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Law Faculty Publications School of Law

2001

Cases Concerning Equity and the Courts of Equity

1550-1660
William Hamilton Bryson
University of Richmond, [email protected]

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Cases Concerning Equity and the Courts of Equity 1550-1660 (William Hamilton Bryson, ed. 2001).

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Law

K.G.

VOLUME I

A.
le.

EDITED FOR
THE SELDEN SOCIETY
y,
BY

H. BRYSON
F.B.A.
Professor of Law, University of Richmond;
Member, Virginia State Bar

ORR)

l 4NS)

3053)
:tary)
I
LONDON
SELDEN SOCIETY
2001
 VOLU

Pre fa
Table
© Selden Society 2001

A.
Printed on acid-free paper
B.'

ISBN 085423 000 0

2
3
4
5
c. ~

c~

Typeset and printed at Alden Press Limited

Oxford and Northampton, Great Britain
 INT UCTI N

A. SCOPE

This volume of previously unpublished equity reports in the period 1550-1660

includes cases of substantive equity prosecuted by English bill procedure, cases
that explain the jurisdiction, procedures, and practices of the courts of equity in
England, and a few cases from the courts of common law that touch on and
consider the jurisdiction of the courts. Also included are cases in the
equity courts that involve equitable remedies needed to protect common law
rights. Frequently the equity judge had to determine a common law right
before an equitable remedy could be granted.
The following classes of cases have not been included: cases from the
side of the Court of Chancery (for example, traverse of office, scire facias rela-
tive to patents, and monstrans de droit) and cases from the plea side and the rev-
enue side of the Court of Exchequer. The Court of Star Chamber and the Court
of Wards and Liveries used English bill (equity) procedure, but since their sub-
stantive jurisdictions concerned common law rights and duties, cases from these
courts have not been included.
I have included all the unpublished cases that I could identify as equity cases
from all the manuscripts of reports that I could find within the period, with the
exception of two manuscript books of John Lisle, lord commissioner of the
great seal from 1649 to 1659, 1 which are currently being edited elsewhere. As
most of the manuscripts have a few equity reports interspersed within a large
quantity of common law reports, to find the equity ones has been as much a
matter of chance as anything else. Certainly, some equity reports have been
missed, and therefore what is printed here is a selection consisting of all that
I could identify and not a complete corpus.
This book includes reports of the judges' opinions but not orders and decrees.
The formal written orders and decrees were drafted by the attorneys for the par-
ties not by the judges, and thus they do not often give the reasons for the deci-
sion, 2 and although orders and decrees may give additional information about a
1 University of Kansas Library MS. D87; LI MS. Misc. 576. These manuscripts are described in
A. J. Busch, 'The John Lisle Chancery Manuscripts: The "Abridgements"' (1989), 10 Journal of
Legal History, 317-326, and A. J. Busch, 'The John Lisle Chancery Manuscripts: The "Pleas and
Demurrers"' (1989), 10 Journal of Legal History, 327-342.
2 Numerous Chancery decrees and orders have been published in C. Monro, Acta Cancellariae
(1847), which covers the period 1545 to 1625, and in J. Ritchie, Reports of Cases Decided by Francis
Bacon (1932), which covers the period 1617 to 1621. Numerous Exchequer decrees have been pub-
lished in H. Wood, A Collection of Decrees by the Court of Exchequer in Tithe Causes (1798), which
covers the period 1650 to 1798.
XIV CASES CONCERNING EQUITY

case, those corresponding to a report cannot always be confidently identified, Tot

and where they can be identified they are often so bulky that it is impractical l
to print them. The exception to this rule of exclusion is Venables' Case (Ex. Nel
1608)3 because it is very well known and often cited, but no report has been Hai
found of it. Also, one of the orders in Fenton v. Blomer (Ch. 1580)4 provides Leo
an early illustration of an important principle of equity practice. Lan
A fortiori, cases in collections of extracts from records have not been Co1
included. The exception to this rule is No. 165. 5 The reason for this exception Die
is to publish here this collection of cases illustrating the power of equity
courts to grant injunctions after final judgments at common law. These cases
balance the numerous cases that were included in BL MS. Lansdowne 1110,
ff. l-33v, on the subject of writs of prohibition directed to courts of equity
from common law courts. In addition, at the beginning of the volume are tran-
scripts of some of the earliest equity records to have survived from the Court of 1. Ge~
Exchequer. These give additional examples in print of equity pleadings and jur-
isdiction, and also aid in dating the evolution of the equity side of the Exchequer Them
to the last years of the reign of Henry VIII. script
Copies of reports that are now in print, and extracts from them, have not been comm
used. The exception to this rule is the celebrated Case of the Impropriators (Ex. numb(
1633), 6 which was printed some time ago in a bqok that is now out of print. 7 The script
editor was baffied by some of the legal references; furthermore, this case fits in Bench
here along with the other equity reports of the period. nard,
Commonplace books and abridgments have not been used. At some point am on!
notes of cases, such as Tothill's Reports, become too brief to be valuable, but books
doubts have been resolved in favour of Richard Powle's collection and of sev- be fou
eral others, 8 which are printed as a whole rather than dispersed chronologically. the sec
The equity reports printed here for the first time expand considerably the bulk uses' i:
heretofore in print for this period. 9 Only the following printed sources, includ-
ing both reports stricto sensu and collections of extracts or notes from the
record, contain more than a few equity cases before 1660: 10 2. Rici
Cary, 402 short cases from 1557 to 1604
Choyce Cases in Chancery, 253 short cases from 1557 to 1606 Riehm
Reports in Chancery, 133 cases from 1615 to 1659 of Eli2
being.
3
registe
No. 144.
4
No. 24. of Ch
5 BL MS. Add. 48097, ff. 6lv-66. have t
6 No. 379.
7 I.M. Calder, Activities of the Puritan Faction of the Church of England 1625-1633 (1957), pp.
togeth
105-124.
8 No. 117 to No. 120. No. 118 starts off as an index or digest and then almost imperceptibly turns

into reports similar in character to Powle's reports. These four collections and Tothill's are similar in
11
Rei
format; they copy from each other and, no doubt, from other reports, digests, commonplace books,
and indexes. 12 T. l
9 W. H. Bryson, 'Law Reports in England from 1603 to 1660' in C. Stebbings ed., Law Reporting ofChani
13 OxJ
in Britain (1995), pp. 113-122.
10 For Chancery reporting before the 1660s see M. Macnair, 'The Nature and Function of the Baker, 1
Early Chancery Reports' in C. Stebbings ed., Law Reporting in Britain (1995), p. 123. 14No
 INTRODUCTION xv

itified, Tothill, approximately 125 short cases from 1559 to 1646 interspersed in what
actical is essentially an index
·e (Ex. Nelson, 47 cases from 1625 to 1659
s been Hardres, 40 cases from 1655 to 1660
ovides Leonard, 13 cases from 1588 to 1590
Lane, 12 cases from 1609 to 1611
: been Coke, 10 cases from 1598 to 1613
eption Dickens, 7 cases from 1559 to 1637
equity
~ cases

1110,
equity B. THE MANUSCRIPT REPORTS
e tran-
)urt of 1. General reports
ad jur-
b.equer The majority of the reports printed in this volume were transcribed from manu-
script books that include cases from all courts but in which the vast majority are
)t been common law cases. Despite the large and significant addition here to the
rs (Ex. number of printed equity cases, the vast majority of as yet unprinted manu-
t. 7 The script reports are from the common law courts of Common Pleas and King's
: fits in Bench. This is true also of the printed reports from this period: Coke, Leo-
nard, Moore, Lane, and Savile have only a few equity cases interspersed
~point among the large quantity of common law cases. It is to be noted that the year-
fo, but books occasionally report cases concerning equity, thus some equity cases may
of sev- be found in the section entitled 'Sub pena' in Fitzherbert's Abridgement, and in
~ically. the sections entitled 'Conscience & subpena & injunctions' and 'Feffements al
ie bulk uses' in Brooke's Abridgement.,,
[nclud-
)m the
2. Richard Pow/e's reports

Richard Powle was a deputy register of the Court of Chancery during the time
of Elizabeth I. He was a member of Clement's Inn and then of Lincoln's Inn,
being admitted to the latter on 26 February 1577. 11 He was acting as deputy
register as early as 1578, 12 and was reporting cases as late as 1600. His notes
of Chancery cases 13 are the earliest collection of equity reports known to
have been made. Because each case is so short, they have been printed here
together as a collection. 14
~57), pp.

bly turns
:imilarin
:e books,
11 Records of the Hon. Society of Lincoln's Inn, I (1896), 85: sub nom. 'Richard Powell'.
12 T. D. Hardy, Catalogue of Lords Chancellors (1843), p. 120; W. J. Jones, The Elizabethan Court
ieporting of Chancery (1967), p. 145, n. 3; see also Powle's Case (C.P. 1581), No. 26.
13 Oxf. Bodi. MS. Rawl.C.647; L. W. Abbott, Law Reporting in England (1973), p. 303; J. H.

m of the Baker, English Legal Manuscripts, II (1978), 170.

14 No. 117.
XVl CASES CONCERNING EQUITY

Powle's reports are similar in format and date to Cary's reports, which are 5. Ro
only extracts from the decree books, and to Choyce Cases in Chancery. The
Bodleian manuscript of Powle's reports is a fair copy; this is shown by the repe- Robe
tition of the cases from Trinity term, 37 Elizabeth I (1595), No. 117-[187] to No. Hern
117-[191] as No. 117-[192] to No. 117-[196]. admi1
the cl
Jue
3. Chancery cases from the time of Ellesmere appe<
Widd
Two collections of cases from the Court of Chancery during the wortl
15
judicial tenure of Thomas Egerton, Lord Ellesmere, are here printed. Both Widd
of these collections contain a large quantity of short notes of opinions by Eger- Com1
ton. They are both in the same format and style, but the handwriting is not the Widd
same. Only a small number of cases are found in both collections, and this leads both
to the conclusion that both are copies from a larger collection that has not yet Gray'
been located. Because of the relative brevity of each note, they are presented Thi
here as collections, rather than interspersed chronologically among the other manu
reports of the same dates. The reporter was a barrister and apparently was in The r
court and making notes of opinions that were being delivered orally from the tree's
bench; he obviously enjoyed Egerton's sarcastic sense of humour. wortl
Mack
4. Arthur Tumour's reports 146,
were
Arthur Tumour's reports cover all of the high courts of England during the to Tit
reigns of James I and Charles I. Of the several manuscript books, BL MS. Har- 20 J.
grave 30 is particularly valuable in that it contains a significant number of equity Cant ab
cases from the Court of Exchequer. 16 C. E. v
21 T.
Arthur Tumour entered Christ's College, Cambridge, in July 1603. He then on 14 I
went to New was admitted to the Middle Temple on 22 January 1606, Regist<
and was called to the bar in 1613. He was made a bencher in 1633, and gave part 1,
Payne!:
a reading on jointures in the following year. 17 In January 1637 he was created 22 w
18
a serjeant. He died on 1 1651 and was buried in the Temple Church. Allestri
His son, Sir Edward Tumour (1617-1676), was lord chief baron of the Exche- lated ai
tabrigi<
quer from 1671 to 1676. 19 Mack"
23 M

15 CUL MS. Gg.2.31, ff. 437-479v (No. 119), and Herts. R.O. MS. Verulam XII.A.SO, ff. 59-76 Queem
(1924),
(No. 120). 24 M
16 Other Tumour manuscripts are HLS MS. 106, HLS MS. 109, CUL MS. Dd.5.Sl(i), ff. 64-64v,
and LI MS. Misc. 491; see J. H. Baker, English Legal Manuscripts, I (1975), 11, 13-15, II (1978), 113; (1978),
2s M
J. H. Baker, English Legal Manuscripts in the United States, II (1990), 101; W.R. Prest, The Rise of
Lansd.
the Barristers (1986), p. 398. 26 J.
17 J. H. Baker, English Legal Manuscripts in the United States, II (1990), 106, 107.
18 J. Peile, Biographical Register of Christ's College, I (1910), 244; J. H. Baker, The Order of Ser- Admiss
27 J.
jeants at Law (1984), pp. 186, 376, 541; J. H. Baker, 'The Dark Age of English Legal History, 1500-
1700' in The Legal Profession and the Common Law (1986), p. 445; H. A. C. Sturgess, Register of the Cor
Admissions to the Hon. Society of the Middle Temple, I (1949), 85; J. Venn and J. A. Venn, bridge
Alumni Cantabrigienses, part 1, IV (1927), 273; W.R. Prest, The Rise of the Barristers (1986), p. 398. 2s N'
19 D.N.B.; E. Foss, Judges of England, VII (1864), 177-179. Report1
 INTRODUCTION

ich are 5. Robert Payne/l's Exchequer reports

'Y· The
te repe- Robert Paynell was the son of Paynell, Esquire, of Belaugh in Norfolk.
l to No. He matriculated at Christ's College, Cambridge, in December 1617, and was
admitted to Gray's Inn on 2 June 1619. He died in 1658 and was buried in
the church of St. John the Baptist in Norwich. 20
Judging from the bibliographical evidence of surviving manuscript reports, it
appears that in the early years of the reign of Charles I, Robert Thomas
21 William or George Allestree, 22 and Humphrey Mack-
·ing the worth23 entered into a reporting venture. Paynell covered the Exchequer,
15 Both 24 and Allestree and Mackworth the Court of
Widdrington the King's
'Y Eger- 25
Common Pleas. They must have known each other very well. and
not the Widdrington both matriculated at Christ's College, Cambridge, in 1617, and
tis leads both were admitted to Gray's Inn in 1619. Mackworth was admitted to
not yet Gray's Inn in 1621, William Allestree in 1618, and George Allestree in 1623. 26
·esented There are numerous manuscript copies of these reports; there are in fact more
te other manuscript copies of Paynell's reports than of any other Exchequer collection.
r was in The reports commonly attributed to Winch are only an abbreviation of Alles-
rom the tree's reports; those called Hetley's Reports are probably a part of Mack-
worth's reports. 27 Littleton's Reports include some cases taken from
Mackworth, and one term of Paynell's reports is also printed in Littleton 85-
124 English Reports 149-179. 28 Some cases from Widdrington's reports
were printed many years later in F. K. Eagle and E. Younge, Cases Relating
ring the to Tithes (1826).
CS. Har- 20 J. Peile, Biographical Register of Christ's College, I (1910), 321; J. Venn and J. A. Venn, Alumni
)f equity Cantabrigienses, part 1, HI (1924), 324; J. Foster, Register of Admissions to Gray's Inn (1889), p. 154;
C. E. Wright, Fontes Harleiani (1972),"p. 271.
21 T. Widdrington was admitted to Christ's College, Cambridge, in April 1617 and to Gray's Inn
He then on 14 February 1619. J. Peile, Biographical Register of Christ's College, I (1910), 313-314; J. Foster,
ry 1606, Register of Admissions to Gray's Inn (1889), p. 153; J. Venn and J. A. Venn, Alumni Cantabrigienses,
.nd gave part 1, IV (1927), 401; D.N.B.; E. Foss, Judges of England, VI (1857), 513-518. Widdrington and
Paynell must have known each other very well.
: created 22 William Allestree was admitted to Gray's Inn on 16 November 1618 (Foster, p. 152); George
hurch. 18 Allestree was admitted to Gray's Inn on 7 August 1623 (Foster, p. 170); William Allestree matricu-
~ Exche- lated at St. John's College, Cambridge, in the Lent term 1619: J. Venn and J. A. Venn, Alumni Can-
tabrigienses, part 1, I (1922), 21. BL MS. Hargr. 362 contains the reports of Allestree and
Mackworth; BL MS. Lansd. 1091 contains the reports of Allestree.
23 Mackworth was admitted to Gray's Inn on 24 October 1621 (Foster, p. 164); he matriculated at

), ff. 59-76 Queens' College, Cambridge, in 1619 (J. Venn and J. A. Venn, Alumni Cantabrigienses, part 1, HI
(1924), 124); R. Spalding, Contemporaries of Bu/strode Whitelocke (1990), p. 183.
24 Manuscripts of Widdrington's reports are listed in J. H. Baker, English Legal Manuscripts, II
ff. 64-64v,
1978), 113; (1978), 85.
25 Mackworth's reports are found in BL MS. Hargr. 362, ff. 94-217; BL MS. Add. 35962; BL MS.
The Rise of
Lansd. 1085; CUL MS. Mm.6.67; CUL MS. Dd.3.46; CUL MS. Ii.5.35.
26 J. Peile, Biographical Register of Christ's College, I (1910), 313-314, 321; J. Foster, Register of

·der of Ser- Admissions to Gray's Inn (1889), pp. 152, 153, 154, 164, 170.
27 J. H. Baker, 'The Dark Age of English Legal History, 1500-1700' in The Legal Profession and
ory, 1500-
Register of the Common Law (1986), p. 453, n. 95. J.H. Baker, A Catalogue of English Legal Manuscripts in Cam-
A. Venn, bridge University Library (1996), pp. 13-14.
28 Note the comments of Edward Umfreville in BL MS. Hargr. 362, fo. 3v; J. W. Wallace, The
86), p. 398.
Reporters Arranged and Characterized (4th ed. 1882), pp. 261-262 (re Allestree).
xviii CASES CONCERNING EQUITY

The reports of Paynell and Mackworth are interspersed by term in BL MS. 1. 0,

Additional 35962. Those of Paynell and Widdrington are interspersed by
term in BL MS. Additional 35961 and BL MS. Lansdowne 1083, the manu- The
scripts identifying the reporters responsible for them. pen(
My opinion that these four members of Gray's Inn were acting in concert and the r
for a wider circulation than themselves is based on several grounds. Many of the the 1
manuscripts attribute the reports to a specific person; the reports are inter- king
spersed by term in several manuscripts; 29 there is no overlapping of cases or bers,
competition; 30 a comparatively large number of copies of these reports have sur- that
vived considering the few reports from the reign of Charles I. It is also interest- thro1
ing to note that on the title page of 'Hetley' in 1657, the reporter was said to cent1
have been Sir Thomas Hetley (d. 1637), one of the two official law reporters king
appointed in 1617 upon the initiative of Sir Francis Bacon (d. 1626). Hetley for!:
was described as a reporter in 1623, though the printed reports ascribed to Tl
him were probably made by Humphrey Mackworth. The other official reporter befo
appointed in 1617 was Edward Writington. Hetley, Writington, and Bacon were c1es <
all members of Gray's Inn. 31 Perhaps further research will show that Paynell, in tl
Mackworth, Widdrington, and Allestree were the successors, officially or other- aggr
wise, of Hetley and Writington. Com
The best exemplars of Paynell's reports are BL MS. Additional 35961 (Trinity The
term 1627 to Hilary term 1629) and BL MS. H~rley 4816, ff. 8-26v (Easter term cell a
1629 to Hilary term 1631 ). Less accurate copies are to be found in the following refer
books: CUL MS. Ii. 5.22; BL MS. Add. 35962; BL MS. Add. 25193, ff. 79-93; cam~

