Blackstone's Commentaries on the Laws of England
Book the Third - Chapter the Twenty-Seventh : Of Proceedings in the Courts of Equity
CHAPTER THE TWENTY SEVENTH.
OF PROCEEDINGS IN THE COURTS OF
EQUITY.
BEFORE we enter on the propofed fubject of the enfuing chapter, viz, the nature and method of proceedings in the courts of equity, it will be proper to recollect the obfervations, which were made in the beginning of this book
a on the principal tribunals of that kind, acknowleged by the conftitution of England ; and to premife a few remarks upon thofe particular caufes, wherein nay of them claims and exercifes a fole jurifdiction, diftinct from and exclufive of the other.
I HAVE already
b attempted to trace (though every concifely) the hiftory, rife, and progrefs , of the extraordinary court, or court of equity, in chancery. The fame jurifdiction is exercifed, and the fame fyftem of redrefs purfued, in the equity court of the exchequer : with a diftinction however as to fome few matters, peculiar to each tribunal, and in which the other cannot interfere. And, firft, of thofe peculiar to the chancery.
1. UPON the abolition of the court of wards, the care, which the crown was bound to take as guardian of it's infant tenants, was totally extinguifhed in every feodal view ; but refulted to
.{FS}
a ch. 4. and 6.
b pag. 49. & c.
the
.P 427
PRIVATE WRONGS.
BOOK III.
Ch. 27.
the king in his court of chancery, together with the general protection
c of all other infants in the kingdom. When therefore a fatherlefs child has no other guardian, the court of chancery hath a right to appoint one : and, from all proceedings relative thereto, an appeal lies to the houfe of lords. The court of exchequer can only appoint a guardian ad litem, to manage the defence of the infant if a fuit be commenced againft him ; a power which is incident to the jurifdiction of every court of juftice
d : but when the intereft of a minor comes before the court judicially, in the progrefs of a caufe, or upon a bill for that purpofe filed, either tribunal indifcriminately will take care of the property of the infant.
2. AS to idiots and lunatics : the king himfelf ufed formerly to commit the cuftody of them to proper committees, in every particular café ; but now, to avoid folicitations and the very fhadow of undue partiality, a warrant is iffued by the king
e under his royal fign manual to the chancellor or keeper of his feal, to perform this office for him : and, if he acts improperly in granting fuch cuftodies, the complaint muft be made to the king himfelf in council
f. But the previous proceedings on the commiffion, to inquire whether or on the party be an idiot or a lunatic, are on the law-fide of the court of chancery, and can only be redreffed (if erroneous) by writ of error in the regular courfe of law.
3. THE king, as parens patriae, has the general fuperintendence of all charities ; which he exercifes by the keeper of his confcience, the chancellor. And therefore, whenever it is neceffary, the attorney general, at the relation of fome informant, (who is ufually called the relator) files ex officio an information in the court of chancery to have the charity properly eftablifhed. By ftatute alfo 43 Eliz. c. 4. authority is given to the lord chancellor or lord keeper, and to the chancellor of the duchy of Lan-
.{FS}
c F. N. B. 27.
d Cro. Jac. 641. 2 Lev. 163. T. Jones. 90.
c See book I. ch. 8.
f 3 P. W
ms. 108.
.{FE}
F f f 2
cafter,
.P 428
PRIVATE WRONGS.
BOOK III.
Ch. 27.
cafter, refpectively, to grant commiffions under their feveral feals, to inquire into any abufes of charitable donations, and rectify the fame by decree ; which may be reviewed in the refpective courts of the feveral chancellors, upon exceptions taken thereto. But, though this is done in the petty bag office in the court of chancery, becaufe the commiffion is there returned, it is not a proceeding at common law, but treated as an original caufe in the court of equity. The evidence below is not taken down in writing, and the refpondent in his anfwer to the exceptions may allege what new matter he pleafes ; upon which they go to proof, and examine witneffes in writing upon all the matters in iffue : and the court may decree the refpondent to pay all the cofts, though no fuch authority is given by the ftatute . And, as it is thus confidered as an original caufe throughout, an appeal lies of courfe from the chancellor's decree to the houfe of peers
g, notwithftanding any loofe opinions to the contrary
h.
4. BY the feveral ftatutes, relating to bankrupts, a fummary jurifdiction is given to the chancellor, in many matters confequential or previous to the commiffions thereby directed to be iffued ; from which the ftatutes give no appeal.
ON the other hand, the jurifdiction of the court of chancery doth not extend to fome caufes, wherein relief may be had in the exchequer. No information can be brought, in chancery, for fuch miftaken charities, as are given to the king by the ftatutes for fuppreffing fuperftitious ufes. Nor can chancery give any relief againft eh king, or direct any act to be done by him, or make any decree difpofing of or affecting his property ; not even in cafes where he is a royal truftee
i. Such caufes muft be determined in the court of exchequer, as a court of revenue ; which alone has power over the king's treafure, and the officers em-
.{FS}
g Duke's char. ufes. 62. 128. Corporation of Burford v. Lenthall. Canc. 9 May, 1743
h 2 Vern. 118.
I Huggins v. Yorkbuildings Company. Canc. 24 Oct. 1740. Reeve v. Attorney-general. Canc. 27 Nov. 1741. Lightboun v. Attorney general. Canc. 2 May, 1743.
.{FE}
ployed
.P 429
PRIVATE WRONGS.
BOOK III.
Ch. 27.
ployed in it's management : unlefs where it properly belongs to the duchy court of Lancafter, which hath alfo a fimilar jurifdiction as a court of revenue ; and like the other, confifts of both a court of law and a court of equity.
IN all other matters, what is faid of the court of equity in chancery will be equally applicable to the other courts of equity. Whatever difference there may be in the forms of practice, it arifes from the different conftitution of their officers : or, if they differ in any thing more effential, one of them muft certainly be wrong ; for truth and juftice are always uniform, and ought equally to be adopted by them all.
LET us next take a brief, but comprehenfive, view of the general nature of equity, as now underftood and practiced in our feveral courts of judicature. I have formerly touched upon it
k, but imperfectly : it deferves a more complete explication. Yet, as nothing is hitherto extant, that can give a ftranger a tolerable idea of the courts of equity fubfifting in England, as diftinguifhed from the courts of law, the complier of thefe obfervations cannot but attempt it with diffidence : they, who know them beft, are too much employed to find time to write ; and they, who have attended but little in thofe courts, muft be often at a lofs for materials.
EQUITY then, in it's true and genuine meaning, is the foul and fpirit of all law : pofitive law is conftrued, and rational law is made, by it. In this, equity is fynonymous to juftice ; in that, to the true fenfe and found interpretation of the rule. But the very terms of a court of equity and a court of law, as contrafted to each other, are apt to confound and miflead us : as if the one judged without equity, and the other was not bound by any law. Whereas every definition or illuftration to be met with, which now draws a line between the two jurifdictions, by fetting
.{FS}
k Vol. I. introd. §. 2, & 3. ad cak.
.{FE}
law
.P 430
PRIVATE WRONGS.
BOOK III.
Ch. 27.
law and equity in oppofition to each other, will be found either totally erroneous, or erroneous to certain degree.
