force;1 relief against a forged power of attorney; injunction to restrain a nuisance, said nuisance being a stoppage of a watercourse; for an injunction to stay proceedings at law; to recover deeds and other evidence unjustly retained by the defendant in his possession; for permission to go on with a suit at law from which the plaintiff had been restrained by an injunction ; because the plaintiff is disturbed in his manor by the defendant falsely claiming an annuity charged on the land; to restrain a defendant from the use of witchcraft; to assign dower to a poor widow; because the defendant had through envy thrown down the plaintiff's house; for relief against maintenance;" for quiet possession;12 for discovery;13 to set aside a conveyance obtained from the complainant when intoxicated ;14 for tithes ;15 to restrain harassing litigation;16 to set aside a release obtained by a trick, and to enjoin the defendant from using it in an action at law.”7 In Geffry Downham v. Ileylyn ap Blethyn,1s the defendant is alleged to have wrongfully obtained letters of presentation to a benefice. For this there was a legal remedy by scire facias; but the complainant seems to have thought himself justified in seeking equitable relief on the simple ground of failure or delay on the part of the common law courts. "He hath sued," says the petition, "for the same cause from term to term at Nottingham, York, Winchester, and London, without success." Broddesworth v. Coke," which occurred in the reign of Edward IV., is a case which strikingly illustrates the progress which equitable jurisdiction was making. It was a bill setting forth an agreement by which the complainant was to convey certain lands, 1 Pickering v. Tongue, Chan. Cal. xliv ; Lord Berkley v. The Countess of Shrewsbury, Chan. Cal. lxxvi.; Brown v. Lord Say's Widow, Id. xlvii. 2 Bief v. Dyer, Id. xi. 3 The Burgesses of East Retford v. Thomas de Hercy, Id. ix. and x. 4 Astel v. Causton, Id. cviii.; Edyall v. Hunston, Id. cxiii.; Peverell v. Huse, cxxii. 5 Thomas Reed and Emma his Wife v. The Prior of Launceston, Id. cxiv. 6 Royall v. Garter, Id. cxxx. 7 Hauley v. Tresilian, Id. iii. iv. 12 Cullyer v. Knyvett, Id. cxxxvii. 14 Stonehouse v. Stanshaw, Id. xxix. 17 Cobbethorn v. William, Id. ii. goods, and tailles1 to the defendant for the purpose of making a settlement with the complainant's creditors, and to secure advances to be made by the defendant; and that afterwards, upon the solicitation of the defendant, an absolute conveyance was executed, although it was intended that the transaction should be a mortgage. The prayer of the bill was for an account and reconveyance. The bill was dismissed, because, as to the lands, the evidence of the conditional character of the conveyance was insufficient, and as to the goods and tailles the complainant had a remedy at law. In the above case it will be observed that many well-known equitable doctrines are recognized. In the first place an absolute conveyance is alleged to be a mortgage, and the fraud of the defendant in taking advantage of its absolute form contrary to the true intention of the parties, and to his promise, is set forth as a ground for equitable relief. The defendant, moreover, is in substance alleged to be a trustee for the benefit of the complainant's creditors, and as such liable to answer before a court of equity. The relief sought is in accordance with the redress which a chancellor at the present day would give in such a case if it were properly proved, viz., an account showing how the trust assets had been administered, and a reconveyance of so much of the real estate as had not been employed for the purposes of the trust. The decree of the court is also in accordance with modern principles; for when actual fraud is alleged it cannot be presumed, but must be proved; whereas in the present instance the complainant seems to have been unable to make out his case. And as to the goods and tailles, the bill seems to have been rightly dismissed, because for those the complainant had a complete common law remedy. 9. From the above brief sketch of the rise of the jurisdiction of the English Court of Chancery three things are plain: First. That, in the earliest times of the English constitution, there was felt a want of judicial relief outside and beyond that which was afforded by the common law courts of the King's Bench, Common Pleas, and Exchequer. Second. That in consequence of this want, and for the purpose 1 Acquittances. of supplying it, appeals were made to the king, as the head and fountain of all justice, sometimes in parliament, sometimes in council, and sometimes in person; and that these applications, from the circumstance of having been referred from time to time to the chancellor, came at last to be presented to that official in the first instance; and Third. That relief was afforded upon these petitions only in those cases wherein the common law courts either could give no redress at all, or could give no adequate redress; and that while in some of these cases the necessity for the interposition of a chancellor has passed away, in others the principles then enforced have furnished the foundation upon which the modern jurisdiction of courts of equity has been built. The process in equity was a subpoena, issued by the chancellor, in the name of the king, whereby the party was summoned to appear and answer the complaint of the plaintiff, and abide by the order of the court. It is commonly supposed to have been invented by John de Waltham, keeper of the seal under Richard II., and it is so stated in the complaint made by the commons to Henry V.; but this is doubtless an error, as an instance of the writ is found in 37 Edward III.; and