2

(2) In the law of suretyship it was settled that giving time to the principal debtor,1 or other alteration of the relation of the principal debtor and creditor to the prejudice of the surety without his knowledge, discharged the contract. At one time it was laid down that the bankruptcy of the principal debtor gave the surety some title to relief; but this rather absurd decision was soon overruled." The court always interfered to enforce contribution between joint debtors; 5 and in several cases it applied this principle to co-sureties."

Specific Relief.

During this period the specific relief given by the court of Chancery was beginning to be capable of division into categories which will, in the future, give rise to distinct legal topics. Firstly, there is the specific relief given in relation to contracts. Secondly, there are certain forms of specific relief given in relation to the law of property, real and personal. Thirdly, there

is the specific relief given in cases of tort. In connection with all these categories the peculiar equitable remedy of injunction, mandatory or prohibitive, plays a large part.

7

8

(1) Contract. It was during this period that the court of Chancery abandoned what we may call the canonist theory of contract for the new theory of contract derived from the successive extensions of the action of assumpsit, and based on the doctrine of consideration, which the common law courts were working out. This comes out clearly enough in the reports. In a note in Cary's reports the older theory based on laesio fidei is quoted from a Year Book of Edward IV.'s reign. 10 But it is quite clear that it had ceased to be law, as, in another note, the reporter cites Dyer to prove that consideration, in the sense in which that term was used by the common lawyers, is necessary to the validity of a contract; 11 and in 1631 it was held that “a general and voluntary promise (and no consideration) of the son,

1

Cary 1, citing Y.B. 9 Ed. IV. Mich. pl. 26.

2 Saunders v. Churchill (1613), Tothill 181-182; Hare v. Michell (1614-1615), ibid 182; Moile v. Lord Roberts (1629-1630), ibid.

3 Johnson v. Pudicot (1612), Tothill 181.

4 Little v. Good (1618), ibid.

5 Dolman v. Vavasor (1579-1580), Cary 92-93; R. v. Colborne (1578-1579), ibid 111-112; Reeve v. Harward (1581-1582), Choyce Cases 152.

6 Peter v. Rich (1629-1630), 1 Ch. Rep. 34-36; Morgan v. Seymour (1637-1638), ibid 120-121; and cp. cases cited by Tothill at p. 41.

7 Above 294-296.

8 Vol. iii 428-453.
10 At pp. 18-19.

9 Pt. II. c. 3 § I. 11"A. delivereth twenty pounds to B. to the use of C., a woman, to be delivered her the day of her marriage. Before her marriage A. countermandeth it, and calleth home the money. C. shall not be aided in Chancery, because there is no consideration why she should have it," ibid 9. Writing was not necessary; provided that the contract was proved and was otherwise valid, it was enforced though only made verbally, Hunt v. Cheeseman (1612 or 1634), Tothill 65.

VOL. V.-21

to disengage and pay the father's debts, where no advancement by the father" would not support a bill.1 At the same time we shall see that, though equity accepted the common law doctrine of consideration as a test of the validity of a contract, it did not adopt this doctrine in relation to other matters in which consideration was a condition precedent to equitable relief. In these cases it still adhered to the meanings which it had attached to consideration in relation to its doctrine as to uses. For these purposes consideration must either consist in money or money's worth, or in near relationship; and these meanings are directly connected with the canonist doctrines.1

5

3

The development by the common law of an adequate theory of contract, and its acceptance by the court of Chancery, made a resort to equity less necessary than it had been in the preceding period. In fact, it was only necessary to resort to equity when some form of specific relief was needed. The court of Chancery acted upon this view, and dismissed to law cases in which it was thought that damages were a sufficient remedy. But it cannot be said that the practice was as yet perfectly clearly fixed. In 1639-1640 there was "a suit touching two horses, for which the defendant was to pay by doubling an oat," to which a demurrer, on the ground that an action on the case was a sufficient remedy, was overruled. And in 1629-1630 the court heard a suit for £500 promised for the purpose of making the promisee a baronet.R On the other hand, a contract to surrender a lease and certain tithes for 100 marks was dismissed, to be decided at common law. But it is clear from the cases that it was most commonly in connection with contracts to grant some interest in land that the court was asked to act. There are two reasons for this. Not only were damages not a sufficient remedy in these cases, but also the contract did not, as in the case of chattels, pass the property.10 It followed from the second of these reasons that there arose a need for specific relief which did not exist in the case of chattels, or in bodies of law in which the contract to sell

1 Alexander v. Cresheld (1631), Tothill 21. 2 Below 327 and n. I.

3 Vol. iv 425-427.

Above 294-295.

5 Cary 20; Crowder v. Robinson (1577), Choyce Cases 115; Brown v. North (1610), Tothill 162; Y.B. 21 Hy. VII. Mich. pl. 66, and Brook's note cited vol. i. 456 n. 9.

6 Sutton v. Errington (1579-1580), Cary 97-98; cp. Cary 20—" and at this day, it is taken for a good cause of dismission in most causes, to say that he hath remedy at the common law."

7

Rogers v. Smith, Tothill 17-possibly the reason for the retention of the suit was fraud or sharp practice.

8 Russell v. Read, ibid 164-" A promise of five hundred pounds to make himself a baronet, would not pay it, yet decreed."

9 Grevill v. Bowker (1579-1580), Choyce Cases 140.

10 Vol. iii 438.

land operated as a conveyance.1 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

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.

6

(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, 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. 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."1

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 performance 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. 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.

é Vol. iii 216-217.

8 Ibid

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. Cancellaria 605-606.

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

Clerk (1590), Monro, Acta

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. 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, 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.

manor.

4

5

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.o

(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.

6" 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.

the law of tort, as nearly all the torts against which an injunction was sought were, at this period, torts to property? Thus we get injunctions against waste,2 against "sowing ridges which lie in sheep course,' ,"3 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.7

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; Tothill, 143-144-various cases as to ploughing up pasture; Cary 26; the Council also issued injunctions in 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.

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

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."