1. THUS in the firft place it is faid
l, that it is the bufinefs of a court of equity in England to abate the rigour of the common law. But on fuch power is contended for. Hard was the café of bond-creditors, whofe debtor debtor devifed away his real eftate ; rigorous and unjuft the rule, which put the devifee in a better condition than the heir
m : yet a court of equity had no power to interpofe. Hard is the common law ftill fubfifting, that land devifed, or defcending to the heir, fhall not be liable to fimple contract debts of the anceftor or devifor
n, although the money was laid out in purchafing the every land ; and that the father fhall never immediately fucceed as heir to the to the real eftate of the real eftate of the fon
o ; but a court of equity can give no relief ; though in both thefe inftances the artificial reafon of the law, arifing from feodal principles, has long ago intirely ceafed. The like may be obferved of the defcent of lands to remote relation of the whole blood, or even their efcheat to the lord, in preference to the owner's half-brother
p ; and of the total ftop to all juftice, by caufing the parol to demur
q, whenever an infant is fued as heir or is party to a real action. In all fuch cafes of pofitive law, the courts of equity, as well as the courts of law, muft fay with Ulpian
r, “hoc quidem perquam durum eft, fed ita lex fcripta eft.”
2. IT is faid
s, that a court of equity determines according to the fpirit of the rule, and not according to the ftrictnefs fo the letter. But fo alfo does a court of law. Both, for inftance, are equally bound, and equally profefs, to interpret ftatutes according to the true intent of the legiflature. In general laws all cafes cannot be forefeen ; or, if forefeen, cannot be expreffed :
.{FS}
l Lord Kayms. prince. of equit. 44.
m See Vol. II. ch. 23. pag. 378.
n Ibid. ch. 15. pag. 243, 244, ch. 23. pag. 377.
o Ibid. ch. 14. pag. 208.
p Ibid. pag. 227.
q See pag. 300.
r Ff. 40. 9. 12.
s Lord Kayms, prince, of equ. 177.
.{FE}
fome
.P 431
PRIVATE WRONGS.
BOOK III.
Ch. 27
fome will arife that will fall within the meaning, though not within the words, of the legiflator ; and others, which may fall within the letter, may be contrary to his meaning though not expreffly excepted. Thefe cafes, thus out of the letter, are often faid to be within the equity, of an act of parliament ; and fo, cafes within the letter are frequently out of the equity. Here by equity we mean nothing but the found interpretation of the law ; though the words of the law itfelf may be too general, too fpecial, or otherwife inaccurate or defective. Thefe then are the cafes which, as Grotius
t fays, “lex non exacte definit, fed arbitrio 'boni viri permittit;” in order to find out the true fenfe and meaning of the lawgiver, from every other topic of conftruction. But there is not a fingle rule of interpreting laws, whether equitably or ftrictly, that is not equally ufed by the judges in the courts both of law and equity : the conftruction muft in both be the fame ; or, if they differ, it is only as one court of law may alfo happen to differ from another. Each endeavours to fix and adopt the true fenfe of the law in queftion ; neither can enlarge, diminifh, or alter, that fenfe in a fingle tittle.
3. AGAIN, it hath been faid
u, that fraud, accident, and truft are the proper and peculiar objects of a court of equity. But every kind of fraud is equally cognizable, and equally adverted to, in a court of law : and fome frauds are only cognizable there, as fraud in obtaining a devife of lands, which is always fent out of the equity courts to be there determined. Many accidents are alfo fupplied in a court of law ; as lofs of deeds, miftakes in receipts or accounts, wrong payments, deaths which make it impoffible to perform a condition literally, and a multitude of other contingencies : and many cannot be relieved even in a court of equity ; as, if by accident a recovery is ill fuffered, a devife ill executed, a contingent remainder deftroyed, or a power of leafing omitted in a family fettlement. A technical truft indeed, created by the limitation of a fecond ufe, was forced into
.{FS}
t de aequitate. §. 3.
u 1 Roll. Abr. 374. 4 Inft. 84. 10 Mod. l.
.{FE}
a court
.P 432
PRIVATE WRONGS.
BOOK III.
Ch. 27
a court of equity, in the manner formerly mentioned
w : and this fpecies of trufts, extended by inference and conftruction, have ever fince remained as a kind of peculium in thofe courts. But there are other trufts, which are cognizable in a court of law : as depofits, and all manner of bailments ; and efpecially that implied contract, fo highly beneficial and ufeful, of having undertaken to account for money received to another's ufe
x, which is the ground of an action on the café almoft as univerfally remedial as a bill in equity.
4. ONCE more ; it has been faid that a court of equity is not bound by rules or precedents, but acts from the opinion of the judge
y, founded on the circumftances of every particular café. Whereas the fyftem of our courts of equity is a laboured connected fyftem, governed by eftablifhed rules, and bound down by precedents, from which they do not depart, although the reafon of fome of them may perhaps be liable to objection. Thus, the refufing a wife her dower in a truft-eftate
z, yet allowing the hufband his curtefy : the holding the penalty of a bond to be merely a fecurity for the debt and intereft, yet confidering it fometimes as the debt itfelf, fo that the intereft fhall not exceed that penalty
a : the diftinguifhing between a mortgage at five per cent, with a claufe of reduction to four, if the intereft be regularly paid, and a mortgage at four per cent, with a claufe of enlargement to five, if the payment of the intereft be deferred ; fo that the former fhall be deemed a confcientious, the latter an unrighteous, bargain
b : all thefe, and other cafes that might be inftanced, are plainly rules of pofitive law ; fupported
.{FS}
w Book II. ch. 20.
x See pag. 162.
y This is ftated by Mr Selden (Tabletalk. tit. equity.) with more pleafantry than truth. “For law, we have a meafure, and know “what to truft to : equity is according to “the confcience of him that is chancellor ; “and as that is larger or narrower, fo is “equity. 'Tis all one, as if they fhould 'make the ftandard for the meafure a chan- “cellor's foot. What an uncertain meafure “would this be ! One chancellor has a long “foot, another a fhort foot, a third an in- “different foot. It is the fame thing with “the chancellor's confcience.”
z 2 P. W
ms. 640. See Vol. II. pag. 337.
a Salk. 154.
b 2 Vern. 289. 316. 3 Atk. 520.
.{FE}
only
.P 433
PRIVATE WRONGS.
BOOK III.
Ch. 27
only by the reverence that is fhewn, and generally very properly fhewn, to a feries of former determinations ; that the rule of property may be uniform and ftead. Nay, fometimes a precedent is fo ftrictly followed, that a particular judgment, founded upon fpecial circumftances
c, gives rife to a general rule.
