Blackstone’s Commentaries with Notes of Reference (1803)
St. George Tucker
Of Proceedings in the Courts of Equity
BEFORE we enter on the proposed subject of the ensuing chapter, viz., the nature and method of proceedings in the courts of equity, it will be proper to recollect the observations, which were made in the beginning of this book1 on the principal tribunals of that kind, acknowledged by the constitution of England; and to premise a few remarks upon those particular causes, wherein any of them claims and exercises a sole jurisdiction, distinct from and exclusive of the other.
I HAVE already2 attempted to trace (though every concisely) the history, rise, and progress, of the extraordinary court, or court of equity, in chancery. The same jurisdiction is exercised, and the same system of redress pursued, in the equity court of the exchequer: with a distinction however as to some few matters, peculiar to each tribunal, and in which the other cannot interfere. And, first, of those 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 its infant tenants, was totally extinguished in every feudal view; but resulted to the king in his court of chancery, together with the general protection3 of all other infants in the kingdom. When therefore a fatherless child has no other guardian, the court of chancery has a right to appoint one: and, from all proceedings relative thereto, an appeal lies to the house of lords. The court of exchequer can only appoint a guardian ad litem, to manage the defense of the infant if a suit be commenced against him; a power which is incident to the jurisdiction of every court of justice:4 but when the interest of a minor comes before the court judicially, in the progress of a cause, or upon a bill for that purpose filed, either tribunal indiscriminately will take care of the property of the infant.
2. AS to idiots and lunatics: the king himself used formerly to commit the custody of them to proper committees, in every particular case; but now, to avoid solicitations and the very shadow of undue partiality, a warrant is issued by the king5 under his royal sign manual to the chancellor or keeper of his seal, to perform this office for him: and, if he acts improperly in granting such custodies, the complaint must be made to the king himself in council.6 But the previous proceedings on the commission, to inquire whether or on the party be an idiot or a lunatic, are on the law-side of the court of chancery, and can only be redressed (if erroneous) by writ of error in the regular course of law.
3. THE king, as parens patriae, has the general superintendence of all charities; which he exercises by the keeper of his conscience, the chancellor. And therefore, whenever it is necessary, the attorney general, at the relation of some informant, (who is usually called the relator) files ex officio an information in the court of chancery to have the charity properly established. By statute also 43 Eliz. c. 4. authority is given to the lord chancellor or lord keeper, and to the chancellor of the duchy of Lancaster, respectively, to grant commissions under their several seals, to inquire into any abuses of charitable donations, and rectify the same by decree; which may be reviewed in the respective courts of the several chancellors, upon exceptions taken thereto. But, though this is done in the petty bag office in the court of chancery, because the commission is there returned, it is not a proceeding at common law, but treated as an original cause in the court of equity. The evidence below is not taken down in writing, and the respondent in his answer to the exceptions may allege what new matter he pleases; upon which they go to proof, and examine witnesses in writing upon all the matters in issue: and the court may decree the respondent to pay all the costs, though no such authority is given by the statute. And, as it is thus considered as an original cause throughout, an appeal lies of course from the chancellor’s decree to the house of peers,7 notwithstanding any loose opinions to the contrary.8
4. BY the several statutes, relating to bankrupts, a summary jurisdiction is given to the chancellor, in many matters consequential or previous to the commissions thereby directed to be issued; from which the statutes give no appeal.
ON the other hand, the jurisdiction of the court of chancery does not extend to some causes, wherein relief may be had in the exchequer. No information can be brought, in chancery, for such mistaken charities, as are given to the king by the statutes for suppressing superstitious uses. Nor can chancery give any relief against the king, or direct any act to be done by him, or make any decree disposing of or affecting his property; not even in cases where he is a royal trustee.9 Such causes must be determined in the court of exchequer, as a court of revenue; which alone has power over the king’s treasure, and the officers employed in its management: unless where it properly belongs to the duchy court of Lancaster, which has also a similar jurisdiction as a court of revenue; and like the other, consists of both a court of law and a court of equity.
IN all other matters, what is said 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 arises from the different constitution of their officers: or, if they differ in any thing more essential, one of them must certainly be wrong; for truth and justice are always uniform, and ought equally to be adopted by them all.
LET us next take a brief, but comprehensive, view of the general nature of equity, as now understood and practiced in our several courts of judicature. I have formerly touched upon it,10 but imperfectly: it deserves a more complete explication. Yet, as nothing is hitherto extant, that can give a stranger a tolerable idea of the courts of equity subsisting in England, as distinguished from the courts of law, the compiler of these observations cannot but attempt it with diffidence: they, who know them best, are too much employed to find time to write; and they, who have attended but little in those courts, must be often at a loss for materials.
EQUITY then, in its true and genuine meaning, is the soul and spirit of all law: positive law is construed, and rational law is made, by it. In this, equity is synonymous to justice; in that, to the true sense and sound interpretation of the rule. But the very terms of a court of equity and a court of law, as contrasted to each other, are apt to confound and mislead us: as if the one judged without equity, and the other was not bound by any law. Whereas every definition or illustration to be met with, which now draws a line between the two jurisdictions, by setting law and equity in opposition to each other, will be found either totally erroneous, or erroneous to certain degree.
1. THUS in the first place it is said,11 that it is the business of a court of equity in England to abate the rigor of the common law. But no such power is contended for. Hard was the case of bond-creditors, whose debtor devised away his real estate; rigorous and unjust the rule, which put the devisee in a better condition than the heir:12 yet a court of equity had no power to interpose. Hard is the common law still subsisting, that land devised, or descending to the heir, shall not be liable to simple contract debts of the ancestor or devisor,13 although the money was laid out in purchasing the very land; and that the father shall never immediately succeed as heir to the to the real estate of the real estate of the son;14 but a court of equity can give no relief; though in both these instances the artificial reason of the law, arising from feudal principles, has long ago entirely ceased. The like may be observed of the descent of lands to remote relation of the whole blood, or even their escheat to the lord, in preference to the owner’s half-brother;15 and of the total stop to all justice, by causing the parol to demur,16 whenever an infant is sued as heir or is party to a real action. In all such cases of positive law, the courts of equity, as well as the courts of law, must say with Ulpian,17 “hoc quidem perquam durum est, sed ita lex scripta est.”
