Pagina-afbeeldingen
PDF
ePub

of wrongful acts1-Egerton said that he had seen, as early as Richard II.'s reign, a precedent of an injunction prohibiting waste, issued against a tenant for life in a case where, owing to the fact that there was a second remainder for life before the ultimate remainder in fee, there was no remedy at law.2

3

Account. We have seen that the common law knew a writ of account; but that it was cumbersome in its methods and limited in its scope. It was only applicable in a limited class of cases; and, as it could not be used when the transactions in question had taken place abroad, it was useless for the more important commercial transactions.1 On the other hand the court of Chancery offered many advantages. It could both examine the parties and their witnesses, and it could join all the parties to the account in one suit.5 Thus we are not surprised to find that, by the end of the fifteenth century, the mere fact that the case involved the taking of accounts was sufficient ground for the interposition of the chancellor."

Administration of Assets.—Much the same reason as that which made the Chancery an efficient tribunal in matters of account, made it an equally efficient tribunal in questions relating to the administration of assets. Its procedure enabled it to do what the common law courts could not do-take a comprehensive view of the rights and liabilities of the estate and of the conduct of the personal representatives, and settle in one legal proceeding the various equities as between the personal representatives and those interested in the estate. The cases are very various in character. In one case an executor sought to follow assets, entrusted by his testator to a deceased and outlawed bailiff, into the hands of a third person. In other cases plaintiffs sued for the pay

8

1 Select Cases in Chancery (S.S.) 20-21, and see n. 3 p. 21; Proceedings in Chancery (R.C.) i lxii, iii-to stay waste; cp. Spence, op. cit. i 671-672.

2 Moore (K.B.) 554 pl. 748-" Tenant pur vie, le remainder pur vie, le remainder ouster en fee, per que le wast en le primer tenant pur vie est dispunishable per le common ley: uncore ad estre decree en Chancery per l'advice des Judges sur complaint de cestuy en remainder en fee, que le primer tenant ne faire wast, et injunction la grant."

3 Vol. iii 426-427; below 315-316; cp. Select Cases in Chancery (S.S.) 100-101. 4 Above 117-119.

5 The earliest case seems to be one of 1385, Select Cases in Chancery (S.S.) 1— as a matter of fact it was within the common law jurisdiction of the chancellor, vol. i 452-453, as the defendant was a clerk of the Chancery; but the two jurisdictions were not so separate then as they afterwards became, ibid 449-452; cp. Barbour, op. cit. 82-84.

"In the early cases the complainant usually assigns his poverty, or inability to get hold of the defendant by common law process, as the occasion for coming to Chancery; but at length the subject matter of an account itself was treated as a sufficient cause," ibid 16.

7 Vol. iii 591.

8 Select Cases in Chancery (S.S.) 131-132-the bailiff had spent £10 of the testator's money in the purchase of land; the vendor had got the £10 and had not conveyed the land.

ment of debts which could not then have been enforced against the executors of a deceased person at common law.1 In others they sought restitution for wrongs done by the deceased. A very curious bill of 1454 alleges that the late bishop of Salisbury had persecuted the plaintiff, who had been obliged to pay twenty marks to get his favour; that the bishop had directed his executors to make restitution for wrongs done; but that, this direction notwithstanding, the executors had refused to pay the twenty marks. In other cases, persons entitled under the will asked that the directions of the testator should be carried out.3 But it would seem from these scattered cases that the equitable jurisdiction over this class of business was not as yet sufficiently extensive to have produced any very settled rules. No doubt the reason is to be found in the fact that the jurisdiction of the ecclesiastical courts had not as yet become as ineffective as it afterwards became.1

(2) Cases which turn upon defects in the subject matter of the law.

In dealing with these cases I shall make the same division as that which I have made in dealing with the cases which fell under the preceding head. In some cases there was a failure to apply the law, or it was actually abused; in others no adequate rules of law existed.

(i) Failure in the application or abuse of the rules of law. The turbulence of the country during this period effectually prevented the rules of law from being properly applied. Hence among the Chancery proceedings we get very numerous bills complaining of criminal or tortious acts which the law prohibited, but was powerless to prevent. We get complaints of duress,5 champerty, violent disseisin,' assaults and affrays, forgery of deeds, rescue from arrest,1o piracy,11 and of what was then an offence of ecclesiastical cognisance-witchcraft.12 These com

plaints are very numerous, and two short illustrative cases will

1 Barbour, op. cit. 102-105; for the common law see vol. iii 576-583; cp. Vavasour v. Chadworth, Proceedings in Chancery (R.C.) i xciii—repayment of a loan to a deceased person from his executors.