IN fhort, if a court of equity in England did really act, as a very ingenious writer in the other part of the ifland fuppofes it (from theory) to do, it would rife above all law, either common or ftatute, and be a moft arbitrary legiflator in every particular café. No wonder he is fo often miftaken. Grotius, or Puffendorf, or any other of the great mafters of jurifprudence, would have been as little able to difcover, by their own light, the fyftem of a court of equity in England, as the fyftem of a court of law. Efpecially, as the notions before-mentioned, of the character, power, and practice of a court of equity, were formerly adopted and propagated (though not with approbation of the thing) by our principal antiquarians and lawyers ; Spelman
d, Coke
e, Lambard
f, and Selden
g, and even the great Bacon
h himfelf. But this was in the infancy of our courts of equity, before their jurifdiction was fettled, and when the chancellors themfelves, partly from their ignorance of law (being frequently bifhops or ftatefmen) partly from ambition and luft of power (encouraged by the arbitrary principles of the age they lived in) but principally from the narrow and unjuft decifions of the courts of law, had arrogated to themfelves fuch unlimited authority, as hath totally been difclaimed by their fucceffors for now above a century paft. The decrees of a court of equity were then rather in the nature of awards, formed on the fudden pro re nata, with more probity of intention than knowlege of he fubject ; founded
.{FS}
c See the of Fofter and Munt, 1 Vern. 473. with regard to the undifpofed refiduum of perfonal eftates.
d 2 uae in fummis tribunalibus multi e legum canone decernunt judices, folus (fi res exegerit) cohibet cancellarius ex arbitrio ; nec aliter decretis tenetur fuae curiae vel fui ipfius, quin, elucente nova ratione, recognafcat quae voluerit, mutet et deleat prout fuae videbitur prudentiat. (gloff. 108.)
e See pag. 53. 54.
f Archeion. 71, 72, 73.
g ubi fupra.
h De Augm. Scient. 1. 8. c. 3.
.{FE}
on
.P 434
PRIVATE WRONGS.
BOOK III.
Ch. 27
on no fettled principles, as being never deigned, and therefore never ufed, for precedents. But the fyftems of jurifprudence, in our courts both of law and equity, are now equally artificial fyftems, founded in the fame principles of juftice and pofitive law ; but varied by different ufages in he forms and mode of their proceedings : the one being originally derived (though much reformed and improved) from the feodal cuftoms, as they prevailed in different ages in the Saxon and Norman judicatures ; the other (but with equal improvements) from the imperial and pontificial formularies, introduced by their clerical chancellors.
THE fuggeftion indeed of every bill, to give jurifdiction to the courts of equity, (copied from thofe early times) is, that the complainant hath no remedy at the common law. But he, who fhould from thence conclude, that no café is judged of in equity where there might have been relief at law, and at the fame time cafts his eye on the extent and variety of the cafes in our equity-reports, muft think the law a dead letter indeed. The rules of property, rules of evidence, and rules of interpretation, in both courts, are, or fhould be, exactly the fame : both ought to adopt the beft, muft ceafe to be courts of juftice. Formerly fome caufes, which now no longer exift, might occafion a different rule to be followed in one court, from what was afterwards adopted in the other, as founded in the nature and reafon of the thing : but, the inftant thofe caufes ceafed, the meafure of fubftantial juftice ought to have been the fame in both. Thus the penalty of a bond, originally contrived to evade the abfurdity of thofe monkifh conftitutions which prohibited taking intereft for money, was therefore very pardonably confidered as the real debt in the courts of law, when the debtor neglected to perform his agreement for the return of the loan with intereft : for the judges could not, as the law then ftood, give judgment that the taking of intereft became legal, as the neceffary companion of commerce
I, nay after the ftatute of 37 Hen. VIII. c. 9. had declared the
.{FS}
i See Vol. II. pag. 456,
.{FE}
debt
.P 435
PRIVATE WRONGS.
BOOK III.
Ch. 27
debt or loan itfelf to be “the juft and true intent” for which the obligation was given, their narrow minded fucceffors ftill adhered wilfully and technically to the letter fo the antient precedents, and refufed to confider the payment of principal, intereft, and cofts, as a full fatisfaction of the bond. At the fame time more liberal men, who fate in the courts of equity, conftrued the inftrument, according to it's “juft and true intent,” as merely a fecurity for the loan : in which light it was certainly underftood by the parties, at leaft after thefe determinations ; and therefore this conftruction fhould have been univerfally received. So in mortgages, being only a landed as the other is a perfonal fecurity for the money lent, the payment of principal, intereft, and cofts ought at any time, before judgment executed, to have faved the forfeiture in a court of law, as well as in a court of equity. And the inconvenience as well as injuftice, of putting different conftructions in different courts upon one and the fame tranfaction, obliged the parliament at length to interfere, and to direct by the ftatutes 4 & 5 Ann. c. 16. and 7 Geo. II. c. 20. that , in the cafes of bonds and mortgages, what had long been the practice of the courts of equity fhould alfo for the future be followed in the courts of law.
AGAIN ; neither a court of equity of equity nor of law can vary men's wills or agreements, or (in other words) make wills or agreements for them. Both are to underftand them truly, and therefore both of them uniformly. One court ought not to extend, nor the other abridge, a lawful provifion deliberately fettled by the parties, contrary to it's juft intent. A court of equity, no more than a court of law, can relieve againft a penalty in the nature of ftated damages ; as a rent of 5 l. an acre for ploughing up antient meadow
k : nor againft a lapfe of time, where the time is material to the contract ; as in covenants for renewal of leafes. Both courts will equitably conftrue, but neither pretends to control or change, a lawful ftipulation or engagement.
.{FS}
k 2 Atk. 239.
.{FE}
G g g 2
THE
.P 436
PRIVATE WRONGS.
BOOK III.
Ch. 27
THE rules of decifion are in both courts equally appofite to the fubjects of which they take cognizance. Where the fubject-matter is fuch as requires to be determined fecundum aequum et bonum, as generally upon actions on the café, the judgments of the courts of law are guided by the moft liberal equity. In mattes of pofitive right, both courts muft fubmit to and follow thofe antient and invariable maxims “quae relicta funt et tradita
l.” Both follow the law of nations, and collect it from hiftory and the moft approved authors of all countries, where the queftion is the fubject of that law : as in café of the privileges of embaffadors
m, hoftages, or ranfom-bills
n. In mercantile tranfactions they follow the marine law
o, and argue from the ufages and authorities received in all maritime countries. Where they exercife a concurrent jurifdiction, they both follow the law of the proper forum
p: in matters originally of ecclefiaftical cognizance, they both equally adopt the canon or imperial law, according to the nature of the fubject
q; and, if a queftion came before either, which was properly the object of a foreign municipal law, they would both receive information what is the rule of the country
r, and would both decide accordingly.
SUCH then being the parity of law and reafon which governs both fpecies of courts, wherein (it may be afked) does their effential difference confift ? It principally confifts in the different modes of adminiftring juftice in each ; in the mode of proof, the mode of trial, and the mode of relief. Upon thefe, and upon two other accidental grounds of jurifdiction, which were formerly driven into thofe courts by narrow decifions of the courts of law, viz. the true conftruction of fecurities for money
.{FS}
l De jure naturat cogitare per nos atque dieere debumus ; de jure populi Romani, quae relitta funt et tyadita. (Cic. de. Leg. l. 3. ad calc.)
m See Vol. I. pag. 253.
n Ricord v. Lettenham. Tr. 5 Geo. III. B. R.
o See Vol. I. pag. 75. Vol. II. pag. 459. 461. 467.
p See Vol. II. pag. 513.
q Ibid. 504.
r Ibid. 463.
.{FE}
lent.
.P 437
PRIVATE WRONGS.
BOOK III.