2. IT is said,18 that a court of equity determines according to the spirit of the rule, and not according to the strictness of the letter. But so also does a court of law. Both, for instance, are equally bound, and equally profess, to interpret statutes according to the true intent of the legislature. In general laws all cases cannot be foreseen; or, if foreseen, cannot be expressed: some will arise that will fall within the meaning, though not within the words, of the legislator; and others, which may fall within the letter, may be contrary to his meaning though not expressly excepted. These cases, thus out of the letter, are often said to be within the equity, of an act of parliament; and so, cases within the letter are frequently out of the equity. Here by equity we mean nothing but the sound interpretation of the law; though the words of the law itself may be too general, too special, or otherwise inaccurate or defective. These then are the cases which, as Grotius19 says, “lex non exacte definit, sed arbitrio boni viri permittit” ; in order to find out the true sense and meaning of the lawgiver, from every other topic of construction. But there is not a single rule of interpreting laws, whether equitably or strictly, that is not equally used by the judges in the courts both of law and equity: the construction must in both be the same; or, if they differ, it is only as one court of law may also happen to differ from another. Each endeavors to fix and adopt the true sense of the law in question; neither can enlarge, diminish, or alter, that sense in a single tittle.
3. AGAIN, it has been said,20 that fraud, accident, and trust 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 some frauds are only cognizable there, as fraud in obtaining a devise of lands, which is always sent out of the equity courts to be there determined. Many accidents are also supplied in a court of law; as loss of deeds, mistakes in receipts or accounts, wrong payments, deaths which make it impossible 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 suffered, a devise ill executed, a contingent remainder destroyed, or a power of leasing omitted in a family settlement. A technical trust indeed, created by the limitation of a second use, was forced into a court of equity, in the manner formerly mentioned:21 and this species of trusts, extended by inference and construction, have ever since remained as a kind of peculium in those courts. But there are other trusts, which are cognizable in a court of law: as deposits, and all manner of bailments; and especially that implied contract, so highly beneficial and useful, of having undertaken to account for money received to another’s use,22 which is the ground of an action on the case almost as universally remedial as a bill in equity.
4. ONCE more; it has been said that a court of equity is not bound by rules or precedents, but acts from the opinion of the judge,23 founded on the circumstances of every particular case. Whereas the system of our courts of equity is a labored connected system, governed by established rules, and bound down by precedents, from which they do not depart, although the reason of some of them may perhaps be liable to objection. Thus, the refusing a wife her dower in a trust-estate,24 yet allowing the husband his curtesy: the holding the penalty of a bond to be merely a security for the debt and interest, yet considering it sometimes as the debt itself, so that the interest shall not exceed that penalty:25 the distinguishing between a mortgage at five per cent, with a clause of reduction to four, if the interest be regularly paid, and a mortgage at four per cent, with a clause of enlargement to five, if the payment of the interest be deferred; so that the former shall be deemed a conscientious, the latter an unrighteous, bargain:26 all these, and other cases that might be instanced, are plainly rules of positive law; supported only by the reverence that is shown, and generally very properly shown, to a series of former determinations; that the rule of property may be uniform and stead. Nay, sometimes a precedent is so strictly followed, that a particular judgment, founded upon special circumstances,27 gives rise to a general rule.
IN short, if a court of equity in England did really act, as a very ingenious writer in the other part of the island supposes it (from theory) to do, it would rise above all law, either common or statute, and be a most arbitrary legislator in every particular case. No wonder he is so often mistaken. Grotius, or Pufendorf, or any other of the great masters of jurisprudence, would have been as little able to discover, by their own light, the system of a court of equity in England, as the system of a court of law. Especially, 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,28 Coke,29 Lambard,30 and Selden,31 and even the great Bacon32 himself. But this was in the infancy of our courts of equity, before their jurisdiction was settled, and when the chancellors themselves, partly from their ignorance of law (being frequently bishops or statesmen) partly from ambition and lust of power (encouraged by the arbitrary principles of the age they lived in) but principally from the narrow and unjust decisions of the courts of law, had arrogated to themselves such unlimited authority, as has totally been disclaimed by their successors for now above a century past. The decrees of a court of equity were then rather in the nature of awards, formed on the sudden pro re nata, with more probity of intention than knowledge of the subject; founded on no settled principles, as being never designed, and therefore never used, for precedents. But the systems of jurisprudence, in our courts both of law and equity, are now equally artificial systems, founded in the same principles of justice and positive law; but varied by different usages in the forms and mode of their proceedings: the one being originally derived (though much reformed and improved) from the feudal customs, as they prevailed in different ages in
the Saxon and Norman judicatures; the other (but with equal improvements) from the imperial and pontifical formularies, introduced by their clerical chancellors.
THE suggestion indeed of every bill, to give jurisdiction to the courts of equity, (copied from those early times) is, that the complainant has no remedy at the common law. But he, who should from thence conclude, that no case is judged of in equity where there might have been relief at law, and at the same time casts his eye on the extent and variety of the cases in our equity-reports, must think the law a dead letter indeed. The rules of property, rules of evidence, and rules of interpretation, in both courts, are, or should be, exactly the same: both ought to adopt the best, or must cease to be courts of justice. Formerly some causes, which now no longer exist, might occasion a different rule to be followed in one court, from what was afterwards adopted in the other, as founded in the nature and reason of the thing: but, the instant those causes ceased, the measure of substantial justice ought to have been the same in both. Thus the penalty of a bond, originally contrived to evade the absurdity of those monkish constitutions which prohibited taking interest for money, was therefore very pardonably considered as the real debt in the courts of law, when the debtor neglected to perform his agreement for the return of the loan with interest: for the judges could not, as the law then stood, give judgment that the taking of interest became legal, as the necessary companion of commerce,33 nay after the statute of 37 Hen. VIII. c. 9. had declared the debt or loan itself to be “the just and true intent” for which the obligation was given, their narrow minded successors still adhered wilfully and technically to the letter of the ancient precedents, and refused to consider the payment of principal, interest, and costs, as a full satisfaction of the bond. At the same time more liberal men, who sat in the courts of equity, construed the instrument, according to its “just and true intent,” as merely a security for the loan: in which light it was certainly understood by the parties, at least after these determinations; and therefore this construction should have been universally received. So in mortgages, being only a landed as the other is a personal security for the money lent, the payment of principal, interest, and costs ought at any time,
before judgment executed, to have saved the forfeiture in a court of law, as well as in a court of equity. And the inconvenience as well as injustice, of putting different constructions in different courts upon one and the same transaction, obliged the parliament at length to interfere, and to direct by the statutes 4 & 5 Ann. c. 16. and 7 Geo. II. c. 20. that, in the cases of bonds and mortgages, what had long been the practice of the courts of equity should also for the future be followed in the courts of law.