BL MS. Add. 11764, ff. 120-214; BL MS. Hargr. · BL MS. Lansd. 1083; LI first
MS. Maynard 21, ff. 367-402; Exeter Coll. Oxf. MS. 179, ff. 1-96; Exeter Coll. it. 36 '
Oxf. MS. 179, ff. 1-96; HLS MS. 5051; Free Library, Philadelphia, MS. LC vate
14.62, ff. 163-280; YLS MS. G.R. 29.3, ff. 404-421 [8 cases only]; YLS MS. Ee
G.R. 29.23, ff. 254-272 [2 cases only]; BL MS. Add. 36081, ff. 78-84 [4 cases COIDJ
only]. law<
Tl
teen1
C. EQUITY 34 s
130-1
'Equity is that body of rules which is administered only by those courts which Barto
Syste1
are known as courts of equity'. 32 This circular definition is admittedly unsatis- (1974;
factory, but it is the best that I can find and certainly better than any that I can 1936),
create. 'The life of the law has not been logic; it has been experience'. 33 (1913;
Soc., J
Cornn
35 I
29 Umfreville noted that they 'united their collections'. BL MS. Hargr. 362, fo. 3v. cers a·
30 Turner speculated that Paynell and Widdrington 'may have arranged not to compete with one and la
another, and to make their notes in different courts'. G. J. Turner ed., Year Books of 4 Edward II 36 I
(1310-1311) (1914), 26 Selden Soc., p. xxii. Court
31 J. H. Baker, 'The Dark Age of English Legal History, 1500-1700' in The Legal Profession and terly I
the Common Law (1986), pp. 453-454; Turner, Year Books, pp. xix-xxiii. the 101
32 F. W. Maitland, Equity: A Course of Lectures (2nd ed. 1936), p. l. ciary:
33 0. W. Holmes, Jr., The Common Law (1881), p. l. appro
 INTRODUCTION XlX

LMS. 1. Origin of the jurisdiction

;ed by
manu- The English procedures and doctrines that are called equity evolved during the
period of roughly 1350 to 1450. It was a process of evolution that occurred as
~rt and the royal chancery became a court of law. (The chancery, of course, remained
'of the the royal secretariat also.) It occurred as of the legal jurisdiction of the
inter- king's Council (curia regis) was regularly delegated to one of its ex officio mem-
1ses or bers, the lord chancellor. As the delegation or referral of that class of litigation
ve sur- that was later called equity became routine, the chancellor began to handle it
tterest- through the Chancery rather than the Council. The Chancery by the fourteenth
mid to century was an elaborate and well-established bureaucracy compared to the
)Orters king's Council, and the chancellor found in the Chancery the clerical support
Hetley for his new legal jurisdiction that was lacking in the curia regis. 34
bed to The substantive doctrines of equity began to evolve in the king's Council
:porter before the rise of the Court of Chancery. The origins of equity were the deficien-
,n were cies of the English common law and its administration by the established courts
aynell, in the fourteenth century. These various and miscellaneous deficiencies led
other- aggrieved persons to address petitions for relief to the king or to the king's
Council; the crown was the ultimate and the residual administrator of justice.
Trinity The petitions praying for civil, as opposed to political, 35 relief created the mis-
~r term cellaneous generalizations known as equity. These equity cases were usually
lowing referred to the chancellor, and as this process became routine the petitions
79-93; came to be addressed to the chancellor alone. What the chancellor heard at
l83; LI first as a member of the king's Council, he came to decide independently of
:r Coll. it. 36 There was no desire on the part of the curia regis or the king to settle pri-
[S. LC vate disputes that did not concern the kingdom or themselves.
,S MS. Equity thus came into existence in order to supplement and complement the
i cases common law. The necessity for this process was the evolution of the common
law and its administration into a posture of inflexibility.
The reasons for the increasing inflexibility of the common law in the late thir-
teenth and in the fourteenth centuries were several. In 1258, the Provisions of
34 See generally R. C. Palmer, English Law in the Age of the Black Death, 1348-1381 (1993), pp.
130-132; J. H. Baker, An Introduction to English Legal History (3rd ed. 1990), pp. 112-134; J.L.
which Barton, 'Equity in the Medieval Common Law' in R.A. Newman ed., Equity in the World's Legal
Systems (1973), p. 139; T.F.T. Plucknett and J.L. Barton eds., St German's Doctor and Student
nsatis- (1974), 91 Selden Soc., pp. xxxix-xliv; F. W. Maitland, Equity: A Course of Lectures (2nd ed .
.t I can 1936), chaps. 1 and 2; J. F. Baldwin, The King's Council in England During the Middle Ages
(1913), pp. 236-255; W. P. Baildon ed., Select Cases in Chancery, 1364-1471 (1896), 10 Selden
Soc., pp. xi-xlv; C. Robinson, History of the High Court of Chancery, I (1882), 734-743; J. Story,
Commentaries on Equity Jurisprudence, I (1836), ss. 38-52.
35 E.g. maladministration oflocal officials, rebellions, riots, intimidation of royal judges and offi-
cers and of juries. These matters remained within the jurisdiction and control of the king's Council
with one and later within the Privy Council and the Court of Star Chamber.
dward II 36 It has also been argued that equity in the Court of Chancery grew out of the Latin side of the
Court of Chancery. A. D. Hargreaves, 'Equity and the Latin Side of Chancery' (1952), 68 Law Quar-
>sion and terly Review 481-499. Professor Milsom traces the origin of the Court of Chancery to the position of
the lord chancellor as the head of the office that issued writs and generally supervised the royal judi-
ciary: S. F. C. Milsom, Historical Foundations of the Common Law (2nd ed. 1981), pp. 82-84. These
approaches are more matters of emphasis than fundamental disagreement.
xx CASES CONCERNING EQUITY

Oxford 37 forbade the issuance of new and writs. 38 The accession very
of Henry II in 154, one hundred years had marked the of the knm
serious growth of the royal courts of justice as a result, of a law that was one1
common to all of England. In this hundred year the common law ever
came into being. This was the law that Bracton expounded. In order to meet that
and cure the problems of society, it must have been flexible and creative. It exist
must have been administered in a flexible and imaginative way. to the<
grant new types of writs and new remedies is to new substantive rights; accu
to recognize new rights is to change the existing law; for the minor Chancery <lulu
clerks, officers of the king, to issue new writs that were allowed the will 1
courts was to encroach upon the rights of the people. Thus the led by cent1
Simon de Montfort, an end to this exercise of legislative power the Tl
royal Chancery. Henry III was released from his oath39 to abide by reco:
the Provisions of Oxford and this document was not of the legislative bure
canon, the Chancery did cease issuing new classes of writs. 40 r
The rise of as a legislative body during the reign of Edward I land
(1272-1307) was, perhaps, another brake upon the of the common actic
law. Where the courts of common law new rights and remedies, Onct
infringe on the function of to legislate. 41 Only the entire theI
of the kingdom through their representative.~ assembled in can cede
change the law that governs all. omnes tangit, ab omnibus debet suppor- Tl
tari. Law reform may have been in principle the function of how- wha1
ever, the parliaments of the Middle Ages were not up to the task. Parliament give
met only when it was called into session the and the king did this the :
only on an basis; the usual motivation was to have a vote for taxa- whet
tion. Law reform the legislature was rare and clumsy until the time of cour
Henry VIII and Thomas Cromwell. parliament in the fifteenth whic
did not do enough to the obvious defects of the common law of Eng- fort
land.
Perhaps the inflexibility of the common law grew within the system itself. The take1
from
37 'And that he [the chancellor] seal nothing out of course by the sole will of the king. But that he

do it by the council which shall be around the king'. W. Stubbs, Select Charters (9th ed. 1921), pp. men1
378-389. 'That he will seal no writ, except routine writs, without orders from the king and those of dent:
his council who shall be in attendance'. R. F. Treharne and I. J. Sanders, Documents of the Baronial it CaJ
Movement of Reform and Rebellion, 1258-1267 (1973), p. 103.
38 On the other hand, it can be argued that this prohibition does not refer to original writs in
respect to private litigation but to royal decrees or fiats of a political nature. The main purpose of Whe
the Provisions of Oxford was to put the king under the control of the baronial party, i.e. Simon
de Montfort and his followers. Cf. R. F. Treharne, The Baronial Plan of Reform, 1258-1263
(1932), p. 93. in th
39 W. H. Bryson, 'Papal Releases from Royal Oaths' (1971) 22 Journal of Ecclesiastical History In
19, 28-29.
40 J. H. Baker, An Introduction to English Legal History (3rd ed. 1990), p. 66; J. F. Baldwin, The
King's Council in England During the Middle Ages (1913), p. 238. Perhaps there was an overreaction com1
in the Chancery, which prompted the section 'in consimili casu' of the Statute of Westminster II
(1285), Stat. 13 Edw. I, c. 24 (SR, I, 83-84).
41 F. Pollock and F. W. Maitland, The History of English Law, I (2nd ed. 1968), p. 196; W. S. 42 F

Holdsworth, The History of English Law, I (7th ed. 1956), 398. fessi01
 INTRODUCTION XXl

ess1on very nature of law is that it is known and that one can upon it. If it is not
of the before it is then it is not law. If it is known but not enforced, then
at was one cannot and there is no rnle oflaw but a rnle the whim of who-
>n law ever is the everyone must agree that a sense of justice demands
l meet that like cases be decided in like ways. one of the law is the
ive. It existence of The creation of the English common law from
rer, to the accession of II in 154 to the Provisions of Oxford in 1258 was an
At some there is enough, and if the pen-
mcery back in the direction of stare decisis, then the authority
uan..uni=. nor can one upon it. The conservatism of the fourteenth
: royal
led was a mechanism of the of the
the This conservatism was put into effect the of the growth of court
ide by records and the rise of the legal profession in the thirteenth century. 42 The
slative of that of the common law courts, began keep-
the reign of Richard I, who was absent from Eng-
¥ard I His officers had to records to defend their
mm on actions when and if he returned to England and brought them to account.
;, they Once were begun, bureaucratic inertia them going. the time of
the Provisions of Oxford, there was a large and substantial body of written pre-
1t can cedent in the English legal archives.
uppor- There is a natural in the profession to legal conservatism and
; how- what is sometimes called formalism. The legal counsellor is called upon to
ament give advice as to what the law is and how it will be administered by the courts if
id this the situation deteriorates to the of litigation. Therefore, the lawyer,
· taxa- whether the or the defendant, is going to argue to the
me of court that his client should win because of the settled principles of the law
which the court cannot change because of personal or social sympathy
for the other side. Justice does not always require that the poorer or weaker
should Where a in court shows that his actions were
lf. The taken in reliance on the common law as demonstrated by certified copies
from the records of the same the judges cannot easily rule against him;
of course, that itself becomes a precedent for some future argu-
t that he
121), pp. ment. And so it goes until the courts are totally boxed in by their own prece-
those of dents and the of the law stops. Judicial restraint is a good thing, but
Baronial for there is no such thing as a general rule (or a sta-
writs in avoided or perverted by persons with evil intentions.
rpose of When the doctrines of precedent and stare decisis get to the point of creating
:. Simon injustice, then the will start to swing back in the direction of justice
58-1263
in the individual case.
History In the fourteenth century, the rigidity of the common law and its courts was
for reform and moderation, but it not within the courts of
;vin, The
reaction common law themselves, but in the new Court of Chancery. There
inster II
42 For the rise of the English legal profession see P. Brand, The Origins of the English Legal Pro-
6; W. S.
fession ( 1992).
xxn CASES CONCERNING EQUITY

were jurisdictional, procedural, and substantive problems with which the courts The,
of common law were unable to cope. The king's Council had to step into the plain
breach, but soon these matters devolved upon the new Court of Chancery. recm
Most of the deficiencies of the medieval common law were procedural. How- the c
ever, considering the particularistic nature of the writ system and the unplanned for a
growth of the forms of action, this should not be surprising. 'So great is the deale
ascendancy of the law of actions in the infancy of courts of justice that substan- unfai
tive law has at fust the look of being gradually secreted in the interstices of pro- well-1
cedure.'43 However, people at that time did have a sense of justice and chan.
substantive rights. The various procedures of the various forms of action cour1
were imperfect and did not always produce a just result. The resort to other unfai
courts was needed because by 1300, perhaps by 1258, the procedures of the consi
common law were becoming settled, fixed, inflexible, and in some cases immu- w
table. Not only could they no longer be regularly adapted to deal with new pro- lack·
blems, but also they could be manipulated to unjust ends. ass1g
the C
to th
2. Scope of the jurisdiction At
ti on
The scope of the equity jurisdiction was closely connected to deficiencies in the equit
common law, of which the following may be i:.oted. was 1
reco'
(i) Relief upon sealed instruments ligen
The medieval law of evidence created injustice in certain situations. In the A~
action of covenant based on a specialty, a document under seal, the production com1
in court of the instrument itself entitled the plaintiff to a judgment. The defen- for h
dant could attack the genuineness of the instrument itself, but there was no ical J
opportunity to raise any excuse or justification for non-performance. There- plain
fore, if one were induced to execute a sealed instrument through fraud and tenc~
were then sued at common law in an action of covenant, the only way ans Vi<
beyond the plea of non est factum in which the defence of fraud in the induce- giver
ment could be raised was to resort to a court of equity. The equity court Thm
would order the plaintiff at common law to discontinue the action there and take
recommence in the court of equity, where the defendant could assert the alleged actio
fraud. 44 ti om
In the area of contracts, justice required that each party receive 'considera-
tion', something of value for the performance of his of the agreement.
45 I
43 H. S. Maine, Early Law and Custom (1886), p. 389. Professor Milsom argues that '[t]herewas no Picke,
46 j
common law, no body of substantive rules from which equity could be different .... Failures were
mechanical'. S. F. C. Milsom, Historical Foundations of the Common Law (2nd ed. 1981 ), p. 84; this is als on
a slight exaggeration. to av<
44 E.g. Craddock v. Dowse (Ch. 1602), No. 120-[27] (fraud, overreaching, and threats); Herbert v.
47 I
Lownes (Ch. 1628), No. 310 (fine, trust, and will set aside for fraud); Gresham v. Gresham (Ch. 1651), YBP:
No. 446; see also Calendar of Proceedings in Chancery in the Reign of Elizabeth, I (1827), xxix (a selves
person of weak intellect was induced to become intoxicated before executing a bond and a convey- again:
48 I
ance).
 INTRODUCTION xxiii

~ourts The common law courts required proof of consideration 'flowing' from the
to the plaintiff to the defendant (the obligor) before a plaintiff (the obligee) could
ry. ;,recover on an oral contract. However, if the contract was in writing under
How- the defendant's seal, the written and sealed instrument was sufficient proof
anned for a common law recovery, even though there was no consideration. A sharp
is the dealer would be able to take advantage of others by always having such an
bstan- unfair bargain reduced to writing with an eye to future litigation, relying on
1fpro- well-established common law precedent. The common law courts could not
e and change their law in response to the justice of an individual case, but the
action courts of equity came to require the unconscionable obligee to forgo the
other unfair gain. The courts of equity required that all contracts be supported by
of the consideration on both sides. 45
mmu- Where an action of debt on a specialty was brought but there had been a total
:rvpro- lack of consideration in that the bond was given to the plaintiff in return for an
assignment of a chose in action that was worthless as a matter of common
the Court of Chancery ordered the plaintiff at common law to execute a release
to the obligor or to deliver the bond to the court for cancellation. 46
At common law a plea of payment could be proved against a sealed obliga-
tion only by a release under seal from the obligee. However, the court of
in the
equity would hear parol evidence of the payment47 or accept a release that
was not under seal. 48 This was necessary in order to prevent an unjust double
recovery to the obligee who was trying to take advantage of the obligor's neg-
ligent failure to recover the bond upon the payment of it.
In the
As a matter of the law of evidence, no person who was a to a lawsuit was
uction
competent to testify as a witness; not only was a defendant forbidden to testify
defen-
for himself, but also the plaintiff could not testify. In order to prevent mechan-
ras no
ical failures of justice arising from this the courts of equity provided the
fhere-
at common law with a of discovery. From the beginning of its exis-
d and
tence, the Court of Cha~cery had required defendants to appear in court and
y way
answer under oath to the plaintiff's bill of complaint. (At first the answer was
1duce-
given orally and afterwards in writing, but it was always to be sworn to.)
court
Thus, the common law plaintiff could sue the defendant in equity and then
re and
take the written, sworn answer and read it to the jury in the common law
tlleged
action and thus prove his case. Later the courts of equity also allowed deposi-
tions of non-party witnesses to be taken upon bills of discovery, and these
;idera-
;ment.
45 E.g. Browne v. Newbole (Ch. 1597), No. 118-[247]; Smith v. Gawdy (Ch. 1599), No. 118-[326];
Jwasno Pickering v. Keeling (Ch. 1640 x 1641), 1 Chan. Rep. 147, 21 E.R. 533.
res were 46 J.R. v. M.P., YB Hil. 37 Hen. VI, fo. 13, pl. 3 (C.P. 1459), trans. in E. D. Re, Cases and Materi-

4; this is als on Remedies (2nd ed. 1987), pp. 46-48, sub nom. Reyno/de v. Knott, 51 Selden Soc. 147. A release
to avoid the penalty of a bond was ordered in Zouch v. Lord Zouch (Ch. 1548), No. 165-[5].
erbert v. 47 E.g. Anon. (Ch. temp. Eliz. I), Cary 2, 21 E.R. 1, which distinguished Anon. (Ex. Cham. 1482),

1.1651), YB Pas. 22 Edw. IV, fo. 6, pl. 18, 64 Selden Soc. 53, by allowing parol evidence of the parties them-
xxix (a selves under oath, rather than that of any other witnesses (who might be paid to perjure themselves),
convey- against the written instrument.
48 E.g. Hurd v. Dodington (Ch. 1598), No. 118-[273].
XXlV CASES CONCERNING EQUITY

depositions could also be read to common 49 No final decree could be enfor

entered upon a bill of discovery. 50 one,

(ii) Specific performance

Another shortcoming of the common law which was aided the courts of norm
was the practical limitation of execution of final judgments to the pay- the H
ment of money or to the transfer of possession of property. It is true that the guish
action of covenant had once resulted in an order of specific performance, but
this remedy had disappeared at common law by the fifteenth century. Perhaps (iii) l
the reason for this was the practical inability of the sheriff (or any other officer of A1
the court), even aided the posse comitatus, to do any more than take by force inven
a person's (defendant's) property, whether real or personal, moveable or cedm
immoveable, and give it to the or sell it and give the proceeds to the trust,
plaintiff. In the thirteenth century when the common law was solidifying, the ershi]
courts oflaw apparently lacked the machinery or the political or administrative beneJ
power to force a person to do something himself. avail:
The solution to this problem was for the lord chancellor to issue a personal comr
order to the defendant to perform some act or refrain from specified con- unco
duct. 51 This injunction was backed up by the threat of imprisonment for so enfor
long as the defendant was not in compliance with it. This usually worked. It
52 enfor
is a matter of conjecture why the chancellor's" orders were more effective than not, i
those of the royal justices or why the justices did not issue injunctions. When c
the common law remedies were being devised and settled, the country was comr
less under the actual control of the royal administration than when the equita- an a<
ble remedies came into being. Perhaps the power and prestige of the an ac
office of lord chancellor was greater than that of a royal justice. In any case, bym
the availability of the remedy of injunction attracted various classes of litiga- 53 E
tion to the courts of equity. SeIder
The best example of the superiority of an injunction over an order to pay 1456),
money is in the area of breach of contracts. In some situations, the common 1582),
118-[
law solution to a breach of contract, compensation by the payment of money, Watsc
is clearly an inadequate remedy. Where the object of the contract of sale is a 145 E
unique item or a specific piece of land, the cannot take the money see al>
54 s
received as damages and buy the equivalent object or land from another 55 l
person. Thus the courts of equity will by means of an injunction specifically argmr
Trust>
56 1
49 E.g. Note (Ch. 1598 x 1602), No. 119-91 (discovery and production of documents); Note (Ch.
1602), No. 120-[30] (discovery of secret incumbrances on land); Note (Ch. 1608 x 1620), No. 167- action
540 (discovery of defendants to a common law action of dower); R. v. Christian's Ex'r (Ex. 1627), lawac
No. 282 (discovery of decedent's estate); Hammond v. Shaw (Ch. 1652), No. 453 (discovery of Mone
assets of a judgment debtor); Clarke v. Southcott (Ch. 1652), No. 454 (discovery of debts of a the lai
57 f
deceased person); Ingram v. Coply (Ch. 1653), No. 456 (discovery of estates of tenants); Note
(C.P. 1655), No. 458 (depositions can be read to a common law jury). 1403),
50 Herbert v. Herbert (Ch. 1651), No. 447. Piersc
51 This is not to argue that the injunction was invented for this purpose. The usual process of Soc.
injunction, however, was put to this purpose when needed. Alfore
52 For an example of the defendant going to gaol rather than obey an injunction, see J.R. v. M.P. Bale'
Anon.
(C.P. 1459), cited above.
XXVI CASES CONCERNING EQUITY