Ch. 27
lent, and the form and effect of a truft or fecond ufe ; upon thefe main pillars hath been gradually erected that ftructure of jurifprudence, which prevails in our court of equity, and is inwardly bottomed upon the fame fubftantial foundations as the legal fyftem which hath hitherto been delineated in thefe commentaries ; however different they may appear in their outward form, from the different tafte of their architects.
1. AND, firft, as to the mode of proof. When facts, or their leading circumftances, reft only in the knowlege of the party, a court of equity applies itfelf to his confcience, and purges him upon oath with regard to the truth of the tranfaction ; and, that being once difcovered, the judgment is the fame in equity as it would have been at law. But, for want of this difcovery at law, the courts of equity acquired a concurrent jurifdiction with every other court in all matters of account
s. As incident to accounts, they ake a concurrent cognizance of the adminiftration of perfonal affets
t, confequently of debts, legacies, the diftribution of the refidue, and the conduct of executors and adminiftrators
u. As incident to accounts, they alfo take the concurrent jurifdiction of tithes, and all queftions relating thereto
w ; of all dealings in partnerfhip
z, and many other mercantile tranfactions ; and fo of bailiffs, receivers, factors, and agents
y. It would be endlefs to point out all the feveral avenues in human affairs, and in this commercial age, which lead to or end in accounts.
FROM the fame fruitful fource, the compulfive difcovery upon oath, the courts of equity have acquired a jurifdiction over almoft all matters of fraud
z ; all matters in the private knowlege of the party, which, though concealed, are binding in confcience ; and all judgments at law, obtained through fuch fraud or con-
.{FS}
s 1 Chan. Caf. 57.
t 2 P. W
m. 145.
u 2 Chan. Caf. 152.
w 1 Fqu. caf. abr. 367.
x 2 Vern. 277.
y Ibid. 638.
z 2 Chan. Caf 46.
.{FE}
cealment.
.P 438
PRIVATE WRONGS.
BOOK III.
Ch. 27
cealment. And this, not by impeaching or reverfing the judgment itfelf, but by prohibiting the plaintiff from taking any advantage of a judgment, obtained by fuppreffing the truth
a; and which, and the fame facts appeared on the trial, as now are difcovered, he would never have obtained at all.
2. AS to the mode of trial. This is by interrogatories adminiftred to the witneffes, upon which their depofitions are taken in writing, wherever they happen to refide. If therefore the caufe arifes in a foreign country, and the witneffes refide upon the fpot ; if, in caufes arifing in England, the witneffes are abroad, or fhortly to leave the kingdom ; or if witneffes refiding at home are aged or infirm ; any of thefe cafes lays a ground for a court of equity, to grant a commiffion to examine them, and (in confequence) to exercife the fame jurifdiction, which might have been exercifed at law, if the witneffes could probably attend.
3. WITH refpect to the mode of relief. The want of a more fpecific remedy, than can be obtained in the courts of law, gives a concurrent jurifdiction to a court of equity in a great variety of cafes. To inftance in executory agreements. A court of equity will compel them to be carried into ftrict execution
b, unlefs where it is improper or impoffible, inftead of giving damages for their non-performance. And hence a fiction is eftablifhed, that what ought to be done fhall be confidered as being actually done
c, and fhall relate back to the time when it ought to have been done originally : and this fiction is fo clofely purfued through all it's confequences, that it neceffarily branches out into many rules of jurifprudence, which form a certain regular fyftem. So, of wafte, and other fimilar injuries, a court of equity takes a concurrent cognizance, in order to prevent them by injunction
d. Over queftions that may be tried at law, in a great multiplicity of actions, a court of equity affumes a jurif-
.{FS}
a 3 P. W
ms. 148. Yearbook, 22 Edw. IV. 37. pl. 21.
b 1 Equ. Caf. abr. 16.
c 3 P. W
ms. 215.
d 1 Ch. Rep. 14. 2 Chan. Caf. 32.
.{FE}
diction,
.P 439
PRIVATE WRONGS.
BOOK III.
Ch. 27
diction, to prevent the expenfe and vexation of endlefs litigations and fuits
e. In various kinds of frauds it affumes a concurrent
f jurifdiction, not only for the fake of a difcovery, but of a more extenfive and fpecific relief : as by fetting afide fraudulent deeds
g, decreeing re-conveyances
h, or directing an abfolute conveyance merely to ftand as a fecurity
i. And thus, laftly, for the fake of a more beneficial and complete relief by decreeing a fale of lands
k, a court of equity holds plea of all debts, incumbrances, and charges, that may affect it or iffue thereout.
4. THE true conftruction of fecurities for money lent is another fountain of jurifdiction in courts of equity. When they held the penalty of a bond to be the form, and that in fubftance it was only as a pledge to fecure the repayment of the fum bona fide advanced, with a proper compenfation for he ufe, they laid the foundation of a regular feries of determinations, which have fettled the doctrine of perfonal pledges or fecurities, and are equally applicable to mortgages of real property. The mortgagor continues owner of the land, the mortgagee of the money lent upon it : but this ownerfhip is mutually transferred, and the mortgagor is barred from redemption, if, when called upon by the mortgagee, he does not redeem within a time limited by the court ; or he may when out of poffeffion be barred by length of time, by analogy to the ftatute of limitations.
5. THE form of a truft or fecond ufe gives the courts of equity an exclufive jurifdiction as to the fubject-matter of all fettlements and devifes in that form, and of all the long terms created in the prefent complicated mode of conveyancing. This is a very ample fource of jurifdiction : but the truft is governed by very nearly the fame rules, as would govern the eftate in a court of law
l, if no truftee was interpofed ; and, by a regular pofitive fyftem ef-
.{FS}
e 1 Vern. 308. Prec. Chan. 261. 1 P. W
ms. 672. Stra. 404.
f 2 P. W
ms. 156.
g 2 Vern. 32. 1 P. W
ms. 239.
h 1 Vern. 237.
I 2 Vern. 84.
k 1 Equ. Caf. abr. 337.
l 2 p. W
ms. 645. 668, 669.
.{FE}
tablifhed
.P 440
PRIVATE WRONGS.
BOOK III.
Ch. 27
tablifhed in the courts of equity, the doctrine of trufts is now reduced to as great a certainty as that of legal eftates in the courts of the common law.
THESE are the principal (for I omit the minuter) grounds of the jurifdiction at prefent exercifed in our courts of equity : which differ, we fee, very confiderably from the notions entertained by ftrangers, and even by thofe courts themfelves before they arrived to maturity ; as appears from the principles laid down, and the jealoufies entertained of their abufe, by our early juridical writers cited in a former
m page ; and which have been implicitly received and handed down by fubfequent compliers, without attending to thofe gradual acceffions and derelictions, by which in the courfe of a century this mighty river hath imperceptibly fhifted it's channel. Lambard in particular, in the reign of queen Elizabeth, laws it down
n, that “equity fhould not be “appealed unto, but only in rare and extraordinary matters : and “that a good chancellor will not arrogate authority in every “complaint that fhall be brought before him, upon whatfoever “fuggeftion ; and thereby both overthrow the authority of the “courts of common law, and bring upon men fuch a confufion “and uncertainty, as hardly any man fhould know how or how “long to hold his own affured to him.” And certainly, if a court of equity were ftill at fea, and floated upon the occafional opinion which the judge who happened to prefide might entertain of confcience in every particular café, the inconvenience, that would arife from this uncertainty, would be a worfe evil than any hardfhip that could follow from rules too ftrict and inflexible. It's powers would have become too arbitrary to have been endured in a country like this
o, which boafts of being governed in all refpects by law and not be will. But fince the time when Lambard wrote, a fet of great and eminent lawyers
p, who have fucceffively held the great feal, have by degrees erected the fyftem or relief adminiftred by a court of equity into a regular fcience,
.{FS}
m See pag. 433.
n Archeion. 71. 73.
o 2 P. W
ms. 685, 686.
p See pag. 53. 54. 55.