AGAIN; neither a court 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 understand them truly, and therefore both of them uniformly. One court ought not to extend, nor the other abridge, a lawful provision deliberately settled by the parties, contrary to its just intent. A court of equity, no more than a court of law, can relieve against a penalty in the nature of stated damages; as a rent of 5£ an acre for plowing up ancient meadow:34 nor against a lapse of time, where the time is material to the contract; as in covenants for renewal of leases. Both courts will equitably construe, but neither pretends to control or change, a lawful stipulation or engagement.
THE rules of decision are in both courts equally apposite to the subjects of which they take cognizance. Where the subject-matter is such as requires to be determined secundum aequum et bonum, as generally upon actions on the case, the judgments of the courts of law are guided by the most liberal equity. In mattes of positive right, both courts must submit to and follow those ancient and invariable maxims “quae relicta sunt et tradita“.35 Both follow the law of nations, and collect it from history and the most approved authors of all countries, where the question is the subject of that law: as in case of the privileges of ambassadors,36 hostages, or ransom-bills.37 In mercantile transactions they follow the marine law,38 and argue from the usages and authorities received in all maritime countries. Where they exercise a concurrent jurisdiction, they both follow the law of the proper forum:39 in matters originally of ecclesiastical cognizance, they both equally adopt the canon or imperial law, according to the nature of the subject;40 and, if a question 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,41 and would both decide accordingly.
SUCH then being the parity of law and reason which governs both species of courts, wherein (it may be asked) does their essential difference consist? It principally consists in the different modes of administering justice in each; in the mode of proof, the mode of trial, and the mode of relief. Upon these, and upon two other accidental grounds of jurisdiction, which were formerly driven into those courts by narrow decisions of the courts of law, viz. the true construction of securities for money lent, and the form and effect of a trust or second use; upon these main pillars has been gradually erected that structure of jurisprudence, which prevails in our court of equity, and is inwardly bottomed upon the same substantial foundations as the legal system which has hitherto been delineated in these commentaries; however different they may appear in their outward form, from the different taste of their architects.
1. AND, first, as to the mode of proof. When facts, or their leading circumstances, rest only in the knowledge of the party, a court of equity applies itself to his conscience, and purges him upon oath with regard to the truth of the transaction; and, that being once discovered, the judgment is the same in equity as it would have been at law. But, for want of this discovery at law, the courts of equity acquired a concurrent jurisdiction with every other court in all matters of account.42 As incident to accounts, they take a concurrent cognizance of the administration of personal assets,43 consequently of debts, legacies, the distribution of the residue, and the conduct of executors and administrators.44 As incident to accounts, they also take the concurrent jurisdiction of tithes, and all questions relating thereto;45 of all dealings in partnership,46 and many other mercantile transactions; and so of bailiffs, receivers, factors, and agents.47 It would be endless to point out all the several avenues in human affairs, and in this commercial age, which lead to or end in accounts.
FROM the same fruitful source, the compulsive discovery upon oath, the courts of equity have acquired a jurisdiction over almost all matters of fraud;48 all matters in the private knowledge of the party, which, though concealed, are binding in conscience; and all judgments at law, obtained through such fraud or concealment. And this, not by impeaching or reversing the judgment itself, but by prohibiting the plaintiff from taking any advantage of a judgment, obtained by suppressing the truth;49 and which, and the same facts appeared on the trial, as now are discovered, he would never have obtained at all.
2. AS to the mode of trial. This is by interrogatories administered to the witnesses, upon which their depositions are taken in writing, wherever they happen to reside. If therefore the cause arises in a foreign country, and the witnesses reside upon the spot; if, in causes arising in England, the witnesses are abroad, or shortly to leave the kingdom; or if witnesses residing at home are aged or infirm; any of these cases lays a ground for a court of equity, to grant a commission to examine them, and (in consequence) to exercise the same jurisdiction, which might have been exercised at law, if the witnesses could probably attend.
3. WITH respect to the mode of relief. The want of a more specific remedy, than can be obtained in the courts of law, gives a concurrent jurisdiction to a court of equity in a great variety of cases. To instance in executory agreements. A court of equity will compel them to be carried into strict execution,50 unless where it is improper or impossible, instead of giving damages for their non-performance. And hence a fiction is established, that what ought to be done shall be considered as being actually done,51 and shall relate back to the time when it ought to have been done originally: and this fiction is so closely pursued through all its consequences, that it necessarily branches out into many rules of jurisprudence, which form a certain regular system. So, of waste, and other similar injuries, a court of equity takes a concurrent cognizance, in order to prevent them by injunction.52 Over questions that may be tried at law, in a great multiplicity of actions, a court of equity assumes a jurisdiction, to prevent the expense and vexation of endless litigations and suits.53 In various kinds of frauds it assumes a concurrent54 jurisdiction, not only for the sake of a discovery, but of a more extensive and specific relief: as by setting aside fraudulent deeds,55 decreeing re-conveyances,56 or directing an absolute conveyance merely to stand as a security.57 And thus, lastly, for the sake of a more beneficial and complete relief by decreeing a sale of lands,58 a court of equity holds plea of all debts, encumbrances, and charges, that may affect it or issue thereout.
