One of the most troublesome questions with which the colonial administrator had to deal was equity jurisprudence. In the early years of the seventeenth century politics entered into the contest for jurisdiction between the English court of chancery and the courts of common law, beclouding the issues and retarding a settlement of their respective spheres of action. Popular dislike pictured the chancellorship as a great political office closely identified with the Crown, and grudgingly admitted its importance in the complex judicial system of England. On the other hand, the chancellor too frequently subordinated the judicial functions of his office to ministerial policy and permitted abuses in the organization and administration of his court that impaired its usefulness and checked the growth of its business. At this early period chancery practice was concerned chiefly with questions connected with the devolution and management of real property and property held in trust, and many of the broader doctrines of equity were still in process of growth. Lord Nottingham, the father of modern equity, held the office of chancellor from 1673 to 1682, but was succeeded by several chancellors of inferior capacity who added nothing to the prestige of the court, while the masters and inferior officers were chiefly distinguished for rapacity and extortion, not to speak of incompetency and dishonesty, in the management of property committed to their care.[353] Reform came, but too late to convince the more democratic communities of the positive advantages of chancery procedure, while the prevailing fanatical devotion to trial by jury operated as a check upon any system that seemed to interfere with that palladium of liberty.

It was manifestly impossible to administer complete justice according to the English system without the assertion of equitable rights and the enforcement of equitable remedies. Anything less would have amounted to a denial of justice, and in so far as some few equitable rights were concerned, this was vaguely recognized. But a true appreciation of the necessity for the introduction of chancery procedure was obscured by a common and popular error which confused equity with so-called natural justice; an error for which chancery literature was, perhaps, itself in a measure responsible, in basing its claims to override the strict rules of the common law upon the strength of an intrinsic ethical superiority.[354]

Another obstacle to the introduction of equity jurisprudence was the primitive social conditions that prevailed in the sparsely populated settlements. There was sufficient difficulty in the conduct of an ordinary lawsuit in the local courts without adding to the embarrassment of the magistracy by requiring them to solve the mysteries of the unreformed chancery pleading and practice. The colonial judge of the seventeenth and eighteenth centuries was in knowledge and training about on a par with the English justice of the peace and it would have been as preposterous to expect the former to undertake the office of chancellor as to impose similar duties on the English quarter sessions. When, in the eighteenth century, trained lawyers began to make their influence felt in the colonies, disputes and misunderstandings between the assemblies and the governors prevented the creation of or retarded the growth of courts of chancery, resulting in a conflict of principles and practice in the several provinces far too intricate to be briefly described.[355] The theory upheld by the crown lawyers, and put in practice in the more tractable colonies, was that the governor, as custodian of the great seal, was the proper person to act as chancellor, assisted if necessary by the council. To this the more democratic communities were opposed, as an undue extension of the prerogative, but they had no substitute to offer except the direct exercise of equitable relief by legislative resolution or the delegation of limited equity powers to the ordinary courts, such as giving relief from the penal clauses of bonds and mortgages. It did not seem difficult to the uninitiated to inject into the law such equitable principles as would mitigate the harshness of its stricter rules. The limited scope of such an experiment and the deprivation involved, in the elimination of the powerful preventive measures afforded by chancery process, became apparent only when the commercial and industrial expansion of the American commonwealths had brought about more complicated social relations.

The reform of procedure in the more progressive jurisdictions, has buried chancery and common law practice in a common tomb and if it were safe to hazard an opinion upon the parentage of the modern complaint, or statement, the inclination would be to favor the bill in equity rather than the common law declaration. But it would seem that before these momentous changes could well be brought about, it was necessary that both systems should reach the limits of their development, that there should be a thoroughly scientific demonstration of the economic waste involved in a dual and highly artificial procedure, before one more simple and rational could be evolved. Conservative opinion hesitates to endorse these changes, and the tendency, displayed in many jurisdictions, to overload procedure with petty statutory details, that ought to be left to the rules of court, shows an immature conception of the principles of law reform. If this is true today, how poorly prepared was the eighteenth century for experiments in jurisprudence, with a bar nourished on technicalities and trained to state almost every legal right in procedural terms.

Pennsylvania was one of the most persistent of the colonies in its opposition to the introduction of a court of chancery, and its courts were the most fertile in devising expedients to decrease the inconveniences resulting from such opposition, and this, although in the immediately adjoining colonies chancery had a fairly successful development. In the early period, political conditions had much to do with the failure of the only serious attempt to establish such a court. After the Revolution, opposition to the extension of equity jurisdiction long continued as a political tradition, in spite of the changed attitude of the leaders of the bar.

While the territory on the Delaware was under the government of the Duke of York it would seem to have been the intention to administer equity, in the popular sense of that word, through the court of assizes. Among the laws of April 2, 1664, was one that provided:--

“In regard it is almost impossible to provide Sufficient Lawes in all Cases, or proper Punishments for all Crimes the Court of Sessions shall not take further Cognizance of any Case or Crimes, whereof there is not provition made in some Lawes but to remit the case or Crime, with the due Examination and proof to the Next Court of Assizes where matters of Equity shall be decided, or punishment awarded according to the discretion of the Bench and not Contrary to the known Laws of England.”[356]

This was amended at the court of assizes held in September, 1665, as follows:--

“Where the Originall Point is matter of equity the proceedeings shall bee by way of Bill and delivering in Answers upon Oath and by the Examination of witnesses, in like manner as is used in the Court of Chancery in England. And due regard must be had that the Defendant have timely notice thereof, as is appointed at Common Law; which is eight dayes warning before the Court shall sitt.”[357]

In the following February it was ordained that “matters of Equity under five pounds may be tried in Town Courts and if under twenty at Sessions.” This investing of the lower courts with equitable powers was undoubtedly intended to lessen the hardship of seeking relief in a distant court meeting but once a year, and its practical application was probably limited to giving effect to the more obvious equities of defendants. That such was the case, would appear from the instructions of Governor Andros to the justices of the court at New Castle dated August 14, 1677, in reply to a query on their part.

“As to penal Bonds or such like cases of Equity it is the custom & practice of Courts here, to hear & judge thereof according to Equity, w^{ch} you may also observe as Allowed by Law.”[358]

At the court for Deal, afterwards Sussex, County held Tune 13 and 14, 1682, Henry Stracher obtained a verdict against Peter Groundyk in an “action of the case,” the nature of which is not disclosed, whereupon--

“Peter Groundyk peticon the Court that he may have That was this day Tryd betwene Henry Stracher Ant this peticoner to be Tryd in Equiety, the next Court by bill and Answer as is use in the Court of Chancrey in England which the Court would A perswaded him to A dissisted in it; and rest himselfe satisfied in what was allready done; but through his perswading the Court grant the peticoner his request; provided that the proceeding be put in in due time According to Law.”[359]

At the September court, however, nothing is recorded as to the “Tryal in Equiety” which the justices seem to have been reluctant to undertake.

There are also instances where the governor at New York assumed the equitable power of granting relief against oppressive judgments at law, of which the following order is an illustration:--

“By the Governo^r

Whereas Hendrick Jansen Van Bremen, of Swanyck or Paerden Hook, near Newcastle in Delaware River, hath preferr’d a Petition unto me setting forth, that having heretofore, in the Time of the Dutch, received great Damage in his Corne, by M^r W^m Toms Horses, by Reason of his insufficient Fence; It was Ordered, that M^r Toms Land there, should be Sold in Vendue, which said Order being not effected, The Petitioner since the Restoration of the English Government, took the said Horses off his Land, and sent them to M^r Tom at New Castle, desiring they might be kept from his Corne; But the Petitioner still sustaining Damage, without Relief, he acknowledges that in Passion, he rashly and unadvisedly, shot one of the said Horses, with small shot, whereof he not long after dyed; Whereupon M^r Tom Sued the Peticon^r in the Court of Newcastle, from the which Appealing to the High Court, Judgment past against the Peticon^r there for Six Hundred Guild^{rs} to be paid by him to M^r Tom, for his Horse, besides One Hundred Guild^{rs} Charges; But was neither call’d, nor heard there; Wherefore I have thought fitt, & do hereby Order, that the said Hendrick Jansen giving Security, by binding over his Person and Estate, to make good his Complaint, That Execucon be Suspended; And that all the Proceedings, Papers, Writings, Passages or Proofs, both in Dutch and English Time, beforthwith Transmitted hither, for a final Determinacon in Equity.

Given under my Hand in New Yorke this 25th day of May 1676.

E. ANDROS.

To the Justices of the Peace of Newcastle in Deleware.”[360]

A petition for equitable relief preferred by Arnoldus la Grange to Governor Andros in connection with the litigation concerning the title to Tinicum Island will be found in the archives, but the action taken thereon by the governor is not recorded.[361]

With the further history of equity in New York we are not directly concerned. By an act passed soon after the separation from Pennsylvania a court of chancery was authorized but the law seems to have been disregarded.[362] Lord Bellomont, the governor, writing to the lords of trade October 19, 1700, says: “There is a great want of a court of chancery here, but nobody here understanding it rightly I delay appointing one till the judge and attorney general’s coming from England.”[363] The lords, in reply, directed him to establish the court at once and in the following year the court was proclaimed by ordinance of his successor, Lieutenant Governor Nanfan. Nothing, however, of importance seems to have been done and it would appear that some of the governors disliked the responsibility. Lord Cornbury, who was also appointed royal governor of New Jersey, wrote to the lords of trade on May 7, 1711:--

“In both plantations I have been pelted with petitions for a Court of Chancery; and I have been made acquainted with some cases which very much require such a court, there being no relief at common law, I had ordered the committee of both Councils to form a scheme for such a court, but to no purpose; the trust of the seals they say constitute a chancellor, and unless the Governor can part with the seals there can be no chancellor but himself. I have already more business than I can attend to, besides I am very ignorant in matters, having never in my life been concerned in any one suit. So I earnestly beg your lordship’s directions as to that Court.”[364]

The court was also a favorite object of attack by the popular party. Governor Hunter on January 1, 1712, wrote:--

“The country here, in general, groaned for a Court of Chancery which had been discontinued for some time before my arrival in these parts. * * * I gave a public notification of that court being opened, and the House of Representatives, in their angry mood resolved that the erecting of such a court without their consent was against law.”[365]

In spite of this and similar attacks the court maintained its existence until reorganized after the Revolution and adoption of the constitution of 1777, but the amount of business transacted was comparatively small until the time of Chancellors Livingston and Kent.