.{FE}
which
.P 441
PRIVATE WRONGS.
BOOK III.
Ch. 27
which cannot be attained without ftudy and experience, any more than the fcience of law: but from which, when underftood, it may be known what remedy a fuitor is intitled to expect, and by what mode of fuit, as readily and with as much precifion, in a court of equity as in a court of law.
IT were much to be wifhed, for the fake of certainty, peace, and juftice, that each court would as far as poffible follow the other, in the beft and moft effectual rules for attaining thofe defirable ends. It is a maxim, that equity follows the law ; and in former days the law has not fcrupled to follow even that equity, which was laid down by the clerical chancellors. every one, who is converfant in our antient books, knows that many valuable improvements in the ftate of our tenures (efpecially in leafeholds
q and copyholds
r) and the forms of adminiftring juftice
f, have arifen from this fingle reafon, that the fame thing was conftantly effected by means of a fubpoena in the chancery. And fure there cannot be a greater folecifm, than that in two fovereign independent courts, eftablifhed in the fame country, exercifing concurrent jurifdiction, and over the fame fubject-matter, there fhould exift in a fingle inftance two different rules of property, clafhing with or contradicting each other.
IT would carry me beyond the bounds of my prefent purpofe, to go farther into this matter. I have been tempted to go fo far, becaufe the very learned author to whom I have alluded, and whofe works have given exquifite pleafure to every contemplative lawyer is (among many others) a ftrong proof how eafily names, and loofe or unguarded expreffions to be met with in the beft or our writers, are apt to confound a ftranger ; and to give him erroneous ideas of feparate jurifdictions now wxifting in England, which never were feparated in any other country in the univerfe. It hath alfo afforded me an opportunity to vindicate, on the one hand, the juftice of our courts of law from being
.{FS}
q Gilbert of ejectm. 2. 2 Bac. Abr. 160.
r Bro. Abr. t. tenant per copie. 10. Litt. §. 77.
f See pag. 200.
.{FE}
that
.P 442
PRIVATE WRONGS.
BOOK III.
Ch. 27
that harifh and illiberal rule, which many are too ready to fuppofed it ; and, on the other, the juftice of our courts of equity from being the refult of mere arbitrary opinion, or an exercife of dictatorial power, which rides over the law of the land, and corrects, amends, and controlls it by the loofe and fluctuating dictates of the confcience of a fingle judge. It is now high time to proceed to the practice of our courts of equity, thus explained and thus underftood.
THE firft commencement of a fuit in chancery is by preferring a bill to the lord chancellor in the ftile of a petition ; “humbly “complaining fheweth to your lordfhip your orator A. B. that, & c.” This is in the nature of a declaration at common law, or a libel and allegation in the fpiritual courts : feting forth the circumftances of the café at length, as, fome fraud, truft, or hardfhip ; “in tender confideration whereof,” (which is the ufual language of the bill) “and for that your orator is wholly without remedy “at the common law,” relief is therefore prayed at the chancellor's hands, and alfo procefs of fubpoena againft the defendant, to compel him to anfwer upon oath to all the matter charged in the bill. And if it be to quiet the poffeffion of lands, to ftay wafte, or to ftop proceedings at law, an injunction is alfo prayed in the nature of the interdictum of the civil law, commanding the defendant to ceafe.
THIS bill muft call all neceffary parties, however remotely concerned in intereft, before the court ; otherwife no decree can be made to bind them : and muft be figned by counfel, as a certificate of it's decency and propriety. For it muft not contain matter either fcandalous or impertinent : if it does, the defendant may refufe to anfwer it, till fuch fcandal or impertinence is expunged, which is done upon an order to refer it to one of the officers of the court, called a mafter in chancery ; of whom there are in number twelve, including the mafter of the rolls, all of whom, fo late as the reign of queen Elizabeth, were commonly
doctors
.P 443
PRIVATE WRONGS.
BOOK III.
Ch. 27
doctors of the civil law
s. The mafter is to examine the propriety of the bill : and, if the reports it fcandalous or impertinent, fuch mater muft be ftruck out, and the defendant fhall have his cofts ; which ought of right to be paid by the counfel who figned the bill.
WHEN the bill is field in the office of the fix clerks, (who originally were all in orders ; and therefore, when the conftitution of the court began to alter, a law
t was made to permit them to marry) when, I fay, the bill is thus field, if an injunction be prayed therein, it may be had at various ftages of the caufe, according to the circumftances of the café. If the bill be to ftay execution upon an oppreffive judgment, and the defendant does not put in his anfwer within the ftated time allowed by the rules of the court, an injunction can only be continued upon a fufficient ground appearing from the anfwer itfelf. But if an injunction be wanted to ftay wafte, or other injuries of an equally urgent nature, then upon the filing of the bill, and a proper café fupported by affidavits, the court will grant an injunction immediately, to continue till the defendant has put in his anfwer, and till the court fhall make fome farther order concerning it : and, when the anfwer comes in, whether it fhall then be diffolved or continued till the hearing of the caufe, is determined by the court upon argument, drawn from confidering the anfwer and affidavits together.
BUT, upon common bills, as foon as they are field, procefs of fubpoena is taken out ; which is a writ commanding the defendant to appear and anfwer to be bill, on pain of 100 l. But this is not all : for, if the defendant, on fervice of the fubpoena, does not appear within the time limited by the rules of he court, and plead, demur, or anfwer to the bill, he is then faid to be in contempt ; and the refpective proceffes of contempt are in fucceffive order awarded againft him. The firft of which is an at-
.{FS}
s Smith's commonw. b. 2. c. 12.
t Stat. 14 & 15 Hen. VIII. c. 8.
.{FE}
H h h 2
tachment,
.P 444
PRIVATE WRONGS.
BOOK III.