4. THE true construction of securities for money lent is another fountain of jurisdiction in courts of equity. When they held the penalty of a bond to be the form, and that in substance it was only as a pledge to secure the repayment of the sum bona fide advanced, with a proper compensation for the use, they laid the foundation of a regular series of determinations, which have settled the doctrine of personal pledges or securities, 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 ownership 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 possession be barred by length of time, by analogy to the statute of limitations.
5. THE form of a trust or second use gives the courts of equity an exclusive jurisdiction as to the subject-matter of all settlements and devises in that form, and of all the long terms created in the present complicated mode of conveyancing. This is a very ample source of jurisdiction: but the trust is governed by very nearly the same rules, as would govern the estate in a court of law,59 if no trustee was interposed; and, by a regular positive system established in the courts of equity, the doctrine of trusts is now reduced to as great a certainty as that of legal estates in the courts of the common law.
THESE are the principal (for I omit the minuter) grounds of the jurisdiction at present exercised in our courts of equity: which differ, we see, very considerably from the notions entertained by strangers, and even by those courts themselves before they arrived to maturity; as appears from the principles laid down, and the jealousies entertained of their abuse, by our early juridical writers cited in a former60 page; and which have been implicitly received and handed down by subsequent compilers, without attending to those gradual accessions and derelictions, by which in the course of a century this mighty river has imperceptibly shifted its channel. Lambard in particular, in the reign of queen Elizabeth, lays it down,61 that “equity should not be appealed unto, but only in rare and extraordinary matters: and that a good chancellor will not arrogate authority in every complaint that shall be brought before him, upon whatsoever suggestion; and thereby both overthrow the authority of the courts of common law, and bring upon men such a confusion and uncertainty, as hardly any man should know how or how long to hold his own assured to him.” And certainly, if a court of equity were still at sea, and floated upon the occasional opinion which the judge who happened to preside might entertain of conscience in every particular case, the inconvenience, that would arise from this uncertainty, would be a worse evil than any hardship that could follow from rules too strict and inflexible. Its powers would have become too arbitrary to have been endured in a country like this,62 which boasts of being governed in all respects by law and not by will. But since the time when Lambard wrote, a set of great and eminent lawyers,63 who have successively held the great seal, have by degrees erected the system or relief administered by a court of equity into a regular science, which cannot be attained without study and experience, any more than the science of law: but from which, when understood, it may be known what remedy a
suitor is entitled to expect, and by what mode of suit, as readily and with as much precision, in a court of equity as in a court of law.
IT were much to be wished, for the sake of certainty, peace, and justice, that each court would as far as possible follow the other, in the best and most effectual rules for attaining those desirable ends. It is a maxim, that equity follows the law; and in former days the law has not scrupled to follow even that equity, which was laid down by the clerical chancellors. Every one, who is conversant in our ancient books, knows that many valuable improvements in the state of our tenures (especially in leaseholds64 and copyholds65) and the forms of administering justice,66 have arisen from this single reason, that the same thing was constantly effected by means of a subpoena in the chancery. And sure there cannot be a greater solecism, than that in two sovereign independent courts, established in the same country, exercising concurrent jurisdiction, and over the same subject-matter, there should exist in a single instance two different rules of property, clashing with or contradicting each other.
IT would carry me beyond the bounds of my present purpose, to go farther into this matter. I have been tempted to go so far, because the very learned author to whom I have alluded, and whose works have given exquisite pleasure to every contemplative lawyer is (among many others) a strong proof how easily names, and loose or unguarded expressions to be met with in the best of our writers, are apt to confound a stranger; and to give him erroneous ideas of separate jurisdictions now existing in England, which never were separated in any other country in the universe. It has also afforded me an opportunity to vindicate, on the one hand, the justice of our courts of law from being that harsh and illiberal rule, which many are too ready to suppose it; and, on the other, the justice of our courts of equity from being the result of mere arbitrary opinion, or an exercise of dictatorial power, which rides over the law of the land, and corrects, amends, and controls it by the loose and fluctuating dictates of the conscience of a single judge. It is now high time to proceed to the practice of our courts of equity, thus explained and thus understood.
THE first commencement of a suit in chancery is by preferring a bill to the lord chancellor in the style of a petition; “humbly complaining shows to your lordship your orator A. B. that, etc.” This is in the nature of a declaration at common law, or a libel and allegation in the spiritual courts: setting forth the circumstances of the case at length, as, some fraud, trust, or hardship; “in tender consideration whereof,” (which is the usual 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 also process of subpoena against the defendant, to compel him to answer upon oath to all the matter charged in the bill. And if it be to quiet the possession of lands, to stay waste, or to stop proceedings at law, an injunction is also prayed in the nature of the interdictum of the civil law, commanding the defendant to cease.
THIS bill must call all necessary parties, however remotely concerned in interest, before the court; otherwise no decree can be made to bind them: and must be signed by counsel, as a certificate of its decency and propriety. For it must not contain matter either scandalous or impertinent: if it does, the defendant may refuse to answer it, till such scandal or impertinence is expunged, which is done upon an order to refer it to one of the officers of the court, called a master in chancery; of whom there are in number twelve, including the master of the rolls, all of whom, so late as the reign of queen Elizabeth, were commonly doctors of the civil law.67 The master is to examine the propriety of the bill: and, if the reports it scandalous or impertinent, such mater must be struck out, and the defendant shall have his costs; which ought of right to be paid by the counsel who signed the bill.
WHEN the bill is filed in the office of the six clerks, (who originally were all in orders; and therefore, when the constitution of the court began to alter, a law68 was made to permit them to marry) when, I say, the bill is thus filed, if an injunction be prayed therein, it may be had at various stages of the cause, according to the circumstances of the case. If the bill be to stay execution upon an oppressive judgment, and the defendant does not put in his answer within the stated time allowed by the rules of the court, an injunction can only be continued upon a sufficient ground appearing from the answer itself. But if an injunction be wanted to stay waste, or other injuries of an equally urgent nature, then upon the filing of the bill, and a proper case supported by affidavits, the court will grant an injunction immediately, to continue till the defendant has put in his answer, and till the court shall make some farther order concerning it: and, when the answer comes in, whether it shall then be dissolved or continued till the hearing of the cause, is determined by the court upon argument, drawn from considering the answer and affidavits together.