In Pennsylvania and Delaware, as we have seen, Penn took over the local courts very much as he found them, exercising a supervisory jurisdiction through the provincial council. On the hearing of appeals before the latter body equitable principles were applied as is illustrated by the case of _Bellamy_ v. _Watson_, described in the court below as “an action of Trasspase and ejectment” for land on Prime Hook. The case was tried at Lewes on May 27, 1683, before a jury who found a verdict for the defendant.[366] The plaintiff appealed to the governor and council who heard the case in July and were unanimously of the opinion that one Smith, under whom the defendant claimed, had no title in law or equity. They entered judgment for the plaintiff, he to pay the defendant for his improvements, the value of which was to be fixed by appraisers, and gave the defendant four months’ time in which to remove his crops, stock and “other moveable concernes.”[367] A year later it is recorded that the difference between Watson and Bellamy was amicably settled by mutual conveyances, “and thus they agreed & shaked hands.”[368] In another case that came before the council, that body seems to have been in doubt whether they ought to proceed in law or equity, but the nature of the business is not given.[369]

By the Act of May 10, 1684, passed at New Castle, it was provided that the “Quarter Sessions be as well a court of Equity as Law, Concerning any Judgment given in Cases by Law capable of Triall in the respective County Sessions and Courts,”[370] and by another chapter of the same act a provincial court was constituted, the judges of which were given cognizance of appeals and all causes both in law and equity not determinable by the county courts. This enactment seems to have caused some misgivings for in 1685 the council “Ordered that a bill be drawn up That y^e Word Equity be left out in ye Law off County Courts.”[371] The conception of equity then entertained is illustrated by the following case taken from the minutes of the court of common pleas of Chester County, where the court sitting in equity, modified its own judgment previously entered at law.

“Josua Hastings v. Francis Yarnall. The Declaration was read--the answer was read. Judgment for plaintiff 25 shillings with costs of suit. Upon which the defendant makes his appeal to the next court of equity for this county.

1686 at a court of equity } Commissioners present, John held at Chester ye 5th day } Bluston, Samuel Lewis, John of the 1st week of ye 10th } Simcocke, Robert Wade, Geo. month, 1686 } Maris, Robert Pile, Bartholomew } Coppoche, Robert Eyre Clech.

Francis Yarnall of this county preferred a bill to this court wherein he required a remedy against ye verdickt of Jury and Judgment of court obtained against him by Joshua Hastings of ye same county, at the last court of Common Pleas held for this county, at Chester, the 3rd and 4th days of this present weeke. Upon which it was decreed that Francis Yarnall should pay 10 shillings and bear half the charges of that court.”[372]

Such proceedings gave offense to the people, as unduly interfering with the verdicts of juries, and in 1687 the assembly asked for a conference with the council upon certain questions, among them “how far y^e County Quarter Sessions may be Judges of Equity as well as Law and if after a judgment in Law whether the same Court hath power to Resolve itselfe into a Court of Equity, and Either Mitigate, alter, or Revers y^e said Judgment.”[373] The council answered evasively that the law made at New Castle “doth supply and answer all occasions of appeal, and is a plainer rule to proceed by.”[374]

By the Act of May 10, 1690, it was provided that the county courts “shall be Courts of equitie for the hearing and determining all matters and causes cognizable in the said Court, under the value of ten pounds,” and that the provincial court should have the hearing and determining of all appeals from the county courts both in law and equity.[375] This statute was substantially reënacted in 1693 during the administration of Governor Fletcher of New York.[376] During all this time there were frequent petitions to the council, for relief against judgments of the courts, several of which were relegated to the county or provincial courts for a hearing in equity.[377]

The relief given under the name of equity would seem to have been similar to the discretionary powers of the courts now exercised on rules to open judgments, or in controlling verdicts on motions for new trials, and there is no trace of formal chancery proceedings. Nevertheless the popular dislike of any interference with verdicts is voiced in a further complaint of the assembly, in 1694, stating that the judges had too great liberty to destroy or make void the verdicts of juries and praying that they might be instructed not to decree anything in equity to the prejudice of judgments before given in law.[378] Even more vigorous would have been their remonstrance if there had been an attempt to introduce real chancery pleading, but this was foreign to the spirit of Penn’s legislation, which permitted “all persons to freely appear in their own way and personally plead their own cases themselves, or if unable, by their friends.”[379]

The prolonged controversy between the assembly, the governors and the home government over the court laws that took place in the early years of the eighteenth century has been sufficiently discussed and will be referred to here only in so far as it affected equity jurisdiction. The Act of October 28, 1701,[380] believed to have been drafted by David Lloyd, contained this provision:--

“That the said justices in the respective county courts shall have full power, and are hereby empowered and authorized to hear and decree all such matters and causes of equity as shall come before them in the said courts, wherein the proceedings shall be by bill and answer, with such other pleadings as are necessary in chancery courts and proper in these parts, with power also for the said justices to force obedience to their decrees in equity, by imprisonment or sequestration of lands, as the case may require.”

An appeal was given to the provincial court, which was empowered to revoke, alter and confirm decrees according to equity and justice.

This act, which was repealed by the queen in council on February 7, 1705, because the lords commissioners for trade conceived that so far from expediting the determination of lawsuits it would impede the same,[381] attempted to introduce a more elaborate procedure without actually committing the courts to the English practice, and, like all half measures, would have led to confusion and litigation. One can imagine the unlearned judges of the county courts deciding how much chancery pleading was “proper in these parts.” There is no trace of any proceedings had under its authority; in fact Chief Justice Guest in 1703 made a complaint to the council--

“That notwithstanding y^e Laws of this Govmt had erected Courts of Equity & y^e Justices, have a power also in their Commission for y^e same: Yet that to y^e great oppression of y^e People, there have been no such courts as yet held in pursuance of y^e present Law, the Rules of y^e said Court not having yet recev^d so full a sanction as tis thought may be requisite.”[382]

It was ordered that the rules should be produced at the next session of the council, but nothing further appears to have been done until September, 1704, when Guest moved that the rules agreed on by the county court should be enforced in all the courts.[383] Finally in the following April the rules prepared by “certain persons skilled in the law” were laid before the council and approved,[384] but not long afterwards the governor was notified of the repeal of the act.

The controversy that followed between the governor and council on the one side and the speaker and assembly on the other was the first real crisis in the history of equity in Pennsylvania. Lasting as it did for three sessions of the legislature we can gather some information as to the respective plans submitted for the organization of the courts, although the text of the bills has not come down to us. Chancery was the chief bone of contention. Governor Evans wished to act as chancellor assisted by the council, in accordance with the practice recently established in the crown colonies, and it would seem that the assembly was at first inclined to yield this point “provided that the court meddle not with matters wherein sufficient remedy may be had in any other court”[385] whether by the rules of the common law or the laws of the province. But the country members were afraid that too much of the business of the courts would be drawn to Philadelphia, and after some fruitless discussion the house was dismissed and the matter postponed until the meeting of the new assembly. This assembly was even more completely dominated by David Lloyd, the speaker, than its predecessor and replied to the bill of the governor, drawn up by the “practitioners of the law,” with a “long and tedious bill”[386] of its own which appears to have been a modified form of David Lloyd’s act of 1701 that had been rejected by the Crown. The governor at once objected to the administration of equity by county justices who had previously decided the same question at law, to which the assembly replied that the council should devote their attention to public affairs and leave private causes to the justices--

“That the Court of Equity as proposed by the Bill, gives no Colour of authority for the same persons to Judge twice of the same cause, for that matters of Equity being originally begun there, and a Clause particularly obliging them not to intermeddle with matters of Law in the said Courts of Equity, and our Bill being warranted in that point by an act of Parlia^{mt} which gives the Judges of the Common Law Power to determine matters of Equity in the same Sessions throughout the Dominion of Wales, We find no cause to Recede from what we have already proposed.”[387]

To this the council quickly replied that it was wiser to follow the practice of the “others of the Queen’s colonies” than to draw from the court of the “Marches of Wales, which for its inconveniency, ’tis said has been abrogated by act of Parliament.”[388]

This aroused the ire of the Welsh Speaker and back came the hot reply that whoever had advised that any part of the law which established courts in Wales was abrogated gave pernicious counsel to the governor. Only that portion of the ordinance of Wales which gave the president and council chancery powers had been suppressed, but the settlement of chancery in the respective counties of Wales, the foundation of the assembly’s bill had “had constant allowance since the time of King Henry ye 8th.”[389]

The governor rejoined that “if there were any mistake in a matter that is so foreign to us as the Courts of Wales, it might have been hinted to the Gov^r in another language than calling it pernicious council,” and again urged that the court of chancery be settled as in other parts of the queen’s dominions.[390] The assembly remained firm and were in a fair way to win this point, but the discussion of other features of the bill became so acrimonious that finally the house adjourned without passing any court law and the governor established the courts by an ordinance which, incidentally, conferred equity powers upon the county courts of common pleas and the supreme provincial court.[391] The assembly vigorously protested that the ordinance was illegal but no compromise could be effected and the courts continued to sit by authority of the ordinance during the remainder of Evans’s administration.

So far as equity was concerned, the anti-proprietary party had achieved a distinct success and it is not a little curious that this was, at least in part, due to the fact that their leader, a Welsh lawyer, could cite the courts of his native principality as a precedent for what he offered for adoption in Pennsylvania. Although the subject is inadequately treated by text writers it would seem that David Lloyd’s assertions were correct; that the court of the lord president and the council in the principality of Wales and the Marches had jurisdiction in cases of equity by force of the king’s commission and instructions;[392] that this court was abolished in 1689,[393] and that equity jurisdiction was exercised thereafter by the court of great sessions, the principal law court of Wales, which was not visited by the English judges of assize.[394] The procedure on the equity side of this court was by bill, answer and demurrer in accordance with ordinary chancery practice, although somewhat more dilatory than in the high court of chancery, owing to the long intervals between circuit and circuit.[395] The jurisdiction of this court was, however, not exclusive either at law or in equity.[396]

It is unfortunate that the early records of our courts have not been preserved in such a condition as to afford much information regarding the extent that equity was administered under this system, if at all. In 1710 an “act for establishing courts of judicature” was passed, which conferred appellate equity jurisdiction on the supreme court, and original equity jurisdiction on the county courts of common pleas with a proviso that--

“When matters of fact shall happen to arise upon their examination, or hearing of the matters and causes to be heard and determined in the said court, then and in every such case, they shall order the matter of fact to issue and trial at the court of common pleas, for the proper county, where the fact ariseth, before they proceed to sentence or decree in the said court of equity.”[397]

This clause was largely responsible for the repeal of the act by the queen in council, Lord Raymond, the solicitor general, having given an opinion that it would “make proceedings in equity insufferably dilatory and multiply trials at law in the plain cases to no manner of purpose.”[398] Upon notification of the repeal Governor Gookin revived the courts by an ordinance drafted by Robert Assheton which contained the substance of the repealed act in a more concise form.[399] When the assembly took into consideration the reenactment of the court laws it was decided that separate laws should be passed for each of the courts and further resolved “that all matters of Equity, shall begin originally in the Provincial Court with Power to grant Injunctions and to have general jurisdiction over the Province.”[400] What brought about this change of opinion on the part of David Lloyd, who was again speaker and principal draftsman of the acts passed in accordance with the resolution on May 28, 1715,[401] must be left to conjecture. Experience had perhaps taught him by this time that the county courts were incapable of administering formal equity. At any rate the county courts of common pleas ceased to exercise chancery powers and the perpetuation of the Welsh system was left to depend on the supreme provincial court, which received the following chancery powers:--

“Section III. And be it further enacted by the authority aforesaid, That the said judges of the supreme court are hereby also authorized and enabled to hold plea in equity, by bill, appeal, petition or suit, to be brought or exhibited in the said court by, for or against any person or persons whatsoever, for any discovery, or other matters relievable in equity; and thereupon to issue out process of subpœna or _distringas_, and all other usual process for compelling the parties defendants in such suits to appear, put in their answers and make their defenses to such bills, appeals, petitions (or) suits; and for the parties to proceed therein and thereupon according to such rules or orders, and in such manner and form as the courts of chancery and exchequer in Great Britain have used to proceed by.

