Chapter IV (2)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“I. The perpetuation of testimony:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FOOTNOTES:

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

[354] Maine’s Ancient Law, chapter 3.

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

[356] Charter and Laws of Pennsylvania, 35.

[357] Charter and Laws of Pennsylvania, 61.

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

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

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

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

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

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

[364] IV New Jersey Archives, 70.

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

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

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

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

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

[370] Charter and Laws of Pennsylvania, 167.

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

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

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

[374] I Votes of the Assembly, 41.

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

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

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

[378] I Votes of the Assembly, 79.

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

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

[381] II Statutes at Large, 481.

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

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

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

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

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

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

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

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

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

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

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

[393] I William and Mary, chapter 27.

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

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

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

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

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

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

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

[401] III Statutes at Large, 65.

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

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

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

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

[406] II Statutes at Large, 298.

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

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

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

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

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

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

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

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

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

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

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

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

[419] III Votes of the Assembly, 253.

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

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

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

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

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

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

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

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

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

[429] 1 Dallas’s Reports, 17 (1768).

[430] 1 Dallas’s Reports, 125 (1785).

[431] 1 Dallas’s Reports, 142 (1785).

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

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

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

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

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

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

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

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

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

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

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

[443] American Constitutions, 179.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[459] 1 Yeates’s Reports, 2 (1791).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[476] 1 Dallas’s Reports, 17 (1768).

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

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

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

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

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

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

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

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

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

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

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

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

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