Pagina-afbeeldingen
PDF
ePub

Other sets of Chancery reports contain cases of this period. There are one or two cases in Dickens, and a number of cases in the Reports in Chancery, and in Nelson's reports. But these reports belong to the following period, and I shall describe them later.1

We must now turn to the evolution of the principles which gradually began to guide and limit the discretion of the Chancellor in his administration of equitable relief.

3

The Subject Matter of the Rules of Equity.

4

The history of the court of Chancery and its equitable jurisdiction, the history of the chancellors and other officials of the court, and of the literature of and the authorities for the early rules of equity, combine to prove the fact that there is a great difference between the subject matter of the rules of equity in the fifteenth and early sixteenth centuries, and their subject matter in the latter part of the sixteenth and earlier part of the seventeenth centuries. In the former period the extent of these rules is very vague; and the turbulence of the country, quite as much as defects in the law, gave rise to many interferences of the chancellor on the grounds of equity and conscience. In the latter period many causes were combining to confine such interference to certain defined channels. The turbulence of the country was being suppressed by the Council and the Star Chamber; some of the defects of the common law were being remedied partly by the legislature, and partly by the efforts of the judges; and the influence of the lawyer chancellors tended to foster the development of fixed rules, and to keep these rules in touch with the new developments which were taking place in the common law. I shall therefore take this chronological division between these two periods as the basis for my treatment of this subject.

THE FIFTEENTH AND EARLY SIXTEENTH CENTURIES

In tracing the origins of the rules of substantive law we must, as a rule, look to the early history of the forms of action. They supply us with the ground plan round which the substantive law has grown up. But in tracing the history of equity we have no such ground plan. We start with a uniform, and, in early days, a simple procedure, which is applied to a very miscellaneous set of cases. If we look at any collection of these cases, there appears at first sight to be very little connection between them. In fact, the only connection is the single circumstance that in all of them the plaintiff thinks that, either owing to his peculiar

1 Vol. vi c. 8.

3 Above 218-261.

5

[blocks in formation]

position, or owing to some defect in the law substantive or adjective or in its administration, or on all these grounds, he has a case which will appeal to the conscience of the chancellor, and therefore induce him to compel the defendant to do that which he conscientiously ought to do. Obviously, the variety of circumstances which constitutes the peculiar position of plaintiffs is infinite; and the defects which could be alleged in the law or its administration were very numerous, especially as the petitions addressed to the chancellor on this ground were based upon defects, not only in the law administered by the common law courts, but also in the law administered by the local and the ecclesiastical courts. It is, however, the cases which turn upon the defects of the common law which are the most important, both because the common law itself was the most important body of law in the state, and because it is to the action of the chancellor in some of these cases that we must look for the origins of some of our modern rules of equity.

We can group the defects in the law which gave rise to the action of the chancellor under two main heads :-(1) defects in the machinery of the law, and (2) defects in its subject matter. Under these two heads, therefore, I shall trace the history of the administration of equity during this period.

(1) Cases which turn upon defects in the machinery of the law.

The defects in the machinery of the law arose either (i) from faults in the machinery itself or its working, or (ii) from the nonexistence of adequate machinery.

(i) Faults in the machinery itself or its working.

I have already said something of these defects.1 In order to understand the manner in which these defects gave rise to the interposition of the chancellor, we must look at them in the light of some of the bills sent up to him.

(a) The process of the common law was very dilatory. In 1389 a shipowner appealed to the chancellor because merchants. would not pay money due to him, and he cannot "stay for a long prosecution." 2 A little later a plaintiff brought a case of forcible entry before the chancellor, "because he hath no speedy remedy given to him by the common law.” 3

(b) It was also very expensive. The poverty of the plaintiff and the expense of a common law action were frequently assigned as the causes for an application to the chancellor. Thus a plaintiff alleged that she had been induced to part with her property to a

1 Vol. ii 554, 589; vol. iii 617-619, 624-627.
2 Select Cases in Chancery (S.S.) 10.

3

* Ibid 66.

