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and specific relief: as by setting aside fraudulent deeds, (g) decreeing reconveyances, (h) or directing an absolute conveyance merely to stand as a security. (1) And thus, lastly, for the sake of a more beneficial and complete relief by decreeing a sale of lands, (k) a court of equity holds plea of all debts, incumbrances, and charges, that may affect it or issue thereout.1 4. The true construction of securities for money lent is another fountain of jurisdiction in courts of equity. When they held the penalty of a bond to be the form, and that in substance it was only as a pledge to secure the repayment of the sum bona fide advanced, with a proper compensation for the use, they laid the foundation of a regular series of determinations, which have settled the doctrine of personal pledges or securities, and are equally applicable to mortgages of real property. The mortgagor continues owner of the land, the mortgagee of the money lent upon it; but this ownership is mutually transferred, and the mortgagor is barred from redemption, if, when called upon by the mortgagee, he does not redeem within a time limited by the court; or he may when out of possession be barred by length of time, by analogy to the statute of limitations.

5. The form of a trust, or second use, gives the courts of equity an exclusive jurisdiction as to the subject-matter of all settlements and devises in that form, and of all the long terms created in the present complicated mode of conveyancing. This is a very ample source of jurisdiction: but the trust is governed by very nearly the same rules, as would govern the estate in a court of law, (1) if no trustee was interposed: and by a regular positive system established in the courts of equity, the doc. [440] trine of trusts is now reduced to as great a certainty as that of le. gal estates in the courts of common law.

These are the principal (for I omit the minuter) grounds of the jurisdic. tion at present exercised in our courts of equity; which differ, we see, very considerably from the notions entertained by strangers, and even by those courts themselves before they arrived to maturity; as appears from the principles laid down, and the jealousies entertained of their abuse, by our early juridical writers cited in a former page; (m) and which have been implicit ly received and handed down by subsequent compilers, without attending to those gradual accessions and derelictions, by which in the course of a century, this mighty river hath imperceptibly shifted its channel. Lambard in particular, in the reign of queen Elizabeth, lays it down, (n) that "equi"ty should not be appealed unto, but only in rare and extraordinary mat"ters; and that a good chancellor will not arrogate authority in every "complaint that shall be brought before him upon whatsoever suggestion: "and thereby both overthrow the authority of the courts of common law, "and bring upon men such a confusion and uncertainty, as hardly any man "should know how or how long to hold his own assured to him." And certainly, if a court of equity were still at sea, and floated upon the occasional opinion which the judge who happened to preside might entertain of conscience in every particular case, the inconvenience that would arise from this uncertainty, would be a worse evil than any hardship that could follow from rules too strict and inflexible. Its powers would have become too arbitrary to have been endured in a country like this, (o) which boasts of being governed in all respects by law and not by will. But since the

g.1 Vern. 32. 1 P. Wms. 239.

b 1 Vern. 237. k 1 Equ. Cas. abr. 397.

12 P. Wms. 845, 663, 669. m See page 493. n Archeion. 71. 78.

i 2 Vern. B4.

o 2 P. Wms. 685, 636.

(15) As to this point in particular, see Newl. Cont. 299.; Newl, Ch. Prac. 166. 170. VOL. II.

45

time when Lambard wrote, a set of great and eminent lawyers, (p) who have successively held the great seal, have by degrees erected the system

of relief administered by a court of equity into a regular science, [441] which cannot be attained without study and experience, any more

than the science of law: but from which, when understood, it may be known what remedy a suitor is entitled to expect, and by what mode of suit, as readily and with as much precision, in a court of equity as in a court of law.

It were much to be wished, for the sake of certainty, peace, and justice, that each court would as far as possible follow the other, in the best and most effectual rule for attaining those desirable ends. It is a maxim that equity follows the law; and in former days the law had not scrupled to follow even that equity, which was laid down by the clerical chancellors, Every one who is conversant, in our ancient books knows that many valuable improvements in the state of our tenures (especially in leaseholds (q) and copyholds) (r) and the forms of administering justice, (s) have arisen from this single reason, that the same thing was constantly effected by means of a subpoena in the chancery. And sure there cannot be a greater solecism, than that in two sovereign independent courts established in the same country, exercising concurrent jurisdiction, and over the same subject-matter, there should exist in a single instance two different rules of property, clashing with or contradicting each other.

It would carry me beyond the bounds of my present purpose to go farther into his matter. I have been tempted to go so far, because strangers are apt to be confounded by nominal distinctions, and the loose unguarded expressions to be met with in the best of our writers; and thence to form erroneous ideas of the separate jurisdictions now existing in England, but which never were separated in any other country in the universe. It hath

also afforded me an opportunity to vindicate, on the one hand, the [442] justice of our courts of law from being that harsh and illiberal rule

which many are too ready to suppose it; and on the other, the justice of our courts of equity from being the result of mere arbitrary opinion, or an exercise of dictatorial power, which rides over the law of the land, and corrects, amends, and controls it by the loose and fluctuating dictates of the conscience of a single judge. It is now high time to proceed to the practice of our courts of equity, thus explained, and thus understood.