(iv) Bills quia timet and bills of peace durei

Another problem with the common law was the requirement of damage defea1
having been done to the plaintiff before the court would take cognizance of appro
the action. Where a person was to harm another or another's Ab
rights, the courts of common law could not do anything until the harm had comm
been done. If the threatened harm was not remediable by common law ever,:
damages, such as the imminent destruction of property whose ownership was allow(
in dispute 58 or waste, 59 then the courts of equity would order the defendant seisin,
not to do the act threatened. Because the feared (quia timet) a future Self-h
harm, the equity court would enjoin its happening. peace,
A good example of the need for a bill quia timet is where a defendant has steps
instruments or deeds belonging to the plaintiff. The plaintiff fears that the defen- the ca
dant will put bonds in action or transfer deeds to bona fide purchasers to the force.
damage of the plaintiff. The courts of common law provided an action for city o
detinue of charters only if the plaintiff could name the documents with exacti- comm
tude and say where they were, and because of this inadequacy the equity slow<
courts ordered the defendant to deliver up the documents to the plaintiff. 60 to aha
Courts of equity could require the cancellation of forged bonds 61 and bonds than s
that had been paid or were presumed to have been: paid. 62 The equity court (and<
could also enjoin a threatened assault, 63 the payment of money to anyone but would
the plaintiff, 64 or a slander of title. 65 Thus
Similar to a bill quia timet is a bill of peace. The purpose of a bill of peace is to to the
enjoin a multiplicity of common law actions by or against the plaintiff in in the
equity. 66 Multiple litigation was the common law rules of proce-
(v) Th
Proceedings in Chancery in the Reign of Elizabeth, I (1827), xiii, xxi, xxxv, !xii. For cases from about
1465 to about 1555, see R. Brooke, La Graunde Abridgement, 'Feffements al uses'. See generally in The
the 'Subject Index' under 'Trusts and uses'. the co
58 E.g. Bush v. Field(Ch. 1579 x 1580), Cary 90, 21 E.R. 48; see also Kidnere v. Harrison (Ch. 1559
secure
x 1560), Cary 48, 21 E.R. 26.
59 E.g. Finch v. Throckmorton (Ex. 1590), No. 63 (preliminary injunction pending an action at debto1
common law); Watson v. Johnson (Ex. 1628), No. 298 (preliminary injunction pending an action and tr
at common law); Cole v. Peyson (Ch. 1636 x 1637), l Chan. Rep. 106, 21 E.R. 521; Roberts v. is mac
Roberts (Ex. 1657), Hardres 96, 145 E.R. 399.
60 E.g. Milner v. Leche (Ch. 1388), 10 Selden Soc. 8; Bokelond v. Blount (Ch. 1394) (semble), 10

Selden Soc. 12; Wilton v. Kemle (Ch. 1396 x 1403), 10 Selden Soc. 81; Bodenham v. Halle (Ch. entere
1456), 10 Selden Soc. 137; Note (Ch. 1596), No. 117-[252]; Lord Buckhurst v. Fenner (Ch. 1598), tures,
No. 87; Note (Ch. 1598), No. 117-[317]; Moulton v. Younger (Ch. 1599), No. 118-[305]; Note
(Ch. 1598 x 1602), No. 119-91; Note (Ch. 1599 x 1604), No. 120-[78]; Smith v. Delves (Ch. paym<
1604), No. 121. See also Calendar of Proceedings in Chancery, I (1827), xxix, xliv, lxxvi. Where
two persons have a right to possession of a document, one cannot sue the other in detinue, but
the court of equity will compel discovery: Worsley v. Which (Ch. 1469), YB Mich. 9 Edw. IV, fo.
41, pl. 26 (argument of counsel). 67 E.1
61 E.g. Stampe v. Longworth (Ex. 1561 x 1572), PRO E 112/2/36; Hawter v. Longworth (Ex. 1561 68 E.1
x 1572), PRO E 112/36/28; Barnes v. Longworth (Ex. 1561 x 1572), PRO E 112/36/30. E.R. 25
62 E.g. Carpenter v. Tucker (Ch. 1634 x 1635), 1 Chan. Rep. 78, 21 E.R. 512; Geofrey v. Thorn 22 E.R.
(Ch. 1634 x 1635), 1 Chan. Rep. 88, 21 E.R. 515; Rogers v. Hawkesworth (Ex. 1664), Hardres Cas. Al
378, 145 E.R. 506. 69 w.
63 E.g. Fraunceys v. Clifford (Ch. 1396 x 1403), 10 Selden Soc. 68. 70 Se(
64 E.g. Craven v. Salvayn (Ch. 1415 x 1417), 10 Selden Soc. 110. 71 E.1
65 E.g. Loterell v. Hayme (Ch. 1396 x 1403), 10 Selden Soc. 80. E.R. I~
66 E.g. Pynell v. Undenvood (Ch. after 1396), 10 Selden Soc. 20. demolis
 INTRODUCTION xxv

uld be enforce contracts for the sale of agricultural land. 53 No farm is like any other
;Pne, and thus the disappointed buyer cannot go and buy another farm to
replace the lost bargain, as can the purchaser of a ton of gravel. In agricultural
England, the specific enforcement of land sales contracts became so much the
Llrts of normal remedy that all land is now considered as a matter of law, and
e pay- the remedy of specific is always available no matter how indistin-
iat the guishable one unit of a condominium may be from another. 54
~e, but
er haps (iii) Uses and trusts
!icer of A use or a trust, was a usually in reference to land, which was
y force invented after the common law writs controlled the jurisdiction and pro-
ble or cedures of the common law courts) had become fixed and unchangeable. A
to the trust, in broad terms, is the contractual situation in which the common law own-
1g, the ership of property is given to a person trustee) to hold and manage for the
trative benefit of another person beneficiary). Since there was no common law writ
available adequately to enforce trusts, 55 and since the Chancery clerks and the
:rsonal common law judges could not change the law a new one without
d con- unconstitutionally usurping the legislative power of the chancellor
for so enforced them. It was clear to the entire legal profession that justice required the
~d. 52 It enforcement of uses and trusts. Since the common law courts could (or would)
'e than not, it was accepted that equity should.
When Contracts under seal creating uses and trusts may have been actionable at
ry was common law by a writ of covenant, but the successful plaintiff was not given
~quita- an adequate remedy, 56 and the beneficiary of an oral trust did not even have
of the an action. Thus the courts of equity were called on to enforce uses and trusts
y case, by means of injunctive orders. 57
'litiga-
53 E.g. Wace v. Brasse (Ch. after 1398), 10 Selden Soc. 43; Brook v. Giles (Ch. 1396 x 1403), 10

Selden Soc. 78; Badwell v. Clopton (Ch. 1413 x 1417), 10 Selden Soc. Ill; Cokayn v. Hurst (Ch.
to pay 1456), 10 Selden Soc. 141; Stewkly v. Lady Lutterel (Ch. 1576), No. 15; Hutton v. Prince (Ch.
1mmon 1582), No. 32; Salisbury v. Salisbury (Ch. 1585), No. 118-[110]; Browne v. North (Ch. 1594), No.
118-[150]; King v. Ridon (Ch. 1597), No. 118-[238]; Note (Ch. 1598 x 1602), No. 119-206;
noney, Watson v. Bailiff of Sould (Ch. 1599 x 1604), No. 120-[5]; Jackson's Case (Ex. 1609), Lane 61,
:i.le is a 145 E.R. 299; Otway v. Heblethwait (Ch. 1615), No. 238; Wiseman v. Roper (Ch. 1649), No. 437;
money see also Calendar of Proceedings in Chancery in the Reign of Elizabeth, I (1827), xx; II (1830), xi.
54 See G. Jones and W. Goodhart, Specific Pe1formance (2nd ed., 1996), pp. 32-33 .
.no th er 55 It was at times suggested that an action on the case might lie for breach of trust, though the
:ifically argument depended upon the availability of a remedy in Chancery. See N.G. Jones, 'Uses,
Trusts, and a Path to Privity' (1997), 56 Cambridge Law Journal 175.
56 Though the absence of specific performance was less significant in the case of money, and the
fote (Ch.
'-lo. 167- action of account and the action for money had and received may be regarded as providing common
x. 1627), law actions for breach of trusts of money. See J.H. Baker, 'The Use of Assumpsit for Restitutionary
overy of Money Claims 1600-1800' in E.J.H. Schrage ed., Unjust Enrichment: the comparative legal history of
:bts of a the law of restitution (1995), p. 31 at 32 and 47-48.
57 E.g. Godwyne v. Profyt (Ch. after 1393), 10 Selden Soc. 48; Holt v. Debenham (Ch. 1396 x
:s); Note
1403), 10 Selden Soc. 69; Chelmewyke v. Hay (Ch. 1396 x 1403), 10 Selden Soc. 69; Messynden v.
Pierson (Ch. 1417 x 1424), 10 Selden Soc. 114; Williamson v. Cook (Ch. 1417 x 1424), 10 Selden
rocess of Soc. 115; Prioress of Thetford v. Wychyngham (1422 x 1426), 10 Selden Soc. 119; Annors v.
Alford (Ch. 1422 x 1429), 10 Selden Soc. 129; Rous v. FitzGeffrey (Ch. 1441), 10 Selden Soc. 132;
.v.M.P. Bale v. Marchall (Ch. 1456), 10 Selden Soc. 143; Revelle v. Gower (Ch. 1471), 10 Selden Soc. 155;
Anon. (Ex. Cham. 1459), YB Trin. 37 Hen. VI, fo. 35, pl. 23, 51 Selden Soc. 173; Calendar of
 INTRODUCTION xxvn

dure in many situations. Where the sheer expense of it, as a practical matter, will
amage qefeat a party, the courts of equity will grant relief in the form of an injunction
nee of ~ppropriate to the situation. A bill to title 67 is a bill of peace.
)ther's A bill of interpleader can be classified as a bill of peace since it combines two
m had common law claims against the same person into a single suit in equity. 68 How-
'n law ever, a more typical bill of peace is one to abate a nuisance. The common law
ip was allowed to abate a nuisance, an assize of nuisance, an action of redis-
mdant seisin, a writ of quod permittat prosternere, or an action of trespass on the case. 69
future Self-help is an unsatisfactory remedy in that it may result in a breach of the
peace, and the person will himself be liable for trespass if he takes
nt has steps beyond the minimum necessary to remove the nuisance. An action on
defen- the case will produce damages up to the time of filing the action but will not
to the force an abatement of the nuisance; the injured party will be put to a multipli-
on for city of such actions as new damage will accrue daily in the future. The other
exacti- common law remedies were types of praecipe actions which were extremely
equity slow and procedurally clumsy; moreover, while the sheriff could be ordered
ntiff. 60 to abate a nuisance and charge the cost to the this was more difficult
bonds than simply ordering the defendant to do it himself; furthermore, if the sheriff
, court (and an undisciplined posse) went too far in the abatement, the sheriff, who
ne but would be primarily liable, would look to the plaintiff for indemnification. 70
Thus all the common law remedies were clearly inferior to a personal order
~e is to to the defendant himself to abate the nuisance and not commit any nuisance
Ltiff in in the future. 71
proce-
(v) The equity of
m about
The equity of redemption was a substantive creation of the courts of equity in
erally in
the context of mortgages. The mortgage is a common law conveyance ofland to
:::h. 1559 secure a loan; the mortgage contract provides that if the loan is repaid in the
debtor gets his land back; if it is not in full, the creditor keeps the land
.ction at
rr action and the partial repayment, even if only one payment is not made or if payment
Jberts v. is made only one day late. In many cases a debtor may be in technical default
only, but the common law courts must enforce the contract that was freely
ible), 10
zlle (Ch. entered into by the debtor. To prevent such harsh results, penalties, and forfei-
l. 1598), tures, the courts of equity allowed the debtor to redeem the land by making the
5]; Note payments late (with additional interest); thus, the equity courts ere-
ves (Ch .
. Where
1ue, but
. IV, fo.
67 E.g. Denis v. Carew (Ch. 1618 x 1619), Tothill 63, 21 E.R. 124.
~x. 1561 68 E.g. Verney v. Lee (Ch. 1535), No. 165-[l]; Alnete v. Bettam (Ch. 1559 x 1560), Cary 46, 21
E.R. 25; Earl of Carlisle v. Gabe (Ch. 1660), No. 464; Owen v. White (Ch. 1667), 2 Freeman 126,
'· Thorn 22 E.R. 1102, 3 Chan. Rep. 20, 21 E.R. 716; Anon. (Ch. 1685), 1 Vernon 351, 23 E.R. 516, 1 Eq.
Hardres Cas. Abr. 2, 80, 21 E.R. 828, 893.
69 W. Blackstone, Commentaries, III (1768), pp. 5-6 and 220-222.
70 See generally, J. Story, Commentaries on Equity Jurisprudence, II (1836), ss. 925-927.
71 E.g. Attorney-General v. Bond (Ex. 1587), No. 42; Swayne v. Rogers (Ch. 1604), Cary 26, 21

E.R. 14 (semble); Attorney-General v. Taylor (Ex. 1631), No. 343 (purpresture ordered to be
demolished or arrented).
xxviii CASES CONCERNING EQUITY

ated what is called an equity of redemption. 72 protect fair-minded (vii) J

the courts of equity allow a creditor to come into the equity court and prove the Ace
hopeless insolvency of his the equity judge will foreclose the
debtor's equity of redemption; this will the creditor clear title to the land due fr
that is being held as security so that he can sell it and recoup the amount of
the defaulted loan. 73 ) the common law rule that contracts tion t«
should be kept is well respected everyone's sense of justice will maye
acknowledge that the of is a fine tuning the courts of amou
equity that results in substantial justice in the individual case where the
debtor is acting in faith but has suffered misfortune. the fl
This concept as applied in the equity of an additional amou
weapon m armoury against and double recoveries. 75 Thi
Thus, while performance bonds were enforced in penal selves
bonds for the of a lesser sum of money were relieved against. 76

Waste More;
The common law on waste forbids tenants of land who have less mearn
than fee simple interests from doing damage to the land to the pre- Sui1
judice of future owners. However, there are some serious gaps in the scope of the tion i1
substantive common law. These unintended omissions have been by andc<
the courts of equity, and injunctions forbidding waste lie against various classes to bric
of tenants overlooked the common law prohibitions, 77 persons who have tributi
been granted permission to commit waste, 78 and persons who commit waste Ab
maliciously. 79 Howe

80 E.1
72 E.g. Anon. (Ex. temp. Eliz. I), No. 111 (enforced by an executor); Hurdv. Dodington (Ch. 1598), 81 E.1
No. 118-[273]; Barker v. Norton (Ch. 1629), No. 318; Holmixon v. Lemman (Ch. 1651), No. 444; 356 (sul
Theobalds v. Nightingale (Ch. 1651), No. 449 (enforced by an executor); Cowley v. Patron (Ch. 82 E.1
1656), No. 461; see generally R. W. Turner, The Equity of Redemption (1931), pp. 22-42. 118-[3(
73 E.g. Edwards v. Woolfe (1626), Benloe 160, 73 E.R. 1025; How v. Vigures (Ch. 1628 x 1629), 1
21 E.R.
Chan. Rep. 32, 21 E.R. 499; Earl of Carlisle v. Gabe (Ch. 1660), No. 464. 83 E.1
74 E.g. Legges v. Heath (Ch. temp. Hen. VIII), No. 165-[3] (penal bond for the payment of rent);
hill 41,
Anon. (Ch. 1595), No. 118-[l 78] (penal bond for the payment of an annuity); Stokes v. Mason (Ch. Lovelac
1610), No. 165-[21] (penal bond to pay an arbitral award). However, wilful and negligent forfeitures s4 E.!
will not be remedied: Note (Ch. 1599 x 1604), No. 120-[74]. Note also Attorney-Generalv. Walthew 85 Set
(Ex. 1646), No. 431. 86 E.1
75 E.g. Legges v. Heath (Ch. temp. Hen. VIII), No. 165-[3]; Dove v. Holmes (Ch. 1551), No. 165- 1620), r
[6]; Derbyshire v. Dampts (Ch. 1556), No. 165-[7]; Pillv. ap David(Ch. 1581), No. 165-[12]; Soare v. 87 E.1
Poyncell (Ch. 1588), No. 165-[18]; Ayliffe v. Duke (Ch. 1655), No. 459. 385 (sea
76 Capell's Case (Ch. 1494), 102 Selden Soc. 13; Johnson v. Cooke (Ch. 1598), No. 117-[331].
for con1
77 E.g. Songhurst v. Dixion (Ch. 1594), No. 118-[146] (tenant 'by covenant'); Rotherham v.
169, 14'.
Rotherham (Ch. 1596), No. 118-[187] (lessee of holder of mesne life estate); Note (Ch. 1599), (streets
Moore K.B. 554, 72 E.R. 754 (life tenant succeeded by a remainder for life); Note (Ch. 1598 x ss Ro
1602), No. 119-55 (lessee succeeded by a remainder for life); Note (Ch. 1604), Cary 26, 21 E.R. 89 E.1
14 (life tenant succeeded by a remainder for life). forced t
78 E.g. Morgan v. Perry (Ch. 1595), No. 118-[159]; King v. Blundavile (Ch. 1629 x 1630), Tothill Dean oj
83, 21 E.R. 130. 90 E.1
79 Note (Ch. 1598 x 1602), No. 119-56.
21 E.R.
 INTRODUCTION XXlX

and contribution
:we the to the common law of contracts, obligors are each liable to the
ose the 6bligee for the full amount of the debt. Thus the obligee may collect the entire sum
ie land due from any one of the joint obligors. Typically, the obligee elects to proceed
mnt of one usually the who is most to pay. In addi-
ntracts tion to if the o bligee has a some or all of the o bligors, he
ce will may execute the against any one or some or all of them up to the full
urts of amount of the debt due. Since this is the substance of the contractual relation-
:re the between the and the obligors, the common law is satisfied by
the full to the obligee. If the obligors have different
litional amounts, this was what they agreed to, each being liable for the full sum. 80
eries. 75 This latter situation is unfair as to the obligors among them-
selves. The courts of evolved the maxim that equality is
'6
equity. The courts of equity will the payments and obligations of
obligors among themselves by means of the doctrine of contribution.
secondary to the obligee will result in by
tve less means of or subrogation. 81
he pre- Suits in equity are thus available to enforce obligor's right of contribu-
~ of the tion in cases, for example, of rents, 82 payments by co-sureties, 83 co-executors
lied and co-trustees, 84 co-parties liable for court costs, 85 dower rights, 86 and
classes to bridges, ditches, and streets. 87 no right of con-
o have tribution lies against the crown. 88
89
t waste A bill in may also be sued to vindicate a surety's right of
sureties are discharged by any extension of time granted to the prin-
debtor without their acquiescence; 90 this is because the extension of time

80 E.g. Wormleighton v. Hunter (C.P. 1614), Godbolt 243, 78 E.R. 141.

h. 1598), si E.g. R. v. Ratliff's Ex'r (Ex. 1609), Lane 39, 145 E.R. 281 (subrogation); Note (Ch. 1631), No.
No. 444; 356 (subrogation).
ron (Ch. 82 E.g. Anon. (Ch. temp. Eliz. I), Cary 2, 21 E.R. l; Gardiner v. Lynsell (Ch. 1585 x 1587), No.