“And upon issues joined in any of the said causes or suits in equity, the said court is to cause witnesses to be examined if desired, on either side, by commissions to be awarded for that purpose, or by sworn or attested examiners; and after the publication of the depositions of the witnesses, to proceed to the hearing of the said causes, and upon proofs and evidences therein or thereupon, or upon bill and answer, where no witnesses shall be examined, or proofs made, to make such orders and decrees either for the r(elief of) the plaintiffs or for the directing any issue or issues at law to be (tried) for the information of the court, or for the dismissing of the said plaintiff’s bills or otherwise, as the said court shall see just and reasonable, and as is or hath been used in the said courts of chancery or exchequer in Great Britain.

“And the said court shall award such process for the enforcing the parties, in the said suits, to yield obedience to such orders or decrees as shall be made in the said causes, and in case of non-performance thereof, or disobedience thereto, the said court shall award all such process of contempt against the persons and estates of him or them that shall be in contempt or refuse obedience to any of the said orders or decrees, and make and execute like process, orders and proceedings thereupon, as are and hath been used in like cases in or by the said courts of chancery or exchequer in Great Britain; and that the prothonotary of the supreme court shall be register of the said court of equity.”

Unfortunately, the Act of 1715 received scant consideration from the lords commissioners of trade and was repealed by the king in council on July 21, 1719.[402]

The notification of the repeal of this law was received at a time when good feeling prevailed in the province. David Lloyd had been appointed chief justice and had ceased to be a disturbing factor, Andrew Hamilton, the bar leader of his time, was attorney general, while Sir William Keith, the governor, was at the height of his popularity. On May 3, 1720, the governor addressed a message to the assembly in which he stated that, having consulted gentlemen learned in the law, he was satisfied “that no representative body, in any of his Majesty’s colonies, is invested with the power to erect such a court, or that the office of chancellor can be lawfully executed by any person whatsoever, except him, who, by virtue of the great seal of England, may be understood to act as the King’s representative in the place.” On the following day the message was considered by the assembly and it was resolved, “that, considering the present circumstances of this Province, this House is of opinion, that, for the present, the Governor be desired to open and hold a court of equity for this Province, with the assistance of such of his council as he shall think fit, except such as have heard the same cause in any inferior court.”[403]

At a meeting of the council on August 6, 1720, the governor brought the matter to the attention of the members who resolved:--

“That it is the Opinion of this Board, that by virtue of the Powers granted by the Royal Charter to the late Proprietor, his Heirs and Assigns, and to his and their Lieutents. or Deputies, being regularly appointed, the present Governour William Keith, Esqr., safely may comply with the Desire of the Representatives of the ffreemen of this Province, signified to him by an unanimous Resolution of their House, dated at Philadelphia the 4th day of May last, And that the holding of such a Court of Chancery in the manner aforesaid, may be of great Service to the Inhabitants of this Colony, and appears agreeable to the practice which has been approved of in the neighbouring Governments.

“But the Governour speaking to his own want of Experience in Judicial Affairs, and representing to the Board the great Addition of Attendance and Fatigue in the public Business which would be thereby laid upon him, He was pleased to add nevertheless, that considering the many marks the House of Representatives and this Board had shewn of their Confidence in him in this as well as divers other respects, He should not decline to serve the Publick in that Station, but insisted on this, that as no Court of Chancery could by the method proposed be held without him, So that He, on the other hand, should not fail of having a due assistance from the Council on their parts; And it was thereupon, at the Governours desire, established and declared.

“That as often as the Governour is to sit in Chancery and hold a Court, All the members of Council in or near Philadelphia, shall be summoned to attend the Governour as his assistants upon that Bench, and that there shall not any Decree be pronounced or made in Chancery but by the Governour as Chancellor, with the assent and concurrence of any two or more of the Six eldest of the Council for the time being, And that those Six eldest Counsellors or assistants, or any of them, may be employed by the Governour as Masters in Chancery, as often as Occasion shall require.

“And that the Inhabitants may have due notice of the said Court, it is ordered that A Proclamation be issued certifying all his Majestys Liege People of this Province, that for the more equal Distribution of Justice and the Conveniency of the Subject, a Court of Equity or Chancery will be opened by the Governour, at the Court House in Philadelphia, upon the 25th day of this instant, August, in order to hear and judge of all such matters within this province, as are regularly cognizable before any Court of Chancery, according to the Laws and Constitutions of that part of Great Britain called England, and that the said Court will be always open for the Relief of the Subject; Whereof his Majestys Judges of the Supreme Court, and the Justices of the inferiour Courts, and all others whom it may concern are to take Notice, and to govern themselves accordingly.”[404]

Four days later the following proclamation was made:--

“COURT OF CHANCERY.

“By William Keith Esqr. Govern^r Of the Province of Pensivania & Counties of New Castle, Kent & Sussex, upon Delaware. A. Proclamation.

“Whereas Complaint has been made, That Courts of Chancery or Equity are absolutely necessary in the Administration of Justice, for mitigating in many cases the Rigour of ye Laws, whose Judgments are tied down to fixed and unalterable Rules, and for Opening away to the Right and Equity Of a Cause for which the Law cannot in all cases make a Sufficient Provision. Have notwithstanding been but toe seldom regularly held in this Province, in such a manner as ye aggrieved Subject might obtain the Reliefe which by such Courts ought to be Granted. And Where as, the Representatives of ye Freemen of this Province taking ye same into Consideration, did at their last meeting in Assembly request me that I would with ye assistance of ye Council, Open and hold such a Court of Equity for this Province, To ye end therefore that his Majesties good Subjects may no longer Labour under these inconveniences which are now Complained Of, I have thought fitt, by and with the advice of the Council, hereby to Publish and Declare, That with their assistance I Purpose (God willing) to open and hold a Court of Chancery or Equity, for this Province of Pensilvania, at ye Court House of Philadelphia, on Thursday the Twenty fifth day of this instant August, From which Date the Said Court will be and remain Always Open for the Reliefe of ye Subject, to hear and Determine all such matters arrising within the Province afores^d, as are regularly Cognizable before any Court of Chancery, According to ye Laws and Constitution of that part of Great Britain called England. And his Majesties Judges of his Supream Court, as well as ye Justices of the Inferior Courts, and all others whom it may Concern, are required to take Notice hereof, and to govern themselves Accordingly. Given at Philadelphia, ye tenth day of August, in the Seventh year of the Reign of our Sovereign Lord George King of Great Britain, France & Ireland, Defender of the Faith &c. Annoq. Domini 1720.

“God Save the King.

“W. Keith.”[405]

A few days later the assembly took into consideration the governor’s proclamation and on the twenty-eighth of August extended to him their thanks for his message and requested that he should choose as his assistants those who had not heard the cases before in the inferior courts, to which the governor readily assented and in this auspicious manner was established the first and only separate court of chancery in Pennsylvania. When the common law courts were once more established by the Act of May 22, 1722,[406] no equity jurisdiction was conferred upon either the supreme or county courts.

On the twenty-fifth of August, 1720, Sir William Keith qualified as chancellor and appointed Charles Brockden registrar. James Logan and five other members of the council were named as masters and from time to time thereafter other appointments both of masters and examiners were made. The proceedings of the court, long buried in oblivion, are not referred to in the reported cases, and the only allusion to them by an early historian is a statement by Proud that John Kinsey, afterwards chief justice, was compelled by Sir William to take off his hat when addressing the court, an act which brought upon the governor a remonstrance by the quarterly meeting of Friends.[407] Thanks to the perseverance of William Henry Rawle, Esq., a portion of the records of the court were found in a folio volume that had lain neglected for many years among the unpublished archives of the state department and which proved to be the registrar’s book. A critical examination of the cases contained in the register will be found in Mr. Rawle’s admirable address on Equity in Pennsylvania, delivered before the Law Academy of Philadelphia in 1868.[408] Among the cases in which the court of chancery exercised jurisdiction were bills for account and for partition; to subject land to the payment of debts and legacies; to stay waste; to restrain proceedings at law; to take the testimony of witnesses in foreign parts; to settle differences between partners; petitions for writs _de lunatico inquirendo_, and for writs _ne exeat provincia_.[409] The frequent use of the last named writ is interesting. Confined in its original application to cases involving the safety of the realm, its use had, in time, extended to private causes as a means of procuring equitable bail. The departure of a litigant out of the jurisdiction of the court without security for his appearance was a serious matter indeed in days when communication between Europe and America was slow and difficult.

