 
 Bench in connection with this controversy are 
 reported in Croke's Eeports ; one of them is re- 
 ported as follows : — " In an action of debt at the 
 Common Law, judgment being against the defen- 
 dant, and day given to move in arrest thereof, 
 he in the interim preferred his bill in Chancery 
 and obtained an injunction to stay judgment and 
 execution ; but notwithstanding, the Court granted 
 both; for by the Statutes of 27 Edw. 3, C. I., and 
 4 Hen. 4, cap. 23, after judgment given (be it in 
 plea real or personal) the party ought to be quiet 
 and to submit thereto ; for a judgment being once 
 given in curia domini regis, ought not to be 
 reversed nor avoided but by error or attaint. And 
 
Conflict between Chancery and Common Law Judges. 87 
 
 in the same term upon a prohibition to stay pro- 
 ceedings in the Court of Eequests, it was delivered 
 for a general maxim in law, that if any Court of 
 Equity doth intermeddle with any matters pro- 
 perly triable at the Common Law, or which con- 
 cern freehold, they are to be prohibited ; for neither 
 writs of error nor attaint can be brought to reverse 
 the decrees made in those Courts ; otherwise it is 
 upon trials at the Common Law ; for all matters 
 are there decided either by a jury of twelve men, 
 against whom (if they err in their verdict) an 
 attaint lieth ; or by the Judges, where if they err 
 in their judgment the party grieved may bring his 
 writ of error." 
 
 Heath v. Bydley, Cro. Jao. 336. 
 
 The following is the report of the other of 
 these cases : — 
 
 " Glanvil was committed to the Fleet the last 
 day of Michaelmas Term, 11 Jac. 1, for not per- 
 forming a decree in Chancery ; and upon a habeas 
 corpus returned, the case was informed to be thus : 
 
 Grlanvll sold to Courtney, being a young gen- 
 tleman, a jewel, which he pretended to be of the 
 value of three hundred and sixty pounds, whereas 
 in truth it was worth but twenty pounds, and three 
 other jewels to the value of one hundred pounds ; 
 
88 History of the Courts of Equity. 
 
 and for his security he took a bond of six hundred 
 pounds in the name of one Hampton and procured 
 an action to be brought in the said Hampton's 
 name and the action to be confessed, and G-lanvil 
 paid all the charges of both parties, and the con- 
 fession was out of Court in the vacation. 
 
 Courtney finding this deceit, that the jewel 
 was not worth above twenty pounds, which was 
 delivered to him at the rate of three hundred and 
 sixty pounds, exhibited his bill in Chancery for 
 relief, and afterwards brought a writ of error to 
 reverse this judgment ; • but the judgment was 
 affirmed. Afterwards, upon a hearing in Chancery 
 it was decreed that Glanvil should take again his 
 jewel and one hundred pounds, and that he should 
 procure Hampton to release and acknowledge sat- 
 isfaction ; and for not performing this decree he 
 was imprisoned." 
 
 Courtney v. Glanvil, Cro. Jac. 343. 
 
 The report then goes on to give Chief Justice 
 Coke's reasons for judgment, and ends with these 
 words : — "Wherefore Coke and all the Court held 
 here that the party ought to be bailed ; and they 
 let him to bail until the next term, and he was 
 then discharged." 
 
Conflict betiveen Chancery and Common Law Judges. 89 
 
 At the end of Gary's " Eeports of Causes in 
 Chancery" is set forth the order and decree made 
 by King James I. " For a Kule to be observed by 
 the Chancellor in that Court ; exemplified and 
 enrolled for a perpetual record there. Anno, 1616," 
 reciting a letter written by the Chancellor by .com- 
 mand of the King to Sir Prancis Bacon, Attorney- 
 General, requiring him and the rest of the King's 
 Counsel to peruse precedents, from the time of 
 Henry the Seventh, of complaints made in Chan- 
 cery, there to be relieved according to equity and 
 conscience after judgments in the Courts of the 
 Common Laws, in cases wherein the Judges of the 
 Common Law could not relieve them, and reciting 
 the reports of the Attorney-Greneral and Counsel 
 in favor of the jurisdiction asserted by the Chan- 
 cellor, and ordering that the said reports be con- 
 firmed and that the Chancellor do not desist from 
 giving such relief to the King's subjects as shall 
 stand with true merits and justice of their cases 
 (notwithstanding any former proceedings at Com- 
 mon Law against them). 
 
 See Levinz Part 1, page 241, for an account 
 of this reference to the King's Counsel ; 
 and see Harris v. Colliton, Hardres, 120 ; 
 and King v. Standish, 1 Mod. 59, for a dis- 
 cussion of the subject. 
 
90 History of the Courts of Equity. 
 
 Lord Coke's arguments upon the subject 
 matter of this controversy will be found as stated 
 by himself in 3 Institutes 123 et se.q. and in 4 
 Institutes 84 et seq., while Lord EUesmere's posi- 
 tion is stated by him in his judgment in the Earl 
 of Oxford's Case, 2 White & Tudor, L. C. 642, 
 and a review of the whole matter by Mr. Hargrave 
 is given in a note in 2 Swanst 22. 
 
 Tutored and encouraged by the success of the 
 Court of Chancery in this struggle, the Court of 
 Exchequer, which also possessed an equity juris- 
 diction, sought to restrain suitors from proceeding 
 in the Court of Chancery. Some account of this 
 attempt will be found in the case of Vendall v. 
 Harvey, decided in the reign of King Charles the 
 First, from which it appears that on the same day 
 in which the plaintiff's cause was to be heard by 
 the Lord Chancellor his counsel was served with 
 an injunction out of the Court of Exchequer, 
 restraining the plaintiff from prosecuting his cause 
 before the Lord Chancellor, and the Court being 
 acquainted with this fact ordered the defendant to 
 attend and asked him if he would waive his injunc- 
 tion and proceed in the cause, to which he answered 
 that he desired counsel might be assigned to him, 
 which was done accordingly and another day was 
 
Conflict between Chancery and Common Law Judges. 91 
 
 appointed for counsel to be heard on both sides, 
 at which day the defendant insisted that it was 
 not in his power to waive the injunction, where- 
 upon the Court ordered the plaintiff's counsel to 
 open the cause, which was done, and the defen- 
 dant still insisting on his injunction, the Court 
 decreed that they would not suffer it : " For as 
 this Court (the -report proceeds) doth not hinder 
 the proceedings in the Exchequer, so that Court 
 is not to obstruct the proceedings here by any 
 injunction. Therefore the plaintiff shall be at 
 liberty to proceed ; and the defendant's counsel 
 were enjoined by this Court not to move in the 
 Exchequer, or to do anything to hinder the pro- 
 ceedings here, for which purpose the plaintiff may 
 take an injunction. And as concerning the con- 
 tempt of the defendant, and the punishment 
 thereof, the Court advised further and ordered 
 him to attend de die in diem.'' 
 Nelson's Eeports, 19. 
 In the year 1809 a somewhat similar contest 
 arose in the State of New York between the Chan- 
 cellor of that State and one of the Justices of the 
 Supreme Court. The Chancellor committed one 
 of the officers of the Court of Chancery to gaol 
 there to remain until the further order of the 
 Court, for that the said officer, while he was 
 
92 Histoi-y of the Courts of Equity. 
 
 Master, filed a bill to which he subscribed the 
 name of one of the solicitors of the Court, without 
 his knowledge or consent, and prosecuted the case 
 in his name " contrary to the Statute in such case 
 made and provided, in wilful violation of his duty 
 as Master, and in contempt of the authority of the 
 Court," and the committal was expressed to be 
 " for his said malpractice and contempt." 
 
 One of the Justices of the Supreme Court 
 discharged the Master on a habeas corpus, and the 
 Chancellor recommitted him, and the said Justice 
 discharged him again and the Chancellor com- 
 mitted him again. He was discharged upon the 
 ground that the Court of Chancery had stated the 
 conviction to be for a breach of an existing statute, 
 and consequently for an indictable offence, and 
 that the Court of Chancery had no criminal juris- 
 diction, and therefore no power to commit for the 
 breach of a statute, and that the words "in con- 
 tempt of the authority of the Court" did not enter 
 into the essence of the offence and were merely 
 words of aggravation. 
 
 After the Chancellor had committed the 
 Master for the third time the Master was brought 
 by habeas corpus before the full bench of the 
 Supreme Court in Term, and the majority of that. 
 
