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land operated as a conveyance. We do not see as yet very many of the modern rules as to the conditions under which the court will grant this remedy; nor has the later distinction between specific relief upon executed contracts, and the specific performance of executory contracts, been elaborated. We do, however, see that the court, especially in agreements relating to marriage settlements, pays great attention to the paramount intention of the parties.3

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Thus the jurisdiction of the court over contracts was a much more restricted jurisdiction than in the preceding period. But it is not probable that the court lost on that account very much business. The prosperity of the country, and the changes in the land law which made elaborate settlements possible, encouraged dealings with land which were unknown in the Middle Ages.

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(2) Property.—Although the real actions made provision for specific relief in case of the infringement of a large number of rights relating to land,5 and although the termor could get similar relief in an action of ejectment, there were still many cases in which the jurisdiction of the court of Chancery was either convenient or necessary. Firstly, the real actions were decaying, and their place was being rapidly taken by the action of ejectment.7 We shall see that this action was not conclusive even upon the parties to it. Therefore it was always possible to bring, and to go on bringing, new actions. Hence we get applications to the court of Chancery for an injunction "to quiet possession by stopping these repeated actions." On similar principles the court would issue an injunction to secure the tenant's possession during the hearing of the suit,10 or until further order was made.

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1 See L.Q.R. xvii 372-373; Mr. Amos there says "the greater part of the English law on the subject of specific performance of contracts is concerned with the execution of contracts to convey. A very ample and effective equivalent to this branch of the English doctrine of specific relief seems to be afforded in French law by the translative effect which is attached by the Code to a simple convention to transfer property."

2 Ashburner, Equity 534 n (s).

See e.g. Lyddal v. Vanlore (1626-1627), 1 Ch. Rep. 9-13, where an agreement was decreed though it varied a settlement already executed; Wiseman v. Roper (1645-1646), ibid 150-a covenant to settle lands of which the covenantor had no possession, but only a possibility of inheriting; having inherited them, specific performan.e of the covenant was decreed; "This Court do find warranted by the Precedents and constant practice of this court, where such agreements have been made, upon which the party can only recover damages at law, for this court to decree the thing in specie, wherein this court doth not bind the interest of the lands, but inforce the party to perform his own agreement," ibid at p. 160.

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* See last note; and cp. Arnold v. Barrington (1631), Dick. 5. 5 Vol. iii 3-26; cp. vol. ii 246-249.

7 Pt. II. c. I § I.

6 Vol. iii 216-217.

8 Ibid

9 Sapcote v. Newport (1559-1560), Cary 47; Denis v. Carew (1618-1619), Tothill

63; and see ibid 112, 114.

10 Hawkes v. Champion (1558), Cary 36; Carle v. Clerk (1590), Monro, Acta Cancellaria 605-606.

11 Hinkersfield v. Bailly (1558), Monro, op. cit. 333.

Secondly, an injunction was useful to secure the performance of the duties of landlords and tenants. Thus in 1560-1561 the plaintiff had made a title by parol lease to certain lands belonging to the defendant, and, having done so, had sown the land with corn. Thereupon the defendant had entered upon him; but the plaintiff "had an injunction for the corn." 1 Conversely, in 1563-1564 it was decreed that the defendant should pay a certain rent to the plaintiff, the lord of the manor of whom he held; that he should do suit and service at the plaintiff's court; and that the plaintiff was entitled to the fines and amerciaments for the trespasses presented at the court of his manor.2 Thirdly, injunctions were issued to constitute or to declare the existence of easements, profits, or rights analogous thereto. Fourthly, they were issued to enforce inclosure and other awards,5 and even the bylaws of townships. Fifthly, they were issued as a result of decrees as to the copyhold status of land held of a In Edward VI.'s reign there was a decree in favour of the defendant who claimed that his lands were ancient copyhold and not leasehold. We have seen that the establishment of the fact that lands were ancient copyhold gave the tenant a very much more favourable position than the leaseholder, because he could invoke the protection of the manorial custom which was now enforced by all the king's courts.

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We do not find many cases in which specific relief was given in connection with chattels. But there is one clear case of 1516 in which "a tablet or pomander of gold," given by the plaintiff to the defendant "at such time as he was a suitor for marriage to the defendant," was ordered to be restored.9

(3) Tort.-At this period the specific relief given in aid of the law of property shades off into the specific relief given in aid of

1 Harrison v. Chomeley (1560-1561), Cary 51.

2 Litton v. Couper (1563-1564), Cary 51-52.

3" Wotton contra Wotton, a highway decreed in 10 Car. Powell contra Parsons, a piece of ground sold, but no reservation of a highway, but decreed that a way should be continued as formerly, Mich. 3 Car.," Tothill 70; Lawrence v. Windham (1576-1577), Cary 64-suit for common of pasture and turbary.