The case of _Cole_ v. _Wathell_[410] is curious, as an application to chancery in an admiralty cause. The complainants, part owners of a ship, filed a petition setting forth that the defendant, also a part owner, had refused to join with them in fitting out and loading the vessel for a proposed voyage, that she was about to sail for the Barbadoes and there being no person in this government acting as judge of vice-admiralty, they were obliged to apply to the governor, as chancellor, for equitable relief and praying that, “according to the custom and usage in such cases,” the chancellor would appoint appraisers, to value the defendant’s interest, they being willing to account to him for the appraised value. The defendant was given time to dispose of his interest or join in fitting out the ship, but he left town without leaving any notice of what he had done or intended to do, whereupon an order was made appointing three appraisers, who filed a return valuing the defendant’s interest at “two hundred and forty pounds current money of Pennsylvania.” In _Blad_ v. _Bamfield_,[411] Lord Nottingham said: “I took this occasion to show that, the court of chancery hath always had an admiral jurisdiction, not only _per viam appellationis_, but _per viam evocationis_ too, and may send for any cause out of the admiralty to determine it here.” On several other occasions the lord chancellor asserted and enforced this concurrent jurisdiction, which extended at least to cases of depredations on the sea, and has long been deemed obsolete, so that it is quite possible, although by no means certain, that a knowledge of these seventeenth century precedents may have induced the complainants in _Cole_ v. _Wathell_ to seek relief in chancery.

From the minutes in the register it would appear that the cases did not proceed with much rapidity, in fact many of them were before the court for several years, delayed by all sorts of dilatory motions. In a partition case[412] one of the defendants was particularly obstinate. Having refused to appear in response to a subpœna and _alias_ subpœna, he was attached and remained in jail from June, 1733, to November, 1734, when counsel for complainants moved that the bill be taken _pro confesso_ against him. He was then set at liberty and ordered to prepare an answer within a month, which he declined to do, whereupon the court proceeded to a hearing and entered a decree for partition and mutual conveyances. This he declined to obey and in the archives will be found the proof of service of notice on him, with his answer that “he had been informed that there was a decree against him but that he did not care.”[413] A writ of partition then issued, the nature of which is not explained.

The counsel practicing most frequently in the court were Andrew Hamilton, Joseph Growdon, John Kinsey and Peter Evans. Of the cases recorded only two were decided by Sir William Keith, who was removed by the proprietors from the office of governor in 1726 after a quarrel with Logan. His successor, Patrick Gordon, upon being applied to by the parties to proceed with several cases before the court, hesitated to act until he had consulted with the council as to his authority. The matter was debated and the governor assured that he might legally assume the duties of the office, whereupon he took the oath as chancellor.[414] It was further proposed that rules should be drawn up for the better regulation of the court and the speedier dispatch of business, and David Lloyd, the chief justice, and Andrew Hamilton were named for that purpose.

So far as can be discovered the practice in the court followed that of England. Suit was commenced by bill; a _subpœna ad respondendum_ then issued; an answer or demurrer was filed by the respondents; testimony was taken before examiners, or the matter referred to one of the masters; injunctions were issued and decrees enforced by attachment. On the whole, considering the number of years the court was in existence, the amount of business brought before it was small. Undoubtedly the tedious and technical character of the proceedings, their expense and the fact that the sittings of the court were dependent upon the convenience of the governor, tended to discourage litigants from seeking legal redress through such a channel.

In 1736 the silent dislike with which the court was regarded changed into open hostility. Perhaps the contagion, if it may be so described, spread from New York, where, in 1735, the general assembly had resolved that the court of chancery held by the governor without their consent was “contrary to law, unwarrantable, and of dangerous consequence to the liberties and properties of the people.”[415] Petitions were presented, signed by inhabitants of Philadelphia, Bucks and Chester counties, complaining to the assembly that the holding of a court of chancery before the governor and council was contrary to a clause in Penn’s charter of privileges which provided--

“That no person or persons shall or may, at any time hereafter, be obliged to answer any Complaint, matter or thing Whatsoever Relating to Property before the Govern^r and Council, or in any other place but in the ordinary Courts of Justice, unless appeals thereunto shall be hereafter by Law appointed.”[416]

Even before the meeting of the assembly the subject had been taken up by the press and a spirited controversy had been carried on by contributors to the _Mercury_ and the _Gazette_.[417] The assembly sent a message to the governor requesting information as to how the court of chancery was constituted,[418] and on March 27, 1736, resolved, “That the court of chancery as it is at present established is contrary to the charter of privileges granted to the freemen of this province.”[419] It was then resolved that the justices of the county courts be given power to determine all suits in equity under one hundred pounds, that a supreme court of equity should also be established, to which appeals might be taken from the inferior courts and which should also have original jurisdiction in all matters of equity “_prima instantia_” when the value of the claim exceeded one hundred pounds. The judges of this court were to consist of three persons, to be commissioned by the governor out of any six that should be nominated by the house. A bill was framed to this effect.[420]

The charge that he was violating the charter angered Governor Gordon and it was ordered that a vindication of the proceedings of the governor and council be prepared and published. Accordingly a voluminous report was drawn up by James Logan, giving a history of the establishment of the court, which, he said, was erected at the request of the assembly upon the best legal advice that could be procured, “particularly that of our then Attorney General, Andrew Hamilton, Esq., who was esteemed and allowed to be as able in that Profession as any on the Continent of America,”--a fling at Hamilton, who as speaker of the assembly was now leading the opposition to the court. The report went on to argue that the word “property” as used in the charter had reference to the proprietary grants and that a court of chancery was an “ordinary court of justice.” It concluded--

“The Assembly however may be assured, that none of the Council are fond, or in the least desirous, of the Employment, and if the Governor shews any Inclination the Court should be continued on the same Foot, we are perswaded it can be from no other Inducement than his Desire to preserve Decency and Order, and some Resemblance between this Government and all the other British Ones in America.”[421]

The assembly replied that they intended no offense to the governor or his council and were surprised at their resentment; that a vote of the house was not sufficient to raise a court nor was the opinion of one or more lawyers, who were left to answer for themselves, or the silence of subsequent assemblies of any consideration in the case; that they were sorry to see gentlemen of such penetration as the members of the council resigning away the common sense of the charter; that great men and even courts were often mistaken as to their own jurisdiction; that it had been decided in England that a court of equity could not be established except by act of parliament, and if the king could not raise such a court how could the deputy of the king’s patentee do so? They further hoped to be pardoned for saying that, in their opinion it would have been more reasonable if notice had been taken of their resolution in time to save them the trouble of preparing the bill relating to courts of equity, which had long lain before the governor unapproved although the session of the assembly was drawing to a close.[422]

Here the controversy was dropped, the assembly soon after adjourned and the governor continued to act as chancellor until his death in the following summer. The matter seems to have disturbed the proprietary party, for a case was stated presenting all the facts and the opinions taken of the Solicitor General, Sir Dudley Ryder, and the Attorney General, Sir John Willes, upon the legality of the court. They held, in effect, that the king had power, in erecting a new form of government in Pennsylvania, to authorize Penn to erect courts of equity and that the consent of the legislature was not necessary until Penn had made it so by the charter of 1701; that the unanimous resolution of 1720 was a sufficient declaration of the assent of the legislature to the erection of the court, and that the court could be lawfully held until the whole legislature passed an act to the contrary.[423] Nevertheless, Logan, who as president of the council administered the government for two years, probably felt that the office of chancellor was outside of the scope of his temporary duties and when Thomas was appointed lieutenant governor, in 1738, the court was not revived. The proprietors were unwilling to give up the court and refer to the matter several times in their correspondence. “We desire,” wrote Thomas Penn to Mr. Peters, September 28, 1751, “that the court of chancery may be established in a manner most favorable to the people, without giving up the king’s prerogative with which we are entrusted, we should have some share of influence, else the trial would not be equal. We are willing, however, that the assembly should regulate the court.”[424] Nevertheless the assembly continued its opposition until the end of the proprietary government.

Thus, in the words of Horace Binney, Pennsylvania lost this system of justice because “her governors and representatives could not agree by whom the office of chancellor should be held.”[425] The same dispute occurred in the other colonies and was settled according to the exigencies of local politics. There is no indication, however, of any real dislike on the part of the people to the principles of equity; in fact the petition from Bucks County against the governor’s court distinctly demanded that some provision be made for such as want relief in equity, by the erection of courts of equity “more convenient for their attendance and less expensive to those who may have business there.” While that from Chester County requested--

“That some Provision suitable to the Circumstances of the people may be made for such as want Relief in Equity, without being obliged to travel from the remotest parts of the Province to Philadelphia, & there to attend that Court at a very great & heavy Expence, Which Proceedings, as the Business of that Court does Increase, will undoubtedly become a very great Grievance to the People.”[426]

It has been suggested that the opposition to the court of chancery would not have taken concrete form but for the influence of Andrew Hamilton who had recently been one of the defendants in an important equity suit brought in the high court of chancery of England where a decree had been entered against him.[427] But this is hardly probable. Hamilton was a man of wealth and influence enjoying a large practice, with a reputation for political independence; he had represented the proprietors in their controversy with Lord Baltimore and had defended the printer, Peter Zenger, in his famous trial at New York, and his activity was probably due to a desire to see the court put on a sound and popular basis. It is fascinating to read into history the characters of the chief actors, and particularly tempting when, as here, the strong personalities of such men as David Lloyd and Andrew Hamilton are found asserting themselves at the critical periods for equity in Pennsylvania. But too much may easily be made of this side of the story; the inhabitants were jealous of the power of the proprietors, they distrusted the governors and suspected the purposes of the Crown, they wanted cheap justice and demanded that it be brought to their doors, the very name “chancery” was odious and they would have none of it, while the governors and councilors, in their zeal for uniformity of practice in the British dominions, sacrificed the substance, equity, for the shadow, the chancellorship.

As a man, after an amputation, makes shift as best he can with an artificial limb, so Pennsylvania proceeded slowly to construct a substitute for the discarded court. That the loss was not acutely felt, or at least realized, may be inferred from the fact that we hear no more on the subject from the legislature, where real or fancied grievances were then aired with greater persistency than in these days of unlimited appropriations and limited debates. The court act of 1722, previously quoted, conferred upon the supreme court the power to exercise its jurisdiction as fully as the justices of the king’s bench, common pleas and exchequer at Westminster might do, and a plea might have been made for the exercise by the supreme court of the chancery powers of the barons of the exchequer. But the ill success that finally attended the efforts of Governor Cosby of New York to maintain this position, in his celebrated suit against his predecessor, Rip Van Dam, would have discouraged any one from urging a view so unpopular.[428] The orphans’ court was, within its field, a court of equity, and, in regard to the estates of minors, exercised the functions of the chancellor.

The fact that our pre-revolutionary reports are confined to the notes of a few lawyers makes it doubly difficult to investigate the beginning of the system by which equitable principles were worked out through common law forms. The first case in which the subject is mentioned is _Swift_ v. _Hawkins_,[429] where, in an action of debt on a bond, the court under the plea of payment, admitted evidence of want (probably a misprint for failure) of consideration, which, said Chief Justice Allen, was a necessity, to prevent a failure of justice, there being no court of chancery in the province; and this, he said, he had known to be the constant practice of the courts for thirty-nine years past. If the chief justice is accurately reported this would carry the practice back to 1729, before the abolition of the court of chancery, but Chief Justice Allen was in a position to speak with authority, having sat in the common pleas as early as 1732.