Conflict between Chancery and Common Law Judges. 93 
 
 Court concurred in the judgment of Chief Justice 
 Kent, of that Court, that the Common Law 
 Coiirts had no jurisdiction to interfere. The 
 Chief Justice in his judgment refers to and com- 
 ments upon the English decisions which grew out 
 of the quarrel between Chief Justice Coke and 
 Lord Chancellor EUesmere, and says that the 
 judgment of th'e King's Bench ought not to be 
 cited as precedents as they are counteracted by 
 the whole current of subsequent decisions. 
 
 lie Yates, 4 Johnson's Eep., 317. 
 
 See also Yates v. Lansing, 5 Johnson's 
 Eep., 282, and 9 Johnson's Eep., 395. 
 
 " Sir Thomas More being informed that the 
 Judges had expressed their disapprobation of the 
 injunctions he had granted, caused a Docket to be 
 made of every injunction, and the cause of it, 
 which he had granted while he was Chancellor ; 
 and inviting all the Judges to dine with him in 
 the Council Chamber at Westminster, he intro- 
 duced the subject after dinner ; when, upon full 
 discussion of every one of them, the Judges con- 
 fessed that he could have acted no otherwise. He 
 then offered, that if the Judges of every Court, to 
 whom it more especially belonged, from their 
 office, to reform the rigor of the law, would, upon 
 
94 History of the Courts of Equity. 
 
 reasonable consideration, by their discretion and, 
 as he thought, they were in conscience bound, 
 mitigate and temper the rigor of the law, no more 
 injunctions should be granted by him. To this 
 they would make no engagement ; upon which he 
 told them, that as they themselves forced him of 
 necessity to issue injunctions to relieve the peoples 
 injuries, they could no longer blame him. We are 
 informed that afterwards, in a confidential conver- 
 sation, he accounted for the backwardness of the 
 Judges in the following manner : that they saw 
 how by the verdict of a jury, they might transfer 
 all difficulties and odium from themselves to the 
 jurors, which they considered as their great 
 defence and security ; whereas the Chancellor was 
 obliged to stand alone the assault of every malig- 
 nant observation." 
 
 Eeeve's History of English Law, cap. 30. 
 Salaries of the Jndg^es : 
 
 I have already pointed out that the Judges of 
 the various Courts were personally interested in 
 swelling the volume of business in their respec- 
 tive Courts, as fees were payable to them in each 
 of the cases brought before them. 
 
 It may be of interest for us to inquire into 
 the amount of the salaries received by the Judges 
 
Salaries of the Judges. 95 
 
 from time to time, apart from any fees pertaining 
 to their office. Sir William Dugdale deals with 
 this question in chapter 40 of his Origines Juridi- 
 ciales, from which we find that in the 11th year 
 of the reign of Henry III. two of the justices of 
 his courts had paid to them out of the Exchequer 
 the annual sum of ten marks, and that in the 23rd 
 year of the same reign one of the justices had 
 paid to him the annual sum of J620, and that in 
 the 27th year of the same reign, the Chief Baron 
 of the Court of Exchequer received the annual 
 sum of 40 marks, and that in the 28th year of the 
 same reign, one of the Barons of that Court 
 received the sum of 20 marks. 
 
 When we remember that a mark is two-thirds 
 of a pound, we can easily understand that the 
 judges needed to have their salaries supplemented 
 by fees. 
 
 Dugdale traces the history of judicial salaries 
 through various reigns until the reign of Henry 
 VI. (in which reign the judges petitioned Parlia- 
 ment for an increase in their salaries) and says : — 
 " So that after this they had (as it seemeth) an 
 increase of their salaries ; and likewise an allow- 
 ance in money for their robes ; for it appeareth 
 that in 1 Edw. 4, John Markham, then Chief 
 
96 History of the Courts of Equity. 
 
 Justice of the King's Bench, had a yearly pension 
 of a CLXX marks granted unto him, and payable 
 by the Clerk of the Hanaper ; as also CVI s. XI d. 
 farthing and sixth part of an half penny, for 
 his Christmas Eobe ; and LXVI s. VI d. for his 
 Eobe at Whitsontide. * * * So likewise Sir 
 Will. Huse, Knight, constituted Chief Justice of 
 the same Court, 1 H. 7 ; had the yearly fee of 
 CXL marks for his better support in that place 
 granted to him, and CYI s. XI d. farthing and 
 the sixth part of a half penny for his Winter 
 Eobe ; as also LXVI s. VI d. for his Eobe at 
 Whitsontide. After this, viz., in 37 H. 8, there 
 was a farther increase of their fees, viz., to the 
 Chief Justice of the King's Bench and his succes- 
 sors for the time being of XXX 1. per annum ; to 
 every other justice of that Court and their suc- 
 cessors XX 1. per annum ; and to every justice of 
 the Common Pleas and their successors XX 1. per 
 annum.' ^ 
 
 Dugdale's Origines Juridiciales (3rd Ed.) 
 109-110. 
 
 The Chancellor appears to have fared better 
 than the Common Law Judges in the matter of 
 salary, for Madox tells us that " It is to be under- 
 stood that for the dispatch both of the Eoyal 
 Charters and of the Writs used in the proceedings 
 
Salaries of the Judges. 97 
 
 at law, the Chancellor had under him a competent 
 number of clerks, employed in that service. And 
 he had yearly ah allowance from the Crown for his 
 own and their maintenance. For example : King 
 Henry III. in the 49th year of his reign, granted 
 to Master Thomas de Cantelou, his Chancellor, D 
 marks a year payable at the Exchequer at four 
 times in the year, for the support of him and the 
 clerks of the King's Chancery, so long as he 
 should continue in that ofl&ce. And in or about 
 the 52nd year of the same King, Godfrey, Bishop 
 of Worcester, the King's Chancellor, had D marks 
 a year payable at the Exchequer, for the support 
 of him and of the Clerks of the Chancery. In 
 the 10th year of King Edward II., Adam, son of 
 Robert and Thomas de Duston, poulterers, whom 
 the Bishop of Winchester, the Chancellor, had 
 sent into divers parts of the realm to buy poultry 
 for the sustenance of the Chancellor and the 
 Clerks of the Chancery, had the King's Letters 
 Patent of Intendance and safe conduct." 
 
 1 Madox' History of the Exchequer, 76-6. 
 
 While the Chancellor thus had an advantage 
 over the Common Law Judges in the way of 
 official income, it appears that he was sometimes 
 made to pay dearly for his office by, way of fine to 
 
 P.EQ. —7 
 
98 History of the Courts of Equity. 
 
 the King. Thus Madox tells us that " In the 
 reign of King Stephen, Geoffrey, the Chancellor, 
 fined in three thousand and six pounds and a 
 mark for the King's Seal," and Madox adds : — 
 " This I understand to be a fine then lately made 
 with the King for the ofiioe of Chancellor, or to 
 ■have the keeping of the King's Seal. Which pre- 
 cedent may justly seem strange to us at this day. 
 But it seemeth that in those times things of the 
 like kind with this were sometimes done." 
 
 1 Madox' History of the Exchequer, 62. 
 
 Lord Campbell tells us, in a note to his Life 
 of Sir Edward Coke, that in the reign of James I. 
 the salary of the Chief Justice of the King's 
 Bench was only £224 19s. 6d. a year with £33 6s. 
 8d. for his circuits, and the salary of the puisne 
 Judges was only £188 6s. 8d. a year. At the same 
 time the Chief Clerkship in the Court of King's 
 Bench, which was a sinecure, and was in the gift 
 of the Chief Justice, was worth £4,000 a year. 
 1 Lives of the Chief Justices, 286. 
 
 In the reign of Queen Ann, Lord Chancellor 
 Somers introduced a Bill into the House of Lords 
 and procured the enactment of a Statute to remedy 
 some of the abuses which had grown up in con- 
 nection with the administration of justice. Lord 
 
Salaries of the Judges. 99 
 
 Campbell referring to this Act says : — " The scan- 
 dalous abuse had been established in England of 
 creating sinecure offices in the Courts, payable by 
 fees, some of such offices being grantable by the 
 Crown, and some being grantable by the Judges. 
 Nay, the judges themselves were chiefly remune- 
 rated by fees.' It was thus utterly impossible that 
 the suitors should not be sacrificed, and that the 
 complaints of delay and expense with which West- 
 minster Hall rang should not be well founded. 
 The abolition of such offices, and the payment of 
 the judges by fixed salaries, which we have seen 
 accomplished, would not have been endured in 
 that age." 
 
 Lives of the Lord ChanceMors, cap. 110. 
 