118-[307]; Edwards v. Atkinson (Ch. 1597), No. 118-(236]; Morgan v. Anon. (Ch. 1603), Cary 23,
1629), 1 21 E.R. 13.
83 E.g. Whalley v. Mounson (Ex. 1553 x 1554), No. Pld-7; Fleetwoodv. Charnock (Ch. 1629), Tot-
of rent); hill 41, 21 E.R. 117; Morgan v. Seymour (Ch. 1637 x 1638), 1 Chan. Rep. 120, 21 E.R. 525; contra
1son (Ch. Lovelace v. Cole (Ch. c. 1614), No. 167-557.
>rfeitures 84 E.g. Cannock v. Rowe (Ch. 1630), No. 332.
Wal thew 85 See Note (Ch. 1598 x 1602), No. 119-219.
86 E.g. Tenants of the Countess of Kent's Case (Ch. c. 1588), No. 55; Watkins v. William (Req.

'{o. 165- 1620), No. 256.

, Soare v. 87 E.g. Attorney-Generalv. Mewtis (Ex. 1627), No. 283 (bridge); Williams's Case (Ex. c. 1635), No.

385 (seawall); Rich v. Barker (Ex. 1658), Hardres 131, 145 E.R. 416 (tenants of a manor are not liable
-[331]. for contribution for repairs to a public bridge); Earl of Devonshire v. Gibbons (Ex. 1660), Hardres
erham v. 169, 145 E.R. 435 (drainage ditch); Merial v. Wymondsold (Ex. 1661), Hardres 205, 145 E.R. 454
b.. 1599), (streets paved) (semble) .
. 1598 x 88 Rotherham v. Nutt (Ex. 1589), No. 56; Anon. (Ch. 1597), No. 117-[292].

21 E.R. 89 E.g. Kirkham v. Taverner (Ex. 1554 x 1558), No. Pld-12 (a prayer that the principal debtor be

forced to pay the creditor); Hychcok v. Dean of Norwich (Ex. 1568), PRO E 112/29/87; Harris v.
), Tothill Dean of Exeter (Ex. 1558 x 1572), PRO E 112/10/7.
90 E.g. Joulles's Case (Ch. c. 1614), No. 167-666; Hare v. Michell (Ch. 1614 x 1615), Tothill 182,

21 E.R. 162; Maile v. Roberts (Ch. 1629 x 1630), Tothill 182, 21 E.R. 162.
xxx CASES CONCERNING EQUITY

changes the surety's original agreement. A surety will also be discharged where men ts
the creditor obstructs the surety's performance. 91 was ti
the C
(viii) Equitable defences initio
As to suits to enforce contracts, there are many defences of equitable origin. This c
Dilatory conduct that harms another may result in the refusal of an equitable gal p1
remedy. 92 A grossly unfair and harsh bargain that 'shocks the conscience' will intent
be set aside by principles of equity even though the common law rules of
making the contract were followed. 93 (x) Tr
The courts of equity will grant relief, both affirmative and defensive, against Arn
unavoidable accidents 94 and surprise. 95 Moreover, clerical mistakes will be the la'
remedied in equity by reformation of written instruments. 96 perso1
Where the plaintiff has himself been guilty of dishonest or inequitable conduct, their I
which later generations will call 'unclean hands', the courts of equity will not be a the ca
participant in the injustice and will refuse a remedy and leave the plaintiff to Howe
whatever common law remedy may be available. Thus, the Court of Chancery owner
refused to enforce contracts whose object was to defraud the crown97 or the benefi
church. 98 The courts refused to enforce trusts made to defraud creditors 99 or convie
other third parties, 100 or to enforce a trust the purpose of which was to deceive tion o
a lord of a manor into accepting a tenant whom he disliked. 101 Furthermore, trust\
concealed titles and estates will not be protected in equity. 102 but th
land i:
(ix) Cy-pres guishe
The doctrine of prerogative cy-pres was developed in the equity courts during the po
this period. One of the results of the Reformation in England was a statute sup- trust,·
pressing chantries and the endowments of masses to be said for the soul of a eficial
deceased person. Protestant theology did not include the existence of purga- ture u
tory, and thus masses for the dead in purgatory were considered useless and with t
superstitious, and were suppressed by statute. 103 What to do with the endow-

104 E.
91 Giles v. Beresford (Ch. 1631), No. 351. 1558), ]'
92 E.g. Sedgwickv. Evan (Ch. 1582 x 1583), Choyce Cases 167, 21 E.R. 97; Randallv. Tynney (Ch. v. Eynu
1612), No. 207; Winchcomb v. Hall (Ch. 1629 x 1630), 1 Chan. Rep. 40, 21 E.R. 501; Popham v. Moore.
Desmond (Ch. 1639 x 1640), 1 Chan. Rep. 135, 21 E.R. 530. may(CI
93 E.g. Allen's Case (c. 1610), No. 174. ins and
94 E.g. Ingram's Case (Ch. c. 1629), No. 314.
105 Ci
106 I.t
9 5 E.g. Ramsey v. Goslin (Ch. 1631), No. 349.
96 E.g. Anon. (Ch. 1533 x 1544), Cary 16, 21 E.R. 9; Ston v. Collar (Ch. 1596), No. 118-[188];
107 v.
Dyke v. Foxwell (Ch. 1597), No. 118-[220]; Pedley v. Brady (Ch. 1597), No. 118-[242]; Thompson Jones, 1
M
108
v. Stanhope (Ch.? 1642), No. 421; Thin v. Thin (Ch. 1650), l Chan. Rep. 162, 21 E.R. 538. How-
109A,
ever, a scrivener's error in a will makes it void: Note (Ch. 1595), No. 117-[189].
97 E.g. Orrell v. Eccleston (Ch. 1601), No. 119-222. 117-90
98 Note (Ch. 1612), No. 167-255. (the intc
99 E.g. Flatman v. Flatman (Ch. 1599 x 1604), No. 120-[13]; Note (Ch. 1613), No. 167-279. forfeitec
100 Pomery v. Ford (Ch. 1600), No. 118-[341]. 110 A1
111H
101 Gobe v. Dore (Ch. 1604), No. 120-[68].
102 E.g. Clement v. Sherley (Ch. 1612), No. 202.
the trus
10 3 Stat. l Edw. VI, c. 14 (SR, IV, 24). feited tc
 INTRODUCTION XXXl

l where ments was a new problem to be solved by the courts of The first solution
yvas that land devised to superstitious uses was forfeited to the crown. 104 Then
the Court of Chancery ruled that grants to illegal religious uses were void ab
initio and were not forfeited but passed to the heir at law of the grantor. 105
ongm. This concept was further developed and refined so that charitable trusts for ille-
uitable gal purposes were to be redirected to legal objectives as closely 106 within the
ce' will intention of the donor as possible. 107
ules of
(x) Trusts and forfeiture for treason and felony
against Another problem of trusts that was being worked out at this time concerned
will be the law of forfeiture for treason and felony. it was well settled law that
persons convicted of felony forfeited their goods and chattels to the crown, and
mduct, their lands and tenements were escheated or forfeited to their feudal lords. In
10t be a the case of traitors, their lands and chattels were all forfeited to the crown. 108
ntiff to However, in the more complicated area of uses and trusts where common law
tancery ownership of property, both real and personal, is separated from equitable or
or the beneficial ownership, it was not always clear at that time when a person was
>rs 99 or convicted of a common law crime what was forfeited and by whom. The resolu-
deceive tion of the problem was that the beneficial interest ofland of inheritance held in
:rmore, trust was not to be forfeited to the crown upon the attainder of the beneficiary,
but that of a leasehold so held would be forfeited. 109 '[W]here the tenant of the
land is attainted of felony or treason, the use and trust for this land are extin-
guished; for the King, or the lord to whom the escheat belongs, comes in in
during the post, and paramount [to] the trust; and upon a title elder than the use or
tte sup- trust, viz. the right of his lordship by escheat for want of a tenant' . 110 Thus ben-
1ul of a eficial ownership was taken to be the true ownership for the purposes of forfei-
purga- ture upon conviction of a crime. 1 " On the other hand, there was no problem
~ss and with the setting aside of fraudulent conveyances made to avoid forfeitures to
~ndow-

104
E.g. Bellv. James (Ex. 1554 x 1558), No. Pld-11; Mantellv. Mayor of Chipping Wycombe (Ex.
1558), No. Pld-14; Note (Ex. 1577), No. 16; Waterchin v. Finch (Ch. 1580), No. l l 7-[60x]; Hotham
iney (Ch. v. Eynus (Ex. 1583), No. 33 (de facto chantry); Anon. (Ex. 1585), No. 40; R. v. Palmer (Ex. 1588),
opham v. Moore K.B. 263, 72 E.R. 569; Hampden v. Dyott (Ex. c. 1589), No. 59; Town of Springfieldv. Mild-
may (Ch. 1597), No. 117-[280]; Town of Diss v. Mildmay (Ex. 1611), No. 180; note also R. v. Hutch-
ins and Belman (Ex. 1586), No. 41 (copyhold land surrendered to superstitious uses).
105
Croft v. Evet (Ch. 1605), No. 124; note also Anon. (Ch. 1597), No. 84.
106 Le. cy-pres.
107 Venables' Case (Ex. 1608), No. 144; The Case of the lmpropriators (Ex. 1633), No. 379; G. H.
18-[188];
'hompson Jones, History of the Law of Charity 1532-1827 (1969), pp. 12-15, 76-81.
108 M. Dalton, The Country Justice (1619), pp. 212, 266-268.
l8. How-
109 Attorney-Generalv. Abington (Ex. 1613-1619), No. 210; Goddardv. Goddard(Ch. 1590), No.

117-90 (dictum); contra Note (temp. Eliz. I), No. 109. Attorney-Generalv. Carr (Ex. 1618), No. 251
(the interest of a beneficiary of a trust of a lease of a patent to provide wine for the royal household
-279. forfeited to the crown upon his attainder of felony).
110 Anon., Jenkins 244, 145 E.R. 172.
111
However, in Attorney-General v. Wikes (Ex. 1609), Lane 54, 145 E.R. 294, it seems that where
the trustee of a lease of land is attainted of treason but the beneficiary is innocent, the lease is for-
feited to the king.
xxxn CASES CONCERNING EQUITY

the crown, and they were regularly set aside to the crown's rights and the cery ..
fisc. 112 ited t<
The overwhelming bulk of the cases edited here deal with some aspect of the t
common law of real property. 113 These cases came to the courts of indire
because equitable remedies were needed to protect common law rights. It was tithes
necessary for the courts to determine the substantive supre1
common law rights in order to determine their rights to equitable remedies in from
aid and support thereof. Where the common law issues were particularly
knotty, the equity judges would ask the common law judges for advice or assis- Exche
tance.114 In·
classe:
quer,
3. The equity courts was tl
nance
(i) The Chancery virtue
The original court of equity was the High Court of Chancery. It had a general
courtE
jurisdiction over all people for all types of civil cases. In the
selves.
officers of the chancery like the officers of the other high courts
iously
at Westminster, 115 had the privilege to sue and be.sued in their own court. 116
extenc
The reason for this privilege was that the normal and orderly business of the
court would be interfered with if its officers .. were absent while being sued in 122 E
other courts. 117 It is to be remembered that many types of actions at common No. 26
law began normally with a writ of capias for the arrest and imprisonment of 1631), I
the defendant. Accordingly, the privilege was allowed to a servant of a
123 s1
1611), I
deputy register, 118 an examiner's clerk, 119 and a servant attendant on the chan- No. 39c
cellor, 120 but not to a member of the family of an officer. 121 to acce1
c. 1591;
stone, (
(ii) The Exchequer the Cm
The other high court having equity was the Court of Exchequer. 1554 se
The Exchequer had financial authority over England, and the Town of 248-24'
124 E
Berwick, and its jurisdiction was equally extensive. The side of the Court Jessop (
of Exchequer was as broad in subject matter (Ex. 16:
298; At,
ster (Ex
125 E.
112 E.g. Attorney-General v. Raleigh (Ex. 1609), No. 161; Attorney-General v. Bowes (Ex. 1609),
Lane 39, 145 E.R 281; Attorney-General v. Long (Ex. 1632), No. 374 (a fraudulent trust to avoid Pld-2; S
a fine payable to the crown). man (El
126 E.
113 See generally in the 'Subject Index' under 'Conveyances', 'Copyholds', 'Land', 'Leases',

'Wills'. 1590), I
114 See below, p. xii. 1627), ~
115 E.g. Anon. (C.P. 1597), No. 82; Bale v. Browne (C.P. 1608), No. 167-166; Yelverton v. Dewes dlesex (
127 E.
(K.B. 1612), No. 192.
116 See generally, Marshall's Case (K.B. 1600), No. 93; W. J. Jones, The Elizabethan Court of v. Mayi
Chancery (1967), pp. 340-347. 1584), I
117 E.g. Cage v. Marwood (K.B. 1609), No. 156; Note (C.P. 1605 x 1610), No. 168. sage); S
118 Hawkins's Case (C.P. 1569), No. 8. No. 27E
119 Anon. (K.B. temp. Eliz. I), No. 101.
v. Clerk
128 N
120 Anon. (K.B. 1604), No. 122.
121 E.g. Anon. (C.P. 1551), No. 1 (wife); Powle's Case (C.P. 1581), No. 26 (wife); Anon. (Ch. c.
129 St
130 E.
1628), No. 311 (son); cf. Lowe's Case (Ex. 1582), No. 29 (wife).
 INTRODUCTION xxxm

and the cery. originally, the of the Court of Exchequer was lim-
ited to matters and persons concerned with the revenue of the crown. Any dis-
;t of the that involved the royal revenue or the of the sovereign, directly or
f equity could be litigated in the Court of Exchequer. 122 Thus claims for
.. It was tithes could be in the Court of Exchequer since the was the
stantive supreme head of the Church and was entitled to receive first-fruits and tenths
edies in from the clergy. 123 Matters royal manors, 124 fines and taxes, 125
:icularly 126 and leases of and revenues 127 came often to the
or assis- Exchequer.
In the course of the fifteenth and sixteenth centuries, there evolved four
classes of persons privileged to sue in the Exchequer: the officers of the Exche-
quer, royal accountants, debtors to the crown, and informers for the king. 128 It
was the officers and their servants who were specifically mentioned in the ordi-
nances, 129 even if had not been, would have been privileged by
virtue of the custom which gave this to the officers of the other
courts. 130 There was no in allowing the to the officers them-
selves, but arose over which of their servants were privileged vicar-
'1 courts
iously through them. It appears to have been settled that the privilege
;ourt.116
extended to those servants who were attendant upon an officer while he was per-
;s of the
sued in 122 E.g. Attorney-General v. Hoord (Ex. 1606), No. 131; Attorney-General v. Warder (Ex. 1626),
:ommon No. 269; Attorney-General v. Bindlos (Ex. 1628), No. 301; Attorney-General v. Waltham (Ex.
ment of 1631), No. 348; Attorney-General v. Long (Ex. 1632), No. 374.
123 Stat. 26 Hen. VIII, c. 3, s. 8 (SR, III, 495); Stat. 1 Eliz. I, c. 4 (SR, IV, 359-364). E.g. Anon. (Ex.
nt of a 1611), Lane 100, 145 E.R. 332; Garth v. Moore (Ex. 1627), No. 285; Bancrofi v. Doyly (Ex. 1637),
lie chan- No. 396; Knight v. Brett (Ex. 1639), No. 403; however, the Court of Exchequer was at first hesitant
to accept jurisdiction over tithe cases: see Dean of Windsor v. Beverley (Ex. 1588), No. 54; Anon. (Ex.
c. 1591), No. 65; Burgess v. Symons (Ex. 1628), No. 307. For first-fruits and tenths see W. Black-
stone, Commentaries on the Laws of England, I (1765), pp. 276-278; for their collection and for
the Court of First-Fruits and Tenths established in 1540 and amalgamated with the Exchequer in
~hequer. 1554 see G.R. Elton, The Tudor Revolution in Government (1953), pp. 189-203, 240-241, and
fown of 248-249.
124 E.g. Cotton v. Hammond (Ex. 1554 x 1558), No. Pld-13; Attorney-General ex rel. Raleigh v.
1e Court Jessop (Ex. 1609), No. 157; Wright v. Pleasance (Ex. 1613), No. 215; Attorney-General v. Howard
)f Chan- (Ex. 1627), No. 289; Sainthill v. Bendell (Ex. 1627), No. 290; Watson v. Johnson (Ex. 1628), No.
298; Attorney-General ex rel. Ward v. Burgesses of Wenlock (Ex. 1628), No. 309; Wortley v. Sylve-
ster (Ex. 1640), No. 413.
125 E.g. Capullv. Ardern (Ex. 1543 x 1545), No. Pld-1; Manjieldv. Wyer (Ex. 1547 x 1549), No.
Ex. 1609),
;t to avoid Pld-2; Scrace v. Shelley (Ex. 1547 x 1552), No. Pld-6; Sled's Case (Ex. 1588), No. 53; Burgh v. Hick-
man (Ex. 1612), No. 186.
126 E.g. Blagrove v. Mayor of Hull (Ex. 1589), No. 60; Wardens of Rochester Bridge v. Cromer (Ex.
, 'Leases',
1590), No. 61; Martin v. Attorney-General (Ex. 1613), No. 217; Attorney-General v. Mewtis (Ex.
1627), No. 283; Rives v. Lady Walter (Ex. 1631), No. 341; Attorney-General v. lnhabitants of Mid-
n v. Dewes dlesex (Ex. 1637), No. 392.
127 E.g. Attorney-General ex rel. Gijfordv. Bishop of Bangor (Ex. 1557), No. Pld-10 (ferry); Mantell
n Court of v. of Chipping Wycombe (Ex. 1558), No. Pld-14 (land and house); Byclijfe v. Hennage (Ex.
1584), 38 (land); Attorney-General ex rel. Waller v. Hanger (Ex. 1608, 1610), No. 146 (pri-
sage); Swinerton v. Thornhill (Ex. 1609), No. 152 (p1isage); Swinerton v. Wolstenholme (Ex. 1627),
No. 276 (tunnage); Compton v. Garway (Ex. 1628), No. 300 (subsidies, customs, tolls); Clatterbuck
v. Clerke (Ex. 1629), No. 325 (Worcester Castle); Watkinson v. Coney (Ex. 1639), No. 409 (prisage).
128 Note (Ex. 1627), No. 277; Clapham v. Lenthall (Ex. 1664), Hardres 365, 145 E.R. 499.
129 Stat. 12 Edw. I (SR, I, 70); Stat. 5 Edw. II, c. 25 (SR, I, 163).
on. (Ch. c.
130 E.g. Anon. (K.B. 1643), No. 423.
xxxiv CASES CONCERNING EQUITY

forming his official duties; it was ruled, for example, that butlers and cooks were ber a:
privileged but that agricultural workers and bailiffs were not. 131 collec
Accountants to the crown were the royal officers who had a duty to account in
the Exchequer for moneys received on behalf of the sovereign. In theory, if not work
in practice also, the accounting had to be done in person in the Exchequer at debtc
Westminster. Since the accountant's presence was required there as a of de me
the collection of the royal revenue, then he must be granted the privilege to no tic
sue and be sued there and only there. 132 Once the accountant had appeared time
in the Exchequer and made a settlement of his account, he thereupon became peop
a debtor to the crown for that sum and lost his status as an accountant. 133
The third type of Exchequer privilege was that of the simple debtor to the Th
crown. Anyone who owed money to the crown could avail himself of this gen- stooc
eral privilege. The privilege in the equity side of the court was based on precisely into<
the same grounds as the so-called quo minus allegation of the common law side. ofsu
In theory, the plaintiff was less able to pay his debt to the crown because the juris<
defendant was withholding money due to him. The king could sue his debt- Exch
ors' debtors, and so it was a reasonable extension of his prerogative to allow Exch
his debtors to sue their debtors for his ultimate gain, thus furthering the collec- GE
tion of the royal revenues. 134 genei
It might appear at first glance remarkable that such a comprehensive and ing a
popular jurisdiction as was that of the Exchequer in the sixteenth century and 1
could be based solely on exceptions to the prohibition to its existence. Yet it defer
must be remembered that the staff of the Exchequer in the sixteenth century cour
was large; it was one of the largest departments of the English royal administra- the c
tion. In addition, each officer had a retinue of personal servants; even the clerks cour
had cooks, and the highest had households of dozens. A considerable number of the g
royal officers from many departments, sheriffs, and customs officers were ance
accountants in the Exchequer. 135 This number increased greatly in the six- dant
teenth century when the revenue courts and most revenue duties of the Cham- have
Tl
13 1 E.g. Abbot v. Sutton (C.P. 1443), YB Mich. 22 Hen. VI, pl. 36, fo. 19 (dictum); Leventhorp's
Case (C.P. 1455), YB Mich. 34 Hen. VI, pl. 28, fo. 15; Anon. (C.P. 1597), No. 82.
132 E.g. Forde v. N.B. (C.P. 1469), YB Mich. 9 Edw. IV, pl. 20, fo. 40 (dictum); Yongv. Clerk of the 136