BUT, upon common bills, as soon as they are filed, process of subpoena is taken out; which is a writ commanding the defendant to appear and answer to be bill, on pain of 100£. But this is not all: for, if the defendant, on service of the subpoena, does not appear within the time limited by the rules of he court, and plead, demur, or answer to the bill, he is then said to be in contempt; and the respective processes of contempt are in successive order awarded against him. The first of which is an attachment, which is a writ in the nature of a capias, directed to the sheriff, and commanding him to attach, or take up, the defendant, and bring him into court. If the sheriff returns that the defendant non est inventus, then an attachment with proclamations issues; which, besides the ordinary form of attachment, directs the sheriff that he cause public proclamations to be made, throughout the county, to summon the defendant, upon his allegiance, personally to appear and answer. If this be also returned with a non est inventus, and he still stands out in contempt, a commission of rebellion is awarded against him, for not obeying the proclamations according to his allegiance; and four commissioners therein named, or any of them, are ordered to attach him wheresoever he may be found in Great Britain, as a rebel and contemner of the king’s laws and government, by refusing to attend his sovereign when thereunto required: since, as was before observed,69 matters of equity were originally determined by the king in person, assisted by his council; though that business is now devolved upon his chancellor. If upon this commission of rebellion a non est inventus is returned, the court then sends a sergeant at arms in quest of him; and, if he eludes the search of the sergeant also, then a sequestration issues to seize all his personal estate, and the profits of his real, and to detain them, subject to the order of the court. Sequestrations were first introduced by Sir Nicholas Bacon, lord keeper in the reign of queen Elizabeth; before which the court found some difficulty in enforcing its process and decrees.70 After an order for a
sequestration issued, the plaintiff’s bill is to be taken pro confesso, and a decree to be made accordingly. So that the sequestration does not seem to be in the nature of process to bring in the defendant, but only intended to enforce the performance of the decree. Thus much if the defendant absconds.
IF the defendant is taken upon any of this process, he is to be committed to the fleet, or other prison, till he puts in his appearance, or answer, or performs whatever else this process is issued to enforce, and also clears his contempts by paying the costs which the plaintiff has incurred thereby. For the same kind of process is issued out in all sorts of contempts during the progress of the cause, if the parties in any point refuse or neglect to obey the order of the court.
THE process against a body corporate is by distringas, to distrain them by their goods and chattels, rents and profits, till they shall obey the summons or directions of the court. And, if a peer is a defendant, the lord chancellor sends a letter missive to him to request his appearance, together with a copy of the bill; and, if he neglects to appear, then he may be served with a subpoena; and, if he continues still in contempt, a sequestration issues out immediately against his lands and goods, without any of the mesne process of attachments, etc, which are directed only against the person, and therefore cannot affect a lord of parliament. The same process issues against a member of the house of commons, except only that the lord chancellor sends him no letter missive.
THE ordinary process before-mentioned cannot be sued out, till after service of the subpoena, for then the contempt begins; otherwise he is not presumed to have notice of the bill: and therefore, by absconding to avoid the subpoena, a defendant might have eluded justice, till the statute 5 Geo. II. c. 25. which enacts that, where the defendant cannot be found to be served with process of subpoena, and absconds (as is believed) to avoid being served therewith, a day shall be appointed him to appear to the bill of the plaintiff; which is to be inserted in the London gazette, read in the parish church where the defendant last lived, and fixed up at the royal exchange: and if the defendant does not appear upon that day, the bill shall be taken pro confesso.
BUT if the defendant appears regularly, and takes a copy of the bill, he is next to demur, plead, or answer.
A DEMURRER in equity is nearly of the same nature as a demurrer in law; being an appeal to the judgment of the court, whether the defendant shall be bound to answer, the plaintiff’s bill: as, for want of sufficient matter of equity therein contained; or where the plaintiff, upon his own showing, appears to have no right; where the bill seeks a discovery of a thing which may cause a forfeiture of any kind, or may convict a man of any criminal misbehavior. For any of these causes a defendant may demur to the bill. And if, on demurrer, the defendant prevails, the plaintiff’s bill shall be dismissed: if the demurrer be overruled, the defendant is ordered to answer.
A PLEA may be either to the jurisdiction; showing that the court has no cognizance of the cause: or to the person; showing some disability in the plaintiff, as by outlawry, excommunication, and the like: or it is in bar; showing some matter wherefore the plaintiff can demand no relief, as an act of parliament, a fine, a release, 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 answer to the residue. But no exceptions to formal minutiae in the pleadings will be here allowed; for the parties are at liberty, on the discovery of any errors in form, to amend them.71
AN answer is the most usual defense that is mode to a plaintiff’s bill. It is given in upon oath, or the honor of a peer or peeress; but, where there are amicable defendants, their answer is usually taken without oath by consent of the plaintiff. This method of proceeding is taken from the ecclesiastical courts, like the rest of the practice in chancery: for there, in almost every case, the plaintiff may demand the oath of his adversary in supply of proof. Formerly this was done in those courts with compurgators, in the manner of our waging of law: but this has been long disused; and instead of it the present kind of purgation, by the single oath of the party himself, was introduced. This oath was made use of in the spiritual courts, as well in criminal cases of ecclesiastical cognizance, as in matters of civil right: and it was then usually denominated the oath ex officio, whereof the high commission court in particular made a most extravagant and illegal use; forming a court of inquisition, in which all persons were obliged to answer, in cases of bare suspicion, if the commissioners though proper to proceed against them ex officio for any supposed ecclesiastical enormities. But when the high commission court was abolished by statute 16 Car. I. c. 11. this oath ex officio was abolished with it; and it is also enacted by statute 13 Car. II. St. 1. c. 12. “that it shall not be lawful for any bishop or ecclesiastical judge to tender to any person the oath ex officio, or any other oath whereby the party may be charged or compelled to confess, accuse, or purge himself of any criminal matter.” But this does not extend to oaths in a civil suit, and therefore it is still the practice both in the spiritual courts, and in equity, to demand the personal answer of the party himself upon oath. Yet if in the bill any question be put, that tends to the discovery of any crime, the defendant may thereupon demur, as was before observed, and may refuse to answer.