 In connection with this question of salaries it 
 is but proper that we should bear in mind that the 
 purchasing value of gold and sUver was very much 
 greater in the Middle Ages than it is at the pre- 
 sent day, and that the judicial salaries were not 
 in reality quite so small as prima facie they 
 appear to be. Dr. Adam Smith, writing upon this 
 subject in 1776, says : — " It is not by the impor- 
 tation of gold and silver that the discovery of 
 America has enriched England. By the abund- 
 ance of the American mines those metals have 
 
100 History of the Courts of Equity. 
 
 become cheaper. A service of plate can now be 
 purchased for about a third part of the corn, or a 
 third part of the labour, which it would have cost 
 in the fifteenth century. With the same annual 
 expense of labour and commodities, Europe can 
 annually purchase about three times the quantity 
 of plate which it could have purchased at that 
 time. * * * The cheapness of gold and silver 
 renders those metals rather less fit for the pur- 
 poses of money than they were before. In order 
 to make the same purchases, we must load our- 
 selves with a greater qua;ntity of them, and carry 
 about a shilling in our pocket where a groat would 
 have done before." 
 
 Wealth of Nations, Book IV; cap. 1. 
 
 Mr. John Stuart Mill, writing upon this sub- 
 ject, in the latter half of the present Century, 
 suggests that the opening of new sources of supply 
 of the precious metals in the Ural Mpuntains, 
 California and Australia, might be the commence- 
 ment of another period of decline upon which it 
 was then useless to speculate. 
 
 Political Economy, Book III, cap. YII, 
 sec. 2. 
 
 Whatever may be the causes thereof, it will 
 not be hard to convince us who live in this age of 
 
Limits of Equity Jurisdiction. idh 
 
 "Unions," "Leagues," "Combines," and "Trusts," 
 that Adam Smith's ratio of one to three does not 
 fairly represent the purchasing value of gold in 
 these days as compared with its purchasing value 
 in the Middle Ages. 
 
 liimits of Equity Jurisdiction: 
 
 For a long* time, extending into centuries 
 after the Chancellor began to exercise his extra- 
 ordinary jurisdiction, there was much uncertainty 
 and much discussion as to the extent and the 
 limits of that jurisdiction. The early Chancellors 
 were inclined to unduly stretch the limits of their 
 authority, and to assert a right to grant relief in 
 each particular case in accordance with what they, 
 in their unfettered discretion, rnight deem to be 
 natural justice. 
 
 Lord Chancellor EUesmere gives expression 
 to this view in his judgment in the Earl of 
 Oxford's case, from which the following extracts 
 are taken : — " The cause why there is a Chancery 
 is, for that men's actions are so divers and infinite, 
 that it is impossible to make any general law 
 which may aptly meet with every particular act 
 and not fail in some circumstances. The office of 
 the Chancellor is to correct men's consciences for 
 frauds, breaches of trust, wrongs and oppressions, 
 
102 * History of the Courts of Equity. 
 
 of what nature soever they be, and to soften an( 
 modify the extremity of the law, which is callei 
 summum jus. And for the judgment, etc., la-v 
 and equity are distinct both in their Courts, thei 
 judges and the rules of justice ; and yet they hot) 
 aim at one and the same end, which is to do right 
 as justice and mercy differ in their effects an( 
 operations, yet both join in the manifestation o 
 God's glory.' * * * j^; ^^^s ever been th 
 endeavor of all Parliaments to meet with th 
 corrupt consciences of men as might be and ti 
 supply the defects of the law therein ; and if thi 
 cause were exhibited to the Parliament, it wouL 
 soon be ordered and determined by equity ; am 
 the Lord, Chancellor is by his place, under hi 
 Majesty, to supply that power until it may he had 
 in all matters of meum and tuum, between part 
 and^ party. * * The Chancellor sits in Chan 
 eery according to an absolute and uncontrollabl 
 power, and is to judge according to that which i 
 alleged and proved ; but the Judges of the Com 
 mon Law are to judge according to a strict ani 
 ordinary (or limited) power." 
 
 2 W. cfe T. L. C. (6th Ed.) 645 et seq. 
 
 It is not strange that so extravagant a doc 
 trine as this should meet, as it did meet, with th 
 
Limits of Equity Jurisdiction. 103 
 
 strongest opposition from the Common Law 
 lawyers and judges, and it is a doctrine which 
 is no longer supported by even the warmest friends 
 of the equitable jurisdiction. 
 
 This doctrine was logical enough when people 
 believed in the divine right of kings, and when the 
 royal prerogative was practically almost un- 
 bounded, and when it was supposed, or tolerated, 
 that the king should have power, by his royal 
 proclamation, in exercise of his prerogative, to 
 override the laws of the land, so that the King, as 
 the fountain of all justice, was supposed to possess 
 the extraordinary power which the Chancellor 
 claimed to exercise as the delegate of the King 
 and the keeper of his conscience. The belief in 
 the divine right of Kings, and in the unbounded 
 extent of their prerogative, was banished from 
 England along with the Stuart dynasty, and all 
 pretence for any such extravagant jurisdiction as 
 was asserted by the early Chancellors was banished 
 at the same time. 
 
 Before the overthrow of this doctrine the 
 learned Selden jestingly referred to it in his Table 
 Talk (title Equity) as follows : — " Equity in law is 
 the same that the spirit is in religion, what every 
 one pleases to make it. Sometimes they go 
 
104 History of the Courts of Equity. 
 
 according to conscience, sometimes according to 
 law, sometimes according to the rule of Court. 
 * * * Equity is a roguish thing ; for law we 
 have a measure and know what to trust to. Equity 
 is according to the conscience of him that is 
 Chancellor ; and as that is larger or narrower, so 
 is equity. 'Tis all one as if they should make the 
 standard for the measure the Chancellor's foot. 
 What an uncertain measure would this be ? One 
 Chancellor has a long foot, another a short foot ; 
 a third an indifferent foot. It is the same thing 
 with the Chancellor's conscience." 
 
 s As late as the year 1818 Lord Eldon deemed 
 it necessary to repudiate the application of this 
 taunt to his Court and he says : — " The doctrines 
 of this Court ought to be as well settled, and made 
 as uniform almost as those of the Common Law, 
 laying down fixed principles, but taking care that 
 they are to be applied according to the circum- 
 stances of each case. I cannot agree that the 
 doctrines of this Court are to be changed with 
 every succeeding Judge. Nothing would inflict 
 on me greater pain, in quitting this place, than 
 the recollection that I had done anything to 
 justify the reproach that the equity of this Court 
 varies like the Chancellor's foot," 
 
 Gee V. Pritchard, 2 Swanst. 414. 
 
Limits of Equity Jurisdiction. 105 
 
 In a dialogue between a Sergeant-at-law and 
 a student, written in the reign of Henry VIII., 
 the Sergeant presents Sel den's idea about the 
 Chancellor's conscience in another form : — " And 
 so me seemeth, that such a sute by a subpoena is 
 not only against the law of the realme, but also 
 against the law of reason. Also me seemeth that 
 it is not conformable to the lawe of God. For 
 the law of Grod is not contrary to itself, that is to 
 say, one in one place, and contrary in another 
 place, if it be well perceyved and understood as 
 ye can tell Mr. Doctour ; but this lawe is one in 
 one Courte and contrarie in another Court ; and so 
 me seemeth, that it is not onlie againste the lawe 
 of the realme, and againste the lawe of reason, 
 but also againste the lawe of God. Also me 
 seemeth, that this suite by a subpoena is against 
 the common well of the realme. For the common 
 well of every realme is to have a good lawe, so 
 that the subjects of the realme may be justified 
 by the same, and the more plaine and open that 
 the lawe is, and the more knowledge and under- 
 standing that the subject hath of the lawe, the 
 better it is for the common well of the realme ; 
 and the more uncertaine that the lawe is in any 
 realme, the lesse and the worse it is for the com- 
 mon well of the realme. But if the subjects of 
 
106 Histoi-y of the Courts of Equity. 
 
 any realme shall be compelled to leave the lawe of 
 the realme, and to be ordered by the discretion of 
 one man, what thinge may be more unknowen or 
 more uncertaine ? But if this manner of suite by 
 a subpoena be maintayned as you Mr. Student, 
 would have it, in what uncertainte shall the King's 
 subjects stande, when they shall be put from the 
 lawe of the realme, and be compelled to be ordered 
 by the discretion and conscience of one man ? 
 And namelie for as moch as conscience is a thinge 
 of great uncertaintie ; for some men thinke that if 
 they treade upon two strawes that lye acrosse 
 that they ofende in conscience, and some man 
 thinketh that if he lake money and another hath 
 too moche that he may take part of his with con- 
 science ; and so divers men divers conscience ; for 
 every man knoweth not what conscience is so well 
 as you, Mr. Doctour ; so me seemeth that if the 
 King's subjects be constrayned to be ordered by 
 the discretion and conscience of one man, they 
 should be put to greate uncertaintie, that which is 
 against the common well of a realme. And so me 
 seemeth, it is not only against the Common Lawe 
 but also against the lawe of reason, against the 
 lawe of God, and against the common well of this 
 realme." 
 
