Similarly the chancellor was prepared to protect an undisclosed principal. It is quite probable that the chancellor's action helped forward the development of the common law ideas on this topic, and so helped the common lawyers to appropriate jurisdiction over the law of agency. We find one or two simple cases of partnership, similar to those which were brought in the mercantile courts.2 The plaintiff generally asked that his partner should account. The common law action of account was, as we have seen,3 available for this purpose; but its defects made it an inconvenient remedy. Obviously the adjustment of the relations between partners inter se demanded a procedure which could deal with administrative business. Therefore partnership, like administration of assets, eventually came to be principally developed by equity.

Suretyship and Indemnity.-It was not till Henry VIII.'s reign that these contracts became enforceable at law by the action of assumpsit. Therefore we are not surprised to find that in the fifteenth century both these contracts were brought before the chancellor. Thus we get suits by creditors against sureties," and by sureties who complained that the creditor was suing them before the principal debtor. The contracts of indemnity which came before the chancellor were generally contracts in which two debtors had become jointly bound to a creditor, the first debtor having expressly or impliedly promised to indemnify the other. When the action of assumpsit became available to enforce the contracts of suretyship and indemnity it fully met the case of the contract of indemnity. But in the case of the contract of suretyship equity still continued to supplement the law. The continuing relations between the three parties to the contract gave rise to equities arising out of their conduct which only the court of Chancery could enforce. Thus the effect upon the surety's rights of an enlargement of time given by the creditor to the principal debtor, and the surety's right, on payment, to the securities held by the creditor," were incidents of the contract settled at a later period by equity.

The Ownership of Chattels.—Even though, at the beginning of the fifteenth century, detinue lay for the recovery of chattels which had been bailed or had involuntarily left the possession of the owner," 10 it was for many reasons an inconvenient action.

Barbour, op. cit. 132.

3 Above 288 n. 3.

5 Barbour, op. cit. 133-134.

7 Ibid 135-137.

8 Y.B. 9 Ed. IV. Mich. pl. 26; and cp. Spence, op. cit. 638.

9 Ibid 639.

10 Vol. iii 324-328, 337, 318-350.

No specific restitution could be had; and the action gave no remedy if the thing was damaged. If detinue was brought on a bailment the action must, in the fourteenth century,' have been brought against the bailee himself or some one in privity with him, for instance his heir or executor; and wager of law was sometimes possible. These defects drove plaintiffs to the Chancery; and the action of the Chancery in these cases no doubt helped forward the development of the action on the case based on a trover and a conversion, just as in the sphere of contract it helped forward the development of assumpsit.

The Assignment of Choses in Action."-The common law never allowed a chose in action to be assigned; and, till the development of assumpsit, it was impossible to circumvent this rule by a novation. But, from an early period, the court of Chancery permitted the assignment of a debt, and recognized a novation. Barbour has collected three clear instances of an assignment, two instances of a novation,' and three instances which might conceivably be treated as either one or the other. Right down to the Judicature Acts, apart from negotiable instruments adopted from the law merchant into the common law,9 it was only in equity that these assignments were recognized.

6

8

The large amount of ground thus covered by equity in the fifteenth century constitutes a very damaging indictment of the mediæval common law. Some of its faults were capable of being remedied, and were to some extent remedied, in the sixteenth and early seventeenth centuries. The medieval common law was then giving place to the modern common law. Necessarily, therefore, the field of equity tended to shrink; and, as at the same time the court of Chancery and its procedure were assuming their modern form, we begin to see, both in the extent and in the character of the rules of equity, the beginnings of our modern system. This development we must now consider.

THE SIXTEENTH AND EARLY SEVENTEENTH CENTURIES

Throughout this period the development of a systematic body of equitable rules was proceeding; but the process was only beginning; and therefore we find that their subject matter was still to some extent determined by the defects of the common law. That this was so can be seen from the views expressed by

1 Vol. iii 348-349.

2 For these defects generally see Barbour, op. cit. 113-114.

3 See ibid III-112 for some cases.

4 Vol. iii 350-351; Pt. II. c. 2 § I.

5 See Pt. II. c. 2 § 3 for the history of the law on this topic.

Op. cit. 108.