4 Tothill 110-112.

5 Burtet v. Redman (1559-1560), Cary 47—an award as to a custom of tenant right made by the justices of assize.

"Shipwaie contra Pilkington, concerning the decreeing of by-laws for the good of a town, a decree in 5 Car., and a decree in 25 Eliz.," Tothill 66.

7" Rotulo Judicial, E 6, 4 pars. A decree between Fotheringhall and Edsington defendant, the question was touching certain lands which the plaintiff claimed by lease, and which the defendant claimed as copyhold; and forasmuch as he failed in the proof, and the defendant showed his copy and ancient court rolls, proving it to be ancient copyhold, therefore the lands were decreed to the defendant according to his copy till the plaintiff should prove a better title before the council at York,”

Tothill 59-60.

8 Vol. iii 211-212.

9 Young v. Burrel (1576), Cary 54-55.

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the law of tort, as nearly all the torts against which an injunction was sought were, at this period, torts to property.1 Thus we get injunctions against waste,2 against "sowing ridges which lie in sheep course, against ploughing up ancient pasture,* against interference with the right of support. Similarly an injunction was applied for against a nuisance caused by the erection of a mill, and the diversion of water from the plaintiff's mill; but as the plaintiff had, since the filing of his bill, brought an assize of nuisance, the suit was dismissed. Generally, however, in cases of nuisance the court would award an injunction."

In many of these cases the injunction was interlocutory. It was granted only till the hearing of the suit. Also it is clear that some of these injunctions were mandatory, others simply prohibitive. It would appear therefore that the main division between the different varieties of injunctions has been reached.

With what was at this period perhaps the most practically important class of injunctions—those issued against proceedings at common law—I shall deal under the following head :

Relief against the rigidity of the law.

This is still a large subject which comprises a number of miscellaneous topics, some of which will in the future give rise to quite separate equitable doctrines. In this period this separation has not yet been attained. All these topics are still connected by the fact that for one reason or another the law left to itself would work injustice. But we see some of the lines upon which separation will proceed; and I shall therefore group these topics upon these lines. Firstly, I shall deal with a group of cases in which equity gave relief on account of the peculiar circumstances of the case, or the personal conduct of the parties. Secondly, two specific instances of such relief-relief against penalties and the relief given to mortgagors-were becoming distinct heads of equitable interference. Thirdly, there are a group of cases in which the fault lies with the rules of law. Two important illustrations of this are the deficiencies of the law of evidence, and the

1"Where an action upon the case for a nusans, and damages only are to be recovered, the party may have help here to remove or restore the thing itself," Cary 20.

2 E.g. Petetson v. Shelley (1577), Choyce Cases 117; cases as to ploughing up pasture; Cary 26; the Council these cases, see e.g. Dasent xxiii 308, 316-318 (1592). 3 Kitson v. Cropley (1595), Tothill 65-66.

5 Bush v. Field (1579-1580), Cary 90.

6 Osburne v. Barter (1583-1584), Choyce Cases 176.

Tothill, 143-144-various also issued injunctions in

4 Ibid 143-144.

7 Swayne v. Rogers (1604), Cary 26-" the case was in effect an assize of nusans, for Rogers disturning the trenches and plucking up of stakes of Swayne's mill leet; and making a bank or dam beneath, that made the water reflow so as the wheels could not go; and exception was taken that the Court should not hold plea thereof (sed contrarium adjudicatur), many causes of the same manner ended here."

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treatment by the law of choses in action. Lastly, there are cases turning upon the means by which these interferences were rendered effectual-injunctions to stop proceedings at common law.

(1) The first group, in which equity gave relief on account of the peculiar circumstances of the case or the personal conduct of the parties, includes relief given in cases of accident or mistake, duress or undue influence, and fraud. It is clear that the extent of the equitable jurisdiction in this class of cases will to a large extent depend on the provision made by the law to redress damage occurring through these events. All through this period the law made such scanty provision that the judges themselves admitted the necessity for the equitable jurisdiction.1 It is a jurisdiction which in later days will diminish with reforms of the common law; but at this period it is extensive because it is exercised to redress the rigidity of many different branches of the law.

