powerful in order to cover their acts of violence and fraud.1 Hence applications to the chancellor grounded upon facts of this kind bear a very large proportion to the total number of these applications. These bills allege such acts as the vexing of the plaintiff with groundless legal proceedings, the corruption of jurors and local officials, the misuse of the machinery of the local courts, of the common law courts, and of the court of Admiralty, maintenance and champerty, and very often conspiracy to defraud,10 or to terrorise11 or corrupt 12 the jury. Of this mass of cases only one or two illustrations can be given.






A typical case illustrating the vexation of plaintiffs by groundless legal proceedings comes from the end of the fourteenth century. 13 One Campyn Prynell, merchant of Lucca in Lombardy, complained that Richard Underwood, tailor of London, had vexed him by divers feigned actions of trespass for taking away his wife and goods. Two actions in the King's Bench had ended in the nonsuit of Richard. Notwithstanding, "the said Richard hath feigned two plaints against the said suppliant, which are still pending, by which the said Richard purposeth by the assistance of divers of his maintainers to await the said suppliant with jurors procured and not indifferent." The facts, as stated by the suppliant, seem to have been that the lady whom Richard claimed as his wife was not his wife at all, as she had been divorced from him by reason of a precontract. Another case illustrates the manner in which a false verdict was procured.14 Two citizens of London had had their purses cut. The plaintiff found one of the purses and held it up to show that he had found it. The owner took it and said that unless he would deliver the other purse he would arrest him; and though, on his being searched, nothing suspicious was found, he was arrested. The owner of the purse then “ summoned suche an enquest that iiij of the same undertoke to rewle all ther felowship. And they had with them . . . datis, reysons of

1 Vol. ii 414-416.

2 Damico v. Burdican, Proceedings in Chancery (R.C.) i ciii.

3 Martin, op. cit. 9, 10.

4 Ibid 6-9; Proceedings in Chancery (R.C.) i xxxii, iii-the sheriffs of Norwich ibid i lxxxvii ;-the mayor of Marlborough; ibid i ci-an alderman of Norwich.

5 Martin, op. cit. 4-6-the Marshalsea; Proceedings in Chancery (R.C.) i xliii-the court of Scarborough; Select Cases in Chancery (S.S.) 60, 61-court of Dover Castle.

6 Proceedings in Chancery (R.C.) i, cviii-cix, cxviii; cp. Y.B. Ed. IV. Pasch. pl. 5.

7 Proceedings in Chancery (R.C.) ii xxxvi, vii—the applicant has been arrested contrary to the statutes of Richard II. and Henry IV. vol. i 548. 8 Select Cases in Chancery (S.S.) II, 12.

11 Below 283-284.

10 Ibid 72-73.
13 Select Cases in Chancery (S.S.) 20-21.

9 Ibid 71-72.
12 Below 284.
14 Martin, op. cit. 12.

currannce and other spyces att the cost and purveyaunce of the seid John Aleyn [the owner of the purse] . . . and made all the remenannte of the enqueste to feynte for defaut of sustenaunce that without they had sayd as the iiij did, they had ben like to have dyed." The result was the plaintiff was cast in damages, and, for non-payment, was arrested. Mr. Trice-Martin has printed another case turning upon the suspicions entertained of a London jury.1 It appears that the defendant John Martyn of London, draper, had agreed to bet Miles Bysney, also of London, 30s. on a horse race into York, and that the 30s. had been deposited with the plaintiff, William Whytyng of York. John Martyn's horse had won by foul play, and it was generally agreed that the 30s. should be paid over to Miles, and this had been done. But Whytyng, having come to London, Martyn caused him to be arrested in an action of account for the 30s. He proposed by twelve of his neighbours to get him condemned. "Wherfor your seid suppliaunt mekely besecheth your good and gracious lordship tenderly to consider the premysses, and how that the xii men of London owt not to medle with foreyn maters by the lawe, and yet oft tymes they doo, and the partie agenst whom they passe ys without remedy at the comen lawe bycause ther lyeth none atteynt in London.'