2 Select Cases in Chancery (S.S.) 136-137; cp. Hylton v. Pollard, Proceedings in Chancery (R.C.) i l, li.

3 Select Cases in Chancery (S.S.) 143-150; Polgrenn v. Feara, Proceedings in Chancery (R.C.) i xxxix-refusal by executors to give up goods to a son; Bebington Gull, ibid i lvi-neglect to found a charity according to a will; Wilflete v. Cassyn, ibid ii xxxiii-for delivery of chattels left by will.

V.

4 Vol. iii 591-594.

5 Select Cases in Chancery (S.S.) 8-10.
7 Ibid 76-77.

8 Proceedings in Chancery (R.C.) ii 1.

6 Ibid 71-72.

9 Ibid ii xxx, xxxi.

10 Ibid ii v,

[blocks in formation]

12 Martin, Archæologia (2nd series) vol. 10 Pt. II. 374-378; cp. Select Cases before the Council (S.S.) xxxiv-xxxv; for witchcraft generally see vol, iv 507-511.

VOL. V.-19

suffice. The first is an ordinary typical case of riot and assault.1 John Chambre of Northampton complained that Ralph Grevill had riotously entered his manor of Hanwell with many other misgoverned persons "arrayed in forcible manner with jackys, salattis, lange-debeffys, launce-gaiys, and many other forbidden weapons," driven out his tenants, and taken away his cattle; that, on one of the tenants coming to demand the cattle, he had beaten and wounded him so that his life was despaired of; and that, on the plaintiff's suing out writs of repelvin, he had threatened that he would make the server of the writ eat them. The second is a rather more curious case. One Henry Hoigges, the plaintiff, alleged that he had acted as attorney to Richard Flamank in a suit against the Prior of Bodmin; and that, in consequence, a priest and servant of the prior, by name John Henry, bewitched him so that he broke his leg and his life was in danger. Further, he had threatened by similar diabolical means to break the plaintiff's neck. The plaintiff asks the chancellor's help not only on his own account, but on account of the great harm that would be done to all suitors and attorneys in the king's courts if this sort of conduct was allowed to pass. He thinks that the defendant should be punished, and made to swear that he will "forsake his heresy witchcraft and sorcery."

The actual abuse of, as distinct from the failure in the application of the rules of law, is not quite so common as the actual abuse of the rules of procedure. But there are one or two clear cases. A curious case comes from the reign of Edward IV., in which a decree was made in favour of the plaintiff.3 It appears that one John Causton was farmer to Lord Bourchier and owed him money. The plaintiff Henry Astell, citizen and draper of London, was owed money by Lord Bourchier. By arrangement between the parties it was agreed that John Causton should enter into obligations to pay Lord Bourchier's debt to Astell. But Causton refused to fulfil this agreement unless Astell would enter into counter bonds for the same sum, conditioned to be void if Astell saved him harmless against any claim by Lord Bourchier. These counter bonds with this condition were entered into by Astell. The result was that Astell found himself in effect swindled out of his money; for, as Lord Bourchier had now no claim against Causton, the condition of Astell's bond, that if he saved him harmless against claims by Lord Bourchier the bond should be void, was impossible and therefore void. In effect Astell's

[blocks in formation]

3 Astell v. Causton, ibid cviii-cix.

4

2 Ibid i xxiv.

4" If an obligation be endorsed with a condition impossible, the obligation is good and the condition is void," Perkins, Profitable Book § 753.

counter-bonds were absolute; and therefore he had no answer to the action which Causton was bringing upon these counter-bonds. But the commonest class of cases in which the law was abused is to be found in the law relating to villein status.1 The bills of this period show that it was made the pretext for all sorts of violence and extortion. I will give two instances out of many. The following is a bill of Richard II.'s reign 2 :-"Beseecheth a poor man, William son of John Calne, that whereas he is of free estate and condition, and he and all his ancestors time out of mind are and have been of the same condition . . . now then cometh one John Shortegrove, farmer of certain lands and tenements from one George Belamy, and claimeth the said William as his villein appurtenant to the said lands and tenements, and he hath seized and arrested the said William at Upton in the county of Hereford, and hath brought him from that county into Wales, and there keepeth him in a strong and hard prison." Another bill of 14643 alleged that the suppliant had been carried off and imprisoned till he entered into a bond to bring up a sufficient number of persons to prove that he was free. He brought forty such persons. But the defendant and his friends drove them off with arrows. Twelve months after the suppliant was again imprisoned, but he escaped to London. He dare not go home again, and asks for the chancellor's intervention.