IF the defendant lives within twenty miles of London, he must be sworn before one of the masters of the court; if farther off, there may be a dedimus potestatem or commission to take his answer in the country, where the commissioners administer him the usual oath; and then, the answer being sealed up, either one of the commissioners carries it up to the court; or it is sent by a messenger, who swears he received it from one of the commissioners, and that the same has not been opened or altered since he received it. An answer must be signed by counsel, and must either deny or confess all the material parts of the bill; or it may confess and avoid, that is, justify or palliate the facts. If one of these is not done, the answer may be excepted to for insufficiency, and the defendant be compelled to put in a more sufficient answer. A defendant cannot pray anything in this his answer, but to be dismissed the court: if he has any relief to pray against the plaintiff, he must do it by an original bill of his own, which is called a cross bill.
AFTER answer put in, the plaintiff, upon payment of costs, 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 answer afresh to such amended bill. But this must be before the plaintiff has replied to the defendant’s answer, whereby the cause is at issue; for afterwards, if new matter arises, which did not exist before, he must set it forth by a supplemental bill. There may be also a bill of revivor, when the suit is abated by the death of any of the parties; in order to set the proceedings again in motion, without which they remain at a stand. And there is likewise a bill of interpleader; where a person who owes a debt or rent to one of the parties in suit, but, till the determination of it, he knows not to which, desires that they may interplead, that he may be safe in the payment. In this last case it is usual to order the money to be paid into court, for the benefit of such of the parties, to whom upon hearing the court shall decree it to be due. But this depends upon circumstances: and the plaintiff must also annex an affidavit to his bill, swearing that he does not collude with either of the parties.
IF the plaintiff finds sufficient matter confessed in the defendant’s answer to ground a decree upon, he may proceed to the hearing of the cause upon bill and answer only. But in that case he must take the defendant’s answer to be true in every point. Otherwise the course is for the plaintiff to reply generally to the answer, averring his bill to be true, certain, and sufficient, and the defendant’s answer to be directly the reverse; which he is ready to prove as the court shall award: upon which the defendant rejoins, averring the like on his side; which is joining issue upon the facts in dispute. To prove which facts is the next concern.
THIS is done by examination of witnesses, and taking their depositions in writing, according to the manner of the civil law. And for that purpose interrogatories are farmed, or questions in writing; which, and which only, are to be proposed to, and asked of, the witnesses in the cause. These interrogatories must be short and pertinent: not leading ones; (as “did not you see this, or, did not you hear that?”) for if they be such, the depositions taken thereon will be suppressed and not suffered to be read. For the purpose of examining witnesses in or near London, there is an examiner’s officer appointed; but, for evidence who live in the country, a commission to examine witnesses is usually granted to four commissioners, two named of each side, or any three or two of them, to take the depositions there. And if the witnesses reside beyond sea, a commission may be had to examine them there upon their own oaths, and (if foreigners) upon the oaths of skillful interpreters. And it has been held72 that the deposition of an heathen who believes in the supreme being, taken by commission in the most solemn manner according to the custom of his own country, may be read in evidence.
THE commissioners are sworn to take the examinations truly and without partiality, and not to divulge them till published in the court of chancery; and their clerks are also sworn to secrecy. The witnesses are compellable by process of subpoena, as in the courts of common law, to appear and submit to examination. And when their depositions are taken, they are transmitted to the court with the same care that the answer of a defendant is sent.
IF witnesses to a disputable fact are old and infirm, it is very usual to file a bill to perpetuate the testimony of those witnesses, although no suit is depending; for, it may be, a man’s antagonist only waits for the death of some of them to begin his suit. This is most frequent when lands are devised by will away from the heir at law; and the devisee, in order to perpetuate the testimony of the witnesses to such will, exhibits a bill in chancery against the heir, and sets forth the will verbatim therein, suggesting that the heir is inclined to dispute its validity: and then, the defendant having answered, they proceed to issue as in other cases, and examine the witnesses to the will; after which the cause is at an end, without proceeding to any decree, no relief being prayed by the bill: but the heir is entitled to his costs, even though he contests the will. This is what is usually meant by proving a will in chancery.
WHEN all the witnesses are examined, then, and not before, the depositions may be published, by a rule to pass publication; after which they are open for the inspection of all the parties, and copies may be taken of them. The cause is then ripe to be set down for hearing, which may be done at the procurement of the plaintiff, or defendant, before either the lord chancellor or the master of the rolls, according to the discretion of the clerk in court, regulated by the nature and importance of the suit, and the arrear of causes depending before each of them respectively. Concerning the authority of the master of the rolls to hear and determine causes, and his general power in the court of chancery, there were (not many years since) diverse questions and disputes very warmly agitated; to quiet which it was declared by statute 3 Go. II. c. 30. that all orders and decrees by him made, except such as by the course of the court were appropriated to the great seal alone, should be deemed to be valid; subject nevertheless to be discharged or altered by the lord chancellor, and so as they shall not be enrolled, till the same are signed by his lordship. Either party may be subpoenaed to hear judgment on the day so fixed for the hearing: and then, if the plaintiff does not attend, his bill is dismissed with costs; or, if the defendant makes default, a decree will be made against him, which will be final, unless he pays the plaintiff’s costs of attendance, and shows good cause to the contrary on a day appointed by the court. A plaintiff’s bill may also at any time be dismissed for want of prosecution, which is in the nature of a nonsuit at law, if he suffers three terms to elapse without moving forward in the cause.