 Hargrave's Law Tracts, 325-6. 
 
Limits of Equity Jurisdiction. 107 
 
 Blackstone refers to the assertion of this now 
 exploded doctrine of unlimited authority and says : 
 — "But this was in the infancy of our Courts of 
 Equity, before their jurisdiction was settled, and 
 ■when the Chancellors themselves, partly from their 
 ignorance of law, (being frequently bishops or 
 statesmen) partly from ambition and lust of power 
 (encouraged by t£e arbitrary principles of the age 
 they lived in) but principally from the narrow and 
 unjust decisions of the courts of law, had arrogated 
 to themselves such unlimited authority as hath 
 totally been disclaimed by their successors for now 
 (1765) above a century past. The decrees of a 
 Court of Equity were then rather in the nature of 
 awards formed on the sudden — ^ro re nata — with 
 more probity of intention than knowledge of the 
 subject ; founded on no settled principles, as being 
 never designed, and therefore never used for pre- 
 cedents." 
 
 3 Blk. Com., 433. 
 
 Judge Story says with reference to the same 
 subject: — "If indeed a Court of Equity in Eng- 
 land did possess the unbounded jurisdiction, which 
 has been thus generally ascribed to it, of correct- 
 ing, controlling, moderating and even superseding 
 the law, and of enforcing all the rights as well as 
 the charities,' arising from the natural law and 
 
108 History of the Courts of Equity. 
 
 justice, and of freeing itself from all regard to for- 
 mer rules and precedents, it would be the most 
 gigantic in its sway and the most formidable instru- 
 ment of arbitrary power that could well be devised. 
 It would literally place the whole rights and pro- 
 perty of the community under the arbitrary will 
 of the Judge." 
 
 1 Story Eq., sec. 19. 
 
 Lord Campbell in the introduction to his Lives 
 of the Lord Chancellors quotes Lord Camden's 
 opinion of private and uncontrolled discretion as 
 follows : — " The discretion of a Judge is the law of 
 tyrants ; it is always unknown ; it is different in 
 different men ; it is casual and depends upon con- 
 stitution, temper and passion. In the best it is 
 oftentimes caprice ; in the worst it is every vice, 
 folly and passion to which human nature is liable." 
 
 Lord Mansfield on the other hand more accur- 
 ately defines judicial discretion : — " Discretion 
 when applied to a Court of Justice means sound 
 discretion guided by law. It must be governed by 
 rule, not by humor. It must not be arbitrary, 
 vague and fanciful, but legal and regular." 
 Bex. V. Wilkes, 4 Bur. 2539. 
 
 Mr. De Lolme defines the Courts of Equity in 
 England as being " A kind of inferior experimental 
 
Limits of Equity Jurisdiction. 109 
 
 legislature, continually employed in finding out 
 and providing law remedies for those new species 
 of cases for which neither the Courts of Common 
 Law nor the Legislature have yet found it con- 
 venient or practicable to establish any ; in doing 
 which, they are to forbear to interfere with such 
 cases as they find already in general provided for. 
 A Judge of Equify is also to adhere in his decisions 
 to the system of decrees formerly passed in his 
 own Court, regular records of which are kept for 
 that purpose. From this latter circumstance it 
 again follows that a Judge of Equity, by the very 
 exercise he makes of his power, is continually 
 abridging the arbitrary part of it ; as every new 
 case he determines, every precedent he establishes, 
 becomes a' landmark or boundary, which both he 
 and his successors in office are afterwards expected 
 to regard." 
 
 De Lolme on the Constitution of England, 
 Book I, cap. XI. 
 
 Some curious arguments were advanced in 
 support of the contention that Courts of Equity 
 should not be bound by precedent. The following 
 argument upon this point is extracted from a 
 pamphlet written in the reign of James I., entitled 
 " The Abuses and Eemedies of Chancery." 
 
110 History of the Courts of Equity. 
 
 " Some Judges, when they seem doubtful 
 what to determine in a cause, will be inquisitive 
 after precedents ; which I cannot conceive to what 
 purpose it should be, unless that being desirous to 
 pleasure a friend, and the matter being of that 
 nature that they are ashamed to do it, they would 
 faine know whether any before them have done so 
 ill as they intend to do. Por do they think that 
 if any other have done the like, it is a sufficient 
 warrant for them therefore ? Surely noe ! But 
 every Judge taking upon him that weighty calling, 
 ought to direct his orders secundum allegata et 
 probata, and according to the rules of a good con- 
 science, guided by the word of Grod, and upon cer- 
 taine knowledge of the laws of the realm agreeable 
 thereunto ; and soe to divide between lawe and 
 equity ; that for the particular of any private per- 
 son no violence be offered to the lawe ; and not to 
 be led like a bear by the nose after other men's 
 examples, which, if it were admitted, there is no 
 injustice, how gross and palpable soever, but might 
 by this means easily be excused." 
 
 Hargrave's Law Tracts, 446. 
 
 " Perhaps the most general if not the most 
 precise description of a Court of Equity in the 
 English and American sense, is that it has juris- 
 
Instances of Equitable Interference. Ill 
 
 diction in cases of rights, recognised and protected 
 by the municipal jurisprudence, where a plain, 
 adequate and complete remedy cannot be had in 
 the Courts of Common Law. The remedy must 
 be plain ; for if it be doubtful and obscure at law, 
 Equity will assert a jurisdiction. It must be ade- 
 quate ; for if it falls short of what the party is 
 entitled to, that" founds a jurisdiction in Equity. 
 And it must be complete ; that is, it must attain 
 the full end and justice of the case. It must reach 
 the whole mischief and secure the whole right of 
 the party in a perfect manner at the present time 
 and in future ; otherwise Equity will interfere and 
 give such relief and aid as the exigency of the par- 
 ticular case may require. The jurisdiction of a 
 Court of Equity is therefore sometimes concurrent 
 with the jurisdiction of a Court of Law ; it is 
 sometimes exclusive of it and it is sometimes 
 auxiliary to it." 
 
 1 Story's Equity, sec. 33. 
 
 Instances of Equitable Interference : 
 
 We have now arrived at the stage when we 
 can usefully consider some of the specific instances 
 in which a Court of Equity would interfere with 
 the rigor of the Common Law and administer the 
 peculiar doctrines of equity by way of abating that 
 
112 History of the Courts of Equity. 
 
 rigor. To deal fully with all such instances we 
 should have to compile a treatise on Equity which 
 would be outside the scope of these lectures and 
 we shall therefore confine ourselves to a few 
 examples selected for the purpose of illustration. 
 
 In the early days of the Court of Chancery 
 such treatises ^,s were written with regard to the 
 equitable jurisdiction of that Court consisted of 
 little else than statements of the particular 
 instances in which the Court would grant relief, 
 without laying down any general rules or principles 
 for the guidance of suitors or practitioners. One 
 of these productions written in the reign of Henry 
 VIII., and entitled " A Little Treatise concerning 
 Writs of Subpoena," is published by Mr. Hargrave 
 among his "Xiaw Tracts," and I shall extract 
 therefrom one of the cases for equitable inter- 
 ference which are there given. 
 
 " There is a maxim in the lawe, that a rente, 
 a common annuitie, and soche other things as lye 
 not in manuel occupation, may not have com- 
 mencement, ne be granted to none other without 
 writing. And thereupon it followeth, that if a 
 man for a certaine sume of money sell another forty 
 pounds of rente yearly, to be percepted of his 
 lands in D. &c., and the buyer thinking that the 
 
Instances of Equitable Interference. 113 
 
 bargains is sufl&cient asketh none other and after 
 he demandeth the rent, and it is denied him, in 
 this case he hath no remedie at the Common Law 
 for lacke of a deede ; and therefore in as moche as 
 he that sold the rent hath — quid pro quo, the buyer 
 shall be holpen by a subpoena. But if that graunte 
 had bin made by his meere motion without any 
 recompense ; then he to whom the rent was 
 graunted shold neither have had remedie by the 
 Common Lawe nor by subpoena. But if he that 
 made the sale of the rent had gone farder, and 
 saide that he before a certaine day wold make a 
 sufficient graunte of the rente, and after refused to 
 do it, there an action upon the case shold lye 
 against him at the Common Lawe ; but if he made 
 no such promise at the makinge of the contracte, 
 then he that bought the rente, hath no remedie 
 but by subpoena, as is saide before." 
 