Ch. 27
tachment, which is a writ in the nature of a capias, directed to the fheriff, and commanding him to attach, or take up, the defendant, and bring him into court. If the fheriff returns that the defendant non eft inventus, then an attachment with proclamations iffues ; which, befides the ordinary form of attachment, directs the fheriff that he caufe public proclamations to be made, throughout the county, to fummon the defendant, upon his allegiance, perfonally to appear and anfwer. If this be alfo returned with a non eft inventus, and he ftill ftands out in contempt, a commiffion of rebellion is awarded againft him, for not obeying the proclamations according to his allegiance ; and four commiffioners therein named, or any of them, are ordered to attach him wherefoever he may be found in Great Britain, as a rebel and contemner of the king's laws and government, by refufing to attend his fovereign when thereunto required : fince, as was before obferved
u, matters of equity were originally determined by the king in perfon, affifted by his council ; though that bufinefs is now devolved upon his chancellor. If upon this commiffion of rebellion a non eft inventus is returned, the court then fends a ferjeant at arms in queft of him ; and, if he eludes the fearch of the ferjeant alfo, then a fequeftration iffues to feife all his perfonal eftate, and the profits of his real, and to detain them, fubject to the order of the court. Sequeftratios were firft introduced by fir Nicholas Bacon, lord keeper in the reign of queen Elizabeth ; before which the court found fome difficulty in enforcing it's procefs and decrees
w. After an order for a fequeftration iffued, the plaintiff's bill is to be taken pro confeffo, and a decree to be made accordingly. So that the fequeftration does not feem to be in the nature of procefs to bring in the defendant, but only intended to enforce the performance of the decree. Thus much if the defendant abfconds.
IF the defendant is taken upon any of this procefs, he is to be committed to the fleet, or other prifon, till he puts in his appearance, or anfwer, or performs whatever elfe this procefs is
.{FS}
u pag. 50.
w 1 Vern. 421.
.{FE}
iffued
.P 445
PRIVATE WRONGS.
BOOK III.
Ch. 27
iffued to enforce, and alfo clears his contempts by paying the cofts which the plaintiff has incurred thereby. For the fame kind of procefs is iffued out in all forts of contempts during the progrefs of the caufe, if the parties in any point refufe or neglect to obey the order of the court.
THE procefs againft a body corporate is by diftringas, to diftrein them by their goods and chattels, rents and profits, till they fhall obey the fummons or directions of the court. And, if a peer is a defendant, the lord chancellor fends a letter miffive to him to requeft his appearance, together with a copy of the bill ; and, if he neglects to appear, then he may be fervid with a fubpoena ; and, if he continues ftill in contempt, a fequeftration iffues out immediately againft his lands and goods, without any of the mefne procefs of attachments, & c, which are directed only againft the perfon, and therefore cannot affect a lord of parliament. The fame procefs iffues againft a member of the houfe of commons, except only that the lord chancellor fends him no letter miffive.
THE ordinary procefs before-mentioned cannot be fued out, till after fervice of the fubpoena, for then the contempt begins ; otherwife he is not prefumed to have notice of the bill : and therefore, by abfconding to avoid the fubpoena, a defendant might have eluded juftice, till the ftatute 5 Geo. II. c. 25. which enacts that, where the defendant cannot be found to be fervid with procefs of fubpoena, and abfconds (as is believed) to avoid being fervid therewith, a day fhall be appointed him to appear to the bill of the plaintiff ; which is to be inferted in the London gazette, read in the parifh church where the defendant laft lived, and fixed up at the royal exchange : and if the defendant doth not appear upon that day, the bill fhall be taken pro confeffo.
BY if the defendant appears regularly, and takes a copy of the bill , he is next to demur, plead, or anfwer.
ADE-
.P 446
PRIVATE WRONGS.
BOOK III.
Ch. 27
ADEMURRER in equity is nearly of the fame nature as a demurrer in law ; being an appeal to the judgment of the court, whether the defendant fhall be bound to anfwer, the plaintiff's bill : as, for want of fufficient matter of equity therein contained ; or where the plaintiff, upon his own fhewing, appears to have no right ; where the bill feeks a difcovery of a thing which may caufe a forfeiture of any kind, or may convict a man of any criminal mif-behaviour. For any of thefe caufes a defendant may demur to the bill. And if, on demurrer, the defendant prevails, the plaintiff's bill fhall be difmiffed : if the demurrer be over-ruled, the defendant is ordered to anfwer.
APLEA may be either to the jurifdiction ; fhewing that the court has no cognizance of the caufe : or to the perfon ; fhewing fome difability in the plaintiff, as by outlawry, excommunication, and the like : or it is in bar ; fhewing fome matter wherefore the plaintiff can demand no relief, as an act of parliament, a fine, a releafe, or a former decree. And the truth of this plea the defendant is bound to prove, if put upon it by the plaintiff. But as bills are often of a complicated nature, and contain various matter, a man may plead as to part, demur as to part, and anfwer to the refidue. But no exceptions to formal minutiae in the pleadings will be here allowed ; for the parties are at liberty, on the difcovery of any errors in form, to amend them
x.
AN anfwer is the moft ufual defence that is mode to a plaintiff's bill. It is given in upon oath, or the honour of a peer or peerefs ; but, where there are amicable defendants, their anfwer is ufually taken without oath by confent of the plaintiff. This method of proceeding is taken from the ecclefiaftical courts, like the reft of the practice in chancery : for there, in almoft every café, the plaintiff may demand the oath of his adverfary in fup-
x En ceft court de chauncerie, home ne fera prejudice par fon myfpledying ou pur defaut de forme, mes folonque le veryte del mater : car il doit agarder folonque confciens, et nemi ex rigort juris. (Dyverfite des courts . edit. 1534. fol. 296, 297. Bro. Abr. t. jurifdiction. 50.)
.{FE}
ply
.P 447
PRIVATE WRONGS.
BOOK III.
Ch. 27
ply of proof. Formerly this was done in thofe courts with compurgators, in the manner of our waging of law : but this has been long difufed ; and inftead of it the prefent kind of purgation, by the fingle oath of the party himfelf, was introduced. This oath was made ufe of in the fpiritual courts, as well in criminal cafes of ecclefiaftical cognizance, as in matters of civil right : and it was then ufually denominated the oath ex officio, whereof the high commiffion court in particular made a moft extravagant and illegal ufe; forming a court of inquifition, in which all perfons were obliged to anfwer, in cafes of bare fufpicion, if the commiffioners though proper to proceed againft them ex officio for any fuppofed ecclefiaftical enormities. But when the high commiffion court was abolifhed by ftatute 16 Car. I. c. 11. this oath ex officio was abolifhed with it ; and it is alfo enacted by ftatute 13 Car. II. ft. 1. c. 12. “that it fhall not be “lawful for any bifhop or ecclefiaftical judge to gender to any “perfon the oath ex officio, or any other oath whereby the party “may be charged or compelled to confefs, accufe, or purge him-“felf of any criminal matter.” But this does not extend to oaths in a civil fuit, and therefore it is ftill the practice both in the fpiritual courts, and in equity, to demand the perfonal anfwer of the party himfelf upon oath. Yet if in the bill any queftion be put, that tends to the difcovery of any crime, the defendant may thereupon demur, as was before obferved, and may refufe to anfwer.
IF the defendant lives within twenty miles of London, he muft be fworn before one of the mafters of the court ; if farther off, there may be a dedimus poteftatem or commiffion to take his anfwer in the country, where the commiffioners adminifter him the ufual oath ; and then, the anfwer being fealed up, either one of the commiffioners carries it up to the court ; or it is fent by a meffenger, who fwears he received it from one of the commiffioners, and that the fame has not been opened or altered fince he received it. An anfwer muft be figned by counfel, and muft either deny or confefs all the material parts of the bill ;
or
.P 448
PRIVATE WRONGS.
BOOK III.