WHEN there are cross causes, on a cross bill filed by the defendant against the plaintiff in the original cause, they are generally contrived to be brought on together, that the same hearing and the same decree may serve for both of them. The method of hearing causes in court is usually this. The parties on both sides appearing by their counsel, the plaintiff’s bill is first opened, or briefly abridged, and the defendant’s answer also, by the junior counsel on each side: after which the plaintiff’s leading counsel states the case and the matters in issue, and the points of equity arising therefrom: and then such depositions as are called for by the plaintiff are read by one of the six clerks, and the plaintiff may also read such part of the defendant’s answer, as he thinks material or convenient:73 and after this the rest of the counsel for the plaintiff make their observations and arguments. Then the defendant’s counsel go through the same process for him, except that they may not read any part of his answer; and the counsel for the plaintiff are heard in reply. When all are heard, the court pronounces the decree, adjusting every point in debate according to equity and good conscience; which decree being usually very long, the minutes of it are taken down, and read openly in court by the registrar. The matter of costs to be given to either party, is not here held to be a point of right, but merely discretionary (by the statute 17 Ric. II. c. 6.) according to the circumstances of the case, as they appear more or less favorable to the party vanquished. And yet the statute 15 Hen. IV. c. 4. seems expressly to direct, that as well damages as costs shall be given to the defendant, if wrongfully vexed in this court.
THE chancellor’s decree is either interlocutory or final. It very seldom happens that the first decree can be final, or conclude the cause; for, if any matter of fact is strongly controverted, this court is so sensible of the deficiency of trial by written depositions, that it will not bind the parties thereby, but usually directs the matter to be tried by jury; especially such important facts as the validity of a will, or whether A is the heir at law to B, or the existence of a modus decimandi or real and immemorial composition for tithes, But, as no jury can be summoned to attend this court, the facts is usually directed to be tried at the bar of the court of king’s bench or at the assizes, upon a feigned issue. For, (in order to bring it there, and have the point in dispute, and that only, put in issue) an action is feigned to be brought, wherein the pretended plaintiff declares, that he laid a wager of 5£ with the defendant, that A was heir at law to B; and then avers that he is so; and brings his action for the 5£. The defendant allows the wager, but avers that A is not be heir to B; and thereupon that issue 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. These feigned issues seem borrowed from the sponsio judicialis of the Romans:74 and are also frequently used in the courts of law, by consent of the parties, to determine some disputed right without the formality of pleading, and thereby to save much time and expense in the decision of a cause.
SO likewise, if a question of mere law arises in the course of a cause, as whether by the words of a will an estate for life or in tail is created, or whether a future interest devised by a testator shall operate as a remainder or an executory devise, 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 case stated for that purpose; wherein all the material facts are admitted, and the point of law is submitted to their decision: who thereupon hear it solemnly argued by counsel on both sides, and certify their opinion to the chancellor. And upon such certificate the decree is usually founded.
ANOTHER thing also retards the completion of decrees. Frequently long accounts are to be settled, encumbrances and debts to be inquired into, and a hundred little facts to be cleared up, before a decree can do full and sufficient justice. These matters are always by the decree on the first hearing referred to a master in chancery to examine; which examinations frequently last for years: and then he is to report the fact, as it appears to him, to the court. This report may be excepted to, disproved, and overruled; or otherwise is confirmed, and made absolute, by order of the court.
WHEN all issues are tried and settled, and all references to the master ended, the cause is again brought to hearing upon the matters of equity reserved; and a final decree is made: the performance of which is enforced (if necessary) by commitment of the person or sequestration of the party’s estate. And if by this decree either party thinks himself aggrieved, he may petition the chancellor for a rehearing; whether it was heard before his lordship, or any of the judges, sitting for him, or before the master of the rolls. For whoever may have heard the cause, it is the chancellor’s decree, and must be signed by him before it is enrolled;75 which is done of course unless a rehearing be desired. Every petition for a rehearing must be signed by two counsel of character, usually such as have been concerned in the cause, certifying that they apprehend the cause is proper to be reheard. And upon the rehearing all the evidence taken in the cause, whether read before or not, is now admitted to be read: because it is the decree of the chancellor himself, who only now sits to hear reasons why it should not be enrolled and perfected; at which time all omissions of either evidence or argument may be supplied.76 But, after the decree is once signed and enrolled, it cannot be reheard or rectified, but by bill of review, or by appeal to the house of lords.
A BILL of review may be had upon apparent error in judgment, appearing on the face of the decree; or, by special leave of the court, upon oath made of the discovery of new matter or evidence, which could not possibly be had or used at the time when the decree passed. But no new evidence or matter then in the knowledge of the parties, and which might have been used before, shall be a sufficient ground for a bill a review.
AN appeal to parliament, that is, to the house of lords, is the dernier resort of the subject who thinks himself aggrieved by any interlocutory order or final determination in this court: and it is effected by petition to the house of peers, and not by writ of error, as upon judgments at common law. This jurisdiction is said77 to have begun in 18 Jac. I. and certainly the first petition, which appears in the records of parliament, was preferred in that year;78 and the first that was heard and determined (though the name of appeal was then a novelty) was presented in a few months after:79 both leveled against the lord keeper Bacon for corruption, and other misbehavior. It was afterwards warmly controverted by the house of commons in the reign of Charles the second.80 But this dispute is now at rest:81 it being obvious to the reason of all mankind, that, when the courts of equity became principal tribunals for deciding causes of property, a revision of their decrees (by way of appeal) became equally necessary, as a writ of error from the judgment of a court of law. And, upon the same principle, from decrees of the chancellor relating to the commissioners for the dissolution of chauntries, etc, under the statute 37 Hen. VIII. c. 4. (as well as for charitable uses under statute 43 Eliz. c. 4.) an appeal to the king in parliament was always unquestionably allowed.82 But no new evidence is admitted in the house of lords upon any account, for this is a distinct jurisdiction:83 which differs it very considerably from those instances, wherein the same jurisdiction revises and corrects its own acts, as in rehearings and bills of review. For it is a practice unknown to our law, (though constantly followed in the spiritual courts) when a superior court is reviewing the sentence of an inferior, to examine the justice of the former decree by evidence that was
never produced below. This is the general method of proceeding in the courts of equity.