 Hargrave's Law Tracts, 334. 
 
 Another instance in which a Court of Equity 
 would grant relief upon grounds which might prove 
 to be an insufficient defence at law, may be found 
 in the case of Thornborrow v. WTiitacre, reported 
 in 2 Lord Eaymond's Eeports, 1164, which was an 
 action at law brought by the plaintiff upon an 
 agreement between himself an^* the defendant that 
 
 D.EQ. — 8 
 
114 History of the Courts of Equity. 
 
 the latter in consideration of 2s. 6^. in hand paid 
 and of £4 17s. 6cZ. to be paid upon the defendants 
 performing the agreement, would deliver two 
 grains of rye corn on Monday, the 29th of March, 
 and four grains of rye corn on Monday next follow- 
 ing, and eight grains of rye corn on Monday next 
 after the Monday last mentioned, and sixteen 
 grains of rye corn on Monday next after the third 
 Monday, and double the number of grains of rye 
 corn on Monday next after, being the fifth Mon- 
 day, and so on for a year from the said 29th of 
 March would on each successive Monday deliver 
 to the plaintiff double as many grains of rye corn 
 as he should have delivered upon the next preced- 
 ing Monday. The defendant demurred to the 
 plaintiff's declaration upon the ground that the 
 agreement appeared upon the face of it to be 
 impossible, as the rye to be delivered amounted to 
 such a quantity that all the rye in the world was 
 not so much, and that the contract being impossi- 
 ble was void and the defendant was not bound to 
 perform it ; but the Court overruled the demurrer 
 and held that the defendant was bound to perform 
 his contract or pay damages for breach thereof. 
 
 This is clearly a case in which a Court of 
 Equity would have afforded relief to the defendant 
 
. Instances of Equitable Interference. 115 
 
 upon the ground of fraud or imposition, or because 
 unconscionable advantage had been taken of him. 
 See Story's Equity, note to sec. 1303. 
 
 Another defendant in a somewhat similar 
 action at law was more fortunate than Whitacre. 
 In this case the defendant bought a horse of the 
 plaintiff and agreed to pay as the price of the horse 
 a barleycorn a nail for each nail in the horse's 
 shoes, doubling every nail, and there were thirty- 
 two nails in all, and the plaintiff after doubling 
 every nail and reckoning the entire amount 
 claimed five hundred quarters of barley as the 
 price of the horse. The Court directed the jury to 
 give the plaintiff no more damages than the actual 
 value of the horse and the jury assessed damages 
 accordingly and this direction was subsequently 
 upheld. 
 
 James v. Morgan, 1 Lev. 111. 
 
 This appears to be a case in which the Court 
 wrestled with the law in an endeavor to do justice 
 to the parties, but in equity the defendant would 
 have been relieved as of course without wrenching 
 any principles from their moorings. 
 
 Had the Common Law judges always shown 
 the same earnest desire to do justice between man 
 
1 16 History of the Courts of Equity. 
 
 and man which they exhibited in James v. Morgan 
 the Court of Chancery, as a Court exercising equit- 
 able jurisdiction, would never have been called 
 into existence. 
 
 Another familiar instance in which the doc- 
 trines of Equity would have afforded relief as of 
 course is the case of Shylock's Bond. 
 
 A very amusing and at the same time instruc- 
 tive report of an appeal from the judgment of 
 Portia in the action of ShylocJc v. Antonio is to be 
 found in 6 Albany Law Journal, 193, where it is 
 plainly shown that upon Common Law principles 
 the judgment of Portia is wrong in almost every 
 particular, and that the bond itself was void as 
 being contrary to the policy of the law. But even 
 though the bond had been perfectly good and 
 valid. Equity would have afforded relief to the 
 defendant upon the ground that the bond was 
 given as security for the payment of money, and 
 that in Equity the time named by such security 
 for the payment of the money is never of the 
 essence of the contract, and that payment of the 
 amount secured, together with interest and costs, 
 if any, will operate as a satisfaction of the bond 
 if made or tendered at any time before final judg- 
 nlent in an action. 
 
Instances of Equitable Interference. 117 
 
 One of the doctrines of Equity which exer- 
 cised a considerable influence in placing the Court 
 of Chancery upon a firm footing is the doctrine of 
 uses, an example of the application of which doc- 
 trine in its simplest form may be given thus : — ^A. 
 being seised in fee of Whiteacre conveys the same 
 to B. to the use of C; Equity, apart from any 
 statutory provision, looks upon C. as having the 
 beneficial interest in the land, and looks upon B. 
 as a trustee, whom C. can call to account for any 
 rents and profits thereof which may have come to 
 his hands. 
 
 " This notion," says Blackstone, "was trans- 
 planted into England from the civil law about the 
 close of the reign of Edward III. by means of 
 foreign ecclesiastics ; who introduced it to evade 
 the Statutes of Mortmain, by obtaining grants of 
 lands not to their religious houses directly, but to — 
 the use of the religious houses ; which the clerical 
 Chancellors of those times held to be fidei-com- 
 missa and binding in conscience, and therefore 
 assumed the jurisdiction which Augustus had 
 vested in his praetor, of compelling the execut. on 
 of such trusts in the Court of Chancery. And, as 
 it was most easy to obtain such grants from dying 
 persons, a maxim was established that though by 
 law the lands themselves were not devisable, yet if 
 
118 History of the Courts of Equity. 
 
 a testator had enfeoffed another to his own use, 
 and so was possessed of the use only, such use was 
 devisable by will." 
 
 2 Blk. Com. 328. 
 See Shep. Touchstone, 503-4. 
 The following account of the origin of uses is 
 given in The Doctor and Student : — " When the 
 general custom of property, whereby every man 
 knew his own goods from his neighbors, was 
 brought in among the people, it followeth of reason 
 that such lands and goods as a man had ought not 
 -to be taken from him but by his assent, or by order 
 of law ; and then sith it be so, that every man that 
 hath lands hath hereby two things in him, that is 
 to say, the possession of the land, which after the 
 law of England is called the frank tenement, or 
 the freehold, and the other is authority to take 
 thereby the profits of the land ; wherefore it fol- 
 loweth that he that hath land, and intendeth to give 
 only the possession and freehold thereof to another, 
 and keep the profits to himself, ought in reason 
 and conscience to have the profits, seeing there is 
 no law made to prohibit, but that in conscience 
 such reservation may be made. And so when a 
 man maketh a feofEtnent to another, and intendeth 
 that he himself shall take the profits ; then the 
 feoffee is said seised to his use that so enfeoffed 
 
Instances of Equitable Interference. 119 
 
 him, that is to say, to the use that he shall have 
 the possession and freehold thereof, as in the law, 
 to the intent that the feoffor shall take the profit." 
 
 Doctor and Student, cap. 22. • 
 
 See 1 Eep. 121 a, et seq. 
 
 The adoption by the Court of Chancery of the 
 doctrine of uses was strongly opp(^^ by the Com- 
 mon Law lawyers, and I cannot better give the 
 grounds of their opposition than by quoting from a 
 tract written in answer to certain statements con- 
 tained in the " Doctor and Student," and entitled 
 "A Replication of a Serjaunte at the Lawes of 
 England, to certayne pointes alleged by a student 
 of the said lawes of England in a Dialogue in 
 Englishe between a Doctor of Divinity and the said 
 Student." The tract appears to have been written 
 shortly after the first publication of the "Doctor 
 and Student," in 1623. 
 