Hamper (Ex. Cham. 1470), YB Hi!. 9 Edw. IV, pl. 18, fo. 53, Case 67, Jenkins 131, 145 E.R. 92; dant1
137
Kemsey v. Dalton (Ex. 1545 x 1552), No. Pld-4; Note (C.P. 1605 x 1610), No. 168; Anon. (K.B.
1612), 2 Bulstrode 36, 80 E.R. 939; Anon. (Ex. 1627), No. 280; Constable of Gloucester Castle's Hardi
138
Case (Ex. 1628), No. 308; Anon. (K.B. 1643), No. 423.
133 Note (Ex. 1613), No. 211 (semble); Clapham v. Lenthall (Ex. 1664), Hardres 365, 145 E.R. 499, 1658)
500. Note,
139
134 E.g. Randellv. Tregyon (Ex. 1547 x 1552), No. Pld-5; Poynes's Case (Ex. 1613), No. 213 (debt
must be alleged specifically); Garth v. Moore (Ex. 1627), No. 285; Anon. (Ex. c. 1628), No. 296 (debt Ch arr
must be alleged specifically); Anon. (Ex. c. 1627), No. 294. See generally, H. Wurzel, 'The Origin and 1561)
Development of Quo Minus' (1939), 49 Yale Law Journal, 39-64; R. Crompton, L'Authoritie et Jur- (C.P.
isdiction des Courts (1594), ff. 105-109. 1612)
140
1 3 5 For the classes who were 'de gremio scaccarii' in the thirteenth century, see C. Gross, 'The
Jurisdiction of the Court of Exchequer under Edward I' (1909), 25 Law Quarterly Review 138- v. Bit
144; for a list of the non-judicial officers in 1641, see W. H. Bryson, ed., 'A Book of All the Several Case
Officers of the Court of Exchequer ... by Lawrence Squibb', Camden Miscellany, vol. XXVI, 219; I
Camden Fourth Ser., XIV (1975), 77-136. cery J
 INTRODUCTION xxxv

ks were ber and the Wardrobe were absorbed by the Exchequer. Moreover, the revenue
.. v .....,.... uu.I', machinery was at that time generally inefficient and dilatory. Arrears

ountin might be outstanding for many years before some energetic official would get to
r,if not work on debts would not be paid if no pressure were applied. The class of
quer at debtors to the crown was, as a result, huge. The copyhold tenants on the royal
of demesne and on the other lands in the hands of the monarch deserve special
lege to notice as debtors to the crown since their litigation occupied so much of the
1peared time of the equity side of the in this Thus the number of
became people who could fit themselves into one or another of these classes who were
. 133
privileged to sue in the came to be considerable.
·to the The high courts of Chancery, Exchequer, King's Bench, and Common Pleas
us gen- stood on an equal footing in regard to the removal of suits out of one court and
recisely into another. The writ of did not travel between them. The removal
lW side. of suits was based on the various privileges of the courts which related to their
use the jurisdictions. Privileges were of two sorts: special and general. The officers of the
s debt- Exchequer and accountants had the benefits of the special privilege of the
) allow Exchequer, but mere debtors to the crown had only a general privilege.
collec- General privileges only gave the the right to sue in a certain court. A
general privilege could not be used by the defendant as the grounds for remov-
.ve and ing a case into another court. 136 Moreover, if a plaintiff had a general privilege
:entury and the defendant had a special privilege in another court, the general privilege
. Yet it deferred to the special, and the defendant could insist on being sued in his own
court. 137 When both parties had special privileges but of different courts, then
inistra- the court in which priority of suit was established heard the case. 138 The
~ clerks courts were not anxious to lose business in this way, and so they insisted on
nber of the general rule that this jurisdictional point be raised before a general appear-
·s were ance or pleading to issue. 139 Moreover, where there was a plurality of defen-
:he six- dants, all of them must have been privileged for the request for removal to
Cham- have prevailed. 140
The traditional method of removing suits into the Exchequer was by a writ of
enthorp's

erk of the 136 Hunt's Case (C.P. 1573), 3 Dyer 328, 73 E.R. 742 (semble) (a supersedeas declaring the defen-

E.R. 92; dant to be a debtor to the crown not allowed).

~n. (K.B. 137 E.g. Clapham v. Lenthall (Ex. 1664), Hardres 365, 145 E.R. 499; Castle v. Lichfield (Ex. 1669),
· Castle's Hardres 505, 145 E.R. 570; Note, 3 Salkeld 281, 91 E.R. 825.
138 E.g. Anon. (C.P. 1601), No. 96; Ognell's Case (ICB. 1614), No. 223; Baker v. Lenthall (Ex.

E.R. 499, 1658), Hardres 117, 145 E.R. 409; Clapham v. Lenthall (Ex. 1664), Hardres 365, 145 E.R. 499;
Note, 3 Salkeld 281, 91 E.R. 825.
213 (debt 139 E.g. Note (C.P. 1443), YB Mich. 22 Hen. VI, pl. 9, fo. 7; Yong v. Clerk of the Hamper (Ex.
296 (debt Cham. 1470), YB Hi!. 9 Edw. IV, pl. 18, fo. 53, Case 67, Jenkins 131, 145 E.R. 92; Case 31 (C.P.
rigin and 1561), Dalison 36, 123 E.R. 253; Jervas' Case (Ex. 1582), Savile 33, 123 E.R. 996; Taylor's Case
tie et Jur- (C.P. 1595), No. 75; Anon. (C.P. 1601), No. 96; Note (C.P. 1605 x 1610), No. 168; Anon. (Ch.
1612), No. 189; Ognell's Case (K.B. 1614), No. 223.
oss, 'The 140 E.g. S. v. T.B. (C.P. 1455), YB Mich. 34 Hen. VI, pl. 13, fo. 29; Anon. (C.P. 1551), No. l; East
iew 138- v. Bittenson (Ch. 1578), Cary 67, 21 E.R. 36, C. Monro, Acta Cancellariae (1847), p. 457; Powle's
e Several Case (C.P. 1581), 3 Dyer 377, 73 E.R. 846, Godbolt 10, 78 E.R. 6; Gayer's Case (Ex. 1614), No.
l. XXVI, 219; Vendallv. Harvey (Ch. 1633), No. 377; D. E. C. Yale ed., Lord Nottingham's 'Manual of Chan-
cery Practice' and 'Prolegomena of Chancery and Equity' (1965), p. 336.
XXXVl CASES CONCERNING EQUITY

supersedeas. 141 a could not be sent to the or to

because the there were held coram rege, and writs did not lie de fen
king; 142 therefore, the cursitor baron took the Red Book of the Lxcm;auer the E
into the Bench and asserted that the defendant was an officer or accoun- ti on,
tant in the Exchequer and should be sued there. The cursitor baron showed the CI
the copy of the writ of privilege which was in the Red an official at dictic
folio 36. Thereupon the case was dismissed to the without any plea Exch
or prayer from the defendant. 144 quee1
There were alternative methods of asserting the in the the c:
seventeenth It could be the defendant, 145 or the Red Book He
could be sent into the Court of Common Pleas. 146 in the co1;::uu,1_,u Exch
century, it became to assert the Exchequer "'.v .. ,c,,c used
an out of the Exchequer to the this was a
not to sue in the other but was given to sue in the JLJA'-''"''-l appe:
This was a far to the clumsy and
methods of supersedeas and direct claim
Returning to the scope of the able<
with the final phase of the v"'J~•m•·vu, of th(
tion, which opened the court to all comers. It has tion '
began in the middle of the sixteenth and was soon 1649
the increasing number of litigants the last crow:
tury. There was a further increase in the of as an
of James I, and this continued until the outbreak of the Civil War in 1642.
Until the middle of the seventeenth century, the that the a"''"'"'"v on t
of jurisdiction be appears to have been crow:
at least one equity case, (1 isdict
plaintiff's debt to the crown and ousted the '-"A''-'H'''-l era ti<
tion. Sir Thomas was indebted to the queen for he appears to have
enfeoffed and another with certain lands in trust either for his own use
141 E.g. Anon. (C.P. 1442), YB Mich. 21 Hen. VI, pl. 44, fo. 22; Note (C.P. 1605 x 1610), No. 168;
If~
Anon. (K.B. 1643), No. 423; contra Taylor's Case (C.P. 1595), No. 75.
142 Bracton, fo. 5b, S. E. Thorne, ed. (1968), p. 33. Note also Anon. (KB. 1604), No. 122; Yelver- remo
ton v. Dewes (ICB. 1612), No. 192.
143 PRO E 164/2; transcribed in H. Hall ed., The Red Book of the Exchequer, (Rolls Ser.) III
actio
(1896), pp. 823-824.
144 E.g. Walrend v. Winroll 1601), Noy 40, 74 E.R. 1010; Guy v. Reyne! 1609), 2 150 '

Brown!. and Golds. 266, 123 934 (dictum); Anon. (K.B. 1612), 2 Bulstrode 80 E.R. 939; Roigni
Anon. (K.B. 1627), No. 275; Wilson v. Rokesby (Ex. 1627), No. 279 (dictum); Anon. 1643), 'devan
No. 423; Foster v. Barrington (K.B. 1659), 2 Siderfin 164, 82 E.R. 1313, Hardres 145 E.R. ouster
433 (dictum). tenus J
145 E.g. Foster v. Barrington (K.B. 1659), 2 Siderfin 164, 82 E.R. 1313, Hardres 164, 145 E.R. 433; 151 I

Wentworth v. Squibb (C.P. 1701), l Lutwyche 43, 125 E.R. 23; Phips v. Jackson (K.B. 1705), 6 29; see
Modern 305, 87 E.R. 1045. The Ci
146 E.g. Wentworth v. Squibb (C.P. 1701), l Lutwyche 43, 125 E.R. 23. of the
147 Cawthorne v. Campbell (Ex, 1790), 1 Anstruther 205, 145 E.R. 846; J. Manning, Practice of the 152 (
153 '
Court of Exchequer, Revenue Branch (1827), 191.
148 E.g. Williams v. Griffin (Ex. 1619), E 126/2, fo. 176v. H.Wt
149 (Ex. 1580), Savile 11, 123 E.R. 984; see also Case 39, Savile 15, 123 E.R. 986, which is the 154 I

same case. fo. 18~

 INTRODUCTION xxxvii

Bench or to sell and pay off his then the trustees seem to have sold the land to the
1st the defendant Afterwards '""'-'·swcuu
the .LAvH\Al
xoun-
howed the crown the incumbrance on his title and "'-'J''-'""'uF>
diction of the court. The barons held that 'the cause privilege [to sue in the
was m of the debt which Sir Thomas owed to the
queen, which debt is now [and] the court dismissed the case because when
in the the cause ceases, the effect ceases' . 150
Book from the of the in of the
1teenth was a crown came to be
ans of used in a fictitious manner, the court all traverses of this ground
I order of the first cases which allowed this fiction do not
uer.147 appear to have been was asserted at the
itional of each bill by after name the following
'debtor and accountant to his as by the records of this honour-
to deal able court and otherwise it doth and may .151 An examination of the files
irisdic- of the bills discloses the fact that this formula of jurisdic-
:iiction the last years of Charles I, immediately after
the name that he was a
at cen- crown in many bills it appears
e as an interlinear addition. The evidence of the records thus points with some
l 1642. on~c1:s10n to the year 1649 for the introduction of the wider jurisdiction based
on the fictitious and non-traversable of indebtedness to the
crown. 153 The first references to the :fictitious basis of the Exch1~m1er
isdiction appear to be Sir Matthew Hale in August 1665 in 'Consid-
uisdic- the Amendment or Alteration of the Lawes', 154 and in The
to have nm.n1P1'1r Sollicitor p. 389.
1wnuse
between
No. 168; If a defendant in an action at common law had an equitable defence, he could
remove the case to a court of means of a common to the
'.; Yelver-
at common law. The ordered the plaintiff to cease his
Ser.) III action in the common law court and to sue his claim in the court of if
1609), 2 l50 'Et pur ceo que le cause de priviledge fuit in respect del det que Sir Thomas Ragland owe al

~.R 939; Roigne, que detest ore paye, le Court dismisse le cause, quia cessante causa cessat effectus'. p. 11;
B. 1643), 'devant ascun respons fait Wildgoose pay le dett, et donques demand Judgment si le Court voet
145 E.R ouster tener plea, entant que le cause de! priviledge fuit determine, que est le dett due al Roigne. Et
tenus par le Court, que sans cest reason le Court doit dismisse le cause, et issint fuit fait .... ' p. 15.
151 D. B. Fowler, The Practice of the Court of Exchequer upon Proceedings in Equity, I (1795), p.
E.R. 433;
1705), 6 29; see also The Comp/eat Sollicitor (1666), p. 389; W. Bohun, The Practising Attorney (1724), p. 292;
The Comp/eat Clerk in Court (1726), p. 149; S. Turner, An Epitome of the Practice of the Equity Side
of the Court of Exchequer (1806), p. 2.
'ice of the 15 2 Or a debtor to the Commonwealth.
153 This accords with the tentative conclusions in regard to the Exchequer common law fiction in
H. Wurzel, 'The Origin and Development of Quo Minus' (1939) 49 Yale Law Journal, 39, 61, 64.
154 In F. Hargrave ed., Collection of Tracts (1787), p. 278; the date is given in BL MS. Harl. 711,
ich is the
fo. 187v.
xxxviii CASES CONCERNING EQUITY

he wished to proceed. With the case removed into a court of equity, the defen- Di
dant could then assert whatever equitable defence he might have. However, th OS(
since such an interlocutory injunction was granted as a matter of course by a writs
court clerk without any hearing, a litigant acting in bad faith for the purposes hibit
of delay or harassment could use this device with ease because it would take wher
time for the other party to get a hearing before a judge to have the injunction was 1
vacated. This was a constant source of irritation to the common law courts. be re
On the other hand, such interlocutory injunctions were often ignored in bad proh
faith by the plaintiff at common law who continued his proceedings in con- regai
tempt of the injunction. 155 There was then as now much forum shopping and very
general harassing of opposing parties; the courts did what they could to control was'
it, 156 but judges cannot act before hearing arguments on both sides, and this equit
takes time (which may be all that a defendant can hope for). reme
A suit in equity that was pending in one of the lower equity courts could be ceed
removed into the Court of Chancery or the Court of Exchequer. This was done cour1
by means of a writ of prohibition 157 or certiorari. 158 Alternatively, the over
could be enjoined. 159 On the other hand, a suit in one of the high courts for a Th
small sum that was beneath the dignity of the court would be dismissed to late '
the appropriate lower court. 160 There could be no removal after the defendant at thi
in the lower court had appeared generally. 161 ~nd, of course, there could be no m eq
removal where the higher court lacked jurisdiction. Thus since neither the Chan- hara'
cery nor the Exchequer had jurisdiction over land in the county palatine of Che- press
ster where the parties lived there, those courts could hear cases touching such Th
land only if there was some independent for 162 The same
barel
principles to land within the duchy of Lancaster. 163
164 ]
165 l
155
E.g. Jones v. Purse (Ch. 1538), No. 165-[2]; Dove v. Holmes (Ch. 1551), No. 165-[6]; Calver- Pannei
well v. Vought (Ch. 1560), No. 165-[14]; Man v. Southwell (Ch. 1589), No. 165-[20]. In fact, the Cott or.
common law courts occasionally encouraged such contempt of the equity courts; e.g. Humfrey v. from l:
Humfrey (C.P. 1572), 3 Leonard 18, 74 E.R. 513, Dalison 81, 123 E.R. 291; Anon. (C.P. 1601), Harwo
No. 97. (Court
156 I
Ellesmere once menacingly said that he would like to have the names of the lawyers who 166
'occupied their wits to jostle jurisdictions of courts together'. Grobham v. Stone (Ch. 1612), No. erley v
188 (in reference to Exchequer jurisdiction). E.R. 1
157
E.g. Attorney-General v. Bawne (Ex. 1568), PRO E 123/4, fo. 5 (Council in the North); Fleet- 167 ]
wood v. Pool (Ex. 1660), Hardres 171, 145 E.R. 436 (Court of Duchy Chamber). Reque,
158
E.g. Note (Ch. 1599 x 1604), No. 120-[48]; Hilton v. Lawson (Ch. 1559 x 1560), Cary 48, 21 suits .
E.R. 26. the M<
159
E.g. Cholmeley v. Baldwin (Ex. 1607), PRO E 124/4, fo. 71 (Court of Requests); Duckett v. a quel
Brookesby (Ex. 1618), PRO E 124/27, fo. 171 v (Court of Requests). lessor 1
160
E.g. Eastcourt v. Tanner (Ch. 1579), Cary 74, 21 E.R. 39, Choyce Cases 139, 21 E.R. 83; Note 168 s
(Ch. 1598 x 1602), No. 119-14; Note (Ch. 1598 x 1602), No. 119-158; Darcy v. Arden (Ex. 1609), 169I
No. 162; Note (Ch. 1612), No. 191; Anon. (Ch. 1612), No. 203. bind h
161
Anon. (Ch. 1612), No. 189; Vernon v. Crewe (Ex. 1628), No. 299. 170 s
162
Davenport v. Deane (Ch. 1570), Tothill 117, 21 E.R. 141; Willoughby v. Brearton (Ch. 1576 x the C01
1577), Cary 59, 60, 21 E.R. 32; Smith v. Delves (Ch. 1604), No. 121; Egerton v. Earl of Derby (Ch. Early 1
1614), 12 Coke Rep. 114, 77 E.R. 1390; Anon. (Ex. c. 1627), No. 294; Vernon v. Crewe (Ex. 1628), tion' (l
No. 299; Calvely v. Holcroft (Ex. 1628); No. 302; Hulse v. Daniell (Ch. 1629), No. 326; Anon. (Ch. 171 ]'
1631), No. 364; see generally W. J. Jones, The Elizabethan Court of Chancery (1967), pp. 370-374. Cotton
163
Levington v. Wotan (Ch. 1631 x 1632), 1 Chan. Rep. 52, 21 E.R. 505; contra Anon. (Ch. 1612), Bodie (
No. 189 (dictum). Cardin
 INTRODUCTION XXXlX