Ch. 27
or it may confefs and avoid, that is, juftify or palliate the facts. If one of thefe is not done, the anfwer may be excepted to for infufficiency, and the defendant be compelled to put in a more fufficient anfwer. A defendant cannot pray any thing in this his anfwer, but to be difmiffed the court : if he has any relief to pray againft the plaintiff, he muft do it by an original bill of his own, which is called a crofs bill.
AFTER anfwer put in, the plaintiff, upon payment of cofts, may amend his bill, either by adding new parties, or new matter, or both, upon the new lights given him by the defendant ; and the defendant is obliged to anfwer afrefh to fuch amended bill. But this muft be before the plaintiff has replied to the defendant's anfwer, whereby the caufe is at iffue ; for afterwards, if new matter arifes, which did not exift before, he muft fet it forth by a fupplemental bill. There may be alfo a bill of revivor, when the fuit is abated by the death of any of the parties ; in order to fet the proceedings again in motion, without which they remain at a ftand. And there is likewife a bill of interpleader ; where a perfon who owes a debt or rent to one of the parties in fuit, but, till the determination of it, he knows not to which, defires that they may interplead, that he may be fafe in the payment. In this laft café it is ufual to order the money to be paid into court, for the benefit of fuch of the parties, to whom upon hearing the court fhall decree it to be due. But this depends upon circumftances : and the plaintiff muft alfo annex an affidavit to his bill, fwearing that he does not collude with either of the parties.
IF the plaintiff finds fufficient matter confeffed in the defendant's anfwer to ground a decree upon, he may proceed to the hearing of the caufe upon bill and anfwer only. But in that café he muft take the defendant's anfwer to be true in every point. Otherwife the courfe is for the plaintiff to reply generally to the anfwer, averring his bill to be true, certain, and fufficient, and the defendant's anfwer to be directly the reverfe ;
which
.P 449
PRIVATE WRONGS.
BOOK III.
Ch. 27
which he is ready to prove as the court fhall award : upon which the defendant rejoins, averring the like on his fide ; which is joining iffue upon the facts in difpute. To prove which facts is the next concern.
THIS is done by examination of witneffes, and taking their depofitions in writing, according to the manner of the civil law. And for that purpofe interrogatories are farmed, or queftions in writing ; which, and which only, are to be propofed to, and afked of, the witneffes in the caufe. Thefe interrogatories muft be fhort and pertinent : not leading ones ; (as “did not you fee “this, or, did not you hear that ?”) for if they be fuch, the depofitions taken thereon will be fuppreffed and not fuffered to be read. For the purpofe of examining witneffes in or near London, there is an examiner's officer appointed ; but, for evidence who live in the country, a commiffion to examine writneffes is ufually granted to four commiffioners, two named of each fide, or any three or two of them, to take the depofitions there. And if the witneffes refide beyond fea, a commiffion may be had to examine them there upon their own oaths, and (if foreigners) upon the oaths of fkilful interpreters. And it hath been held
y that the depofition of an heathen who believes in the fupreme being, taken by commiffion in the moft folemn manner according to the cuftom of his own country, may be read in evidence.
THE commiffioners are fworn to take the examinations truly and without partiality, and not to divulge them till publifhed in the court of chancery ; and their clerks are alfo fworn to fecrefy. The witneffes are compellable by procefs of fubpoena, as in the courts of common law, to appear and fubmit to examination. And when their depofitions are taken, they are tranfmitted to the court with the fame care that the anfwer of a defendant is fent.,
.{FS}
y Omichund v. Barker. 1 Atk. 21.
.{FE}
IF
.P 450
PRIVATE WRONGS.
BOOK III.
Ch. 27
IF witneffes to a difputable fact are old and infirm, it is very ufual to file a bill to perpetuate the teftimony of thofe witneffes, although no fuit is depending ; for, it may be, a man's antagonift only waits for the death of fome of them to begin his fuit. This is moft frequent when lands are devifed by will away from the heir at law ; and the devifee, in order to perpetuate the teftimony of the witneffes to fuch will, exhibits a bill in chancery againft the heir, and fets forth the will verbatim therein, fuggefting that the heir is inclined to difpute it's validity : and then, the defendant having anfwered, they proceed to iffue as in other cafes, and examine the witneffes to the will ; after which the caufe is at an end, without proceeding to any decree, no relief being prayed by the bill : but the heir is intitled to his cofts, even though he contefts the will. This is what is ufually meant by proving a will in chancery.
WHEN all the witneffes are examined, then, and not before, the depofitions may be publifhed, by a rule to pafs publication ; after which they are open for the infpection of all the parties, and copies may be taken of them. The caufe is then ripe to be fet down for hearing, which may be done at the procurement of the plaintiff, or defendant, before either the lord chancellor or the mafter of the rolls, according to the difcretion of the clerk in court, regulated by the nature and importance of the fuit, and the arrear of caufes depending before each of them refpectively. Concerning the authority of the mafter of the rolls to hear and determine caufes, and his general power in the court of chancery, there were (not many years fince) divers queftions and difputes very warmly agitated ; to quiet which it was declared by ftatute 3 Go. II. c. 30. that all orders and decrees by him made, except fuch as by the courfe of the court were appropriated to the great feal alone, fhold be deemed to be valid ; fubject never-thelefs to be difcharged or altered by the lord chancellor, and fo as they fhall not be inrolled, till the fame are figned by his lordfhip. Either party may be fubpoena'd to hear judgment on the
day
.P 451
PRIVATE WRONGS.
BOOK III.
Ch. 27
day fo fixed for the hearing : and then, if the plaintiff does not attend, his bill is difmiffed with cofts ; or, if the defendant makes default, a decree will be made againft him, which will be final, unlefs he pays the plaintiff's cofts of attendance, and fhews good caufe to the contrary on a day appointed by the court. A plaintiff's bill may alfo at any time be difmiffed for want of profecution, which is in the nature of a nonfuit at law, if he fuffers three terms to elapfe without moving forward in the caufe.
WHEN there are crofs caufes, on a crofs bill filed by the defendant againft the plaintiff in the original caufe, they are generally contrived to be brought on together, that the fame hearing and he fame decree may ferve for both of them. The method of hearing caufes in court is ufually this. The parties on both fides appearing by their counfel, the plaintiff's bill is firft opened, or briefly abridged, and the defendant's anfwer alfo, by the junior counfel on each fide : after which the plaintiff's leading counfel ftates the café and the matters in iffue, and the points of equity arifing therefrom : and then fuch depofitions as are called for by the plaintiff are read by one of the fix clerks, and the plaintiff may alfo read fuch part of the defendant's anfwer, as he thinks material or convenient
z: and after this the reft of the counfel for the plaintiff make their obfervations and arguments. Then the defendant's counfel go through the fame procefs for him, except that they may not read any part of his anfwer ; and the counfel for the plaintiff are heard in reply. When all are heard, the court pronounces the decree, adjufting every point in debate according to equity and good confcience ; which decree being ufually very long, the minutes of it are taken down, and read openly in court by the regiftrar. The matter of cofts to be given to either party, is not here held to be a point of right, but merely difcretionary (by the ftatute 17 Ric. II. c. 6.) according to the circumftances of the café, as they appear
.{FS}
z On a trial at law if the plaintiff reads any part of the defendant's anfwer, he muft read the whole of it; for by reading any of it he fhews a reliance on the truth of the defendant's teftimony, and makes the whole of his anfwer evidence.