 The Sergeant is made to express himself as 
 follows, with regard to the origin of uses : — " I say 
 under correction and reformation of my lordes and 
 maisters the judges of the lawe of this realme, that 
 they began of an untrue and crafte invention to put 
 the Kinge and his subjects from that which they 
 ought to have of righte by the good true Common 
 Lawe of the realme ; as the King's highness from 
 
120 History of the Courts. of.Eqaity. 
 
 his escheats, his wardes and his primer seasins, 
 and from other things that now come not to my 
 mynde ; and his subjects from their escheats and 
 wardes, women from their dowers, and the hus- 
 bandes of such women that be inheritoures from 
 their tenures by the curtesie of England, the which 
 they ought to have by the lawes of the reabne; 
 and those that have good right and tytle to any 
 land to recover it by action after the course of 
 the Common Lawe be put from their actions, and 
 if they bringe their actions to cause soche delaies 
 that they shall never have recoverie. * * By 
 soche uses the good Common Lawe of the realme, 
 to which the King's subjects be inherite, is sub- 
 verted, and made as voyde, so that none of the 
 saide subjects can be and stand in anie surety of 
 any possession. For if he claime and proove his 
 tytle by a deed of feoffment, the other partie will 
 say he was but a feoffee of truste ; and if he claime 
 by a fyne or by a recovery, he will say likewise, 
 that he was of trust ; so that neither deede, ne 
 fyne, ne yet recoverye, which make men's titles by 
 the Common Lawe, maketh or enforceth any maun's 
 title at this daye ; and all because of this false and 
 craftie invention of uses as I thinke : To proove 
 that it beganne upon an untruth and false, pur- 
 pose, it appeareth by that, that he, which maketh 
 
Instances of Equitable Interference. 121 
 
 soche a feoffinent saithe and doth one thing and 
 thinketh another thinge cleane contrarie. For he 
 sayeth by his worde and by his deede and writings, 
 and liverie and seasin, that the feoffee shall have 
 the land to him and to his heirs ; and his mynde 
 and entent is, that he shall not have it, but he 
 will have it himself e. What a falsenes is this to 
 speake and do one thinge, aiad thincke another 
 thinge cleane contrarie to the same ! Every man 
 may perceive, in my mind, that of this can come 
 no goodness, but crafte and falsehood. And so me 
 seemeth, that these uses began by an untruthe and 
 oraftie invention, and are continued by an untruthe, 
 and for a deceite ; and yet do ye that be students 
 of the Common Lawe of the realme, maintaine 
 this untrue and crafty invention in the Chauncery 
 by the colour of conscience, contrarie to the studie 
 and learning of the Common Lawe, and contrary 
 to reason, and also to the lawe of Grod. What 
 reason is it, that if I give you my land, with all the 
 circumstances that belong to a guifte of land by 
 the lawe, or levie a fyne-or suffer a recovery 
 against me, and yet I to have the disposition of 
 the land myselfe ! So that it appeareth in my 
 mynde, that these uses began by an untrue and 
 craftie invention and is maintained in the Chaun- 
 cerie by the colour of conscience to the subversion 
 
122 History of the Courts of Equity. 
 
 of the good Common Lawe of this reahne, againste 
 all reason, and contrarie to the lawe of God, which 
 teacheth nothinge but truth, not only to the 
 express wronge and hurte of the King's highness 
 and of all his subjects,' but also as moche as in 
 them is to bringe the King's hignes to the detes- 
 tible offence of perjurie." 
 
 Hargrave's Law Tracts, 328-9. 
 
 The feeling against uses became so strong 
 that Parliament determined to abolish uses, in so 
 far as they related to lands, tenements and here- 
 ditaments, and in the 27th year of the reign of 
 Henry VIII. the Statute of Uses was passed, (cap. 
 10) whereby it was enacted that if any person shall 
 stand seized of any lands, tenements or heredita- 
 ments to the use of another, the person that has 
 such use shall stand seized of such lands, tene- 
 ments or hereditaments for the same estate therein 
 that he has in such use. 
 
 The effect of this Statute was to convert every 
 use of lands into a legal estate in the lands, and 
 to thereby bring the same within the jurisdiction 
 of the Common Law Courts and save the neces- 
 sity for any resort to the Court of Chancery. 
 
 Twenty-two years after the passing of this 
 Statute (Mich. Term 4 & 5 Ph. & M.) the judges 
 
Instances of Equitable Interference. 123 
 
 by a decision practically rendered the Statute 
 nugatory by holding that the Statute will not 
 execute more than one use, and that if there be a 
 second use declared the Statute will not operate 
 upon it. The effect of this was to bring again 
 into full operation the equitable doctrine as to 
 uses in lands. 
 
 The case in question was one in which t'here 
 was a Bargain and Sale for a valuable considera- 
 tion to A. habendum to the use of the bargainor 
 for life, remainder to the use of A. in tail, re- 
 mainder to the right heirs of the bargainor. It 
 was held that the habendum was void and that A. 
 had the land in fee " because an use cannot be 
 ingendered of an use," and because the operation 
 of the Statute was in this case exhausted upon 
 the use which was raised upon the bargain and 
 sale, and the Statute therefore did not operate 
 upon the use mentioned in the habendum. 
 Tyrrell's Case, Dyer 115 a. 
 
 Lord Chancellor Hardwicke gives the follow- 
 ing account of the effect which this Statute had 
 upon uses : — " Before the Statute of Hen. 8, the 
 judges of the Common Law gave uses very hard 
 names, and ca,lled them the product of fraud, etc. 
 To remedy those mischiefs the Statute was made, 
 
124 History of the Courts of Equity. 
 
 to execute and bring the estate to the use, that 
 after the Statute the cestui que use was seised of 
 the estate at law as before he was of the use in 
 equity ; and this the judges professed to adhere 
 to, but notwithstanding that, the necessities of 
 mankind, and reasonable occasions in families 
 obliged them in a little while to give way to uses. 
 Contingent uses, springing uses, executory devises, 
 powers over uses, were also foreign to the notions 
 of the Common Law, and could not be limited on 
 Common Law fees, but were let in by construction, 
 by the judges themselves, upon uses, after they 
 became legal estates ; yet the judges still adhered 
 to the doctrine that there could be no such thing 
 as an use upon an use, but where the first use was 
 declared, there it was executed and must rest for 
 that estate ; therefore, on a limitation to A. and 
 his heirs, to the use of B. and his heirs in trust 
 for D., B.'s estate was held then to be executed by 
 the Statute and D. took nothing. Of this con- 
 struction equity took hold and said that the inten- 
 tion was to be supported. It is plain B. was not 
 intended to take, his conscience was affected. To 
 this the reason of mankind assented and it has 
 stood on this foot ever since, and by this means a 
 Statute made upon great consideration, introduced 
 in a solemn and pompous manner, by this strict 
 
Ui\due Interference of Equity. 125 
 
 construction, has had no other effect than to add 
 at most three words to a conveyance." 
 Hopkins v. Hopkins, 1 Atk. 591. 
 
 Undue Interference oi Equity : 
 
 While it must be conceded that in the great 
 majority of instances where Equity intervened to 
 modify the rigor of the law, such intervention was 
 beneficial in its results, yet it seems to be equally 
 clear on the other hand that the Court of Chancery 
 has exhibited too great a fondness for interfering 
 with the freedom of contract between parties 
 acting at arms length, and deliberately assuming 
 obligations which the paternal Court of the Chan- 
 cellor afterwards tells them they need not perform. 
 A striking illustration of these remarks is to be 
 found in the case of money bonds. A. enters into 
 a bond with B. whereby A. binds himself to pay 
 B. $1,000 on a day certain, with a condition that 
 the bond shall be void on payment of $600 at any 
 time previous to the day named. 
 
 At Common Law A. would be bound to do 
 what he agreed to do, and if he failed to pay the 
 $500 before the day named he would be bound to 
 afterwards pay the full sum of $1,000, but Equity 
 would interfere in such a case and tell A. and B. 
 that A. did not mean what he said in his covenant, 
 
126 History of the Courts of Equity. 
 
 and that he only meant that he would pay the $500 
 on the day named and that he would pay interest 
 thereon from that time, if he made default in pay- 
 ment of the principal money. 
 
 Lord Bramwell (then Baron Bramwell), refer- 
 ring to this question, says : — " Look for a moment 
 at the history of these bonds. Originally the 
 penal sum mentioned in them was recoverable. 
 The Courts of Equity, unfortunately as I think, 
 established a practice of relieving the obligor from 
 payment of the penalty, of relieving him, that is to 
 say, from the obligation of doing what he had con- 
 tracted to do. 
 
 Preston v. Dania, L. K. 8 Ex. 20-21. 
 
 This condemnation will apply to the greater 
 portion of the rules of Equity relating to penalties 
 and forfeitures. 
 
 The disposition of the Court in this class of 
 cases has been to make for suitors such judicially 
 constructed contracts as the Judges deemed that 
 prudent men should have made, rather than to 
 interpret and enforce the contracts in question as 
 they actually found them. 
 