8 Ibid 109.

7 Ibid 110.

9 Pt. II. c. 4 I. § 2.

" 1

the chancellors themselves. Bromley, as we have seen, warned a batch of newly created serjeants, "not to bring causes hither to this court upon false surmises.' Hatton, on a similar occasion, gave a similar warning;2 and Bacon, enumerating the defects of the law, assigned as one of them, "that the Chancery courts are more filled, the remedy of law being often obscure and doubtful.” 3

4

But many of the defects and weaknesses of the common law of the fifteenth century had been remedied in the course of the sixteenth century. Consequently we can see a tendency towards the placing of some limitations upon the indefinite sphere of equitable jurisdiction. The nature of and the reasons for these limitations may be summed up as follows: Firstly, the lawlessness of the fifteenth century, which had been the occasion of so many petitions to the chancellor, was being gradually checked by the Council and the Star Chamber. As we have seen, their work was twofold. They increased the efficiency of the criminal law directly, by assuming jurisdiction over certain offences; and indirectly, by rendering more efficient the exercise of the criminal jurisdiction of the common law.5 At the same time cases of outrage occasionally came before the court of Chancery right down to the end of Elizabeth's reign, and cases of forcible seizure of property as late as Charles I.'s reign. Throughout this period also we have applications for writs of certiorari and habeas corpus with a view to remedy oppression by local courts and officials.8 But it is clear that this jurisdiction is on the decline. The punishment of outrages and violent disseisin was generally left to the Star Chamber. Applications for writs of certiorari and habeas corpus were not granted as of course; 10 and, when the common law courts showed that they were capable of doing justice in such cases, these applications gradually ceased to be made to the chancellor. Similarly, encroachments upon the ecclesiastical

7

Spence, op. cit. i 687; vol. i 406.

2 Sanders, Orders ii App. 1036.

5 Above 190-197.

Spence, op. cit. i 688-689—“ It appears from the registrar's books, that down to the time of Charles I., it was seldom that the Court of Chancery had not to interfere with its coercive powers, in respect of some forcible seizure of the property which was the subject of the litigation, or to insure the quiet enjoyment to the party who was declared to be entitled to it."

8 Ibid i 687.

9 Wakeman v. Smith (1584-1585), Tothill 12-"Though criminal causes are not here to be tried directly for the punishing of them, yet incidentally for so much as concerneth the equity of the cause, they are to be answered"; apparently in 1639 the court refused to hear a case because it was "of a penal and criminal nature," Manning v. Freake, ibid 139.

10 Sanders, Orders i 8-Wriothesley; 10-Riche; 26, 33-Nicholas Bacon; 70Puckering; 112, 120-Francis Bacon.

8

9

6

3

jurisdiction over probate of wills1 and divorces,2 and upon the Admiralty jurisdiction over depredations at sea, also ceased. Secondly, some of the additions made by statute to the criminal law had a similar effect. Elizabeth's statute as to perjury is a good illustration. The practice as to giving relief on the ground of perjury fluctuated during Elizabeth's reign; but in the course of the seventeenth century, the chancellor ceased to entertain bills for perjury. Thirdly, the growth of actions on the case, by rendering procedure more uniform and simple, tended to render obsolete many of the technicalities which lawless or fraudulent persons had turned to their own uses. The disuse of such older methods of trial as wager of law had a similar effect." Fourthly, the development by the common law of a system of written pleadings, and the fact that it was beginning to acquire a law of evidence, enabled it to do more substantial justice than in the preceding period. And, in the latter part of the seventeenth century, the powers which it assumed to order a new trial where the verdict was unreasonable,10 and to change the venue in civil 11 or criminal cases,' 12 if it was clear that a fair trial could not be had, obviated the necessity for the chancellor's interference in these cases. Fifthly, the common law was beginning to possess an adequate law of contract,13 and to give an adequate protection to the owners of chattels,14 The development of assumpsit and trover supplied remedies for many wrongs formerly unremedied or only partially remedied by the common law. Therefore an appeal to the chancellor was only needed if something more than the common law remedy of damages was required.15 Sixthly, this last development, coupled with the fictions by which the difficulties arising from the law as to venue were got over,16 enabled the common law courts to divide with the Admiralty the mercantile

1 Tothill 188; Monro, Acta Cancellaria 761.

2 Tothill 61 says that two decrees for divorce are recorded, but Spence, op. cit. i 702, says "I have been unable to discover them even with the help of Mr. Monro." Spence, op. cit. i 703. 4 Vol. iv 518.