In _Wharton_ v. _Morris_,[430] Chief Justice McKean, in charging the jury on the question as to whether a bond payable in “lawful current money of Pennsylvania” could be paid in depreciated currency, remarked that--

“The want of a court with equitable powers, like those of the chancery in England, had long been felt in Pennsylvania. The institution of such a court, he observed, had once been agitated here, but the houses of assembly, antecedent to the revolution, successfully opposed it; because they were apprehensive of increasing, by that means, the power and influence of the governor, who claimed it as a right to be chancellor. For this reason, many inconveniences have been suffered. No adequate remedy is provided for a breach of trust; no relief can be obtained in cases of covenants with a penalty, &c. This defect of jurisdiction has necessarily obliged the court, upon such occasions, to refer the question to the jury, under an equitable and conscientious interpretation of the agreement of the parties.”

In the same year, the court of common pleas of Philadelphia County in _Dorrow_ v. _Kelly_,[431] held that a simple contract debt could not be tacked to a mortgage, President Judge Shippen saying, that while the courts of the state had in some instances adopted chancery rules to prevent an absolute failure of justice, there was no necessity in this case to usurp the powers of a court of chancery, an act of assembly having directed the mode of proceeding on mortgages and confined the recovery to principal and interest.

The first statutory efforts to give relief as in equity were, naturally, by private acts, where the interests involved were sufficiently important to warrant a direct interference by the legislature. Among these was an act passed in 1757[432] to enable certain testamentary trustees to carry out an agreement of the testator by the execution of deeds of conveyance; another in 1761[433] to enable trustees to sell lands settled in trust for the Oxford church and with the money arising therefrom to purchase other lands; a third in 1772[434] confirming the title to land where the deed had, by some accident, been torn and defaced, and a fourth in the same year where the deed had been lost.[435] One act will serve as an illustration. Godfrey Brown mortgaged land in Cheltenham township to the Trustees of the General Loan Office of the Province and subsequently conveyed to Philip Fox. Fox paid the mortgage and then it was found that two deeds in the chain of title, that had been pledged to the trustees according to the custom of their office, were lost, and, although diligent search had been made in the loan office and elsewhere, they could not be found. Therefore “to prevent the damages and mischiefs which may arise from the loss of the said deeds,” on petition of Philip Fox, it was enacted that the grantors in said deeds and their heirs be barred and forever excluded from all claims to the said premises which should vest in the petitioner absolutely, saving the rights of others than the said grantors.[436]

The first legislative attempt to give equitable relief by a general act, was contained in the Act of January 22, 1774,[437] to compel trustees and assignees of insolvent debtors to execute their trusts. By this law the courts of common pleas were empowered, on petition, to appoint commissioners to audit the accounts of such trustees and upon their report to order the trustees to forthwith pay the creditors their just proportions of the funds with which they were charged.

The next halting step was taken in the constitution of 1776 which contained the following clause:--

“The supreme court and the several courts of common pleas of this commonwealth shall, besides the powers usually exercised by such courts, have the powers of a court of chancery, so far as relates to the perpetuating testimony, obtaining evidence from places not within this state, and the care of the persons and estates of those who are _non compotes mentis_, and such other powers as may be found necessary by future general assemblies, not inconsistent with this constitution.”[438]

No such other powers were conferred except by the Act of March 28, 1786,[439] which authorized the supreme court upon bill setting forth the loss of deeds or other writings, to issue a subpœna, requiring the persons named to appear and answer; to refer the matter to a master and upon his report to make such order and decree as to justice and equity should appertain. This statute appears to have been occasioned by the frequent complaints of the loss of deeds which could only be remedied by private acts such as those already referred to. By the Act of September 28, 1789,[440] proceedings akin to discovery were authorized in foreign attachment. The plaintiff after judgment against the defendant was permitted to exhibit interrogatories to the garnishees, who were required to answer under oath.

On the twenty-fourth of November, 1789, there met at Philadelphia a convention to draft a new constitution for the state. The members were abler and more representative men than those who had framed the short-lived constitution of 1776. The committee of nine who prepared the first draft of the proposed constitution included James Wilson, William Lewis, Alexander Addison and James Ross. The plan submitted by them included a high court of chancery presided over by a chancellor with state-wide jurisdiction, and a court of chancery in each judicial district, or circuit, except that in which the high court should be held, presided over by the president judge of the court of common pleas with the same power as the chancellor except that of granting injunctions to stay proceedings or suspend judgments at law. From a decree in chancery in any circuit an appeal was allowed to the chancellor of the state. Determined opposition to this plan developed in the convention and after a prolonged contest in committee of the whole, the provision for a court of chancery was struck out of the judiciary article and limited equity powers were conferred on the existing courts in the following words:--

Art. V. Section VI. “The supreme court and the several courts of common pleas shall, beside the powers heretofore usually exercised by them, have the powers of a court of chancery so far as relates to the perpetuating of testimony, the obtaining of evidence from places not within the state, and the care of the persons and estates of those who are _non compotes mentis_. And the legislature shall vest in the said courts such other powers to grant relief in equity as shall be found necessary; and may, from time to time, enlarge or diminish those powers; or vest them in such other courts as they shall judge proper for the due administration of justice.”[441]

So ended the last effort to obtain a separate court of chancery in Pennsylvania. This much was conceded, the legislature was authorized not only to extend the equity powers of the existing courts, but to vest them in such other courts as they should judge proper. But the latter power was not exercised by the creation of a separate court, nor were equity powers conferred upon the ordinary courts in a systematic manner. From time to time, under the compulsion of sheer necessity, equitable jurisdiction was extended by a series of acts the mere recital of which is wearisome.[442] Delaware, however, whose political and judicial history was so long and so intimately associated with that of Pennsylvania, took the step declined by her sister commonwealth and established a separate court of chancery by the constitution of June 12, 1792.[443]

As we have seen, the constitutions of 1776 and 1790 expressly conferred upon the courts the power to grant relief in certain cases. Of these, the first, the perpetuation of testimony, was exercised directly under the constitution in accordance with chancery practice; the second, the obtaining of evidence from places out of the state, by commissions and rule of court;[444] as to the third, the care of idiots and lunatics, the power of determining the question of insanity was exercised through the medium of a commissioner and inquest according to chancery practice.[445] In addition the legislature by a series of acts, prior to 1836, conferred additional powers the most important of which were to compel trustees to account, to discharge and dismiss them, to compel the conveyance of the legal estate where the trust had expired, to compel discovery in aid of execution in certain cases relating to corporations and corporate stock, and to compel the specific performance of a contract for the sale of lands, where the vendor had died, by an order empowering the executors or administrators to execute a deed.[446]

If the sum total of legislation seems meagre today, it can only be said that public opinion in regard to law reform moves slowly, and the bar, while dissatisfied with some features of the system, was not clear as to the direction reform should take. As will be seen presently, the simpler equities had been worked out through the common law actions and it was thought practicable to extend this method by the revival of neglected actions and an extension of their remedial effects. Such was the thesis maintained by Mr. Laussat in his brilliant essay[447] and the favorable reception it received shows how obstinately loyal a bar may become to an inadequate system that they have been taught to revere. These views were respected by the commissioners to revise the civil code when, in 1835, they took up the question of equity. Some of the subjects ordinarily dealt with in a court of chancery, such as mortgages, they found had been fully covered by statutes; others could be covered in the same manner by acts that they had prepared; others were within the sphere of the orphans’ courts. It was in the peculiar means of administering preventive justice that the courts of equity possessed a decided superiority over the courts of law, and it was here that the Pennsylvania system was most defective and the recommendations of the commissioners most radical. The commissioners were opposed to a separate court of chancery as unnecessary, and also opposed to keeping up a separate chancery organization in the existing tribunals. The courts, they said, had pursued certain established modes of practice which now for more than a century had become familiar to the community. “To recast the whole system then, to establish a class of equitable remedies for all equitable cases, and to confine the common law procedure to common law subjects,” would produce, they thought, “greater inconveniences than any benefit which might be supposed in theory to arise from the change.”[448] Upon the whole, they thought that the safest plan to pursue was to give relief whenever possible by some familiar common law remedy, and when full relief could not be given by such process, to resort by statute to the methods of the chancery courts.

Upon the recommendation of the commissioners the legislature extended the equity powers of the courts as follows in the Act of June 13, 1836:[449]--

“The Supreme court, and the several courts of Common Pleas, shall have the jurisdiction and powers of a court of Chancery, so far as relates to--

“I. The perpetuation of testimony:

“II. The obtaining of evidence from places not within the state:

“III. The care of the persons and estate of those who are _non compos mentis_:

“IV. The control, removal and discharge of trustees, and the appointment of trustees, and the settlement of their accounts:

“V. The supervision and control of all corporations other than those of a municipal character, and unincorporated societies or associations, and partnerships:

“VI. The care of trust monies and property, and other monies and property made liable to the control of the said courts.

“And in such other cases, as the said courts have heretofore possessed such jurisdiction and powers, under the constitution and laws of this commonwealth.

“And in every case in which any court as aforesaid, shall exercise any of the powers of a court of Chancery, the same shall be exercised according to the practice in equity, prescribed or adopted by the Supreme court of the United States, unless it be otherwise provided by act of assembly, or the same shall be altered by the Supreme court of this commonwealth, by general rules and regulations, made and published as is hereinbefore provided; and the Supreme court when sitting in banc, in the city of Philadelphia, and the court of Common Pleas for the said city and county, shall besides the powers and jurisdiction aforesaid, have the power and jurisdiction of courts of Chancery so far as relates to--

“I. The supervision and controul of partnerships, and corporations other than municipal corporations.

“II. The care of trust monies and property, and other monies and property made liable to the controul of the said courts.

“III. The discovery of facts material to a just determination of issues, and other questions arising or depending in the said courts.

“IV. The determination of rights to property or money claimed by two or more persons in the hands or possession of a person claiming no right of property therein.

“V. The prevention or restraint of the commission or continuance of acts contrary to law, and prejudicial to the interests of the community or the rights of individuals.