 The modern judicial tendency, however, is 
 against any such interference with the freedom of 
 
Undue Interference of Equity. 127 
 
 contract, and one of the greatest of the modern 
 exponents of Equity has expressed himself upon 
 the point as follows: — "I have always thought 
 and still think that it is of the utmost impor- 
 tance as regards contracts between adults — per- 
 sons not under disability and at arms length — 
 that the Courts of Law should maintain the per- 
 formance of the^ contracts according to the inten- 
 tion of the parties ; that they should not overrule 
 any clearly expressed intention on the ground that 
 Judges know the business of the people better than 
 the people know it themselves." 
 
 Per Jessel, M.E., in Wallis v. Smith, 21 
 Chy. D. 266; and see Printing, etc., 
 Co V. Sampson, L. E. 19 Eq. 465. 
 
 In the same case Cotton, L.J., says •.^" I 
 must say that I quite agree with the Master of the 
 Eolls that the sounder view to take is this, to 
 leave people who are competent and under no dis- 
 ability to make their own contracts and then to 
 act on these contracts whatever the true interpre- 
 tation might be, without assuming on behalf of 
 the Courts, either of Law or Equity, to say ' This 
 is unreasonable and we will make another and 
 different contract between the parties. They did 
 not mean what they have said in their contracts." ' 
 
128 History of the Courts of Equity. 
 
 The Court of Chancery rendered necessary 
 by the Conservatism of the Common 
 liaw Jn<1ge8 : 
 
 We have now seen enough of the history of the 
 Court of Chancery to make us aware that the exis- 
 tence and continuation of that Court was rendered 
 necessary by the technicality of the Common Law 
 Judges, by their strict adherence to form and pre- 
 cedent, by their inclination to follow what they 
 understood to be the strict letter of the law, no 
 matter how absurd or unjust the result might be, 
 by their unwillingness to mould the doctrines and 
 practice of the Common Law, to meet the exi- 
 gencies of the times and their unwillingness to 
 afford new forms of legal relief in cases and com- 
 binations of circumstances which had not been for- 
 seen and provided for by the early fathers of the 
 Common Law, and by their refusal to even avail 
 themselves of legislative enactments passed for the 
 purpose of so moulding their doctrines and practice 
 as to enable them to do complete justice, without 
 resort being had to the Court of Chancery. 
 
 Hallam says that the extension of the 
 equitable jurisdiction of the Court of Chancery 
 was chiefly owing " to a strange narrowness and 
 scrupulosity of the Judges, who, fearful of quitting 
 the letter of their precedents even with the 
 
Necessity for Court of Chancery. 129 
 
 clearest analogies to guide them, repelled so many 
 just suits, and set up rules of so much hardship, 
 that men were thankful to embrace the relief held 
 out by a tribunal acting in a more rational spirit. 
 This error the common lawyers began to discover 
 in time to resume a great part of their jurisdiction 
 in matters of contract, "which would otherwise 
 have escaped them. They made too an apparently 
 successful effort to recover their exclusive author- 
 ity over real property, by obtaining a Statute for 
 turning uses into possession ; that is, for anni- 
 hilating the fictitious estate of the feoffee to uses 
 and vesting the legal as well as equitable posses- 
 sion in the cestui que use. But this victory if I 
 may use such an expression, (since it would have 
 freed them, in a most important point, from the 
 Chancellor's control) they threw away by one of 
 those timid and narrow constructions which had 
 already turned so much to their prejudice ; and 
 they permitted trust-estateS, by the introduction 
 of a few more words into a conveyance, to main- 
 tain their ground, contra distinguished from the 
 legal seisin, xinder the protection and guarantee, as 
 before, of the Courts of Equity." 
 
 Hallam's Const. Hist. England, cap. 6. 
 
 Lord Hobart is reported to have said : — "I do 
 exceedingly commend the Judges that are curious 
 
 D.EQ. — 9 
 
180 History of the Courts of Equity. 
 
 and almost subtle, astuti (whicli is the word used 
 in the proverbs of Solomon in a good sense when 
 it is to a good end) to invent reasons and means 
 to make acts according to the just intent of the 
 parties and to avoid wrong and injury which by 
 rigid rules might be wrought out of the act." 
 Hobart, 277. 
 
 If the Common Law Judges had acted in this 
 spirit there would have been no need for the Court 
 of Chancery to exercise its extraordinary jurisdic- 
 tion. 
 
 Mr. Pomeroy says with regard to the different 
 methods of development of the Eoman law and 
 English law respectively : — " There are certainly 
 many striking analogies between the growth of 
 Equity in the Eoman and English law ; the same 
 methods were up to a certain point pursued, and 
 in principle the same results were reached. The 
 dififerences however are no less remarkable. No 
 separate tribunal or department was made neces- 
 sary in the Eoman jurisprudence, because the 
 ordinary magistrates were willing to do what the 
 early English Common Law Judges utterly refused 
 to perform — that is, to promote and control the 
 entire legal development as the needs of an 
 advancing civilization demanded. While these 
 Common Law Judges resisted every innovation 
 
Necessity for Court of Chancery. 131 
 
 upon their established forms, and shut up every 
 way for the legal growth the Eoman magistrates 
 were the leaders in the work of reform, and con- 
 stantly anticipated the wants of the community. 
 The English Judges made a new Court and a 
 separate department indispensible ; the Eoman 
 praetors accomplished every reform by means of 
 their own jurisdiction, and preserved in the juris- 
 prudence a Unity and homogeneity which the Eng- 
 lish and American law lacks, and which it can, 
 perhaps, never acquire." 
 
 Pomeroy's Equity, sec. 9. 
 The same author, dealing with the same sub- 
 ject, says : — "The praetors constantly invented new 
 actions and defences, which preserved, however, a 
 resemblance to the old ; and at length they boldly 
 freed the jurisprudence from the restraints of the 
 ancient methods, and introduced the notion of 
 aequitas by which the whole body of judicial legis- 
 lation became in time reconstructed. All the pro- 
 cess of development was completed without any 
 violent or sudden change in the judicial institutions 
 and the Eoman law thus preserved its unity and 
 continuity. The English Cormnon Law Judges, on 
 the other hand, set themselves with an iron deter- 
 mination against any modification of the doctrines 
 and rules once established by precedent, any relax- 
 
132 History of the Courts of Equity. 
 
 ation of the settled methods which made the rights 
 of suitors to depend upon the strictest observances 
 of the most arbitrary and technical forms, any in- 
 troduction of new principles which should bring 
 the law as a whole' into a complete harmony with 
 justice and equity." 
 
 Pomeroy's Equity, sec. 17. 
 
 Liegal Doctrines modified by Equity Doc- 
 trines. 
 
 We have already seen something of the 
 struggle for jurisdiction which took place between 
 the Common Law Courts and the Court of Chan- 
 cery in the early days of the latter Court, and it is 
 now in order to point out that during the course of 
 this struggle the Common Law Judges from time 
 to time modified several of the doctrines of their 
 Courts, so as to enable them to more effectually 
 cope with their aggressive opponents in the Chan- 
 cery. While they were not willing to adopt such 
 modifications as would do away with the necessity 
 for the extraordinary jurisdiction of the Chancellor, 
 they did from time to time remould their doctrines 
 sufficiently to prevent their halls becoming 
 deserted. 
 
 Mr. Spence gives the following account of one 
 of the most important of these modifications : — - 
 
Legal Doctrines Modified by Equity Doctrines. 133 
 
 "The jurisdiction of the Court of Chancery appears 
 to have been anciently called into action in respect 
 of executory promises and implied obligations now 
 designated under the name of assumpsits, by reason 
 of the Courts of Law not having at first acted upon 
 the Statute of Westminster 2, so as to give a 
 remedy by the action on the case, in cases in- 
 tended to be etnbraced within its provisions ; a 
 breach of promise of marriage was one of the cases 
 for which no remedy could then be obtained at 
 law. It appears that in the time of Edward IV. 
 many suits founded on equitable assumpsits were 
 still instituted. Fairfax, who is described as a 
 very learned judge of this reign, urged that the 
 action on the case should be attended to, and the 
 jurisdiction of the Common Law Courts main- 
 tained, for that subpoenas would not then be so 
 frequently resorted to. His advice appears to have 
 been followed and the action on the case was * * 
 greatly extended. The Court of King's Bench, 
 after it had assumed jurisdiction in these cases, 
 endeavored * * * to establish a right to en- 
 join a party from applying to the Court of Chancery 
 in cases which, in the judgment of that Court were 
 properly the subject of an action on the case ; and 
 where an injunction was obtained in such a case in 
 the Court of Chancery, which was dissolved, the 
 
134 History of the Gowrts of Equity. 
 
 Court of King's Bench, of their own authority, 
 gave compensation to the plaintiff for the delay, 
 over and above the damages given by the jury. 
 But there were some cases in which it was admitted 
 that it was still necessary for the Court of Chan- 
 cery to interfere by reason that the Courts of Law 
 could not give a remedy by action on the case ; 
 even down to the reign of Charles I., where the 
 surety had paid the debt, and he had no counter 
 security from the debtor, it seems the Court of 
 Chancery was the proper Court to compel the 
 debtor to reimburse the surety." 
 