suitor who had promised to marry her-but the suitor went off with the property, and it appeared that he was a married man who had previously deceived others in like manner. She appealed to the chancellor because she was not "of power to sue her recovere by way of accion after the cours of the comen lawe of this lond for grete poverte, her said goodes thus beyng oute of her possession." 1

2

4

(c) Common law process was very technical, and very inadequate. It was possible for a defendant to evade service of a writ by constantly shifting his residence; or by fleeing to privileged places, such as Wales, the counties Palatine, or other franchises, where the king's writ did not run. Both these states of fact were sometimes alleged as reasons for an appeal to the chancellor. Wager of law was a possible defence in many actions; and plaintiffs went to equity to avoid it.3 The common law did not take cognizance of acts and transactions entered into abroad. In Edward IV.'s reign a wool merchant prayed for an account to be taken of his dealings with another merchant resident in Calais-" for as muche as the delyverance of the seid wolles, and resceyt of the money therfore, and all the oder deallyng above said, wer don owt of this roialme, your same besecher hath no remedy by the comen law in this behalfe.” 5 Until the common law courts modified their strict rules of venue, many mercantile actions were both for this and other reasons necessarily brought before the Council or the court of Chancery. The formulary system of the common law was very rigid. It was not possible for several plaintiffs to join their several causes of action in one writ, nor could a single plaintiff join in one writ his different causes of action against several defendants. Nor, as we have seen, was it possible for an unincorporate body to sue or be sued as a collective unit. We have seen that such a body could sue in Chancery. Again, in the fifteenth century, the notions of the common lawyers upon the subject of corporate

[ocr errors]

9

[ocr errors]

1 Martin, Some Chancery Proceedings of the Fifteenth Century 19; cp. Select Cases in Chancery (S.S.) 47; John Thomas v. John Wyse and John Clerk, Chancery Proceedings (R.C.) i xiii; Barbour, The History of Contract in Early English Equity 78. 4 Above 117-119.

2 Ibid 80-82.

3 Ibid 99.

5 Thomas Uncle v. Richard Fyldyng, Proceedings in Chancery (R.C.) ii lxv ; cp. Barbour, op. cit. 76, 77, 154-155.

6 Above 117-119, 140-143.

7 Cp. Select Cases in Chancery (S.S.) 3-4 (1386)-agreement to pay freight; ibid 58; ibid 88-90-a case in which the bill was dismissed probably because the matter sued on had taken place in England; Proceedings in Chancery (R.C.) i xxxviii.

8 See Barbour, op. cit. 72, citing The Practice of the Court of Chancery Unfolded 4, and several cases of this period for the contrary practice in equity.

9 Vol. iv 439-440, 477-478.

bodies were very hazy-there were difficulties in the way of actions by corporate bodies against their members, based on the notion that a man cannot sue himself.1 In Henry V.'s reign the provost and commonalty of Plymton Earls, in the county of Devon, complained that their market had been disturbed by a riotous band, but that, as the six known members of this band were members of the commonalty, no action could be taken against them by the common law. There were similar difficulties in the way of one executor suing another.3

2

(d) The system of pleading at the common law was becoming so rigid that litigants who had substantial justice on their side might often be defeated. It was otherwise in the Chancery.*

(e) The common law methods of getting the evidence of the facts in issue before the court were most rudimentary; and obviously this considerably aggravated the evils flowing from the rigidity of the rules of pleading. Reliance was still placed upon the knowledge of the jury, although the jury were fast ceasing to have a first-hand knowledge of the facts.5 Volunteer witnesses were still discouraged by the fear of proceedings for maintenance.6 But witnesses had a good defence to such proceedings if they had been required to testify by a competent court. 6 Hence we get petitions to the chancellor by would-be witnesses that he would command them to testify. Again, the parties to an action could not give evidence at common law. Therefore we get applications to the chancellor to summon persons accused of various misdeeds and examine them as to the facts alleged. Much less could one party to an action force the other party to discover evidence necessary to the success of his action. Thus we have a curious case of the beginning of the fifteenth century, in which two plaintiffs complained that the