“VI. The affording specific relief, when a recovery in damages would be an inadequate remedy: _Provided_, That in relation to the discovery of facts material to a just determination of issues, and other questions, the District court for the city and county of Philadelphia, shall have the same power and authority, within its jurisdiction, as is hereby conferred on the court of Common Pleas for the said city and county: _And provided further_, That no process to be issued by the said courts of the city and county of Philadelphia, or the Supreme court sitting therein, under the chancery powers herein specially granted, excepting such as have heretofore been exercised shall at any time be executed beyond the limits of the city and county aforesaid.”

In conferring these powers the legislature did not adopt in full the recommendations of the commissioners, who in the bill reported by them embraced the whole state as the field for the operation of chancery remedies, but confined a portion to Philadelphia County, yielding to the prejudices of the interior counties where want of familiarity with the forms of chancery procedure had created a special distaste for a change in practice. The unqualified success of the extension of equity jurisdiction in Philadelphia County led to a rapid change of opinion; in twenty years the wisdom of the commission’s recommendations was vindicated and the courts of common pleas of all the counties were invested with the same equity powers that the courts of Philadelphia possessed.[450] These powers had in the meantime been increased by an extension to all cases of fraud, accident, mistake, account,[451] discovery,[452] dower and partition.[453] The extension of equity jurisdiction to partition was most advantageous, since the court could upon bill determine the rights of the parties in a far more satisfactory manner than by a common law action, which would rarely be resorted to now were it not for the fear of the expense involved in a reference to a master.

A catalogue of the statutory additions to the equity powers of the courts would unnecessarily prolong this discussion. They will be found in the digests and books on practice. In one important particular it became necessary to rectify the opinion of the commissioners that the remedy by _scire facias sur_ mortgage was adequate by an extension of the equity powers of the common pleas to corporation mortgages. It having been held that the trustee named in a corporation mortgage could not maintain a bill to foreclose, an act was passed conferring this necessary power.[454] With respect to charities, legislation also became necessary to give effect in a limited extent to the doctrine of _cy-pres_.[455]

As important as any clause in the Act of 1636 was that which empowered the supreme court to adopt equity rules for the whole state which the courts of common pleas could neither disregard nor suspend.[456] The power has been wisely exercised by the adoption of clear and concise rules that have operated as a check upon slovenly practice and furthered that uniformity which should characterize the administration of justice. In the interest of economy, regularity and certainty it is unfortunate that the same course has not been adopted in regard to actions at law. A recent act[457] provides that where a bill in equity has been filed, if the defendant desires to question the jurisdiction of the court, he must do so by demurrer or answer, explicitly so stating, or praying for an issue; otherwise the right of trial by jury shall be deemed to have been waived. If the demurrer or answer avers that the suit should have been brought at law, that issue shall be decided _in limine_ before hearing on the merits, and if the court decide that the suit should have been brought at law it shall certify the case to the law side of the court at the cost of the plaintiff. So, on appeal, if the decision of the appellate court is that the suit should have been brought at law it shall remit the cause with directions to transfer it to the law side of the court.

It is necessary to say something in reference to the nature of the equitable relief administered through common law forms, a subject of unusual interest inasmuch as it has had a profound influence upon the development of legal procedure in the commonwealth. Independently of the form of action, it has been said, “our courts will advance the equitable rights of plaintiffs, where, through some accident that occurred anterior to the institution of his suit, or that happens during its pendency his common law remedy would be taken away or rendered nugatory.”[458] An early case illustrating this principle is _Respublica_ v. _Coates_,[459] an action of debt on a bond brought in the supreme court against the defendant as surety. Levy, for the plaintiff, moved for a rule to show cause why the declaration should not be amended by striking out the _profert_ and averring the loss of the obligation. Lewis and Sergeant, for the defendant, declared that they would not object to the rule being made absolute, as they apprehended a late authority had settled the practice in England.[460] The court made the rule absolute, declaring that it was absolutely necessary such practice should be adopted here to prevent a failure of justice, there being no court of chancery to protect against such accident.

The common law actions that were made the vehicles of equitable rights were assumpsit, debt, covenant, replevin, ejectment and partition; in fact nearly all the personal actions have been employed to support equitable claims. “I do not like the idea,” said Mr. Justice Huston, “that our equitable powers are more extensive in one form of action than another.”[461] Assumpsit is an equitable action and lies, according to the familiar phrase, in all cases where the defendant has money which _ex æquo et bono_ belongs to the plaintiff.[462] Thus where there had been a recovery in ejectment against tenants and the landlord died, it was held indebitatus assumpsit would lie against the landlord’s executors to recover rents received, from the time the plaintiffs’ title accrued, as a substitute for a bill in equity, and the question was submitted to the jury as to whether the defendant’s testator had misrepresented their title to the plaintiffs and concealed the defects in his own.[463]

An illustration of the free use of the equitable powers of the court will be found in _Bixler_ v. _Kunkle_,[464] an action of assumpsit for money had and received by the defendants to the use of the plaintiff. It appeared that plaintiff’s father had by his will directed his executors to lay out a certain sum in land for the plaintiff’s separate use and that the executors had procured a release from her by fraud on payment of about one half of what was due. Judgment was entered for the plaintiff, the money to be paid into court and expended under the court’s direction in the purchase of land according to the will. Chief Justice Gibson, however, thought that the judgment exceeded the powers of the court, although jurisdiction to decree a trust would be most salutary.

So also, where by articles of agreement for the sale of land a deed was to have been delivered on a certain date, and in covenant on the articles it appeared that it had been verbally agreed that delivery should take place on a subsequent date. Chief Justice Tilghman was of the opinion that the action could have been supported if the declaration had been amended so as to set forth the alteration of the agreement. “I see,” he said, “no certain mode of doing equity to both parties, but by issuing a writ of covenant in the usual form and permitting the declaration to partake so much of the nature of a bill of equity as to set forth the truth of the case. To this the defendant may plead anything which in law or equity will serve him, and thus the parties may go to trial on the merits of the case.” And Mr. Justice Gibson added: “The declaration is in effect a bill in equity; for in England the plaintiff could not recover in a court of law: I cannot, therefore, see why those equitable circumstances that are the very foundation of the action, should not be set forth. Performance by the plaintiff at a subsequent day, and acceptance by the defendant, is in equity equivalent to performance strictly at the day, and ought to have been alleged here. Principles of equity cannot be administered through common law forms, strictly such, without having recourse to fiction, which leads to serious inconvenience. The facts as they exist ought, in all cases where it is practicable, to be set forth.”[465]

Replevin had from the earliest times a wider scope than in England, being applicable in every case in which goods and chattels in the possession of one person were claimed by another.[466] So too, in partition an equitable estate was held sufficient to support the action, as in _Stewart_ v. _Brown_,[467] where it was held that if a person purchase land at a tax sale under an agreement that another should be equally concerned, he would be considered as holding for the plaintiff and himself as tenants in common. The technical and nearly obsolete action of account render was frequently resorted to as a substitute for the bill in equity for an account. The action of ejectment became at an early date, through the ingenuity of the courts, the most important mode of enforcing the equity of a plaintiff in real property. In _Hawthorn_ v. _Bronson_,[468] it is thus described by Mr. Justice Duncan:--

“The equitable action of ejectment, in this state, forms a considerable branch of the law. From the nature of our original titles, settlement-rights, warrants and applications, all imperfect rights, so variant in their circumstances from other countries, our courts of justice have been obliged to form a system of laws adapted to this species of title, and accommodated to all its circumstances, and which, perhaps, could not, after all our experience, be changed to advantage; and which, indeed, ought not to be changed, however specious the reason might be, as it would tend to destroy all security of title, and introduce new confusion, which nothing but a steady adherence to decisions can prevent. And when to this is added, that in general, the people contract by articles for payment by instalments, and the legal title is seldom made, until all the purchase-money is paid, and the frequent essignment of these articles, we ought not to be surprised at the numerous complicated cases which arise in our courts of law and equity; for they are courts of law and equity distributing justice by the same medium--the instrumentality of a jury. In Pennsylvania, equity is law. Courts give the equitable principles to the jury, as they lay down the legal principles. The facts are for the decision of the jury, as all contested facts must be; but whether, on any state of facts found by the jury, the party is entitled to equity, and the mode, manner and extent of relief, is for the court.”

Wherever chancery would enforce specifically a contract for the sale of land, it is said, the same relief will be granted in Pennsylvania by ejectment.[469] Thus ejectment lies by the vendor against the vendee in possession under articles who has paid part of the purchase money and defaulted on the remainder.[470] So also by the vendee, upon tendering the purchase money.[471] Difficulties were encountered, as might be expected, in cases involving a construction of the statute of frauds which are too technical for discussion here.[472]

The interest of the assignee of a chose in action was also recognized and protected in actions at law, and on the other hand, the assignee made liable to set-offs and costs in the same manner as if the suit had been instituted in his own name. The practice which prevailed from a time antedating the Revolution was to bring the suit in the name of the assignor and mark it to the use of the assignee.[473]

It was a somewhat simpler matter to give effect to the equities of a defendant, since this did not involve an extension of the scope of common law writs or the revival of obsolete actions as substitutes for chancery procedure. The rules of pleading and evidence interposed the chief barrier to the admission of equitable defenses and these were broken down at an early period. And whatever may be said as to the insufficiency of the remedies afforded to a plaintiff, it must be admitted, as observed by Mr. Rawle,[474] that the protection given to a defendant in Pennsylvania was in advance of the law as elsewhere administered. There were two ways in which it was possible to present the equity of a defendant, first by giving evidence of equitable matter, under a general plea, and second, where from the nature of the case it was improper to make a defense under a general plea by pleading specially the facts constituting the equitable grounds of defense.[475]

The first reported case describing the practice of giving in evidence, under the plea of payment, matters of equitable defense is _Swift_ v. _Hawkins_[476] already referred to, “the Magna Charta,” says Mr. Justice Duncan, “of this branch of equity.”[477] Seven years later, in 1775, the supreme court, to prevent surprise at trials, adopted a rule that every person, intending to give special matter in evidence under the general issue, must give notice in writing ten days before trial of the special facts he intended to rely on and, because it had been adjudged that under the plea of payment the defendant might give evidence that a bond or specialty was given “without any or good consideration,” for the future in all such cases, the defendant should thirty days before trial give notice in writing of his intention to offer such evidence.[478] From that day every practicing attorney in Pennsylvania has, at some time in his career, started from his sleep in the middle of the night in a cold sweat, wondering if he _did_ give notice in that case on tomorrow’s list.

