Pagina-afbeeldingen
PDF
ePub

1

testimony, if there was a risk that essential evidence would be lost. (ii) Of the rules which developed into important principles of the modern law of evidence the following illustrations are the most important:-A person was not obliged to answer if by so doing he exposed himself to the risk of criminal proceedings," though possibly the fact that he might be exposed to civil proceedings was no bar.3 A person was not allowed to depose that he "had heard say" that a lease had been made ;* and, if parol evidence was offered to prove the execution of a lost deed, the witness must swear, not merely that he saw the deed, but that he saw it sealed and delivered. The right of solicitors and counsel to refuse to answer as to matters which had come to their knowledge professionally was well established; and it was even laid down that trustees could not be examined as witnesses one against the other. (iii) In the exercise of its own jurisdiction the Chancery showed itself very suspicious of leases and other agreements which were not evidenced by writing. In 1603 Lord Ellesmere said that he would give no help to parol leases; "and that it was good for the commonwealth, if no lease parol were allowed by the law, nor promises to be proved by witnesses, considering the plenty of witnesses nowadays, which were testes diabolices qui

6

defendant ordered to produce a lease which the plaintiff contended gave him a joint estate with the defendant.

1 Hearing v. Fisher (1578-1579) Cary 110; Southall v. Peryn (1583-1584) Choyce Cases 179; Throckmorton v. Griffin (1595) Tothill 18; Potts v. Scarborough (1635-1636) ibid 23; cp. Coote v. Davenport (1594) Monro, op. cit. 660-examination of a witness because he was on the point of going abroad.

2" The Vice-Countess Montague claimed the wardship of the body of the heir of a tenant of hers, which was esloined from her; she suspecting some of the heir's friends, exhibited her bill in Chancery; and it seemed they should not answer to charge themselves criminally; especially in this case, where so great a punishment as abjuration may follow, etc.," Cary 9.

In Wolgrave v. Coe (1595) Tothill 18, a defendant was excused from answering as his answer might expose him to forfeiture of a bond; but in Eland v. Cottington (1606) ibid 12, a defendant was ordered to answer "though it be to his prejudice by statute laws.

[ocr errors]

4" The defendant divided his title by a lease and assignment, which was before his knowledge, and therefore pleaded that he heard say, that such a lease and assignment was made; the Master of the Rolls was of opinion, because it was another's act, the oath is, that he thinks it to be true," Burgony v. Machell (1594-1595) Tothill 8.

5" A release was offered to be deposed, that it had been seen by some at the bar, it being affirmed that by casual means it was lost; but the Lord Chancellor said, the oath should be, that he saw it sealed and delivered, and not that he saw it after it was a deed for in Munson, the Justice, his case, a deed was brought into the Chancery and a vidimus upon it, being but a counterfeit copy; and after the fraud discovered, and the true deed produced; therefore none allowance to be given of a deed, without producing the deed, or proving the execution thereof" (1603) Anon. Cary 31.

" Berd v. Lovelace (1576-1577) Cary 62-a solicitor; Austen v. Vesey (1577) ibid 63-a solicitor; Denis v. Codrington (1579-1580) ibid 100-counsel; Creed v. Trap (1578-1579) Choyce Cases 121-counsel and solicitor; Havers v. Randoll (1581) ibid 148-an attorney.

7 Sherborne v. Foster (1631-1632) Tothill 187.

8

Cary 27-28.

magis fame quam fama moventur"-the need for a statute of Frauds is already beginning to appear.1 On the other hand, the Chancery generally accepted the evidence of depositions taken by such courts as the courts of Star Chamber,2 Admiralty,3 Exchequer, or Wards and Liveries. But, at this period, its own rules were by no means strictly kept.5 Though, as a rule, no evidence was allowed after publication, there are cases in which witnesses were examined after that date; and cases in which they were examined viva voce at the hearing, and even after the hearing. Occasionally also witnesses were examined after publication to inform the conscience of the judge.9

6

Of the attitude of the common law to choses in action I shall speak at length in the second Part of this Book.10 We shall see that the common law considered the rights of the parties to a contract to be of so personal a character that they could not be assigned to a third person; and that it justly feared the increased opportunities for champerty and maintenance which any relaxation of this rule would have caused. Such rights it refused to regard as assignable property. The Chancery on the other hand had been instrumental in the creation of many forms of property which the common law courts ignored; and many of them were founded upon relationships of as personal a character as those arising out of contract. The interest of the cestuique use was from one point of view merely a personal relationship of confidence between him and the feoffee to uses-yet from the first it was regarded by equity as assignable property.11 In other cases also, the equitable conception of property was wider than that of the common law. A mere possibility was treated as assignable property; 12 and the mortgagor's equity of redemption was regarded as an estate in the land.18 The fact therefore that a right under a contract was regarded by the common law as a purely personal relationship was no bar to the adoption by the court of

See also Cary 7 (1597-1598); Page v. Spenser (1581) Choyce Cases 148; Nichols v. Lonell (1583) ibid 171-172; but a parol argeement was occasionally enforced, see Cooke v. Trewman (1606) Tothill 69.