 1 Spence 694-5 and see 243. 
 
 For full History of Assumpsit and Trespass 
 on the case, see Hare on Contracts, 
 Cap. YII. and VIII., and see 2 Harvard 
 Law Eev., pages 1 and 53. 
 
 Another action borrowed or invented by the 
 Common Law Judges for the purpose of attracting 
 business to their Courts is the action for money 
 had and received, of which Blackstone gives the fol- 
 lowing account : — ' 'A third species of implied assump - 
 sit is when one has had and received money belong- 
 ing to another without any valuable consideration 
 given on the receiver's part ; for the law construes 
 this to be money had and received for the use of 
 the owner only; and implies that the person so re- 
 
Legal Doctrines Modified by Equity Doctrines. 135 
 
 oeiving promised and undertook to account for it 
 to the true proprietor. And if he unjustly detains 
 it, an action on the case lies against him for the 
 breach of such implied promise and undertaking ; 
 and he will be made to repair the owner in damages 
 equivalent to what he has detained in violation of 
 such his promise. This is a very extensive and 
 beneficial remedy, applicable to almost every case 
 where the defendant has received money which ex 
 aequo et bono he ought to refund. It lies for money 
 paid by mistake or on a consideration which hap- 
 pens to fail, or through imposition, extortion, or 
 oppression, or where any undue advantage has been 
 taken of the plaintiff's situation." 
 
 3 Blk. Com. 162. The whole of the modern 
 law upon this subject will be found in 
 the notes to Marriott v. Hampton, 2 
 Smith's L. C. 
 
 Another doctrine borrowed or invented by the 
 Cominon Law Judges, for a purpose similar to that 
 last referred to, is the doctrine of estoppel. Vice- 
 ChanceUor Bacon speaks of the doctrine as follows : 
 " The Common Law doctrine of estoppel was 
 * * * a device which the Common Law Courts 
 resorted to at a very early period to strengthen and 
 lengthen their arm, and not venturing to exercise 
 an equitable jurisdiction over the subject before 
 
186 Histai-y of the Courts of Equity. 
 
 them, they did convert their own special pleading 
 tactics into an instrument by which they could ob- 
 tain an end which the Court of Chancery without 
 any foreign assistance did at all times, and I hope 
 will at all times put into force in order to do justice. 
 But the doctrine of estoppel is purely legal." 
 Eeate v. Phillips, 18 Chy. D. at 677. 
 
 Chief Justice Harrison on the other hand says 
 as to the origin of the doctrine: — "The real ground 
 upon which a person is precluded from proving 
 that his representation on which another acted to 
 his prejudice is false, is that to permit it would be 
 inequitable. This is the reason that estoppel in 
 pais is sometimes described as an equitable 
 estoppel. The jurisdiction of enforcing this equity 
 originally belonged to Courts in Equity ; and does 
 not appear to have been familiarly recognized at 
 law untU within a comparatively recent date." 
 McArtJmr v. Eagleson, 43 U.C.E. 416. 
 
 Mr. Justice Buller tells us that "The law- 
 merchant is a system of equity, founded on the 
 rules of equity, and governed in all its parts by 
 plain justice and good faith." 
 
 Master v. Miller, 4, T.E. at 342. 
 
 In another case Ashhurst, J., says : — " It is 
 true that formerly the Courts of Law did not take 
 
Law and Equity are both Progressive. 137 
 
 notice of an equity or a trust ; for trusts are with- 
 in the original jurisdiction of a Court of Equity ; 
 but of late years it has been found productive of 
 great expense to send the parties to the other side 
 of the HaU ; wherever this Court have seen that 
 the justice of the case has been clearly with the 
 plaintiff, they have not turned him round upon this 
 objection. Then if this Court will take notice of 
 a trust why should they not of an equity." 
 
 Winch V. Eeeley, 1 T. E., at p. 622-3. 
 
 The language of this extract from a judgment 
 pronounced in 1787 is rather more than three 
 quarters of a century in advance of its time, but 
 there can be no doubt that the existence of such 
 sentiments in the minds of various Common Law 
 Judges had much to do in modifying the rigour of 
 the Common Law. 
 
 liaw and Equity are Both Progressive : — 
 
 Sir Henry Maine, speaking of the progressive 
 societies, says : — "With respect to them it may be 
 laid down that social necessities and social opinion 
 are always more or less in advance of law. We 
 may come indefinitely near to the closing of the 
 gaps between them but it has a perpetual tendency 
 to re-opeA, Law is stable; the societies we are 
 speaking of are progressive. The greater or less 
 
138 History of the Courts of Equity. 
 
 happiness of a people depends on the degree of 
 promptitude with which the gulf is narrowed." 
 
 Maine's Ancient Law, cap. 2. 
 Sir Henry Maine then goes on to point out 
 that the instrumentalities by which law is brought 
 into harmony with Society are . three in number, 
 namely, Legal Fictions, Equity and Legislation, 
 and that historically they operate in the order 
 given. " The Equity whether of the Eoman 
 Praetors or the English Chancellors, differs from 
 the Fictions which in each case preceded it, in 
 that the interference with law is open and avowed. 
 On the other hand, it dififers from Legislation, the 
 agfent of legal improvement which comes after it, 
 in that its claim to authority is grounded not on 
 the prerogative of any external person or body, not 
 even on that of the magistrate who enunciates it, 
 but on the special nature of its principles to which 
 it is alleged that all law ought to .conform. The 
 very conception of a set of principles, invested with 
 a higher sacredness than those of the original law 
 and demanding application independently of the 
 consent of any external body, belongs to a much 
 more advanced stage of thought than that to 
 which legal fictions originally suggested them- 
 selves." 
 
 Maine's Ancient Law, cap. 2. 
 
Law and Equity are both Progressive. 139 
 
 Mr. Spence quotes from Professor Millar as 
 saying : — " Law and Equity are in continual pro- 
 gression, and the former is constantly gaining 
 ground upon the latter. Every new and extraordi- 
 nary interposition is by length of time converted 
 into an old rule. A great part of what is now 
 strict law, was formerly considered as Equity ; and 
 the equitable decisions of this age will unavoidably 
 be ranked under the strict law of the next." 
 1 Spence, 322, note a. 
 
 Sir George Jessel, M.R., refers to the modern 
 rules of Equity and adds : — " I intentionally say 
 modem rules, because it must not be forgotten 
 that the rules of Courts of Equity are not, like the 
 rules of the Common Law, supposed to have been 
 established from time immemorial. It is perfectly 
 well known that they have been established from 
 time to time. In many cases we know the names 
 of the Chancellors who invented them. No doubt 
 they were invented for the purpose of securing the 
 better administration of justice, but still they were 
 invented. Take such things as these ; the separate 
 estate of a married woman, the restraint on aliena- 
 tion, the modern rule against perpetuities and the 
 rules of equitable waste. We can name the Chan- 
 cellors who first invented them, and state the date 
 when they were first introduced into Equity juris- 
 
140 History of the Courts of Equity. 
 
 prudence ; and therefore, in cases of this kind the 
 older precedents in Equity are of very little value. 
 The doctrines are progressive, refined and im- 
 proved ; and if we want to know what the rules of 
 Equity are, we must look of course rather to the 
 more modern than the more ancient cases." 
 Be HalleU's Estate, 13 Chy. D. 710. 
 
 liaw and Cqnity merged in One System:— 
 
 The three instrumentalities named by Sir 
 Henry Maine have worked their effect upon the 
 English Common Law. In the first place the 
 Common Law was to a very considerable extent 
 modified and moulded by legal Fictions, but this 
 pertains rather to the history of the Common Law 
 than to the history of Equity. We have seen how 
 in the next place it was affected by the doctrines of 
 Equity; and the last of the three instrumentalities, 
 namely, legislation in the shape of the Judicature 
 Act has declared that both Law and Equity shall 
 be administered in the same forum, and that in all 
 matters " In which there is any conflict or variance 
 between the Eules of Equity and the Eules of the 
 Common Law with reference to the same matter, 
 the Eules of Equity shall prevail." 
 
 i