(ii) The non-existence or inadequacy of the rules of law.

Some of these cases possess the same permanent interest as the cases which fall under the head of the inadequacy of the machinery of the common law. In both sets of cases we can see the germs of some of the later rules of equity.

By far the most important class of these cases is that relating to uses and trusts with which I have already dealt. The court of Chancery had begun to develop a far more definite, a far more systematic set of rules upon this topic than upon any other. And the fact that it had done so illustrates how closely equity followed the common law-supplementing it and correcting it. The land law was the most highly developed branch of the common law, and suffered the most from that premature fixity of the common law which had promoted technicality at the expense of reasonableness. It was only natural, therefore, that it should be in connection with this branch of the law that the rules of equity should most quickly develop.

Here I shall illustrate from the proceedings of the court during

1 Vol. iii 502-505.

2 Select Cases in Chancery (S.S.) 80-81. Ibid 151-153; see also ibid 110-111, 154-155; Proceedings in Chancery (R.C.) i, ii, iii; xlii.

4 Vol. iv 407-480.

گی

this period one or two other branches of the law in which the absence or inadequacy of existing legal rules were supplemented by equity. I shall deal with them under the following heads :-Fraud, Mistake, Accident, and Forgery; Relief against Penalties ; Contract in general; Contracts of Sale; Agency and Partnership; Suretyship and Indemnity; the ownership of Chattels; the Assignment of Choses in Action.

1

3

Fraud, Mistake, Accident, and Forgery.-The scope of the action for deceit was very limited; and it was not till the growth of actions for deceit on the case that the common law began to get some clear notions of the nature of fraud.2 In fact the common lawyers at this period had no adequate machinery for trying questions of fraud. For a long time therefore they held to the primitive view that "the thought of man is not triable"; and, if they were obliged to consider any question of fraud, they invented arbitrary rules according to which they would imply fraud from various sets of external facts.1 Nor was a plea of fraud of any avail at this period as a defence to an action for breach of contract. Till the growth of assumpsit, covenant was the only purely contractual action, and to it fraud was no defence.5 On the other hand, the power of the chancellor to examine the defendant and other witnesses, made the court of Chancery a very competent tribunal to deal with these questions. A very early case tells us how it was agreed that an attorney should pay over twenty marks in gold in return for a release, and how he got the release and kept the money. In another case the complaint is that a condition which was to have been inserted in a bond had been fraudulently left out." In Henry VI.'s reign relief against a bond and a conveyance was asked on the ground that the plaintiff, who was of weak intellect, had been made drunk, Edward IV.'s reign a bill to set aside a deed made to defraud creditors was successful. Similarly the court relieved against mistakes made by reason of the ignorance or inadvertence of the parties-Deus est procurator fatuorum.10 Illustrations of the exercise of this jurisdiction are cases in which a debtor had paid without taking an acquittance,11 or in which a collateral agreement, not appearing upon the face of the document sued upon, had 3 Vol. iii 374, 375.

1 Vol. iii 407-408.

6

2 Below 416-417.

8

4 See vol. iv 481-482 for the interpretation of Elizabeth's statutes against conveyances in fraud of purchasers and creditors.

5 Barbour, op. cit. 23.

6 Select Cases in Chancery (S.S.) 2-3-the date is 1386.

7 Martin, op. cit. 8-9.

8 Stonehouse v. Stanshawe, Proceedings in Chancery (R.C.) i xxix.

9 Y.B. 16 Ed. IV. Pasch. pl. 9; cp. Spence, op. cit. 624 n. b.

10 Y.B. 8 Ed. IV. Pasch. pl. II.

11 Barbour, op. cit. 85-88.

« VorigeDoorgaan »