bodies were very hazy-there were difficulties in the way of actions by corporate bodies against their members, based on the notion that a man cannot sue himself.1 In Henry V.'s reign the provost and commonalty of Plymton Earls, in the county of Devon, complained that their market had been disturbed by a riotous band, but that, as the six known members of this band were members of the commonalty, no action could be taken. against them by the common law. There were similar difficulties in the way of one executor suing another.3 2 (d) The system of pleading at the common law was becoming so rigid that litigants who had substantial justice on their side might often be defeated. It was otherwise in the Chancery.^ (e) The common law methods of getting the evidence of the facts in issue before the court were most rudimentary; and obviously this considerably aggravated the evils flowing from the rigidity of the rules of pleading. Reliance was still placed upon the knowledge of the jury, although the jury were fast ceasing to have a first-hand knowledge of the facts.5 Volunteer witnesses were still discouraged by the fear of proceedings for maintenance. But witnesses had a good defence to such proceedings if they had been required to testify by a competent court. Hence we get petitions to the chancellor by would-be witnesses that he would command them to testify. Again, the parties to an action could not give evidence at common law. Therefore we get applications to the chancellor to summon persons accused of various misdeeds and examine them as to the facts alleged. Much less could one party to an action force the other party to discover evidence necessary to the success of his action. Thus we have a curious case of the beginning of the fifteenth century, in which two plaintiffs complained that the 1 Vol. iii 482-483. 2 Proceedings in Chancery (R.C.) ii viii. 3 See Barbour, op. cit. 56; Mr. Barbour ibid n. I questions Fitzherbert's statement, F.N.B. 117 D that account lay as between partners; but Y.B. 41 Ed. III. Hil. pl. 8 (p. 4) makes it clear that it lay when one man bailed to another money to trade with; the objection to the action in that case was that the trading had taken place in Brittany, but it did not prevail and the plaintiff got judgment, Y.B. 41 Ed. III. Pasch. pl. 4; and cp. Y.B. 34 Hy. VI. Trin. pl. 4; Crompton courts 49 b partnership is not mentioned eo nomine in either case, but the case of receiving money to trade with would cover most cases of partnership; the other defects of the action of account, below 288, vol. ii 367, vol. iii 426-427, explain why partners resorted to the Chancery. Ibid 641-642; below 285-286. 5 Vol. i 332-337. 6 Ibid 335. 7 Proceedings in Chancery (R.C.) i xix; ibid i cxxxiii-a bill of Edward VI. s reign asking that writs of subpoena may be directed to the defendants to compe them to appear before the sheriff and a jury to give evidence; cp. Select Cases in Chancery (S.S.) 122. We find this request in the great majority of bills; see e.g. Hastings v. Dacy, Chancery Proceedings (R.C.) i xix; Earl of Shrewsbury v. Coland, ibid xl; Willebye v. Veyle, ibid ii xvi, xvii. Select Cases in Chancery (S.S.) 110. 4 defendant had taken from them two prisoners, which they made at the battle of Agincourt, and ransomed them. They prayed that a certain part of the ransom, said to be in the hands of the wife of the Treasurer of Calais, might be stopped, and that the defendant might be examined to discover the names of the prisoners. A more usual case was an application for the discovery of documents needed to prove a title to land or chattels.1 And these applications for discovery of documents were made not merely against the other party to the action: they were made, and made successfully,' against any third persons who had the necessary evidence in their possession. Nor apparently was it then necessary that an action should have begun. In fact many of these actions shade off into actions for the recovery of specific things which the plaintiff could not recover at law because he could not describe them with certainty. Such applications will become less necessary when the action on the case for trover and conversion has superseded detinue. It will then become possible to distinguish between these applications for discovery, and to define the limits within which discovery will be allowed.7 Still more was interposition of equity needed if a party desired to place on record evidence which was vital to him, but which was in danger of perishing. This was the reason for applications to perpetuate testimony. We get in Henry VII.'s reign a bill of John, earl of Oxford, which tells us how Elizabeth his mother, by reason of her faithful allegiance to Henry VI., was coerced to convey her lands to Richard III., then duke of Gloucester; and how there were living divers witnesses of great age to the fact of this coercion. The bill therefore asked that these witnesses might be summoned to depose what they knew in order that their depositions might be "entred and remayne of recorde." 8 (f) In addition to all these defects the machinery of the common law was, as we have seen, abused by the great and 1 Hulkere v. Alcote, Chancery Proceedings (R.C.) ii xv, xvi. 2 See the decree in Select Cases in Chancery (S.S.) 108 and n. 5; Y.B. 39 Hy. VI. Mich. pl. 36—a grantee from the king of goods of an attained traitor gets discovery of these goods from one in whose possession they are. 3 See Reed v. the Prior of Launceston, Chancery Proceedings (R.C.) i cxiv; Fellow v. Make ibid i cxxvii; Duke of Somerset and others v. Payn, ibid ii xxix; Baker v. Parson and others, ibid ii, i. Martin, op. cit. 17; he says that such bills usually contain the following clause or something like it, "As your seid suppliaunt knoweth not the certeintye nor numbre of the seid evydences, nor whether they be enclosed in bagg, boxe sealed, or chest loken, he can have no remedy by the common lawe." Last note; cp. Hulkere v. Alcote, Chancery Proceedings (R. C.) ii xv, xvì. 6 Vol. iii 350-351; Pt. II. c. 2 § 1; cp. Spence, op. cit. 643 n. c. 7 Below 332. The earl of Oxford v. Tyrell and others, Chancery Proceedings (R.C.) i cxx. 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. 9 2 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. 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 v-vi, 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. Select Cases in Chancery (S.S.) II, 12. 11 Below 283-284. 10 Ibid 72-73. 9 Ibil 71-72. 12 Below 284. 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." 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. A bill of Edward IV.'s reign3 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." 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. 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. 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." "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. 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 11 1 It sometimes prayed for a writ of Certiorari or Habeas Corpus. 2 Barbour, op. cit. 147; for the writs Quibusdam certis de causis and subpoena see Baldwin, King's Council 288-292. 315 Henry VI. c. 4; cp. Barbour, op. cit. 145. 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. 9Y.B. 8 Ed. IV. Trin. pl. 1, cited ibid n. h. 6 Equitable Jurisdiction i 372. 8 Ibid. 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 solonque le solemnity del comen ley"; Pasmore v. Ford (1581) Choyce Cases 147. 1 |