.{FE}
I i i 2
more
.P 452
PRIVATE WRONGS.
BOOK III.
Ch. 27
more or lefs favourable to the party vanquifhed. And yet the ftatute 15 Hen. IV. c. 4. feems expreffly to direct, that as well damages as cofts fhall be given to the defendant, if wrongfully vexed in this court.
THE chancellor's decree is either interlocutory or final. It very feldom happens that the firft decree can be final, or conclude the caufe ; for, if any matter of fact is ftrongly controverted, this court is fo fenfible of the deficiency of trial by written depofitions, that it will not bind the parties thereby, but ufually directs the matter to be tried by jury; efpecially fuch important facts as the validity of a will, or whether A is the heir at law to B, or the exiftence of a modus decimandi or real and immemorial compofition for tithes, But, as no jury can be fummoned to attend this court, the facts is ufually directed to be tried at the bar of the court of king's bench or at the affifes, upon a feigned iffue. For, (in order to bring it there, and have the point in difpute, and that only, put in iffue) an action is feigned to be brought, wherein the pretended plaintiff declares, that he laid a wager of 5 l. with the defendant, that A was heir at law to B ; and then avers that he is fo ; and brings his action for the 5. l. The defendant allows the wager, but avers that A is not be heir to B ; and thereupon that iffue is joined, which is directed out of chancery to be tried : and thus the verdict of the jurors at law determines the fact in the court of equity . Thefe feigned iffues feem borrowed from the fponfio judicialis of the Romans
a: and are alfo frequently ufed in the courts of law, by confent of the parties, to determine fome difputed right without the formality of pleading, and thereby to fave much time and expenfe in the decifion of a caufe.
SO likewife, if a queftion of mere law arifes in the courfe of a caufe, as whether by the words of a will an eftate for life or
.{FS}
a Nota eft fpecfio judicialis : “fpondefne “qurngentos, fi mcus fit ? fpondeo, fi tuus fit. “Et tu quoque fpondefne quingentos, in tuus fit ? “fpondeo, ni mcus fit.” Vide Heinecc. Antiquitat. l. 3. t. 16. §. 3. & Sigon. de judiciis l. 21. p. 466. citat. ibid.
.{FE}
in
.P 453
PRIVATE WRONGS.
BOOK III.
Ch. 27
in tail is created, or whether a future intereft devifed by a teftator fhall operate as a remainder or an executory devife, it is the practice of this court to refer it to the opinion of the judges of the court of king's bench, upon a café ftated for that purpofe ; wherein all the material facts are admitted, and the point of law is fubmitted to their decifion : who thereupon hear it folemnly argued by counfel on both fides, and certify their opinion to the chancellor. And upon fuch certificate the decree is ufually founded.
ANOTHER thing alfo retards the completion of decrees. Frequently long accounts are to be fettled, incumbrances and debts to be enquired into, and a hundred little facts to be cleared up, before a decree can do full and fufficient juftice. Thefe matters are always by the decree on the firft hearing referred to a mafter in chancery to examine ; which examinations frequently laft for years : and then he is to report the fact, as it appears to him, to the court. This report may be excepted to, difproved, and over-ruled ; or otherwife is confirmed, and made abfolute, by order of the court.
WHEN all iffues are tried and fettled, and all references to the mafter ended, the caufe is again brought to hearing upon the matters of equity referved ; and a final decree is made : the performance of which is inforced (if neceffary) by commitment of the perfon or fequeftration of the party's ftate. And if by this decree either party thinks himfelf aggrieved, he may petition the chancellor for a rehearing ; whether it was heard before his lordfhip, or any of the judges, fitting for him, or before the mafter of the rolls. For whoever may have heard the caufe, it is the chancellor's decree,and muft be figned by him before it is enrolled
b; which is done of courfe unlefs a rehearing be defired. Every petition for a rehearing muft be figned by two counfel of character, ufually fuch as have been concerned in the caufe, certifying that they apprehend the caufe is proper to be
.{FS}
h Stat. 3 Geo. II. c. 30. See pag. 450.
.{FE}
reheard.
.P 454
PRIVATE WRONGS.
BOOK III.
Ch. 27
reheard. And upon the rehearing all the evidence taken in the caufe, whether read before or not, is now admitted to be read : becaufe it is the decree of the chancellor himfelf, who only now fits to hear reafons why it fhould not be enrolled and perfected ; at which time all omiffions of either evidence or argument may be fupplied
c. But, after the decree is once figned and enrolled, it cannot be reheard or rectified, but by bill of review, or by appeal to the houfe of lords.
A BILL of review may be had upon apparent error in judgment, appearing on the face of the decree ; or, by fpecial leave of the court, upon oath made of the difcovery of new matter or evidence, which could not poffibly be had or ufed at the time when the decree paffed. But no new evidence or matter then in the knowlege of the parties, and which might have been ufed before, fhall be a fufficient ground for a bill a review.
AN appeal to parliament, that is, to the houfe of lords, is the dernier refort of the fubject who thinks himfelf aggrieved by any interlocutory order or final determination in this court : and it is effected by petition to the houfe of peers, and not by writ of error, as upon judgments at common law. This jurifdiction is faid
d to have begun in 18 Jac. I. and certainly the firft petition, which appears in the records of parliament, was preferred in that year
e; and the firft that was heard and determined (though the name of appeal was then a novelty) was prefented in a few months after
f : both leveled againft the lord keeper Bacon for corruption, and other mifbehaviour. It was afterwards warmly controverted by the houfe of commons in the reign of Charles the fecond
g. But this difpute is now at reft
h: it being obvious to the reafon of all mankind, that, when the courts of equity became principal tribunals for deciding caufes of property, a revifion of their decrees (by way of appeal) became equally ne-
.{FS}
c Gilb. Rep. 151, 152.
d Com. journ. 13 Mar. 1704.
e Lord's journ. 23 Mar, 1620.
f Ibid. 3, 11, 12 Dec. 1621.
g Com. journ. 19 Nov. 1675, & c.
h Show. Parl. C. 81.
.{FE}
ceffary,
.P 455
PRIVATE WRONGS.
BOOK III.
Ch. 27
ceffary, as a writ of error from the judgment of a court of law. And, upon the fame principle, from decrees of the chancellor relating to the commiffioners for the diffolution of chauntries, & c, under the ftatute 37 Hen. VIII. c. 4. (as well as for charitable ufes under ftatute 43 Eliz. c. 4.) an appeal to the king in parliament was always unqueftionably allowed
i. But no new evidence is admitted in the houfe of lords upon any account, for this is a diftinct jurifdiction
k : which differs it very confiderably from thofe inftances, wherein the fame jurifdiction revifes and corrects it's own acts, as in rehearings and bills of review. For it is a practice unknown to our law, (though conftantly followed in the fpiritual courts) when a fuperior court is reviewing the fentence of an inferior, to examine the juftice of the former decree by evidence that was never produced below. This is the general method of proceeding in the courts of equity.
.{FS}
t Duke's char. ufes. 62.
k Gilb. Rep. 155, 156.
.{FE}
THE END OF THE THIRD BOOK.
.P i