Where an equitable defense is set up under the plea of payment with notice of special matter, the plea is a substitute for a bill in equity, and under it the jury may and should presume everything to have been paid which in equity and good conscience the defendant ought not to be compelled to pay. The nature of the plea, says Chief Justice Gibson,[479] has frequently been misunderstood. It is not the general issue. As an equitable plea it makes room only for what would sustain a bill in chancery, and as a legal plea it makes room only for evidence of direct payment, or what is the equivalent of payment where the plea is directed by act of assembly. The various equitable defenses permitted under the plea may be classed under the familiar heads of fraud, accident, mistake, and failure of consideration.[480] The same liberality as to evidence was not favored under the plea of non assumpsit. It was said by Chief Justice Tilghman[481] that if the circumstances afforded grounds for relief in equity, the defendant should give notice of special matter under the plea of payment.

In the action of covenant, the plea of performance, or covenants performed, almost obsolete in England, was, with notice of special matter held sufficient to support any evidence which would discharge the defendant in equity.[482] In ejectment an equitable defense would protect the defendant’s possession, but by statute[483] the plea of “not guilty” was the only one allowed. There was also permitted, in addition to the statutory set-off, an equitable defense in the nature of set-off applicable to acts of nonfeasance or misfeasance by the plaintiff connected with his cause of action, not matter of defalcation but directed to the defeat of the claim in whole or part. As to replications and subsequent pleadings, if a plea was put in founded in equity the plaintiff was permitted in reply to set up any special facts sufficient to destroy that equity.[484]

Another powerful instrument in the administration of equity under common law forms was the conditional verdict frequently used as a substitute for an injunction or a bill for specific performance. In such a case, where the plaintiff had set out in his declaration the whole ground of his equitable right, the jury under the direction of the court might find large damages to be released on condition of compliance with the terms prescribed by the verdict, which terms were for the jury alone to impose.[485] So also the power of the court to control or open judgments has been exercised according to equitable principles and with a view to preventing injustice under color of law.

Such then is the system which Horace Binney contemptuously described as “a spurious equity compounded of the temper of the judge and the feelings of the jury, with nothing but a strong infusion of integrity to prevent it from becoming as much the bane of personal security as it was the bane of science.”[486] The early bar, however, regarded it much as a mother does a deformed child; they loved it, they doctored it and resented reflections upon its symmetry and efficiency.[487] Extravagant notions were at one time entertained as to the possibility of extending the system by the employment of long forgotten actions, such as the assize of nuisance,[488] and by widening the scope of the writ of _scire facias_.[489] As has been shown, more sensible counsel prevailed and limited chancery powers were extended to the courts by statute.

If the court of chancery had been excluded in the eighteenth century from our system of justice as the first step in a movement for the scientific reform of procedure, the result might have been far-reaching. But it was not. Political considerations dictated the change and the best legal opinion of the day was adverse to the innovation. Anglo-American jurisprudence was founded on the inherited conception of a dual system, law and equity, each with its distinct functions. The excision of equity crippled and paralysed the administration of justice. Having destroyed chancery forms, the next logical step should have been to abolish all distinctions between common law forms and substitute one simple method of proceeding, under which equity and law alike could be administered. But such a conception was in advance of the times. Instead, from time to time under the pressure of necessity, efforts were made to administer equitable principles through forms that even for their own legitimate purposes were fast becoming archaic. The result was to create a new series of technicalities requiring a glossary of their own. When chancery powers were conferred upon the courts, the fact that relief was given in common law forms might have presented an obstacle to the exercise of equity jurisdiction in many instances, had not the courts, by a liberal construction of the acts conferring such jurisdiction, insisted that it was not sufficient to oust the jurisdiction of equity that complainant had a remedy at law, unless that remedy was as complete, adequate, practical, efficient and convenient to the ends of justice as that in equity. Nevertheless there are cases where the distinction is still far from clear, a situation that would be ridiculous were it not so serious to prospective litigants.

Another disadvantage that attended the system was that the equities of the respective parties were to a large extent left to the chance decision of a jury, which is more likely to be guided by sympathy or prejudice than the law of the case, or, with the best intentions in the world, is an unsatisfactory tribunal for the determination of complicated questions of fact. No doubt this is one reason for the great number of references to arbitrators to be found on the early dockets.

It is true that for purely defensive purposes the system had decided advantages. It permitted a defendant to put in an equitable defense without resorting to another jurisdiction for relief. But on the offensive it broke down. The common law offered no adequate substitute for the bill for an injunction, to enforce specific performance of contracts, to reform or cancel instruments, to obtain a receiver, for the bill _quia timet_ and the bill of peace. Present social and commercial conditions tend to increase rather than diminish the importance of equity jurisdiction. Such matters as trade-marks, copyrights and patents; corporations, associations and trusts; trade disputes and interstate commerce, present problems that would seem almost incapable of solution except through chancery procedure, either in its original form or as assimilated by code practice, without a revolutionary reconstruction of the entire legal system.

Some reformation of our procedure belongs to the future. Of that we may be certain. It is impossible to imagine that our technical and complicated practice will not fall some day of its own weight and be replaced by a procedure clearer, simpler and more scientific. In that golden age, when the practice of law will be a pleasant diversion and the bringing of a suit the opening bar of a symphony, if one of our learned profession now living is permitted, as a shade, to revisit the scene of his earthly struggles, he will be able, perhaps, to recognize traces of equity procedure, but the common law actions will belong as completely to the past as himself, or, to put it more humanely, as the _actio sacramenti_ of the Roman or the weregeld of the Saxon.

FOOTNOTES:

[353] Parkes’s History of the High Court of Chancery.

[354] Maine’s Ancient Law, chapter 3.

[355] Courts of Chancery in the American Colonies, S. D. Wilson, American Law Review, Vol. XVIII, 226, reprinted in Select Essays in Anglo-American Legal History, Vol. II, 779; Story’s Miscellaneous Writings, 151. History of Equity in the American Colonies, E. B. Gager, in Two Centuries’ Growth of American Law, chapter 6.

[356] Charter and Laws of Pennsylvania, 35.

[357] Charter and Laws of Pennsylvania, 61.

[358] V Pennsylvania Archives (2d series), 697.

[359] Sussex County Records (Turner), 76.

[360] V Pennsylvania Archives (2d series), 679.

[361] VII Pennsylvania Archives (2d series), 799.

[362] Broadhead’s History of New York, Vol. II, 385, gives the date of the act as November 1, 1683. It appears in the laws of 1694 as of 1691. Compare preface to 1 Johnson’s Chancery Reports (N. Y.).

[363] New York Colonial Documents, Vol. IV, 882.

[364] IV New Jersey Archives, 70.

[365] New York Colonial Documents, Vol. V, 298.

[366] Sussex County Records (Turner), 97.

[367] I Colonial Records, 21, 4, 5 mo. 1683.

[368] I Colonial Records, 65, 14, 6 mo. 1684.

[369] I Colonial Records, 63, 20 4 mo. 1684.

[370] Charter and Laws of Pennsylvania, 167.

[371] I Colonial Records, 75, 3, 2 mo. 1685.

[372] Chester County Records, 3, 10 mo. 1686, quoted by Peter McCall in his address before the Law Academy, 21.

[373] I Colonial Records, 159, 12, 3 mo. 1687.

[374] I Votes of the Assembly, 41.

[375] Charter and Laws of Pennsylvania, 184. The assembly tried to strike out the word equity, I Votes of the Assembly, 57.

[376] Charter and Laws of Pennsylvania, 214, 225. See also Act of November 27, 1700, II Statutes at Large, 134.

[377] I Colonial Records, 161, 18, 3 mo. 1687; I Colonial Records 441, April 24, 1695; I Colonial Records, 442, May 25, 1695; I Colonial Records, 478, May 24, 1697.

[378] I Votes of the Assembly, 79.

[379] Charter and Laws of Pennsylvania, 100, re-enacted November 27, 1700; II Statutes at Large, 128.

[380] II Statutes at Large, 148. See Charter and Laws of Pennsylvania, 300.

[381] II Statutes at Large, 481.

[382] II Colonial Records, 115, 29, 11 mo. 1703-4.

[383] II Colonial Records, 164, 15, 7 mo. 1704.

[384] II Colonial Records, 189, 13, 2 mo. 1704-5.

[385] II Colonial Records, 263, 23, 7 mo. 1706.

[386] II Colonial Records, 266, 25, 7 mo. 1706.

[387] II Colonial Records, 280, 27, 9 mo. 1706.

[388] II Colonial Records, 282, November 28, 1706.

[389] II Colonial Records, 288, 2, 10 mo. 1706.

[390] II Colonial Records, 295, 23, 10 mo. 1706.

[391] Charter and Laws of Pennsylvania, 319. The remonstrance of the Assembly will be found in II Colonial Records, 362. March 4, 1706-7.

[392] IV Coke’s Institutes, 242; Pembrokeshire by Owen of Heullys (1603), Folio 74a, edition of 1892, page 155; History of Radnorshire by Rev. Jonathan Williams, 72; Archæologia Cambrensis, Vol. III (series 3), 29; Bacon’s Law Tracts, Jurisdiction of the Marches.

[393] I William and Mary, chapter 27.

[394] The court of great sessions was abolished by the act of I William IV, chapter 70; Stephen’s Commentaries on the Law of England (1st edition), Introduction, § 4.

[395] Abbot’s Jurisdiction and Practice of the Court of Great Sessions of Wales (1795), 94 and introduction, xxviii.

[396] Viner’s Abridgment, title, Wales, D., _Morgan_ v. ----, I Atkins’ Reports, 408 (1737); _Griffith_ v. _Joanes_, Choyce Cases in Chancery, 129 (1578); Prohibitions might issue from the King’s Bench directed to the Court of Great Sessions, _Vaughn_ v. _Evans_, 8 Modern Reports, 374 (1725), _Trantor_ v. _Duggan_, 12 Modern Reports, 138 (1698).

[397] February 28, 1710-11, II Statutes at Large, 301; Charter and Laws of Pennsylvania, 323.

[398] II Statutes at Large, 549, 1 Pennsylvania Archives (1st Series), 157.

[399] II Statutes at Large, 556; Charter and Laws of Pennsylvania, 351; The Assembly, as usual, protested against this ordinance, II Colonial Records, 599, August 4, 1714.

[400] II Votes of the Assembly, 161, 20, 11 mo. 1714-15.

[401] III Statutes at Large, 65.

[402] III Statutes at Large, 439, 464.

[403] Charter and Laws of Pennsylvania, 305; II Votes of the Assembly, 271; III Colonial Records, 84, June 8, 1720.

[404] III Colonial Records, 100, August 6, 1720.

[405] Charter and Laws of Pennsylvania, 386, II Votes of the Assembly, 274.