defen- During the ascendancy of Sir Edward Coke in the courts of common law,
lWever, :those courts removed cases out of the lower courts of equity by means of
writs of 164 For example, the common law courts sent writs of pro-
se by a
uposes hibition to the inferior courts of equity to prevent them from hearing cases
ld take where there was an adequate remedy at common law. 165 However, if there
mction was no adequate remedy at common the request for a prohibition would
courts. be refused. 166 Sometimes one is led to the conclusion that the purpose of the
in bad prohibitions was merely to take business out of the other courts without any
m con- regard to the substance of the legal dispute in issue. 167 In any case, this limited
ng and very significantly the Court of Requests 168 and the various prerogative courts. It
:.:ontrol was also a means of the common law courts' pronouncing on the substance of
nd this equitable principles. 169 It was the opportunity to say when a common law
remedy was inadequate and thus when the lower court of equity should pro-
mid be ceed to hear the case. The result of this was the diminishing of the lower
rn done courts of equity, but even so the common law courts did not gain control
parties over the doctrines of equity .170
ts for a The modern doctrine of election of remedies was more or less settled in the
ssed to late sixteenth century. Thus, if a sued at common law and in equity
endant at the same time for the same matter, the equity court would dismiss the suit
j be no in equity in order to avoid multiplicity of litigation, inconsistent results, and
~Chan­ harassment of defendants. 171 In practice, however, the courts were hard
=ifChe- pressed to enforce this rule.
ig such The concept of appeals of equity cases from a lower to a higher court was
e same barely considered at all during the of these cases. The appellate jurisdic-
164 E.g. Gray v. Sedgwick (C.P. 1612), No. 208.
165 E.g. Rearsby v. Cuffer (C.P. 1613), Godbolt 219, 78 E.R. 133 (Court of Requests); Vautry v.
I; Calver- Pannell (K.B. 1615), No. 236 (a King''s Bench prohibition to the 'chancery' of Chester); Cooke v.
fact, the Cotton (K.B. 1616), No. 243 (the King's Bench prohibited the Council in the Marches of Wales
;mfrey v. from hearing part of a suit in equity); Walts v. Hyde (temp. Jae. I), No. 154 (Court of Requests);
P. 1601), Harwood v. Jewell (K.B. 1615), No. 232; Grubbe v. White (C.P. 1641), March 102, 82 E.R. 430
(Court of Requests).
166 E.g. Strong's Case (K.B. 1611), I Bulstrode 158, 80 E.R. 850; Anon. (K.B. 1614), No. 225; Bev-
yers who
il2), No. erley v. Beverley (K.B. 1625), 3 Bulstrode 315, 81 E.R. 262; Edwards v. Woolfe (1626), Benloe 160, 73
E.R. 1025.
167 E.g. Wormleighton v. Hunter (C.P. 1614), Godbolt 243, 78 E.R. 141 (suit in the Court of
h); Fleet-
Requests for contribution between co-sureties prohibited because 'it would be a great cause of
.ry 48, 21 suits .. .'); Bromage v. Genning (K.B. 1616), 1 Rolle Rep. 368, 81 E.R. 540 (suit in the Council in
the Marches of Wales for specific performance of a contract to lease land prohibited 'car donque
'uckett v. a quel purpose est !'action sur le case et covenant'? and because it would subvert the intent of the
lessor to pay damages if he wished to change his mind after having entered into a contract).
168 See in the 'Subject Index' under 'Requests, court of, Prohibition to'.
83; Note
169 E.g. Waller v. Heyford (K.B. 1614), No. 227 (a decree in equity against a decedent does not
\x. 1609),
bind his executor); Harris v. Powell (K.B. 1615), No. 234 (suits against executors).
170 See generally L. M. Hill, 'Introduction', The Ancient State and Authoritie, and Proceedings of

1. 1576 x the Court of Requests by Sir Julius Caesar (1975); C. M. Gray, The Writ of Prohibition: Jurisdiction in
?rby (Ch. Early Modern English Law, I (1994), pp. !vi-Ix; C. M. Gray, 'The Boundaries of the Equitable Func-
\x. 1628), tion' (1976), 20 American Journal of Legal History 192-226.
171 Note(Ch.1582),No.31; Osburnev.Barter(Ch.1583x1584),ChoyceCases176,21 E.R.102;
~on. (Ch.
370-374. Cotton v. Evans (Ch. 1599), PRO C 38/3; Cooper v. Rewe (Ch. 1601), PRO C 38/4; contra Bull v.
:h. 1612), Bodie (Ch. 1559), Dickens l, 21 E.R. 166, Cary 50, 21 E.R. 27, 1 Eq. Cas. Abr. 131, 21 E.R. 936;
Cardinal v. De La Brocke (K.B. 1606), No. 130.
xl CASES CONCERNING EQUITY

ti on of the House of Lords in cases had its first very tentative beginning in 4. Nt
1621, though the House heard only a very few appeals before 1649 and
none from then until 1660. 172 An appeal from the Council in the North was Thus
heard in the Court of Chancery in the 173
and a decree in the Court of com1
them
Requests had been 'confirmed' in in 1616. 174 the general
to th1
rule was that there was no appeal from any court of on a point of
equity except to the king himself175 until the House of Lords became active in both
the field. recoi:
work
The next question is whether a decree in a court of equity was res judicata. The
case·
concept of res judicata or estoppel by judgment, that a thing once fully
cello1
cated cannot be reconsidered in the same or another court, was understood in
176 cases
the sixteenth and seventeenth centuries as a general It was specifi-
cally held that a final judgment at common law could not be later re-examined in comr
177 Also, the Court of Chancery could Eq
a court of a common law
and f
action for the same matter as a final decree in equity. 178
us mg
However, the concept of res judicata was not fully worked out by the seven-
persc
teenth century. 179 Thus, in 1631, the Court of Chancery accorded res judicata
180 judgr
effect to an decree in the court of chancery of but five
oven
years later, the Court of Exchequer refused it to a decree in the Court of
unco:
Requests, a lower court of equity. 181 Never~heless, in no precedents
po we
could be found of a final equity judgment on the merits in the
that
having been reconsidered in the Court of Chancery, nor should
thus,
been since they were courts of equal rank. 182
agam
172 J. S. Hart, Justice Upon Petition: The House of Lord and the Reformation of Justice 1621-1675 to ac
(1991), pp. 44-51, 110-114, describes the first beginnings of equity appeals, which were between callee
1621 and 1649. See also J. S. Hart, 'The House of Lords and the Appellate Jurisdiction in Equity
1640-1643' (1983) 2 Parliamentary History 49-70. In Herbert v. Lownes (Ch. 1628), No. 310, the
Ch
losing defendant 'complained in parliament against the decree, which was erroneous as he said', ities <
but whether this was a conventional appeal or a political petition is unclear. consc
173 Witham v. Waterhouse (Ch. 1596), No. 80.
174 Ramsey's Case (K.B. 1616), No. 244; it may have been confirmed proforma without any 183 I
rehearing. Soc. l'
175 Glascock's Case (Ch. 1613), No. 167-237, 2 Bulstrode 142, 80 E.R. !018; Note (Ch. 1608 x 20;An
1620), No. 167-375; e.g. Finch's Case (Ch. 1603 x 1617), No. 249. [185];"
176 E.g. Ferrer's Case (C.P. 1598), 6 Coke Rep. 7, 77 E.R. 263, Cro. Eliz. 668, 78 E.R. 906; Note Anon.1
(Ch. 1598 x 1602), No. 119-188; Note (Ch. 1599 x 1604), No. 120-[86]; Note (Ch. 1612), No. 167- No. 26
278; Note (Ch. 1613), No. 118-[348]; Note (Ch. c. 1615), No. 118-[352]. Court,
177 E.g. Heal's Case (K.B. 1588), 2 Leonard 115, 74 E.R. 405; Anon. (K.B. 1614), No. 221; Davies's 184 I
Case (K.B. 1615), No. 235; Catts and Suckerman v. Warner (K.B. 1615), No. 237; Note (Ch. 1612), Cham.
No. 167-278 ('[i]f a bill be not exhibited until a verdict be had in [an action of] debt, the court [of Pas. 2;
equity] will not stay judgment nor execution nor abate any part of the forfeiture'); see also below. 185 1
178 E.g. Anon. (Ch. 1631), No. 360. court. 1
179 Indeed, the scope of the doctrine of res judicata continues to invite litigation; see W. H. Bryson, the eq1
'Equity Reports and Records in Early-Modern England' and 'Virginia Law Reports and Records, could1
1776-1800' in A. Wijffels ed., Case Law in the Making, vol. I (1997), pp, 53 and 99. 186 "
180 E.g. Anon. (Ch. 1631), No. 360. ine the
181 Lepping/on v. Moody (Ex. 1636), No. 389; the common law courts also refused to acknowledge (Ch. l:
as resjudicata the decrees of the Court of Requests: e.g. Bacon's Case, (temp. Eliz. I), No. 103; Ady's 187 I
Case (K.B. c. 1602), No. 119-280; Ramsey's Case (K.B. 1616), No. 244; and the Council in the 188 1
North: e.g. Partington v. Beamount (C.P. 1624), Winch 79, 124 E.R. 67. 189 5
182 Anon. (Ch. 1670), 1 Chan. Cas. 155, 22 E.R. 740 (dictum). Soc. (1
 INTRODUCTION xli

mngm
49 and does not
and the cormnon law.
th was
with the common law but tunes it more
..,v,uiJ'-"·'"' The common law is, in
JUrt of
a is not a within itself but rather relates
to the cormnon law and aids the common law. English justice came to consist of
Jint of
both common law and and would be defective without both. This was
;tive in
as early as the fifteenth and judges had to
work out in the stage of
ta. The
case was to be served in a court of common law or a court of
cellor consulted the cormnon law judges on equity
:ood in
cases were also into the Chamber for debate among the
common law judges and
ined in
does not the validity of the common law but rather recognizes it
on law
and fulfils it. Equity does not the cormnon but where a person is
using the common law to an purpose, the judge will order that
seven-
person not to sue in the common law court or not to enforce a common law
wdicata
judgment. 185 The court of does not change the common law or reverse,
mt five 186 for to do so would be an
or annul any common law
mrt of
unconstitutional of power and an
;edents
power over the common law courts. But all disinterested would agree
that the cormnon law courts should not be used in an manner, and
y have
the court orders that would-be person not to do so. It is
against good conscience to do injustice. courts simply force defendants
21-1675 to act according to conscience; 187 have been
between called courts of conscience. 188
n Equity St. German was the first scholar to to explain the activ-
310, the
he said', 1sd1ct1on of the chancellor's court. He spoke in terms of epik.eia and
concept is all law must be framed in
iout any 183 E.g. Bodenham v. Hal1e (Ch. 1456), 10 Selden Soc. 137; Bale v. Marchall (Ch. 1457), 10 Selden
Soc. 143; Peckham v. John C., Chamberlain of England (C.P. 1464), YB Mich. 4 Edw. IV, fo. 37, pl.
. 1608 x 20; Anon. (Ch. 1468), YB Trin. 8 Edw. IV, fo. 5, pl. l; Charnock v. Sherrington (Ch. 1596), No. 118-
[185]; Atkins v. Temple (Ch. 1625 x 1626), 1 Chan. Rep. 12, 21 E.R. 493; Anon. (Ch. 1564), No. 3;
06; Note Anon. (Ch. 1584), No. 36; Lord Clanrickard's Case (Ch. 1610), No. 170; Huntv. Bancroft (Ch. 1621),
\Jo. 167- No. 260; Earl of Suffolk v. Grenville (Ch. 1631), No. 353; see generally W. J. Jones, The Elizabethan
Court of Chancery (1967), pp. 481-484.
Davies's 184 E.g. Anon. (Ex. Cham. 141 51 Selden Soc. 14; J.R. v. M.P. (C.P. 1459), see above; Anon. (Ex.
h. 1612), Cham. 1459), YB Trin. 37 Hen. fo. 35, pl. 23, 51 Selden Soc. 173; Anon. (Ex. Cham. 1482), YB
court [of Pas. 22 Edw. IV, fo. 6, pl. 18, 64 Selden Soc. 53.
o below. 185 This was done by means of a common injunction directed to the plaintiff in the common law
court. Common injunctions were interlocutory orders that were issued automatically by the clerks of
. Bryson, the equity courts upon a simple request to them without any prior hearing before a judge. (A litigant
Records, could request a hearing to vacate a common injunction, but it would take time to get a hearing date.)
186 'Though the court [of equity will] examine not a judgment [at common law], yet they will exam-
ine the corrupt conscience of the party', Ward v. Fulwood (Ch. 1596), No. 118-[201]; see also Note
10wledge (Ch. 1598 x 1602), No. 119-152; Earl of Oxford's Case (Ch. 1615), I Chan. Rep. I, 21 E.R. 485.
:J3;Ady's 187 E.g. Finch's Case (Ch. 1579 x 1587), No. 22; Note (Ch. 1598 x 1602), No. 119-152.
jJ in the 188 The word conscience is used synonymously with equity in Anon. (1608 x 1620), No. 167-255.
189 See C. St. German, Doctor and Student, ed. by T. F. T. Plucknett and J. L. Barton, 91 Selden
Soc. (1974), pp. xliv-xlvii, and 77-99; E. Hake, Epieikeia, ed. D. E. C. Yale (1953).
 xlii CASES CONCERNING EQUITY

general terms, it should be applied to individual cases with and miti- a cou
gation. The concept of conscience is the same as it was in the sixteenth were
century, a sense of absolute versus wrong. A should not be allowed time
to use the common law to perpetrate a wrong. For if a person made a Fn
written contract under seal, an agreement to pay money for an assignment of from
contract rights, and then it turned out that the assignment was invalid and were
worthless, the general common law rules allowed the enforcement of the writ- Chris
ten contract. However, the injustice of enforcing this contract was obvious, Th
because while contracts should be as a general where one party this v
does not get what he thought he was getting, he should not have to give up
what he promised to pay. The for the mistaken person is to sue in of th(
equity for an order to the other party not to sue on the contract and to It i
return the written agreement to him or, if he has already been sued, an order ship c
not to ask the sheriff to execute the common law judgment. Thus the contract Cour
and the common law judgment remain in force, but if they are taken advantage were
of, the obligee will be imprisoned for contempt of the equity court's order. 190 endo1
The peaceful coexistence oflaw and equity continued until the """"'"'"'""' that 1

of Cardinal Wolsey the early years of VIII. Thomas Wolsey, a that i

person of modest social background, came to the notice of Henry who witho
recognized in him a competent administrator. He attained the highest seats of ofwb
power in the civic and ecclesiastical'; and as lord chancellor, arch- were
bishop of York, cardinal, and papal legate, he was exalted over all men in Eng- allow
land except only the king himself. The power went to head, and he Th(
alienated many people. The odium that became attached to personally from
spilled over onto his Court of Chancery and from there to the rules of equity 1531)
;:
that were administered in that court. 191 Edwa
In 1529, having failed to obtain Henry VIII's divorce from Queen side o
192
Catherine, was stripped of his offices and and died shortly there- was d
after. He was succeeded as lord chancellor the common lawyer Sir into a
Thomas More. This was an interesting succession in that More was the first Alt
layman to be appointed chancellor since 1454; he had not been, and was not repor;
to become, the king's political and was a well-known practising
lawyer. It was believed that he would restore the proper between
193 J.
common law and Soon after his he called the judges
194 G
together to settle this relationship. He proposed not to common law liti- 195 h
gation if the judges would reform the common law, but the judges said that they 196 E
did not have the power to change the and this forced More to continue to 1441),
Hurst (
grant injunctions, in personam orders, as and all earlier chancellors had Revelle
done. Thus, More's appointment did not change or restore anything; but he was 197 p
198 1k
190
Doctor and Student, pp. 78-79; C. St German, A Little Treatise Concerning Writs a/Subpoena, Kemse}
printed in J.A. Guy ed., Christopher St German on Chancery and Statute (1985) Selden Soc. Suppl. Scrace
Ser. 6, p. 106 at pp. 110-112. (1975),
191
This antagonism led to the pamphlet warfare that produced St. German's Doctor and Student, 199 p
91 Selden Soc., and the tracts published in Guy, Christopher St. German on Chancery and Statute. 200 T
192
See E. Coke, Fourth Institute (1644), pp. 89-95, where the charges against Wolsey are printed science
in extenso. 201 N
 INTRODUCTION xliii

l miti- a courteous man, and the antagonisms between common law and equity which
teenth '-'were to surface again in the time of Lord Chancellor Wriothesley, and in the
193
lowed time of James I were for a while
iade a From the time of Sir Thomas More the chancellors were chosen
ent of from the ranks of the common lawyers. The only exceptions in our period
d and were the chancellors during the reactionary reign of I (1553-1558), Sir
~ writ- Christopher Hatton (1587-1591), and Bishop Williams (1621-1625).
vious, There was no specialized 'chancery' bar before the terminus ad quern of
party this thus both bench and bar had been or were practitioners indiscrimi-
lVe up nately in the courts of common law and of equity. the attorneys and clerks
sue m of the various courts lacked this broad exposure.
nd to It is interesting to note that it was not until 1534, during the lord chancellor-
order of Sir Thomas Audley, a common that the formal decree rolls of the
ntract Court of Chancery were first begun, and the Chancery decree and order books
194
mtage were not begun until 1 though before this time some decrees were
er. 190 endorsed on the pleadings. Ellesmere, about the verbose decrees
arship that were being drafted in the first decade of the seventeenth century, said
a that in former times the final decrees were simply for one party or the
·,who without any recitals. 195 However, even before the 530s those decrees
~ats of of which the court kept a record were simply endorsed on the pleadings, they
arch- were sometimes must have been) more elaborate than Ellesmere
1 Eng- allowed. 196
cnd he The first clear example of a suit in equity in the Court of Exchequer dates
from this same Tenants of v. Rector of Ashridge (Ex.
equity 1531). 197 There were at least five equity Exchequer cases in the reign of
Edward VI (1547-1553). 198 The earliest known order book from the equity
~ueen side of the Court of Exchequer covers the 1556 to 1558. 199 However, it
there- was during the of Elizabeth I that the side of this court matured
er Sir into a permanent
.e first Although there are a few cases in the yearbooks, 200 the earliest
201
as not reported case in this collection is Bartie v. Herenden
'tising cases before 1579 were very
tween
193 J. A. Guy, The Public Career of Sir Thomas More (1980).
udges 194 Guide to the Contents of the Public Record Office, I (1963), 30.
w liti- 195 Hanbury v. Arden, No. 120-[77].
t 196 E.g. Farendon v. Kelsey (Ch. 1407 x 1409), 10 Selden Soc. 107, 108; Rous v. FitzGejfrey (Ch.