THE END OF THE THIRD BOOK.
1. ch. 4. and 6.
2. pag. 49. etc.
3. F. N. B. 27.
4. Cro. Jac. 641. 2 Lev. 163. T. Jones. 90.
5. See book I. ch. 8.
6. 3 P. Wms. 108.
7. Duke’s char. uses. 62. 128. Corporation of Burford v. Lenthall. Canc. 9 May, 1743
8. 2 Vern. 118.
9. Huggins v. Yorkbuildings Company. Canc. 24 Oct. 1740. Reeve v. Attorney-general. Canc. 27 Nov. 1741. Lightboun v. Attorney general. Canc. 2 May, 1743.
10. Vol. I. introd. § 2, & 3. ad cak.
11. Lord Kayms. prince. of equit. 44.
12. See Vol. II. ch. 23. pag. 378.
13. Ibid. ch. 15. pag. 243, 244, ch. 23. pag. 377.
14. Ibid. ch. 14. pag. 208.
15. Ibid. pag. 227.
16. See pag. 300.
17. Ff. 40. 9. 12.
18. Lord Kayms, prince, of equ. 177.
19. de aequitate. § 3.
20. 1 Roll. Abr. 374. 4 Inst. 84. 10 Mod. l.
21. Book II. ch. 20.
22. See pag. 162.
23. This is stated by Mr. Selden (Tabletalk. tit. equity.) with more pleasantry than truth. “For law, we have a measure, and know what to trust to: equity is according to the conscience of him that is chancellor; and as that is larger or narrower, so is equity. Tis all one, as if they should make the standard for the measure a chancellor’s foot. What an uncertain measure would this be! One chancellor has a long foot, another a short foot, a third an indifferent foot. It is the same thing with the chancellor’s conscience.”
24. 2 P. Wms. 640. See Vol. II. pag. 337.
25. Salk. 154.
26. 2 Vern. 289. 316. 3 Atk. 520.
27. See the of Foster and Munt, 1 Vern. 473. with regard to the undisposed residuum of personal estates.
28. Quae in summis tribunalibus multi a legum canone decernunt judices, solus (si res exegerit) cohibet cancellarius ex arbitrio; nec aliter decretis tenetur suae curiae vel sui ipsius, quin, elucente nova ratione, recognoscat quae voluerit, mutet et deleat, prout suae videbitur prudentiae. (gloss. 108.)
29. See pag. 53. 54.
30. Archeion. 71, 72, 73.
31. ubi supra.
32. De Augm. Scient. 1. 8. c. 3.
33. See Vol. II. pag. 456,
34. 2 Atk. 239.
35. De jure naturae cogitare per nos atque dicere debumus; de jure populi Romani, quae relicta sunt et tradita. (Cic. de. Leg. l. 3. ad calc.)
36. See Vol. I. pag. 253.
37. Ricord v. Lettenham. Tr. 5 Geo. III. B. R.
38. See Vol. I. pag. 75. Vol. II. pag. 459. 461. 467.
39. See Vol. II. pag. 513.
40. Ibid. 504.
41. Ibid. 463.
42. 1 Chan. Cas. 57.
43. 2 P. Wm. 145.
44. 2 Chan. Cas. 152.
45. 1 Squ. Cas. abr. 367.
46. 2 Vern. 277.
47. Ibid. 638.
48. 2 Chan. Cas 46.
49. 3 P. Wms. 148. Yearbook, 22 Edw. IV. 37. pl. 21.
50. 1 Equ. Cas. abr. 16.
51. 3 P. Wms. 215.
52. 1 Ch. Rep. 14. 2 Chan. Cas. 32.
53. 1 Vern. 308. Prec. Chan. 261. 1 P. Wms. 672. Stra. 404.
54. 2 P. Wms. 156.
55. 2 Vern. 32. 1 P. Wms. 239.
56. 1 Vern. 237.
57. 2 Vern. 84.
58. 1 Equ. Cas. abr. 337.
59. 2 p. Wms. 645. 668, 669.
60. See pag. 433.
61. Archeion. 71. 73.
62. 2 P. Wms. 685, 686.
63. See pag. 53. 54. 55.
64. Gilbert of ejectm. 2. 2 Bac. Abr. 160.
65. Bro. Abr. t. tenant per copie. 10. Litt. § 77.
66. See pag. 200.
67. Smith’s commonw. b. 2. c. 12.
68. Stat. 14 & 15 Hen. VIII. c. 8.
69. pag. 50.
70. 1 Vern. 421.
71. En cest court de chauncerie, home ne serra prejudice par son mispledging ou pur defaut de forme, mes solonque le veryte del mater: car il doit agarder solonque consciens, et nemi ex rigore juris. (Dyversite des courts. edit. 1534. fol. 296, 297. Bro. Abr. t. jurisdiction. 50.)
72. Omichund v. Barker. 1 Atk. 21.
73. On a trial at law if the plaintiff reads any part of the defendant’s answer, he must read the whole of it; for by reading any of it he shows a reliance on the truth of the defendant’s testimony, and makes the whole of his answer evidence.
74. Nota est sponsio judicialis: “Spondesne quingentos, si meus sit? Spondeo, si tuus sit. Et tu quoque spondesne quingentos, ni tuus sit? Spondeo, ni meus sit.” Vide Heinecc. Antiquitat. l. 3. t. 16. § 3. & Sigon. de judiciis l. 21. p. 466. citat. ibid.
75. Stat. 3 Geo. II. c. 30. See pag. 450.
76. Gilb. Rep. 151, 152.
77. Com. journ. 13 Mar. 1704.
78. Lord’s journ. 23 Mar, 1620.
79. Ibid. 3, 11, 12 Dec. 1621.
80. Com. journ. 19 Nov. 1675, etc.
81. Show. Parl. C. 81.
82. Duke’s char. uses. 62.
83. Gilb. Rep. 155, 156.