PART THREE

SUITS IN EQUITY

CHAPTER XI

HISTORY OF EQUITY

BOLLAND, THE YEAR Books (1921) 55-59. In the ordinary way the men of the middle age, speaking broadly, got justice in the Court of Common Bench, when they did not or could not for some reason or other get it in their own local courts. The procedure in that Court was not easily adaptable for the remedy of many wrongs which might be very real wrongs and yet could not be brought within any of the heads for which a man might get a writ. No Court which administers strict law, and strict law only, is so adaptable; and the Court of Common Pleas administered strict law; and law strictly administered often involves hardship and morally inequitable results. Process in the Common Bench was slow, one may fairly suppose, somewhat expensive and was certainly often very dilatory. Further, the Court of Common Bench sat only at Westminster, a fact which put it still further out of the reach of the poor man living far away from London. Every few years our earlier Kings sent out a company of Justices to hold what were called General Eyres in every county of the kingdom. The King's Justices of Eyre had the powers, within their several jurisdictions, of the King himself. . . . The King's residual or extraordinary function of causing justice to be done where ordinary means failed lay in their hands, and they were not only entitled but bound to exercise it. And they exercised it in this way. When they arrived at the county town in which they were to hold their Eyre they caused public proclamation to be made that anyone who desired to make complaint of and to have a remedy for any wrong of any sort done to him might present to them a bill stating all the facts, and they promised that justice should be done to him by them. These bills were presented to the Justices in large, in very large numbers. . . The Justices inquired into the complaints in a very thorough-going way. They were bound by none of the shackles which bound them when trying a case commenced in the ordinary way by writ. They were administering a sort of primaeval law, absolute equity; the sort of law one may suppose the Jewish Kings administered in the gate of Jerusalem. No rules stood in their way to prevent their finding out the exact truth of the matter. They did not concern themselves with finding out what, if any, particular law applied to the matter. They were there to see that right was done, no matter what the law said. They even interrogated the parties; a thing unknown to common law process. This equitable jurisdiction of the Justices in Eyre is earlier than the equitable jurisdiction exercised by the Chancellor or even by the King's Council. It is the very beginning of our English equity.

suppose that we ask the question – What is Equity? We can only answer it by giving some short account of certain courts of justice which were abolished over thirty years ago. In the year 1875 we might have said 'Equity is that body of rules which is administered only by those Courts which are known as Courts of Equity.' The definition of course would not have been very satisfactory, but now-a-days we are cut off even from this unsatisfactory definition. We have no longer any courts which are merely courts of equity. Thus we are driven to say that'Equity now is that body of rules administered by our English courts of justice which, were it not for the operation of the Judicature Acts, would be administered only by those courts which would be known as Courts of Equity.*

This, you may well say, is but a poor thing to call a definition. Equity is a certain portion of our existing substantive law, and yet in order that we may describe this portion and mark it off from other portions we have to make reference to courts that are no longer in existence. Still I fear that nothing better than this is possible. The only alternative would be to make a list of the equitable rules and say that Equity consists of those rules. This, I say, would be the

a

1 See also Bolland, The General Eyre (1922) 75-82; 2 Holdsworth, History of English Law (4th ed. 1936) 336–347; Select Bills in Eyre (ed. Bolland, 1914) Xv-xxx, xl-Ixiii. With the cessation of the General Eyre and its replacement by the later Assizes, the procedure by bill in eyre became obsolete, and the common law became rigid. The equity of the Chancellor thus became necessary to mitigate the rigors of strict law; and it developed on lines independent of those foreshadowed by the earlier equitable jurisdiction of the common law judges sitting in eyre, mainly because the Chancellor adopted, as we shall see, a different procedure from that of the common law courts.

2 The same text appears in the 2d edition by Brunyate (1936) 1-11.

3 In 1875 the Judicature Acts (36 & 37 Vict. c. 66, and 38 & 39 Vict. c. 77) took effect. By 36 & 37 Vict. c. 66 § 16, there was conferred upon the High Court of Justice, with certain exceptions of minor importance, the jurisdiction previously “vested in, or capable of being exercised by” the Court of Chancery and the common law courts. See 1 Holdsworth, History of English Law (6th ed. 1938) 638-643. Cf. Ch. XVIII, infra.

* (f. Patterson, "What is Equity?" 9 Am. Bar. Assn. J. 647 (1923).

4

only alternative, for if we were to inquire what it is that all these rules have in common and what it is that marks them off from all other rules administered by our courts, we should by way of answer find nothing but this, that these rules were until lately administered, and administered only, by our courts of equity.

Therefore for the mere purpose of understanding the present state of our law, some history becomes necessary.

In Edward I's day, at the end of the thirteenth century, three great courts have come into existence, the King's Bench, the Common Bench or Court of Common Pleas and the Exchequer. Each of these has its own proper sphere, but as time goes on each of them attempts to extend its sphere and before the middle ages are over a plaintiff has often a choice between these three courts and each of them will deal with his case in the same way and by the same rules. The law which these courts administer is in part traditional law, in part statute law. Already in Edward I's day the phrase "common law' is current. It is a phrase that has been borrowed from the canonists — who used jus commune' to denote the general law of the Catholic Church; it describes that part of the law that is unenacted, non-statutory, that is common to the whole land and to all Englishmen. It is contrasted with statute, with local custom, with royal prerogative. It is not as yet contrasted with equity, for as yet there is no body of rules which bears this name.