3

5 Nicholas Bacon dismissed so much of a bill as related to perjury, Spence, op. 'cit. i 69 n. c; but there is an instance of a person being punished for perjury in 1573, ibid; we have bills for perjury in 1576-1577, Cary 63-64; and in 1579, ibid 75-76; and for other cases cp. Tothill 156-157; but in 1570 the Queen's Bench resolved that any examination of perjury by the Chancery must be by Latin Bill, and the trial after issue must be in the Queen's Bench, i.e. these cases belonged to its common law and not to its equitable jurisdiction; perjury is not mentioned as part of the common law jurisdiction of the court in 1 Eq. Cas. Ab. 128.

6 Below 381, 382; cp. vol. iii 626-627.

8 Vol. iii 640-653.

9 Pt. II. c. 7 § I.

11 Isley v. Pelham (1591), Monro, op. cit. 621.

7

Cp Spence, op. cit. 696. 10 Vol. i 225-226.

12 An application of this sort is recorded as late as 1684, see Tyrringham's Case, cited 1 Vern. 439; Spence, op. cit. i 699.

13 Vol. iii 434-450; Pt. II. c. 3 § I.

14 Vol. iii 350-351; below Pt. II. c. 2 § 1.

15 Below 321-325.

16 Above 140-143.

business of the country. The Admiralty and the common law courts thus took from the Chancery many commercial cases which had come before it in the earlier period.

In these ways and for these reasons a good deal of business was ceasing to come to the court of Chancery. But necessarily the process was gradual. Throughout the seventeenth century, and especially during this period, we occasionally meet with cases which are reminiscent of the past rather than of the future history of equity. They gradually ceased as the common law improved; and consequently the equitable jurisdiction of the chancellor gradually assumed its modern form.

This curtailment of the sphere of the equitable jurisdiction was a powerful factor in the systematization of the principles of equity. That this process of systematization was beneficial to the litigant is obvious; and it is equally obvious that it was a vital necessity to the continuous existence and development of equity itself. But it had its weak as well as its strong side. It was the procedure of the court of Chancery that first became thus systematized; and, as we have seen, it soon began to exhibit the defects of length, expense, technicality, and even corruption,1 which prevented the court from doing that cheap and speedy justice which it had done in the preceding period. If the common law was to some extent levelled up, equity was to at least an equal extent levelled down. Though the court still continued to hold itself out as the protector of the poor,2 suitors ceased to be able to appeal to equity against the delay and expense of the common law-if they did they often found themselves "out of the frying pan into the fire." 3 And here, too, we see the weak side of the victory of the Chancery over the common law-a victory which was, as we have seen, a condition precedent for the free and continuous development of equity. The efforts of the chancellor to stop the abuses of injunctions against proceedings at common law 5 did not succeed; and, in spite of repeated orders and decisions, litigants attempted to get injunctions and

7

1 Vol. i 424-428; cp. Dasent xxii 144-145 (1591), 235, 250 (1591-1592), 494, 495496 (1592), for complaints of delays in the Chancery; and see ibid 377 (1592) for complaints of fraudulent practices of the under clerks.

2 Monro, op. cit. 108; below 337 n. 4.

3 See Dasent xv 398, 405 (1587-1588) for a case in which vexatious suits had been begun in both the Chancery and the King's Bench.

4 Above 236-238.

5 For Hatton's address to a newly created serjeant on this topic see above 226 n. 3; cp. Bacon's speech, Spedding, Letters and Life vi 185-186; and his Orders nos. 20-28.

6 Vol. i 465.

7 Sanders, Orders i 29-Nicholas Bacon; ibid 69-Puckering; ibid 111 no. 15Francis Bacon.

8 Monro, Acta Cancellaria 59 n. 92 (1608), 119 (1609), 313-314 (1623); cp. Cary 74, 82, 83; Choyce cases 121, 135; Tothill 80.