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Another bill turns upon the troubles of a priest who, as official of the bishop of Chester, had excommunicated the defendant for adultery. The defendant had gone to London, and there had become coroner and escheator. The priest having come to London, the defendant had brought an action of trespass against him, and had had him arrested.2

Even foreigners knew how to make use of these legal technicalities. 3 A bill of Edward IV.'s reign tells us how the servant and kinsman of the plaintiff, a Spanish merchant, played at dice with the defendant, a Gascony merchant. The dice were false, and the Gascony merchant won £28. The Spanish merchant thereupon caused the swindler to be arrested. But the swindler "by subtyle meanes hath of late remeved hymselfe in to the Kynge's Benche by means of suerte of the peace and theruppon taken sentwary in Westminster, and nowe by false and untrewe accions troublith your seid oratour in London, that he may not attend his merchaundises, to thentent to cause hym to surcese of his labour and suetes."

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If we now turn to the system of procedure and pleading in use in the Chancery we shall see that, in the fifteenth century, it

1 Martin, op. cit. 11-12.

2 Meverell v. Saunsum, Proceedings in Chancery (R.C.) i cv.
3 De Castro v. Narbone, ibid i cii.

was strong in the very points in which the common law system was weak. In outline the course of the procedure was as follows:

The plaintiff sent in his bill, which is often quite untechnical in its form and illiterate in its language. The bill usually prayed that a subpoena should be issued to secure the appearance and examination of the defendant.1 Sometimes the plaintiff offered to produce witnesses in support of his petition. At the foot of the bill were the names of the pledges to prosecute. They were made necessary by the fact that a statute of Henry VI. prohibited the issue of a writ of subpoena till the plaintiff had found sureties to satisfy the defendant's damages if he did not prove his case.3 But it would seem that these pledges soon became as fictitious in Chancery as they were in the common law courts.4 When the defendant appeared, both the plaintiff and his witnesses, and the defendant and any witnesses which he might produce, were examined by the chancellor or other person deputed by him.5 "No doubt," as Spence says," "a recommendation or rebuke from the Chancellor often settled the matter at once, which may account for there being in early times so many bills without any account of ulterior proceedings.' But sometimes there were further proceedings. The defendant often began by pleading that the plaintiff had no cause of action in the Chancery, and then went on to answer the bill. Or he might demur to the whole bill, or he might put in other pleas, e.g. that the proper parties had not been joined. Naturally the common lawyers tried to introduce their technical rules of pleading. 10 We get replications and rejoinders in form not unlike those used at common law. But we can see from the Year Books, and early reports of Chancery cases, that the chancellors set their faces against attempts to defeat plaintiffs by insisting upon the technical objections which would have been valid at common law.11 We shall see, indeed, that at a later period the system of equity pleading developed faults of its own, different from, but as great as those which disfigured the

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1 It sometimes prayed for a writ of Certiorari or Habeas Corpus.


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2 Barbour, op. cit. 147; for the writs Quibusdam certis de causis and subpoena see Baldwin, King's Council 288-292.

3 15 Henry VI. c. 4; cp. Barbour, op. cit. 145.

4 Martin, Archæologia (2nd series) vol. x Pt. II. 353-355-in one case the second pledge is simply the first name spelt backwards.

5 Barbour, op. cit. 149.

7 Spence, op. cit. 373.

9 Y.B. 8 Ed. IV. Trin. pl. 1, cited ibid n. h.

6 Equitable Jurisdiction i 372.



10 Spence, op. cit. 375.

11 Y.B. 9 Ed. IV. Trin. pl. 9, cited vol. ii 596; in Y.B. 9 Ed. IV. Mich. pl. 26, the Chancellor said "Si en cest court il n'est requisite que le bill soit tout en certein solǝnque le solemnity del comen ley"; Pasmore v. Ford (1581) Choyce Cases 147.

common law system.1 But in these early days its faults had hardly begun to appear. The chancellor could say with truth that "a man shall not be prejudiced by mispleading or by defects of form, but he shall be judged according to the truth of his case.