2 Puckly v. Bridges (1582-1583) Choyce Cases 163.

3 Watkins v. Fursland (1573-1574) Tothill 192.

4 Morrison v. Wethired (1612-1613) Tothill 189.

5 See the cases collected in Tothill 189-192; and cp. ibid 77.

6 Allen v. Hawley (1617) Monro, Acta Cancellaria 254-255.

7 Wright v. Moore (1630) Tothill 190.

8 Veizey v. Veizey (1638) Tothill 192.

9 Earl of Worcester v. Balgye (1569) Monro, op. cit. 375-376; Purserie v. Throgmorton (1581) Choyce Cases 148; Wynn's Case (1629-1630) Tothill 77; Dalby v. Mace (1606) ibid 191.

10 Pt. II. c. 2 § 3.

11 Vol. iv 432-443.

12 Romney v. Garnous (1594-1595) Tothill 147; Warmstrey v. Lady Tanfield (1628-1629) 1 Ch. Rep. 29, 30; Povey v. Barker (1633-1634) Tothill 147.

13 Above 332.

2

Per

Chancery of a very different view. In fact that court regarded the right to receive a definite sum under a contract as property, and therefore assignable either inter vivos or after death.1 haps both the early association of the Chancery with mercantile business, and the far more liberal conception which from the first it had held as to the enforceability of agreements,3 helped it to arrive at this conclusion. The common law theory of contract was not fully developed till the end of the sixteenth century; and it was not till after that period that the common lawyers began to study and give effect to mercantile custom. Thus while the common law maintained its general prohibition, and merely allowed an exception in the case of negotiable instruments, the Chancery developed its conception that under certain conditions a right under a contract was assignable property. But for the settlement both of these conditions, and of the means by which, under different circumstances, equity gave effect to these assignments, we must wait for the following period. 5

6

4

(4) The method by which the Chancery succeeded in effecting these various modifications of the rigidity of the law was by addressing orders to the parties concerned, and by committing them and sometimes their legal advisers, to prison, for contempt in case of disobedience. But it is obvious that these orders would have given no real relief if the parties could have continued to pursue their rights at law. Hence the ultimate resource of the Chancery, in a very large number of these cases, was the issue of an injunction against pursuing these legal proceedings, or, if judgment had been got, against enforcing the judgment. Thus injunctions were issued to stop abuses of process. In one case, the court stopped an action brought by A against a defendant merely to prevent him (the defendant) from giving evidence in another action brought by X against A;" and in another it stopped an action brought with knowledge that the defendant's witnesses were all beyond the sea.3 On similar

9

principles it issued injunctions to prevent the molestation of a tenant during an action on condition that he paid his rent into court, and to stay the execution of a hard judgment got against an executor de son tort till the case was heard by the court of Chancery.1 Injunctions both final and interlocutory to quiet

10

1 Burrel v. Siday (1627-1628) Tothill 35-"a devise out of a chose in action, good in this Court; Rock v. Guntur (1639) ibid—“ assignee of chose in action." 3 Above 295-296.1 5 Vol. vi c. 8.

2 Above 116-117, 139-140.

4 Pt. II. c. 4 I. § 2; cp. above 144 n. 7, 145.

* Allen v. Dingley (1576-1577) Choyce Cases 113, 114.

7 Angrome v. Angrome (1583-1584) Choyce Cases 176.

8 Swigo v. Hanbury (1581-1582) Choyce Cases 156. Alnete v. Bettam (1559-1560) Cary 46-47.

10 North v. Kelewick (1559-1560) Cary 49.

1

4

possession 1 were essential in order that the court might definitely settle questions of ownership,2 and enforce tenurial customs,3 agreements as to inclosure, and other similar agreements between a number of tenants in a manor or other district. Sometimes they were used to enforce a compromise between the parties to an action at law,5 or to prevent a plaintiff from vexing the defendant by simultaneous actions at common law and in equity. The number and variety of these injunctions show us that, in this litigious age, the power to issue them was the condition precedent for the exercise of this wide equitable jurisdiction to remedy the rigidity of the law."