(i) It is exercised in connection with the law of procedure. As we have seen, the claim of the Chancery to issue injunctions against the execution of judgments given by the common law courts was rightly defended upon the ground that these judgments were often given without any reference to the conduct of the parties, and were sometimes got by very sharp practice.2 Equity interfered if it thought that in the circumstances the parties were making an unrighteous use of their legal rights-thus it stopped an action for dower when the widow had got the jointure which she had been promised. Similarly it stopped a common law action if it thought that the methods of trial at common law were not in the circumstances well adapted to discover the truth-in one case Egerton said that the matter "rested not properly in notice de pais, but to be discerned by books and deeds of which the Court was better able to judge than a jury of ploughmen.' "4 On the other hand, the court was always ready to dissolve such an injunction if it appeared it had been got on inadequate grounds."

(ii) In the law of property the jurisdiction was also exercised

1 The King's order and decree in Chancery, Cary 119-120—“ We find that the judges themselves in their own courts, when there appeared unto them matter of equity, because they by their oath and office could not stay the judgments, except it be for some small time, have directed the parties to seek relief in Chancery"; see e.g. Bracebridge v. Bracebridge (1581), Choyce Cases 149.

2 Vol. i 461-462.

3 Rose v. Reinolds (1581), Choyce Cases, 147.

4 Clench v. Tomley (1603), Cary 23; cp. Martin v. Hampton (1578-1579), Choyce Cases 129-a bill for trover and conversion, answer not guilty, a better answer ordered; it was probably to get this better answer that the suit in equity was brought; Quick v. St. Cleere (1581-1582), ibid 151-152.

5 Hales v. Stanebridge (1559-1560), Cary 49-50.

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extensively. Thus the court would correct a conveyance so as to
bring it in conformity with the obvious intention of the parties to
it. In an early case it was said that "the Chancery giveth help
for perfecting of things well meant and upon good consideration.
As if in a feoffment of lands for money the words 'heirs' be
omitted in the deeds";1 and in Charles I.'s reign it was held
that "when the father conceives his lands to be freehold, [and]
gives part thereof to a younger son, although an old sleeping
entail be set on foot [this] shall not prejudice the younger son." "
The exercise of this jurisdiction somewhat easily slides off into a
jurisdiction to interpret doubtful words in conveyances so as to
make them conform to the intentions of the parties.3 Similarly
the court would supply the defect of some "circumstance of
ceremony' as if a man sells land in two'counties for money,
and maketh livery in the one only, he shall be compelled in
conscience to perfect the assurance by another livery
or it
would supply other obvious omissions or mistakes such as the
misnomer of a corporation 5 or a person," a misrecital of a record
owing to a clerical error, a clerical error in a deed, certain
mistakes in the exercise or recital of powers.

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(iii) The court would also rectify similar mistakes in bonds and other contracts. Thus, "the plaintiff became surety for the defendant to one Buck in a bond of one hundred pounds, and the defendant giving a counter bond to save the plaintiff harmless of a bond of two hundred pounds, whereby, by the mistaking, the counter bond was void by law, yet relieved here. And it exercised a jurisdiction to give relief if by mistake the expressed intention of the parties to a contract did not correspond to their real intention. For instance when the parties had given each other general releases, but clearly did not mean to include in them a certain bond, it was decreed that, as to the bond, no advantage was to be taken of the release.11 Similarly it was necessary

1 Cary 16-17.

2 Pountney v. Pilkington (1642-1643) Tothill 54; cp. the cases cited ibid 127, 128. 3" A lease made to two during their lives, and after to the use of such of the children begotten by Peter Rumney, this being without any express conclusion what child or children, the construction touching the uses is to be made as near as may be, to the meaning of the said parties, who conveyed the same to uses," Rumney v. Garnous (1594) Tothill 126.

Cary 17, citing the Doctor and Student.

5 Ibid 31; Choyce Cases 108—“Nota by the L. Chancellor Elsemere said, that it is no conscience for a Corporation to avoid their grant by a misnomer.” 'Goodfellow v. Morris (1618) Tothill 131.

7 Culpepper v. Decanum and Coll. Winton (1557) ibid.

8 Bleverhasset v. Fuller (1594-1595) ibid.

9 Comitissa Oxon. v. Stanhop (1632) ibid 132.

10 Griffin v. Sayer (1613) ibid 131-132.

11 Merrick v. Mil (1649) Nels. 48-49; cp. Tisdal v. Danvers (1612-1613) Tothill 28; the Council also exercised a similar jurisdiction, Dasent xi 101 (1579).

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