Now it is quite clear that this system was free from most of the cardinal defects of the common law system. It was comparatively speedy-the Chancery was not tied down to the law terms, nor was there any undue delay in getting the defendant before the court. This in itself meant that it was less expensive. Moreover, the chancellor always professed to have a special regard for the interests of the poor. It was the reverse of technical, and it was eminently calculated to get at the real facts by the most direct methods. We have seen that the chancellor set his face against allowing these facts to be obscured by the arts of the pleader; and the methods used to elicit the truth by the examination and re-examination of witnesses, and by compelling the production of documents, were very effective. Barbour has explained this very clearly. He says: "the examination was under oath; it is sometimes said to be on the sacrament, sometimes 'on the boke.' If the defendants lived at some distance from London, or were ill and unable to appear, a commission by writ of Dedimus Potestatem would be granted to take the defendant's answer and also to examine witnesses. A certificate of the answer and testimony would then be taken into chancery. . . . Evidence verbal or written was placed on the same footing, but the chancellor compelled a petitioner to prove his case. If he deemed the evidence insufficient or conflicting, he would call for more, and no decree could be had until it was produced. There do not appear to have been any rules of evidence, nor presumptions as to the burden of proof. The whole proceeding was thoroughly informal." Finally, the fact that the chancellor, by reason of his close connection with the Council, could act with the whole force of the executive government, enforcing his orders in the last resort by a commission of rebellion, prevented abuses of the machinery of the Chancery, similar to those abuses of the machinery of the common law courts, which were facilitated both by the weakness of their executive power and the technicality of their procedure.


1 Pt. II. c. 7 § 3; cp. vol. i 645-646.

2Y.B. 9 Ed. IV. Trin. pl. 9.

3 For the common law delays see vol. iii App. V.

In the tract on the Office of Chancellor (above 272) 21, it is said "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 countenance of great men, cannot maintain the goodness of their cause"; and this was the traditional view.

5 Op. cit. 149.

6 Vol. i 399-404.

7 Ibid 406.

We shall see that these characteristics of the Chancery procedure were of the first importance in helping the chancellor to remedy defects in the subject matter of the law. But, before I can deal with this topic, I must first deal with the cases in which the Chancery procedure supplied a machinery which was wholly wanting to the common law.

(ii) The non-existence in the common law of adequate machinery.

Some of the cases falling under this head are of more permanent interest than many of the cases falling under the preceding head. To some extent the faults in the machinery of the common law, which gave rise, in the fifteenth century, to so many applications to the chancellor, were remedied in the course of the sixteenth century. But in many cases that machinery still remained inadequate to do complete justice to litigants. Therefore in some of the interpositions of the chancellor, based upon the non-existence of adequate machinery, we can see the germs of some of the later settled rules of equity. The principal cases falling under this head turn upon the impossibility of getting specific relief at common law, and the inadequacy of its machinery for dealing with cases which involved the taking of accounts and the administration of assets.


Specific Relief-We have seen that in early days the common law courts were in the habit of giving specific relief of various kinds in connection with both real actions, and other actions which enforced rights to or affecting land. But in connection with the purely personal actions no such relief could be obtained. The successful plaintiff in actions upon both contracts 2 and torts could only get damages. Hence, from very early days, we get bills for the delivery up of specific chattels, against not only the persons who had taken or otherwise possessed themselves of them, or to whom they had been bailed," but also against third persons into whose hands they had come. We get bills for the performance of specific acts-e.g. the cancellation of a document; for the specific performance of contracts-e.g. to convey land in accordance with a contract of sale, or a covenant to settle property on marriage; or for injunctions against the commission


1 Vol. ii 246-248.


2 Below 322.


3 Vol. iii 322.

4 Select Cases in Chancery (S.S.) 82, 100-101, 113-114; Barbour, op. cit. 174a case of 8 Hy. V.; Proceedings in Chancery (R.C.) ii vii.

5 See a case of 1438 cited Barbour, op. cit. 112.

Ibid 114 n. 4; cp. Earl of Shrewsbury v. Coland, Proceedings in Chancery (R.C.) i xl.

7 Barbour, op. cit. 87-88, and cases there cited; cp. Select Cases in Chancery 130-131-a suit asking for partition.

(Ibid 122-123; cp. ibid 78-79.

9 Ibid 43-44; 137-143.

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