1441), 10 Selden Soc. 132, 133; Bodenham v. Halle (Ch. 1456), 10 Selden Soc. 137, 140; Cokayn v.
Hurst (Ch. 1456), 10 Selden Soc. 141, 142; Bale v. Marchall (Ch. 1456), 10 Selden Soc. 143, 150;
Revelle v. Gower (Ch. 1471), 10 Selden Soc. 155, 158.
ewas 197 PRO E 111/49, E 111/35-B, E 111/35-C.
198 Manfield v. Wyer (Ex. 1547 x 1549), No. Pld-2; Roberts v. White (Ex. 1549), No. Pld-3;

poena, Kemsey v. Dalton (Ex. 1545 x 1552), No. Pld-4; Randell v. Tregyon (Ex. 1547 x 1552), No. Pld-5;
Suppl. Scrace v. Shelley (Ex. 1547 x 1552), No. Pld-6. W. H. Bryson, The Equity Side of the Exchequer
(1975), pp. 14-15. .
199 PRO E 111/56.
tudent,
200 The yearbook cases can be found through R. Brooke, La Graunde Abridgement, titles 'Con-
tatute.
printed science & Subpoena & Injunctions' and 'Feffements al Uses'.
201 No. 2. The report was written by Nicholas Barham, serjeant-at-law, in 1572.
xliv CASES CONCERNING EQUITY

court
~H'U"-·'"·
to create a document that judg1
the common law courts would or to do a common law act, such as cour1
enfeoff another person or make a The court of
the creation of a deed created a conm1on law document or record so that the doctr
successful in had no need for a record to be in the Or
equity court. A transfer of money or is a common law event. not r
decrees, even when were evidence of a and not docu- Whe1
ments of title, as were the common law rolls. unles
The herein illustrate the activities of the ment
the second half of the of Elizabeth I and adve1
and
COmIJ
relief
together cases
each had law. 2
the s;
The c
in the first decade of the seventeenth two ambitious and their
aggressive men came to for dominance of the legal not b
system. The two were Thomas Lord Ellesmere, who became lord chan- time.
cellor, and Sir Edward a common law judge who became lord but tl
of The chancellor has been the administrative head of the Eng- law j1
but tradition was for Coke a not a master. When Coke centu
became lord chief justice of England in an attack on the Chan- Cour
cery's intervention in after judgment at law. 204
If the suit in for an to execution of a common law order
was to the same issue that had been determined the court of 206 s
ment a
common - the doctrine that Aylom
once a court has decided a it cannot be uu;;.;a1ccou are aln
courts of did not have and did not claim to have way th
207 I
over the Courts of Bench or Common Pleas. Indeed it was said in the Zouch
Court of Chancery that a bill be not exhibited until a verdict be had in (doubl<
action of] debt, the court [of will not stay fraud).
20s E
nor abate any of the forfeiture'. 205 If defendants 209 s
luck with a common law and if sued in to Report
210 .E
would not be successful there either because
Broc!ce
of res Such a bad faith suit in No. 2C
Wright
(K.B. l
202
Above, p. xiii. 1615), l
203 See, for example, Stokes v. Mason (Ch. 1610), No. 165-[21]. ject Inc
204
The personal and professional rivalries between Coke and Ellesmere have been analyzed at 211 s,
length in, among others, D. E. C. Yale, Lord Nottingham's 'Manual of Chancery Practice' and 'Pro- Report
legomena of Chancery and Equity' (1965), pp. 7-16, and L.A. Knafia, Law and Politics in Jacobean 212 E
England (1977), pp. 155-181. [273]; I'
205
Note (Ch. 1612), No. 167-278; see also Note (Ch. c. 1601), No. 119-236. 213 ]\
 INTRODUCTION xlv

in order to execution of a common law

1t that could hear the of res but the
uch as to dismiss the case after a hear-
orcmg the
tat the
in the an after a common was
a reconsideration of the substance of the common law result.
docu- Where it was, this was ""'"'".,
unless it was an to a court.
207
courts ment was the result of extrinsic or collateral or
gns of the control of the common law court
much effect within the rules of the
;tween common should hear the prayer for
209 in this volume are many
relief and
after
law. 210 In such cases, a court of
;mem the same manner as a contract or any other
The common law
is and the
1 legal
chan- time. acts in personam and not in rem; to act,
but the courts of do not declare common law rights or alter common
u~,.,.u.vuw 212 This distinction was well understood in the seventeenth
213
Coke ""'"a·''-'''"• in Stokes v. Mason Justice Williams of the
Chan- while sitting in the Court of granted an
aw.204
·order
206 See above; note also Ayloffe v. D~ke (Ch. 1655), No. 459, which relieved against a double pay-
mrt of
ment and fraud after a common law judgment, which I believe was wrongly decided because Mrs.
ie that Ayloffe was aware of the fraud before the common law action was begun. However, the reports
Lse the are almost all too brief to know exactly what was pleaded and exactly why the judges ruled the
hction way they did.
207 E.g. Legges v. Heath (Ch. temp. Hen. VIII), No. 165-[3] (double recovery); Zouch v. Lord
in the Zouch (Ch. 1548), No. 165-[5] (double recovery); Dove v. Holmes (Ch. 1551), No. 165-[6]
1ad in (double payment after an injunction); Ayloffe v. Duke (Ch. 1655), No. 459 (double payment and
cuti on fraud).
208 E.g. Jones v. Lachbury (Ch. 1557), No. 165-[9] (theft of evidence before trial).
v their 209 See W. H. Bryson, 'Equity Reports and Records in Early Modem England' and 'Virginia Law

to Reports and Records, 1776-1800' in A. Wijffels ed., Case Law in the Making (1997), pp. 66 and 99.
210 Note (Ch. 1599), No. 120-[79]; Note (Ch. c. 1599), No. 120-[80]; Cardinal v. De La
ecause
Brocke 1606), No. 130; Extracts of Decrees (Ch. 1535-1610), No. 165; Birde's Case (1612),
mit in No. 206; Heath v. Heath (K.B. 1614), No. 220; Anonymous (K.B. 1614), No. 221; Fowler v.
Wright (K.B. 1614), No. 226; Glanville's Case (K.B. 1615), No. 230; Gouge and Smith's Case
(K.B. 1615), No. 233; Davies's Case (K.B. 1615), No. 235; Colts and Suckerman v. Warner (K.B.
1615), No. 237; Ruswell's Case (K.B. 1615), No. 240; Apsley's Case (K.B. 1615), No. 241. See 'Sub-
ject Index' at 'Equity, Judgments at law' for additional cases.
211 See W. H. Bryson, 'Equity Reports and Records in Early Modern England' and 'Virginia Law
lyzed at
nd 'Pro- Reports and Records, 1776-1800' in A. Wijffels ed., Case Law in the Making (1997), pp. 69 and 99.
212 E.g. Ward v. Fulwood (Ch. 1596), No. 118-[201]; Hurd v. Dodington (Ch. 1598), No. 118-
acobean
[273]; Note (Ch. 1598 x 1602), No. 119-152; Note (C.P. 1627), Littleton 37, 124 E.R. 124.
213 No. 165-[21].
 xlvi CASES CONCERNING EQUITY

injunction after a common law verdict and judgment. This was not a new or after
unusual practice, 214 but it was at least arguably contrary to statute, in particu- judg1
lar the statute 4 Hen. c. 23, which formed the centre-piece of Coke's argu- pleac
ment against the common St German's student of the laws of have
England had concluded that the statute stood with good conscience as it Ev
'does not prohibit equity but it prohibits only the examination of the judg- flexil:
ment',215 but in Finch v. (1598) all the judges in Exchequer Cham- Simp
ber had ruled that Chancery could not re-examine matters after judgment at comr
law. 216 Thus supported, and galled because the equity the ""-...~ .. ,,.. vail.
might appear to be an to his rival the lord chancellor, Coke let it be propt
known that he was prepared to stop this practice, and proposed to grant the c
writs of habeas corpus to persons imprisoned for contempt of a common comn
tion granted the Chancery after judgment at law. 217 This would deprive the law'.=
equity courts of their powers of enforcement in such cases and lead to control of judge
them by the common law judges, including Coke, who subordinated as many of court
the other courts to his own as he could. 218 A~
Soon a most unworthy plaintiff, Richard appeared in the Court of imprn
Common Pleas and entered a judgment by confession on a contract, a cognovit acces1
that was the result of his gross fraud and deceit. (He had sold a topaz, ods o
representing it to be a diamond.) He thus got a common law judgment; the liame
Court of Chancery issued an injunction to stop the enforcement of it because the ki
it and the bond were obtained by fraud; the injunction was disobeyed; Elles- Cove1
mere imprisoned Glanville for contempt of court; and Coke ordered him to and a
be released on a writ of habeas corpus. its jur
This matter ended inconclusively, but this case and several others made a It VI
public issue of this problem of the of law and the administration of jus- royali
tice. The whole matter of the boundaries between common law and equity was [in] la'
then referred to the king's council for full debate and resolution. 219 The result the co
was in favour of the courts of equity, 220 as should have been expected. It is equity
ironic that Glanville's Case is the perfect example of the need for injunctions foot tc
214
See the collection of examples from the Chancery decree books: 'Judgments at the common
law examined in the High Court of Chancery', No. 165; see also Note (Ch. 1598 x 1602), No. 221 E
119-152 ('that judgments [at common law] are so often examined in Chancery .... '). (c. 1629
215
C. St German, Doctor and Student, ed. by T.F.T. Plucknett and J.L. Barton, 91 Selden Soc. v. Collii
(1974), p. 109 (orthography modernised). See also J.A. Guy ed., Christopher St German on Chancery E.R. 731
and Statute (1985), Selden Soc. Suppl. Ser. 6, pp. 67-69. 415, 49·
216
Discussed in J. H. Baker, 'The Common Lawyers and the Chancery: 1616' in The Legal Pro- 222 Se
fession and the Common Law (1986), p. 205 at pp. 208-209. Court o
217
See Baker, 'The Common Lawyers and the Chancery: 1616' at pp. 211-215. land Be
218
If this grab for power had succeeded, the rest of English legal history might very well have been 223 F.
quite different from what it is. J. P. Dawson, 'Coke and Ellesmere Disinterred: The Attack on the 224 J.
Chancery in 1616' (1941), 36 Illinois Law Review 127-152. Keeper
219
Glanville's Case, No. 230; note also Allen's Case (c. 1610), No. 174; Fowler v. Wright (K.B. Chance1
1614), No. 226; Gouge and Smith•s Case (K.B. 1615), No. 233; Catts and Suckerman v. Warner 91 Engl.
(K.B. 1615), No. 237; Ruswell's Case (K.B. 1615), No. 240; Earl of Oxford·s Case (1615), l Chan. who wa
Rep. 1, 21 E.R. 485; Russel's Case (K.B. 1482), YB Mich. 22 Edw. IV, fo. 37, pl. 21. chide to
220
'The IC.ing's Order and Decree in Chancery' (1616), Cary 115, 21 E.R. 61, though James's reso- 402 at 4
lution of the dispute was later said to have been illegal. See J.H. Baker, 'The Dark Age of English than tht
Legal History, 1500-1700' in The Legal Profession and the Common Law (1986), p. 435 at p. 438.3'. Court v:
 INTRODUCTION xlvii

iew or after final judgments at common law. The in Glanville's Case was a
articu- by confession, and the debtor had had no prior opportunity to
; argu- plead the the same issue of Glanville's fraud had not been nor could it
tws of have been at common law as the case was framed.
~ as it Even though equity was not perfect, it was more modern and more
: judg- flexible than the common law. The old rule was thus re-established in 1616. 221
:=ham- stated, the rule was that where the results of an equity order and a
tent at common law order are in disagreement, the rule and decree will pre-
iction, vail. Were this not so, the courts of equity would be unable to perform their
tit be proper and traditional functions, 222 though in performing those functions
the courts of equity were not operating as a rival system to the courts of
common law: at 'every point equity presupposed the existence of common
ive the law'. 223 Shortly after Glanville's Case Sir Edward Coke was removed from his
trol of judgeship, Lord Ellesmere died, and life returned to normal in the English
any of courts.
A generation later, personalities and rather than jurisprudence, again
mrt of impinged on the between common law and Soon after his
1gnovit accession in 1625, Charles I, inclined to follow the French theories and meth-
ods of government, attempted to rule England without the interference of par-
11t; the liament. When parliament was removed as a political the opponents of
ecause the king's policies took their opposition to the arena of the law courts. Lord
Elles- Coventry, the lord chancellor, was identified with the king and his policies,
1im to and again the dislike of the chancellor resulted in dislike of his court and of
its jurisprudence.
1ade a It was during this period that John Selden, the famous legal scholar and anti-
ofjus- royalist, published his well-known jibe at equity: 'Equity is a roguish thing; for
ty was [in] law we have a measure [we '3an] know what to trust to. Equity is according to
result the conscience of him that is chancellor, and as that is larger or narrower, so is
l. It is equity. 'Tis all one as if they should make the standard for the measure we call a
tctions foot to be the chancellor's foot; what an uncertain measure this would be .... ' 224
:ommon
221
)2), No. E.g. Huet v. Conquest (K.B. 1616), No. 245; Aylijfe v. Duke (Ch. 1655), No. 459; but see Note
(c. 1629), No. 322; Morehead v. Douglas 1655), No. 460; the issue was fully re-litigated in Harris
!en Soc. v. Colliton (Ex. 1658), Hardres 120, 145 411, and R. v. Standish (K.B. 1670), 1 Modern 59, 86
:hancery E.R. 730, 1Siderfin463, 82 E.R. 1218, 1Levinz241, 83 E.R. 387, 2 Keble 402, 661, 787, 84 E.R. 251,
415, 497, Gray's Inn MS. 35, fo. 679.
222
'Sal Pro- See generally 'Arguments Proving from Antiquity the Dignity, Power, and Jurisdiction of the
Court of Chancery', l Chan. Rep. 1, 21 E.R. 576; D. W. Raack, 'A History of Injunctions in Eng-
land Before 1700' (1986), 61 lndiana Law Journal 539-592.
223
1ve been F.W. Maitland, Equity (2nd ed., 1936), p. 19.
224
con the J. Selden, Table Talk (Pollock ed. 1927), p. 43. Selden's jibe was perhaps also aimed at Lord
Keeper Williams, who was not a lawyer and believed in a personal and theological 'conscience' in
~t (K.B. Chancery according to G. W. Thomas, 'James I, Equity and Lord Keeper John Williams' (1976),
Warner 91 English Historical Review 506-528, esp. 522-523. Or perhaps, Selden had in mind Ellesmere,
1 Chan. who was not a likeable person. In any case, Selden's sarcasm has been quoted ever since as a
chide to judges who fail to follow the established law. In Gee v. Pritchard (Ch. 1818), 2 Swanston
s's reso- 402 at 414, 36 E.R. 670 at 674, Lord Eldon said 'Nothing would inflict on me greater pain ...
English than the recollection that I had done anything to justify the reproach that the equity of this
p. 438. Court varies like the Chancellor's foot'.
xlviii CASES CONCERNING EQUITY

The political, and personal defeats of Charles I are well known. As sys ten
the king, the bishops, and the were one by one removed from power, of his
the radicals turned against Oliver Cromwell and the moderate and in Thl
their zeal and ignorance attacked the law itself. One of their about
abolish the Court of This attack was the low not, a:
tory of equity. 225 This ill-conceived movement failed in sound
a close vote. 226 the the Court of was have,
over by a committee of three commissioners, and this assured that it would The
have no political power. the normal course of statutt
in the courts of continued unabated availa
of Cromwell. law232
After the to grow by leaps equita
and bounds, the naval power of the Dutch been recently defeated. As equity
English wealth became more and more based on commerce, the patronage of Altl
the lord treasurer became greater than that of the lord chancellor, and so the equity
1-JVHU'-'""-H closest to the sought to be treasurer rather than chan- m par
cellor. The result was that the chancellor became less than certair
he had been in the and thus had more time for the performance of his concer
cial duties. the legal of the candidate for the position of not 01
lord chancellor became as as his connections. Thus, from court,~
the Restoration of and legally Furthc:
adept chancellors whose to the
First and foremost was
judge without equal. Since the Middle
loosely called a court of conscience. Lord
science into its proper in Cook v. Fountain 22s Se1
stated that he was not to the conscience of any Chancer.
cular of to the civic con- Nottingh
229 It 1
science of the English that.,,_
administered in the courts 4', P- 131
it 230 Wl
found in the established 231 w.
applies not a concept in than a fi:
law. Since in lucid and rational 232 'Ai

were the first to be well's Ca

(Ex. 1651
233 J_ ~
(1991),p
22 s It was at this period that the Court of Exchequer expanded its jurisdiction to cover all civil 1649. Se(
cases without regard to the public fisc. Perhaps it was done to assure to the bar and the general (1983), 2
public the availability of equitable remedies should the Court of Chancery be taken away. 234 E.g
226 S. K Prall, The Agitation for Law Reform During the Puritan Revolution 1640-1660 (1966), PP- 23s E.g
81-90; N. L. Matthews, William Sheppard, Cromwell's Law Reformer (1984), PP- 98, llO; G. B. No. 119-
Nourse, 'Law Reform Under the Commonwealth and Protectorate' (1959), 75 Law Quarterly 48, 145 :E
Review 512, 514, 524-525. 1610-l6j
227 'With such a conscience as is only naturalis et interna, this Court [of Chancery] has nothing to 1633), N
do; the conscience by which I [the lord chancellor] am to proceed is merely civilis et politica, and tied D.Wind1
to certain measures', Cook v. Fountain (Ch. 1676), 3 Swanston 585 at 600, 36 KR. 984 at 990. In 236 E.g

1709, Chief Baron Ward said '[I]n equity we must be guided and governed by the rules and reasons 1623), R
of other cases', Packington v. Wyche (Ex. 1709), HLS MS. 1169, pt. 2, pp. 125 at 130. 454; Vaui
 INTRODUCTION xlix

wn. As systematically reported, he has been called 'the father of equity'. 228 By the end
power, his chancellorship, there was a specialized equity practice among the bar. 229
andin Thus, equity has become an integral part of the law. The major misconception
was to about equity - that it is administered at the whim or caprice of the judge230 - is
the his- not, and never has been, true. The 'discretion' exercised by the equity judge is a
was sound judicial discretion regulated by the established principles of equity that
resided have, over time, come to play an invaluable role in legal practice. 231
would The sound judicial discretion of the equity judges has always been guided by
·udence statutes and judicial precedents, both common law and equity, so far as they are
he time available. The old maxim that where the equities are equal, equity follows the
law232 is evidence of this. The equity judge follows the common law in granting
equitable remedies in support of it. Only where there is inequity afoot does the
equity judge depart from the common law.
Although there was an incipient right of appeal from the high courts of
equity in the early seventeenth century, 233 and there were only a few cases
in parliament that were binding precedents before 1660, the equity courts
certainly believed that like cases should be decided in like ways. This is the
concept of persuasive precedent. And indeed the equity judges of this period
not only listened to precedents cited to them by the litigant's counsel in
court, 234 but referred to precedents themselves in support of their rulings. 235
Furthermore, they would ask for precedents to be searched for and presented
to them, 236 and Baron Trevor, sitting on the equity side of the Court of
rand a
td been