[406] II Statutes at Large, 298.

[407] Proud’s History of Pennsylvania, Vol. II, 200.

[408] The lecture was published by the Law Academy of Philadelphia in 1868 with the register as an appendix.

[409] Rawle’s Equity in Pennsylvania, 26.

[410] Rawle’s Equity in Pennsylvania, 38, appendix 23 (1728).

[411] 3 Swanston’s Reports, 604 (1674); _Blad’s Case_, 3 Swanston’s Reports, 603 (1673); _Denew_ v. _Stock_, 3 Swanston’s Reports, 662 (1677); _Rex_ v. _Carew_, 3 Swanston’s Reports, 699 (1682); Spence’s Equity, Vol. I, 703.

[412] _Ellis_ v. _Ellis_, Rawle’s Equity in Pennsylvania, appendix, 34.

[413] I Pennsylvania Archives (1st Series), 442.

[414] III Colonial Records, 281, February 2, 1726-7.

[415] Smith’s History of New York, Vol. II, 24.

[416] II Colonial Records, 56, 28, 8 mo. 1701.

[417] See particularly the Pennsylvania Mercury, December 18, 1735, and the Pennsylvania Gazette, December 24, 1735. Thomas Penn wrote to John Penn on January 14, 1735: “The late newspapers have been filled with arguments for and against the legality of the Court of Chancery and some people whisper that we intend to make use of that court to recover our arrears.” VII Pennsylvania Archives (2d Series), 166.

[418] III Colonial Records, 670, January 23, 1735-6.

[419] III Votes of the Assembly, 253.

[420] III Votes of the Assembly, 258-261.

[421] IV Colonial Records, 27, February 16, 1735-6.

[422] IV Colonial Records, 41, February 21, 1735-6. The case cited to support their view is _Stephney_ v. _Lloyd_, Croke’s Reports (Elizabeth), 647 (1598).

[423] Appendix to Wharton’s Edition of 1 Dallas’s Reports, 514.

[424] Penn MSS. quoted in Shepherd’s Proprietary Government in Pennsylvania, 395.

[425] Eulogy on Chief Justice Tilghman, 16 Sergeant & Rawle’s Reports, 448.

[426] IV Colonial Records, 37, February 19, 1735-6.

[427] III Statutes at Large, 472; VIII Pennsylvania Archives (2d Series), 69.

[428] Lamb’s History of New York, Vol. I, 536, Vol. II, 54.

[429] 1 Dallas’s Reports, 17 (1768).

[430] 1 Dallas’s Reports, 125 (1785).

[431] 1 Dallas’s Reports, 142 (1785).

[432] September 27, 1757, V Statutes at Large, 315.

[433] March 14, 1761, VI Statutes at Large, 100.

[434] March 21, 1772, VIII Statutes at Large, 245.

[435] March 21, 1772, VIII Statutes at Large, 254.

[436] May 20, 1767, VII Statutes at Large, 122. There is an interesting act of September 29, 1781, X Statutes at Large, 366, by which a title was confirmed to an equitable grantee who had failed to get a legal title, owing to the error of a conveyancer, but the commonwealth had a direct interest in the case because the legal title had, by the error referred to, become vested in an attainted traitor whose lands had been forfeited.

[437] VII Statutes at Large, 382. Supplied March 24, 1818. 7 Smith’s Laws of Pennsylvania, 131.

[438] Chapter II, section 24 of the Constitution of 1776, Proceedings of the Constitutional Conventions of 1776 and 1790, 61; Act of January 28, 1777, § 4; 1 Smith’s Laws of Pennsylvania, 427.

[439] 2 Smith’s Laws of Pennsylvania, 375. This act was limited to five years, but was revived and extended to the court of common pleas in 1793 and made perpetual by the act of February 16, 1866, P. L. 50.

[440] 2 Smith’s Laws of Pennsylvania, 500.

[441] Proceedings of the Constitutional Conventions of 1776 and 1790, 159, 301, 350, 354, 362, 364.

[442] Troubat and Haly’s Practice, chapter II.

[443] American Constitutions, 179.

[444] In _Taylor_ v. _Jolly_, Supreme Court of Pennsylvania, September Term, 1773, Docket 6, 365, there is a rule to take the depositions of a witness in New Jersey “before any magistrate there,” on three weeks’ notice.

[445] This practice as well as the whole subject of lunatics and habitual drunkards was soon afterwards regulated by the act of June 13, 1836, P. L. 592, and its supplements.

[446] Rawle’s Equity in Pennsylvania, 61.

[447] Laussat’s Equity in Pennsylvania (1826). This essay was prepared as a student’s dissertation for the Law Academy.

[448] Report of the Commissioners to Revise the Civil Code on the Administration of Justice, January 9, 1835.

[449] § 13, P. L. 784. Article V, § 3 of the Constitution of 1874 deprived the Supreme Court of original jurisdiction in Equity, except in cases of injunction where a corporation was a party defendant. The district court was abolished.

[450] Act of February 14, 1857, P. L. 89.

[451] Acts of June 13, 1840, § 39, P. L. 671, April 16, 1845, § 3, P. L. 542.

[452] Act of April 10, 1845, § 4, P. L. 449.

[453] Act of March 17, 1845, § 3, P. L. 158, made general by the Act of July 7, 1885, § 1, P. L. 257.

[454] _Ashurst_ v. _Iron Company_, 35 Pennsylvania Reports, 30 (1860). Act of April 11, 1862, P. L. 477; Act of May 5, 1876, P. L. 123.

[455] Act of April 26, 1855, P. L. 331.

[456] _Chester Traction Co._ v. _Philadelphia W. & B. R. Co._, 180 Pennsylvania Reports, 432 (1897).

[457] June 7, 1907, P. L. 440; _Naomi Coal Co._ v. _Moore_, 18 Pennsylvania District Reports, 616 (1908); _Harton_ v. _Hildebrand_, 57 Pittsburg Legal Journal, 129 (1909); _Kingston Coal Co._ v. _Coal Company_, 14 Luzerne Legal Register, 267 (1909).

[458] Troubat and Haly’s Practice (edition of 1837), 55.

[459] 1 Yeates’s Reports, 2 (1791).

[460] _Read_ v. _Brookman_, 3 Term Reports (1789), where it was held by a majority of the court that a deed might be pleaded as lost without a _profert_.

[461] _Pidcock_ v. _Bye_, 3 Rawle’s Reports, 183 (1831) at page 195.

[462] See the cases collected in Pepper and Lewis’s Digest of Decisions, Vol. II, col. 1632.

[463] _Haldane_ v. _Fisher_, 1 Yeates’s Reports, 121 (1792).

[464] 17 Sergeant & Rawle’s Reports, 298 (1828).

[465] _Jordan_ v. _Cooper_, 3 Sergeant & Rawle’s Reports, 564 (1818). For an action of debt see _Huber_ v. _Burke_, 11 Sergeant & Rawle’s Reports, 238 (1824).

[466] _Weaver_ v. _Lawrence_, 1 Dallas’s Reports, 156 (1785).

[467] 2 Sergeant & Rawle’s Reports, 461 (1816).

[468] 16 Sergeant & Rawle’s Reports, 269 (1827).

[469] Laussat’s Equity in Pennsylvania, Troubat and Haly’s Practice, chapter on Ejectment.

[470] _Mitchell_ v. _De Roche_, 1 Yeates’s Reports, 12 (1791).

[471] _Hawn_ v. _Norris_, 4 Binney’s Reports, 77 (1811).

[472] The Pennsylvania Statute of Frauds, Act of March 21, 1772, 1 Smith’s Laws of Pennsylvania, 389, omitted the fourth section of the Act of 29, Charles II, chapter 3, making it possible to bring an action for damages for breach of parol contracts relating to land. _Wilson_ v. _Clarke_, 1 Watts & Sergeant’s Reports, 554 (1841). Lewis’s Cases on Specific Performance, 128. Pepper and Lewis’s Digest of Decisions, Vol. 20, col. 34592.

[473] _McCullum_ v. _Coxe_, 1 Dallas’s Reports, 150 (1785). _Wheeler_ v. _Hughes_, 1 Dallas’s Reports, 23 (1776).

[474] Rawle’s Equity in Pennsylvania, 63.

[475] Laussat’s Equity in Pennsylvania, 66. Of the second class of cases, _Pollard_ v. _Shaffer_, 1 Dallas’s Reports, 210 (1787), is an example.

[476] 1 Dallas’s Reports, 17 (1768).

[477] _Mackey_ v. _Brownfield_, 13 Sergeant & Rawle’s Reports, 240 (1825).

[478] Rule of Supreme Court of Pennsylvania, April 10, 1775, Docket No. 7, page 291. Section 7 of the procedure act of May 25, 1887, P. L. 271, provides: “The pleadings in all courts to be subject to the rules of the respective courts as to notice of special matter.”

[479] _Lewis_ v. _Morgan_, 11 Sergeant & Rawle’s Reports, 234 (1823). Compare _Hollingsworth_ v. _Ogle_, 1 Dallas’s Reports, 257 (1788).

[480] Pepper and Lewis’s Digest of Decisions, Vol. 16, col. 27376.

[481] _Dunlap_ v. _Miles_, 4 Yeates’s Reports, 366 (1807).

[482] _Bender_ v. _Fromberger_, 4 Dallas’s Reports, 436 (1806).

[483] Act of April 13, 1807, 4 Smith’s Laws of Pennsylvania, 476.

[484] _McCutchen_ v. _Nigh_, 10 Sergeant & Rawle’s Reports, 344 (1823).

[485] _Clyde_ v. _Clyde_, 1 Yeates’s Reports, 92 (1791); _Decamp_ v. _Feay_, 5 Sergeant & Rawle’s Reports, 323; _Moyer_ v. _Germantown Railroad Co._, 3 Watts & Sergeant’s Reports, 91 (1841).

[486] Eulogy on Chief Justice Tilghman, 16 Sergeant & Rawle’s Reports, 448; _Gochenauer_ v. _Cooker_, 8 Sergeant & Rawle’s Reports, 187 (1822), Gibson, J., at page 192.

[487] Opinion of Chief Justice Black in _Finley_ v. _Aitken_, 1 Grant’s Reports (Pa.), 83 (1854), at page 95.

[488] _Livezey_ v. _Gorgas_, 2 Binney’s Reports, 192 (1809). The record of the trial will be found in Brackenridge’s Law Miscellanies, 438. See also _Barnet_ v. _Ihrie_, 17 Sergeant & Rawle’s Reports, 174 (1828).

[489] Laussat’s Equity in Pennsylvania, 136.