One of the three courts, namely, the Exchequer, is more than a court of law. From our modern point of view it is not only a court of law but a 'government office,' an administrative or executive bureau ; our modern Treasury is an offshoot from the old Exchequer. What we should call the ‘civil service of the country is transacted by two great offices or 'departments'; there is the Exchequer which is the fiscal department, there is the Chancery which is the secretarial department, while above these there rises the king's permanent Council. At the head of the Chancery stands the Chancellor, usually a bishop; he is we may say the king's secretary of state for all departments, he keeps the king's great seal and all the already great mass of writing that has to be done in the king's name has to be done under his supervision.

He is not as yet a judge, but already he by himself or his subordinates has a great deal of work to do which brings him into a close connexion with the administration of justice. One of the duties of that great staff of clerks over which he presides is to draw up and issue those writs whereby actions are begun in the courts of law – such writs are sealed with the king's seal. A man who wishes to begin an action must go to the Chancery and obtain a writ. Many writs there are which have been formulated long ago; such writs are writs of course (brevia de cursu), one obtains them by asking for them of the clerks — called Cursitors — and paying the proper fees. But the Chancery has a certain limited power of inventing new writs to

a

2

meet new cases as they arise. That power is consecrated by a famous clause of the Second Statute of Westminster authorising writs in consimili casu. Thus the Chancellor may often have to consider whether the case is one in which some new and some specially worded writ should be framed. This however is not judicial business. The Chancellor does not hear both sides of the story, he only hears the plaintiff's application, and if he grants a writ the courts of law may afterwards quash that writ as being contrary to the law of the land.

But by another route the Chancellor is brought into still closer contact with the administration of justice. Though these great courts of law have been established there is still a reserve of justice in the king. Those who can not get relief elsewhere present their petitions to the king and his council praying for some remedy. ready by the end of the thirteenth century the number of such petitions presented in every year is very large, and the work of reading them and considering them is very laborious. In practice a great share of this labour falls on the Chancellor. He is the king's prime minister, he is a member of the council, and the specially learned member of the council. It is in dealing with these petitions that the Chancellor begins to develop his judicial powers.3

In course of time his judicial powers are classified as being of two kinds. It begins to be said that the Court of Chancery, 'Curia Cancellariae' — for the phrase is used in the fourteenth century — has two sides, a common law side and an equity side, or a Latin side and an English side. Let us look for a moment at the origin of these two kinds of powers, and first at that which concerns us least.

(1) Many of these petitions of which I have spoken seek for justice not merely from the king but against the king. If anybody is to be called the wrong doer, it is the king himself. For example, he is in possession of land which has been seized by his officers as an escheat while really the late tenant has left an heir. Now the king can not be sued by action — no writ will go against him; the heir if he wants justice must petition for it humbly. Such matters as these are referred to the Chancellor. Proceedings are taken before him; the heir, it may be, proves his case and gets his land. The number of such cases, cases in which the king is concerned, is very large kings are always seizing land on very slight pretexts — and forcing other people to prove their titles. Gradually a quite regular and ordinary procedure is established for such cases - a procedure very like that of the three courts of law. The proceedings are enrolled in Latin — just as the proceedings of the three courts of law are enrolled in Latin (hence the name 'Latin side' of the Court of Chancery) and if a question of fact be raised, it is tried by jury. The Chancellor himself does not summon the jury or preside at the trial, he sends the question for trial to the King's Bench. All this is by no means unimportant, but it does not concern us very much at the present time.

(2) Very often the petitioner requires some relief at the expense of some other person. He complains that for some reason or another he can not get a remedy in the ordinary course of justice and yet he is entitled to a remedy. He is poor, he is old, he is sick, his adversary is rich and powerful, will bribe or will intimidate jurors, or has by some trick or some accident acquired an advantage of which the ordinary courts with their formal procedure will not deprive him. The petition is often couched in piteous terms, the king is asked to find a remedy for the love of God and in the way of charity. Such petitions are referred by the king to the Chancellor. Gradually in the course of the fourteenth century petitioners, instead of going to the king, will go straight to the Chancellor, will address their complaints to him and adjure him to do what is right for the love of God and in the way of charity. Now one thing that the Chancellor may do in such a case is to invent a new writ and so provide the complainant with a means of bringing an action in a court of law. But in the fourteenth century the courts of law have become very conservative and are given to quashing writs which differ in material points from those already in use. But another thing that the Chancellor can do is to send for the complainant's adversary and examine him concerning the charge that has been made against him. Gradually a procedure is established. The Chancellor having considered the petition, or 'bill’ as it is called, orders the adversary to come before him and answer the .complaint. The writ whereby he does this is called a subpoena - because it orders the man to appear upon pain of forfeiting a sum of money, e.g. subpoena centum librarum. It is very different from the old writs whereby actions are begun in the courts of law. They tell the defendant what is the cause of action against him — he is to answer why he assaulted and beat the plaintiff, why he trespassed on the plaintiff's land, why he detains a chattel which belongs to the plaintiff. The subpoena, on the other hand, will tell him merely that he has got to come before the Chancellor and answer complaints made against him by A. B. Then when he comes before the Chancellor he will have to answer on oath, and sentence by sentence, the bill of the plaintiff. This procedure is rather like that of the ecclesiastical courts and the canon law than like that of our old English courts of law. It was in fact borrowed from the