The Evolution of the Character of Equity

We have seen that the theory underlying equitable interferences with the law made it necessary that equity should follow the law. The views of the medieval chancellors as to the relations between law and equity, and especially as to the extent to which equity ought to interfere with the law, had been ably summarized by St. Germain; and these views, as thus summarized, were acted upon all through this period. But it is equally clear, that, in the absence of any fixed principles to guide the chancellor as to what course was in the circumstances equitable, the question whether in any given case relief should be granted, depended upon the view which the chancellor took of the facts of the case. The court of Chancery was a court of conscience; and the chancellor decreed for the plaintiff or the defendant as his conscience dictated.

The entire dependence of the principles of equity upon the conscience of one man was a useful weapon to the common lawyers. "For some men think," wrote the Serjeant,10 “that if they tread upon two straws that lie across they offend in conscience, and some man thinketh that if he lack money, and another hath too much, that he may take part of his with conscience; and so divers men, divers conscience." Norburie, 11 writing soon after the fall of Bacon, said that, "the boundless power of the Chancery in not having rules and grounds written and prescribed unto it, in what cases it shall give relief and what not, is the cause of much discontent and distraction to the King's 1 Sapcote v. Newport (1559-1560) Cary 47; Kidnere v. Harrison (1559-1560) ibid 48. 2 Pt. II. c. I § I.

3 Harper v. Midleton (1583-1584) Choyce Cases 180-an injunction against "raising new customes of tenant right" in Yorkshire; cp. vol. iii 257-259.

4 Tothill 109-112; cp. vol. ii 60; vol. iv 369 n. 7.

5 Stanebridge v. Hales (1559-1560) Cary 47-48.

6 Bill v. Body (1559-1560) Cary 50.

7 Apparently the Council could dissolve an injunction-at least there is one instance in which it did so, Dasent xvii 214-215 (1589). 8 Vol. iv 280-281. 11 Ibid 430.

9 Cary 4, 5, II, 12.

10 Harg. Law Tracts 326.

subjects, and clamours against the Lord Chancellor." Selden's well-known jest upon the variations of equity is another instance of the same sort of criticism.1

It is clear from Lambard that, at the close of the sixteenth century, the resulting uncertainty of the rules of equity was leading men to consider whether it was not possible to lay down some certain rules for the administration of equity, without destroying entirely that discretionary character of the relief given, which was its very essence.2 He offers no solution of this problem. But, while he was writing, two sets of circumstances were beginning to modify the character of equity; and it is through this modification that the solution was destined eventually to come. Firstly, the political reasons which were tending to differentiate the jurisdiction of the chancellor from that of the Council, the Star Chamber, the court of Admiralty, and the ecclesiastical courts, and to settle the relations between the common law courts and the court of Chancery, were helping to settle the sphere of the court's jurisdiction. Secondly, the growth of the practice of citing cases as precedents was an influence which was helping, not only to settle still more exactly the sphere of the court's jurisdiction, but also to make some fixed rules for the exercise of the chancellor's discretion. But though, during this period, these two sets of circumstances were fast settling the sphere of the chancellor's jurisdiction, comparatively little progress had as yet been made in the fettering of his discretion in matters which fell within his jurisdiction. The chancellors still considered themselves very free to act whenever they thought that they could secure substantial justice by their action. In the Earl of Oxford's Case, for instance, equity interfered with the operation of a statute in a manner which would have been impossible at a later period. In fact, during the whole of this period and later, the court of Chancery was actually, and not merely technically, a court of conscience. For this

2 Archeion 83-85, cited above 275 n. 3.

[ocr errors]

1 Cited vol. i 467-468. 3(1615) I Ch. Rep. 1; for another very similar case see Dasent, xvii 163-164 (1589). 4 Danyell v. Jackson (1575) Monro, op. cit. 433-costs remitted in consideration of age, poverty, and simplicity of the plaintiff, who was "a very poor boy in very simple clothes and bare-legged and under the age of twelve years"; Nicholas v. Dutton (1597) ibid 694, it appeared the defendant gave £100 to the plaintiff at the motion of the lord chancellor (Hatton) "not in respect of any right or equity which the plaintiff had . . . but in respect of the plaintiff's poverty; Throgmorton v. Loggen (1608) ibid 108-Master Grimeston, overruling an objection to want of certainty in a pleading, assigns as one of his reasons that, "it here resteth in a court of equity, where the right of poor and ignorant in the law is to be weighed"; Wilkey v. Dagge (1608) ibid 107-108-Master Tyndal assigns as one reason for giving relief in the case of a forfeited mortgage that the plaintiff was a poor man, "and am credibly informed that the defendants be hard dealing men, working to their advantage upon the simplicity of their poor neighbours. Wherefore I conceive it to be good equity to relieve the poor soul, and to stay all suits at the common law." VOL. V.-22

« VorigeDoorgaan »