de Waltham was not Master of Rolls until the fifth year of Richard II.1 10. The jurisdiction above described was not exercised without opposition. In the successive reigns of Richard II., Henry IV., Henry V., and Henry VI., petitions were from time to time presented by the commons setting forth encroachments upon the common law, complaining that men were brought before the council in matters which were remedial at law, and (in two instances) inveighing against the use of the subpoena. The jurisdiction of the chancellor and the council was, however, upheld by the sovereign; and the obnoxious writ was not abolished. In the reign of Henry VIII. a statute was passed, which threatened at first to remove a large portion of the jurisdiction of the chancellor by destroying a species of property which had hitherto been solely recognizable in his court, namely the Use. By the celebrated Statute of Uses (27 Henry VIII., c. 10) this estate in the land (the use) which had hitherto been recognized 1 See 1 Spence Eq. 333, note b. solely in a court of equity, was clothed with a legal title, and thereby rendered a proper subject for the recognition of a common law court. The nature of the use, and the effect of the statute, will be explained hereafter. It will be sufficient to say, at present, that the threatened blow at the jurisdiction of chancery was averted by an ingenious construction of the statute, whereby these equitable estates were rescued from destruction, and their control still retained in the court where they had originated. In the reign of James I. another attempt was made to interfere with the jurisdiction of the chancellor. An action was tried before Coke in which the plaintiff lost the verdict in consequence of one of his witnesses being artfully kept away. He then had recourse to chancery to compel the defendant to answer on his oath, which the latter refused to do, and was committed for contempt. Coke then had indictments preferred against the parties to the bill, their counsel and solicitors, for suing in another court after judgment obtained at law, which was alleged to be contrary to the statute of premunire. The matter was referred to the king, whose decision was in favor of the lord chancellor.1 From that time to the present the jurisdiction of the Court of Chancery has been free from interference, and has expanded into a wise and comprehensive system of justice. This system has been perfected by the hands of many illustrious men who have sat upon the woolsack-among whom are to be mentioned Nottingham, Hardwicke, Eldon, St. Leonards, Westbury, and Selborne. Courts of common law, in modern times, have afforded relief in many cases which formerly fell under the cognizance of chancery alone, but the latter tribunal has not, on that account, abandoned the jurisdiction which it had acquired, and the suitor has now, not unfrequently, two tribunals open from which he may obtain redress. The choice between the two tribunals in England has been, of late years, greatly affected in favor of the Court of Chancery, by reason of the vast improvements which have been introduced in the constitution of the equity courts and the practice therein. The jurisdiction formerly administered by the chancellor alone Earl of Oxford's Case, 1 Ch. Rep. 1; 2 Lead. Cas. Eq. 504 (601, 4th Eng. Ed.). came, by various statutes, to be vested in seven judges, viz., the Lord High Chancellor, two Lords Justices of Appeal, the Master of the Rolls, and three Vice-Chancellors; and many improvements were introduced tending to the prompt and economical administration of justice. 11. The system, however, of two distinct sets of courts administering different and sometimes conflicting rules, has at last ceased to find favor in England. On the fifth of August, 1873, an Act of Parliament was passed under the title of the "Supreme Court of Judicature Act," whereby the constitution of the English courts was radically changed. By this act (which, it was declared, should come into operation on the second day of November, 1874) it is provided that the Court of Chancery, the Court of Queen's Bench, the Court of Common Pleas, the Court of Exchequer, the High Court of Admiralty, the Court of Probate, the Court for Divorce and Matrimonial Causes, and the London Court of Bankruptcy shall be united and consolidated, and shall constitute one Supreme Court of Judicature, to consist of two divisions under the name of "Her Majesty's High Court of Justice," and "Her Majesty's Court of Appeal." It is further provided that the judges of the High Court of Justice shall not exceed twenty-one in number; and that the Court of Appeals is to consist of five ex officio judges, and so many ordinary judges (not exceeding nine at any one time) as may from time to time be appointed. The ex officio judges are the Lord Chancellor, the Lord Chief Justice of England, the Master of the Rolls, the Lord Chief Justice of the Common Pleas, and the Lord Chief Baron of the Exchequer. The act further provides that if the plaintiff claims any equitable estate, or right, or relief upon any equitable ground, or equitable relief upon a legal right, the said courts and every judge thereof shall give the same relief as ought to have been given by the Court of Chancery before the passing of the act; and that if a defendant claims any equitable estate or right, or relief upon any equitable ground, or alleges any ground of equitable defence, the said courts and every judge thereof shall give the same effect to every estate, right, or ground of relief so claimed, and to every equitable defence so alleged, as the Court of Chancery ought to have given in proceed ings in that court before the passing of the act. Other pro |