8

1 Vol. iii 482-483.

7

2 Proceedings in Chancery (R.C.) ii viii.

3 See Barbour, op. cit. 56; Mr. Barbour ibid n. I questions Fitzherbert's statement, F.N.B. 117 D that account lay as between partners; but Y.B. 41 Ed. III. Hil. pl. 8 (p. 4) makes it clear that it lay when one man bailed to another money to trade with; the objection to the action in that case was that the trading had taken place in Brittany, but it did not prevail and the plaintiff got judgment, Y.B. 41 Ed. III. Pasch. pl. 4; and cp. Y.B. 34 Hy. VI. Trin. pl. 4; Crompton courts 49 b partnership is not mentioned eo nomine in either case, but the case of receiving money to trade with would cover most cases of partnership; the other defects of the action of account, below 288, vol. ii 367, vol. iii 426-427, explain why partners resorted to the Chancery.

5 Vol. i 332-337.

6 Ibid 335.

4 Ibid 641-642; below 285-286. 7 Proceedings in Chancery (R.C.) i xix; ibid i cxxxiii—a bill of Edward VI. s reign asking that writs of subpoena may be directed to the defendants to compe them to appear before the sheriff and a jury to give evidence; cp. Select Cases in Chancery (S.S.) 122.

8 We find this request in the great majority of bills; see e.g. Hastings v. Dacy, Chancery Proceedings (R.C.) i xix; Earl of Shrewsbury v. Coland, ibid xl; Willebye v. Veyle, ibid ii xvi, xvii.

9 Select Cases in Chancery (S.S.) 110,

4

defendant had taken from them two prisoners, which they made at the battle of Agincourt, and ransomed them. They prayed that a certain part of the ransom, said to be in the hands of the wife of the Treasurer of Calais, might be stopped, and that the defendant might be examined to discover the names of the prisoners. A more usual case was an application for the discovery of documents needed to prove a title to land or chattels.1 And these applications for discovery of documents were made not merely against the other party to the action: they were made, and made successfully, against any third persons who had the necessary evidence in their possession. Nor apparently was it then necessary that an action should have begun. In fact many of these actions shade off into actions for the recovery of specific things which the plaintiff could not recover at law because he could not describe them with certainty.5 Such applications will become less necessary when the action on the case for trover and conversion has superseded detinue. It will then become possible to distinguish between these applications for discovery, and to define the limits within which discovery will be allowed.7 Still more was interposition of equity needed. if a party desired to place on record evidence which was vital to him, but which was in danger of perishing. This was the reason for applications to perpetuate testimony. We get in Henry VII.'s reign a bill of John, earl of Oxford, which tells us how Elizabeth his mother, by reason of her faithful allegiance to Henry VI., was coerced to convey her lands to Richard III., then duke of Gloucester; and how there were living divers witnesses of great age to the fact of this coercion. The bill therefore asked that these witnesses might be summoned to depose what they knew in order that their depositions might be "entred and remayne of recorde." 8

(ƒ) In addition to all these defects the machinery of the common law was, as we have seen, abused by the great and

1 Hulkere v. Alcote, Chancery Proceedings (R.C.) ii xv,

xvi.

2 See the decree in Select Cases in Chancery (S.S.) 108 and n. 5; Y.B. 39 Hy. VI. Mich. pl. 36—a grantee from the king of goods of an attained traitor gets discovery of these goods from one in whose possession they are.

See Reed v. the Prior of Launceston, Chancery Proceedings (R.C.) i cxiv; Fellow v. Make ibid i cxxvii; Duke of Somerset and others v. Payn, ibid ii xxix; Baker v. Parson and others, ibid ii, i.

Martin, op. cit. 17; he says that such bills usually contain the following clause or something like it, "As your seid suppliaunt knoweth not the certeintye nor numbre of the seid evydences, nor whether they be enclosed in bagg, boxe sealed, or chest loken, he can have no remedy by the common lawe."

5 Last note; cp. Hulkere v. Alcote, Chancery Proceedings (R.C.) ii xv, xvi.

6 Vol. iii 350-351; Pt. II. c. 2 § 1; cp. Spence, op. cit. 643 n. c.

7 Below 332.

The earl of Oxford v. Tyrell and others, Chancery Proceedings (R.C.) i cxx.

« VorigeDoorgaan »