228
See generally, D. E. C. Yale, 'Lord Nottingham and Precedent in Equity', Lord Nottingham's
Chancery Cases (1957), 73 Selden So'c., pp. xxxvii-cxxiv; D. E. C. Yale, 'Introduction', Lord
11c con- Nottingham's 'Manual of Chancery Practice' and 'Prolegomena of Chancery and Equity' (1965).
229
It was said that in 1682 'all the posse of the Chancery bar appeared in the Exchequer to argue
nce as that ... .'Attorney- Generalv. Herring (Ex. 1707), IU Lilly MS. Parker, 'Cases in the Exchequer, vol.
s to be 4', p. 136.
230
it Where this is so, it is the action of a bad judge behaving improperly.
231
W. J. Jones wrote in reference to Ellesmere: 'he insisted that equity was an aspect oflaw rather
m than a figment of discretion'. The Elizabethan Court of Chancery (1967), p. 98.
·ational 232
'Aequitas sequitur legem'; e.g. Attorney-General v. Abington (Ex. 1613-1619), No. 2 lO(II); Rus-
, to be well's Case (K.B. 1615), No. 240(IV); Anon. (C.P. 1641), March 106, 82 E.R. 432; James v. Blunck
(Ex. 1656), Hardres 88, 145 E.R. 395; R. Francis, Maxims of Equity (1727), pp. 61-72.
233
J. S. Hart, Justice Upon Petition: The House ofLords and the Reformation of Justice 1621-1675
(1991), pp. 44-51, 110-114, describes the first beginnings of equity appeals, which were from 1621 to
'r all civil 1649. See also J. S. Hart, 'The House of Lords and the Appellate Jurisdiction in Equity 1640-1643'
e general (1983), 2 Parliamentary History 49-70.
234
{. E.g. Lowe's Case (Ex. 1582), No. 29; R. v. Palmer (Ex. 1588), Moore K.B. 263, 72 E.R. 569.
235
l966), pp. E.g. Wardens of Rochester Bridge v. Cromer (Ex. 1590), No. 6l(II); Anon. (Ch. t. Ellesmere),
10; G. B. No. 119-56; Anon. (Ch. t. Ellesmere), No. 119-57; R. v. Earl of Nottingham (Ex. 1609), Lane 42, 47-
Quarterly 48, 145 E.R. 284, 288-289; Jackson's Case (Ex. 1609), Lane 60, 145 E.R. 299; Arden v. Darcy (Ex.
1610-1614), No. 218(II); Humphreys v. Sotherton (Ex. 1629), No. 319(II); Venda/ v. Harvey (Ch.
.othing to 1633), No. 377; Walsingham v. Baker (Ex. 1656), Hardres 49, 145 E.R. 375; see generally, W. H .
·,and tied D. Winder, 'Precedent in Equity' (1941), 57 Law Quaterly Review 245-279.
236
1t 990. In E.g. Anon. (Ex. 1611), No. 178; Arden v. Darcy (Ex. 1610), No. 218(1); Sheriffv. Tompkins (Ex.
d reasons 1623), E.126/2, fo. 270v; Clench v. Burman (Ch. 1650), No. 442; Clarke v. Southcott (Ch. 1652), No.
454; Vaughan v. Mansel (Ex. 1656), Hardres 67, 145 E.R. 384; Hatredv. Devaux (Ch. 1660), No. 465.
 CASES CONCERNING EQUITY

Exchequer, once smugly noted that he had found a precedent that counsel had quest
overlooked. 237 all tir
That more precedents were not being cited before 1660 reflects the great lack Sin
of equity reports in print at the time. This may be accounted for by a contem- re me<
porary preference for reporting common law cases. Law students at the time, as ordin
they had for centuries before, attended the common law courts of Common basic
Pleas and King's Bench as a vital part of their legal education. Some of the usual
notes taken in court ended up as formal reports of cases. We do not hear of stu- On
dents regularly attending the courts of Chancery or Exchequer. Secondly, even sonal
the more frequent common law reports were not properly printed because of the is enf,
monopoly on printing law books and because of the vagaries of the printing pnso1
trade at the time. 238 court
It is to be noted that with the exception of the four large collections of short mone
Chancery cases or notes of cases, 239 there are almost an equal number of equity law o
cases reported here from the Court of Exchequer and the Court of Chancery. land
Considering that the Exchequer was also a court of common law, one might acts c
be tempted to argue that the idea of reporting equity cases arose in the Exche- rev1e\
quer in imitation of the reporting of its common law cases. However, a few Thi
Chancery cases had been reported earlier, some in the yearbooks. My opinion cedur
is that law reporting at this time was a very haphazard matter and the propor- more
tionately large number of equity cases from the Court of Exchequer is a matter its wr
of coincidence; that is where Arthur Tumour and Robert Paynell, who hap- act of
pened to make reports, happened to practise. The total number of cases filed onwa
and heard in the Chancery was much greater than in the equity side of the comn
Exchequer. Maybe the lord chancellors, and the barons of the Exchequer, set u1
were not as highly regarded before 1660 as they came to be afterwards and so Even
the legal community was less interested in their opinions. It is interesting to was r
note the lack, both here and in the older printed reports, of opinions by the royal
world-famous chancellor, Sir Francis Bacon. in the
The courts are constantly working out new solutions to new legal problems as north
society and commerce develop. This is, or should be, done within the context of the J\
existing precedents and statutes in order to avoid frustrating legitimate expecta- which
tions and planning based on the established law. Old problems and solutions into <
should not be re-litigated, in theory, because the parties should know ahead 1641.;
of time how the court will rule; these cases should be settled out of court. A and C
case involving a mere dispute of fact, as opposed to law, is of little concern to remec
anyone but the parties themselves and thus need not be reported. Even so,
most of the cases in this book report rulings on motions dealing with routine
240 TJ
241 T
237 Swinerton v. Wolstenholme (Ex. 1627), No. 276(1). For the role of precedent in Chancery in this lished ii
period see M. Macnair, 'The Nature and Function of the Early Chancery Reports' in C. Stebbings D.Win
ed., Law Reporting in Britain (1995), p. 123. 242 I.
238 W. H. Bryson, 'Law Reports in England from 1603 to 1660' in Stebbings, Law Reporting in 243 s·
Britain, pp. 113~ 122. (1921),
239 No. 117 to No. 120. note ah
 INTRODUCTION Ii

sel had questions of procedure (not at all dissimilar to those of modern practice and of
times in between).
at lack Since the courts of equity grant remedies only when the ordinary common law
::mtem- remedies are inadequate, the jurisdiction of the equity courts is said to be extra-
1me, as ordinary. The term 'extraordinary' is used here in the sense of going beyond the
1mmon basic rather than in the sense of unusual; equity is both extraordinary and quite
of the usual and frequent.
of stu- One aspect of extraordinary equity powers involves the personal order. A per-
y, even sonal order does not change the law or the parties' strict common law rights and
~of the is enforced by the court's holding the defendant in contempt and keeping him in
rinting prison until he obeys. Thus, equity is said to act in personam. A common law
court acts in rem (that is, on the property of the defendant) declaring the
,f short money or land in dispute to belong to the successful plaintiff. The common
·equity law court thus changes ownership and orders the sheriff to take the money or
mcery. land from the defendant and to give it to the plaintiff. Since the equity court
: might acts only in personam on the parties, it neither changes the common law nor
Exche- reviews a common law judgment. 240
, a few The procedure of the equity courts, sometimes referred to as English bill pro-
1pm10n cedure, which was developed in the fifteenth-century Chancery, was clearly
>ropor- more modern and much more efficient than the common law procedure, with
matter its writs and forms of action and trial by jury. Every court that was set up by
o hap- act of parliament or evolved on its own in England from the fifteenth century
es filed onward used this English bill procedure rather than the procedure of the
of the common law courts. 241 The Court of Requests was a court of equity that was
iequer, set up to hear the disputes of poor people involving small sums of money.
and so Even though it later came to hear cases where large sums were disputed, it
ting to was not a high court and its,, decrees were not well respected by the other
by the royal courts. It fell into disuse in the 1640s. 242 Two regional courts with origins
in the fifteenth century provided justice conveniently to the inhabitants of the
!ems as northern and western parts of England and Wales. These were the Council in
itext of the North, which sat at York, and the Council in the Marches of Wales,
icpecta- which sat at Ludlow. Both courts administered equitable remedies. They fell
lutions into disuse when their criminal jurisdictions were abolished by statute in
ahead 1641. 243 Moreover, for disputes involving land lying in Durham, Lancashire,
mrt. A and Cheshire, and land which was parcel of the Duchy of Lancaster, equitable
cern to remedies were available in the Chancery Court of the County Palatine of
ven so,
routine
240 Ward v. Fulwood (Ch. 1596), No. 118-[201]; Note (Ch. 1598 x 1602), No. 119-152.
241 The only exception was the common law Court of Great Sessions of Wales which was estab-
:ryin this lished in 1543 as a part of the integration of Wales into the English political and legal system. W. H.
:tebbings D. Winder, 'Equity in the Courts of Great Sessions' (1939), 55 Law Quarterly Review 106.
242 I. S. Leadam ed., Select Cases in the Court of Requests, 12 Selden Soc. 1, li.
243 Stat. 16 Car. I, c. 10, ss. 2, 7 (SR, V, 110-111); R. R. Reid, The King's Council in the North
>orting in
(1921), pp. 445-449; C. A. J. Skeel, The Council in the Marches of Wales (1904), pp. 158-165;
note also P. Williams, The Council in the Marches of Wales under Elizabeth I (1958).
lii CASES CONCERNING EQUITY

Durham, 244 the Chancery Court of the County Palatine of Lancaster, the Court Whe1
of Duchy Chamber ofLancaster, 245 and the Court of Exchequer of the County scrip1
Palatine of Chester. These courts were abolished in modern times. In addition, ters a
there were several revenue courts that administered common law rights by any (
means of equitable remedies. These were the short-lived Court of Augmenta- they c
tions,246 the Court of First-Fruits and Tenths, and the important Court of woul<
Wards and Liveries. 247 The first two were merged into the Court of Exchequer gin al
in 1554, and the latter disappeared in the middle of the seventeenth century gener
when military tenure of land was abolished. Finally there was the Court of Th
Star Chamber, a court of criminal and civil jurisdiction, which also used Eng- mode
lish bill, equity, procedure. It was abolished in 1641. 248 thing
The period under consideration saw the beginning of the serious reporting of as the
equity cases. It was the time of professional lawyers sitting in the Court of Chan- centu
cery as a general the Court of Exchequer assuming an equitable jurisdic- tions,
tion, and the new lesser courts hearing cases using equity procedure. The pily s
beginning of the reporting of equity cases was the beginning of the serious dis- same
cussion and debate of the principles and practice of equity; this led to their being mode
settled in similar fashion to those of the common law. the end of the eight- andp
eenth century, the process was complete to the point that equity was as well ance,
settled and well defined by precedent as was -~he common law in the Middle rity o
Ages, and the growth of the law in the nineteenth century was stimulated by Gh
the legislature rather than by the courts. text a
practi
mood
D. EDITORIAL PRINCIPLES AND PRACTICES the OJ
neces1
It has been decided to translate all the cases in law French into English and not the re
to print any of the original cases literatim. There are several reasons for this. dency
Primarily, the law French of the late sixteenth and the seventeenth centuries geniti
is linguistically artificial, and it is clear from both the vocabulary and the brack
syntax that although writing in law French the reporters were in Eng- be a c
lish. The quirks of their French are matters· of legal jargon, not of linguistics. this i~
The precise English words in the mind of the writer are often transparently The t:
obvious, and the true original language is English. The difficulties of transla- nume1
tion come from the law and not the language, from elliptical writing, from have
poor handwriting, poor copying, 249 and the bad state of the manuscripts; the usage.
problems would have been as difficult had the original been in English. Since
has bt
244 See The Practice of the Court of Chancery of the County Palatine of Durham (1807); K. Emsley

and C. M. Fraser, The Courts of the County Palatine of Durham (1984), pp. 75-90.
245 R. Somerville, 'The Palatinate Courts in Lancashire', in A. Harding, Law-making and Law- 2so T
makers in British History (1980), pp. 54-63. printed
246 See generally, W. C. Richardson, History of the Court of Augmentations 1536-1554 (1961). pp. 52-
247 See generally, H. E. Bell, An Introduction to the History and Records of the Court of Wards and differen
Liveries (1953). the Pri~
248 Stat. 16 Car. I, c. 10, s. 1 (SR, V, 110-111). 251 H
249 E.g. BL MS. Harl. 1576. Historic
 INTRODUCTION liii

: Court Where there were serious doubts as to the meaning of the law French, a tran-
:=ounty ~cription of the original has been given in a footnote. Secondly, several repor-
dition, ters alternated law French and English sentences within a single case without
:hts by any discernible logic or system. All the reporters used English words when
menta- they did not know the French one. Thirdly, to publish the law French original
rnrt of would substantially increase the costs of this volume. Fourthly, many of the ori-
hequer ginal manuscripts are available in microfiche copy. Passages in Latin have in
:entury general not been translated, and abbreviated Latin has been expanded.
)urt of Those reports that were originally in English have been transcribed using
d Eng- modern spelling and As a matter of law, a word is a spoken
thing not a written thing, and thus spelling is of no legal significance so long
ting of as the word sounds correctly. This is the rule of idem sonans. In the seventeenth
'Chan- century, writers were careful to spell Latin according to the standard conven-
uisdic- tions, but felt no such constraints when writing in English and would quite hap-
·e. The pily spell the same English word, even proper nouns, 250 differently within the
ms dis- same sentence. Thus, to transcribe the English cases literatim instead of using
r being modern, standard orthography is valueless. Even after standardising spelling
~eight­ and punctuation, this volume of reports lacks a uniformity of style and appear-
as well ance, but no more can be done in this direction without compromising the integ-
Middle rity of the substance of the original reports.
tted by Given this volume's departure from the usual practice of printing the original
text as well as its translation, it is appropriate to make some observations upon
practice in translation and transcription of the law French texts. The tenses and
moods of the original have been followed more closely than is common where
the original text is printed, though some variation has been admitted where
necessary to avoid artificiality in the translation and to allow for the fact that
mdnot the reporters themselves were .flexible in their usage. There was a strong ten-
or this. dency among the reporters to omit definite and indefinite articles, the of-
nturies genitive, and the pronoun subject. To avoid cluttering the translation with
.nd the brackets these have been silently supplied, except in cases where there might
1n Eng- be a change in sense. The modern forms of i, j, u, and v have been used, as
;uistics. this is a matter of calligraphy and typography rather than orthography. 251
arently The thorn has been transliterated as th. Save in the case of sums of money,
.ransla- numerals have generally been rendered into words. Abbreviations for money
~, from have been standardized to superscript 1, s, and d, following contemporary
)ts; the usage. References to regnal years have been rendered into standard form.
\nglish. Since modem usage in spelling, paragraphing, capitalization, and punctuation
has been followed for the material translated into English from law
.. Emsley
250
ind Law- The printer Richard Tottell spelled his own surname at least eleven different ways in the books
printed by himself: J. H. Beale, A Bibliography of Early English Law Books (1926), p. 196, note also
(1961). pp. 52-104; Valentine Simmes, the Elizabethan printer, occasionally printed his own surname with
7ards and different spellings: W. C. Ferguson, Valentine Simmes (1968), p. 80; see also R. Munter, Dictionary of
the Print Trade in Ireland 1550-1775 (1988), p. 6.
251 H. Maxwell Lyte,' "u" and "v", a Note on Palaeography' (1925), 2 Bulletin of the Institute of

Historical Research 63-65.

liv CASES CONCERNING EQUITY

names of persons and of places have been into modem spelling unless there mall:
is some doubt or uncertainty. Names in the original were frequently spelled dif- litiga
ferently in the same report. Where the name of a party has been found in the cour:
official record of the case, this version has been used instead of a garbled ver- proc1
sion as frequently found in the manuscript report. whic
Each report is a transcription (of a report originally in English) or a transla- was:
tion (of a report originally in law French) of a single manuscript rather than a repoi
composite of several versions of the report. The manuscript used is noted after or fo
the style of the case, followed by a note in square brackets of whether the report decn
was originally in law French or in English. Single words or short passages in a nevei
language other than the dominant language of a given report are not noted. Sig- an 01
nificant variations in other manuscripts are given in footnotes, but minor verbal wher
variations are not noted. savec
Square brackets have been used to enclose matter added by the editor to
supply a deterioration or omission in the original manuscript, to aid the flow
of the text, or to make an abbreviated note into a grammatical sentence.
Where a word in the original has been replaced or omitted in order to make
sense of the report the replacement word or ellipses are enclosed in square
brackets, and the word replaced or omitted is indicated in the notes. 252 Ellipses
set off by square brackets, and unaccompan.ied by a note, indicate that the
editor was unable to decipher a word or words in the manuscript and declined
to speculate on what is missing. A question mark between square brackets
warns the reader that the editor was unsure of the correctness of the transcrip-
tion or translation of the preceding word. Repetitions in the original have been
silently omitted.
Marginalia, endorsements, erasures, and cancellations have in general not
been transcribed. Transcribed marginalia are indicated in the notes. Erasures
which have been transcribed are enclosed within angle brackets.
Dates are all given in Old Style since New Style was not adopted in England
until 1752. 253 The year is taken to have begun on l January, though transcribed
dates have not been altered.
In making footnotes to the citations to authority in the cases transcribed, I
have given parallel references to the English Reports reprint since this is the edi-
tion of the older printed reports that is most widely available today, but the stat-
utory references are generally limited to the Statutes of the Realm. Where a case
or a statute is referred to more than once in a particular case, only the first refer-
ence has been identified in a footnote.
I have attempted to locate the official decrees or orders that correspond to the
unofficial reports published here. The general problem is that equity cases nor-
252 Certain frequent substitutions have been made silently in translating from French, either in

response to loose usage by the reporters or to aid the sense and avoid circumlocution. These
include: 'from' or 'of for French 'a'; 'had' for French 'ad'; 'at the', 'for the', 'of, or 'at' for
French 'al'; 'to' for French 'de'; 'said' for French 'dist'; 'remainderman' and 'reversioner' for
254 F
French 'cestui in remainder' and 'cestui in reversion'; 'to take' for French 'pur prender' (and similar
formations). To aid the sense (e.g.) 'X's house' has been substituted for the English 'X his house'. Chance
25 3 Stat. 24 Geo. II, c. 23, s. 1. ings 161
 INTRODUCTION Iv

;s there mally took several years from filing to final decree. During the pendency of the
led dif- '.>litigation, numerous interlocutory orders would be entered, some were orders of
l in the course, others followed interlocutory hearings. The reports could have been of
ed ver- proceedings at interlocutory or final hearings; in most cases, one cannot know
which. Where there is such uncertainty I have noted all the possible orders that I
ransla- was able to identify. In many cases, there were no orders for the term of the
than a report (where the term is known), and so references to orders from preceding
~dafter or following terms have been noted where possible. The existence of an enrolled
: report decree generally renders identification of the record easier, but the may
5es in a never have had a formal decree drafted and entered in the order books following
ed. Sig- an oral ruling from the bench. Where a final decision was for the defendant or
. verbal where the parties settled the case out of court, for example, money was to be
saved by omitting this formality. 254
litor to
he flow
ntence.
=i make
square
Ellipses
hat the
leclined
>rackets
mscnp-
ve been

:ral not
~rasures

~ngland
tscribed

ribed, I
the edi-
:he stat-
·e a case
st refer-

d to the
ses nor-
, either in
Jn. These
>r 'at' for
ioner' for
254 For the record-keeping practices of the Chancery see W.J. Jones, The Elizabethan Court of
nd similar
is house'. Chancery (1967), pp. 286-302 and H. Horwitz, A Guide to Chancery Equity Records and Proceed-
ings 1600-1800 (2nd ed.1998).