The first commencement of a suit in chancery is by preferring a bill to the lord chancellor, in the style of a petition; "humbly complaining sheweth to your lordship your orator A. B. that, &c." This is in the nature of a declaration at common law, or a libel and allegation in the spiritual courts; setting forth the circumstances of the case at length as, some fraud, trust, or hardship; "in tender consideration whereof," (which is the usual language of the bill,)" and for that your orator is wholly without remedy at "the common law," relief is therefore prayed at the chancellor's hands, and also process of subpoena against the defendant, to compel him to answer upon oath to all the matter charged in the bill. And, if it be to quiet the possession of lands, to stay waste, or to stop proceedings at law, an injunc tion is also prayed, in the nature of an interdictum by the civil law, commanding the defendant to cease.

This bill must call all necessary parties, however remotely concerned in interest, before the court, otherwise no decrce can be made to bind them;

p See pages 54, 55, 56.

q Gilbert of ejectment. 2. 2 Bac. Abr. 160.
» See page 200.

Bro. Abr. t. tenant per copie. 10 Litt. $77.

and must be signed by counsel, as a certificate of its decency and proprie ty. For it must not contain matter either scandalous or impertinent: if it does, the defendant may refuse to answer it, till such scandal or impertinence is expunged, which is done upon an order to refer it to one of the officers of the court, called a master in chancery; of whom there are in number twelve, including the master of the rolls, all of whom, so late

as the reign of queen Elizabeth, were commonly doctors of the [443] civil law. (s) The master is to examine the propriety of the bill: and if he reports it scandalous or impertinent, such matter must be struck out, and the defendant shall have his costs; which ought of right to be paid by the counsel who signed the bill.16

When the bill is filed in the office of the six clerks (who originally were all in orders; and therefore, when the constitution of the court began to alter, a law (t) was made to permit them to marry), when, I say, the bill is thus filed, if an injunction be prayed therein, it may be had at various stages of the cause, according to the circumstances of the case." If the bill be to stay execution upon an oppressive judgment, and the defendant does not put in his answer within the stated time allowed by the rules of the court, an injunction will issue of course: and when the answer comes in, the injunction can only be continued upon a sufficient ground appearing from the answer itself. But if an injunction be wanted to stay waste, or other injuries of an equally urgent nature, then upon the filing of the bill, and a proper case supported by affidavits, the court will grant an injunction immediately to continue till the defendant has put in his answer, and till' the court shall make some farther order concerning it and when the answer comes in, whether it shall then be dissolved or continued till the hearing of the cause, is determined by the court upon argument, drawn from considering the answer and affidavit together.

But, upon common bills, as soon as they are filed, process of subpoena' is taken out; which is a writ commanding the defendant to appear and answer to the bill, on pain of 1007. But this is not all; for if the defendant, on service of the subpoena, does not appear within the time limited by the rules of the court, and plead, demur, or answer to the bill, he is then said to be in contempt; and the respective processes of contempt are in successive order awarded against him. The first of which is an attachment, which is a writ in the nature of a capias, directed to the sheriff, and [444] commanding him to attach, or take up, the defendant, and bring him into court. If the sheriff returns that the defendant is non est inventus, then an attachment with proclmations issues; which, besides the ordinary form of attachment, directs the sheriff, that he cause public proclamations to be made, throughout the county, to summon the defendant, upon his allegiance, personally to appear and answer. If this be also returned with a non est inventus, and he still stands out in contempt, a commission of rebellion is awarded against him, for not obeying the king's proclamations according to his allegiance; and four commissioners therein named, or any of them, are ordered to attach him wheresoever he may be found in Great' Britain, as a rebel and contemner of the king's laws and government, by

s Smith's Commonw. b. 2. c. 12.

(16) Rules and orders of Cha. 93. 1 Ch. Rep. 194.

t Stat. 14 & 15 Hen. VIII. c. 8.

(17) An injunction in the court of exchequer stays all further proceedings in whatever stage the cause may be; but in chancery, if a declaration be delivered, the party may proceed to judg ment notwithstanding an injunction, and execution is only stayed; but if no declaration has been delivered, all proceedings at law are restrained. 3 Woodd. 411.

refusing to attend his sovereign when thereunto required: since, as was before observed, (u) matters of equity were originally determined by the king in person, assisted by his council; though that business is now devolv. ed upon his chancellor. If upon this commission of rebellion a non est inventus is returned, the court then sends a serjeant at arms in quest of him; and if he eludes the search of the serjeant also, then a sequestration issues to seize all his personal estate, and the profits of his real, and to detain them, subject to the order of the court. Sequestrations were first introduced by sir Nicholas Bacon, lord keeper in the reign of queen Eliazbeth; before which the court found some difficulty in enforcing its process and decrees. (v) After an order for a sequestration issued, the plaintiff's bill is to be taken pro confesso, and a decree to be made accordingly. So that the sequestration does not seem to be in the nature of process to bring in the defendant, but only intended to enforce the performance of the decree. Thus much if the defendant absconds.

If the defendant is taken upon any of this process, he is to be committed to the Fleet, or other prison, till he puts in his appearance, or an[445] swer, or performs whatever else this process is issued to enforce, and

also clears his contempts by paying the costs which the plaintiff has incurred thereby. For the same kind of process (which was also the process of the court of star-chamber till its dissolution) (w) is issued out in all sorts of contempts during the progress of the cause, if the parties in any point refuse or neglect to obey the order of court.

The process against a body corporate is by distringas, to distrein them by their goods and chattels, rents and profits, till they shall obey the summons or directions of the court. And, if a peer is a defendant, the lord chancellor sends a letter missive to him to request his appearance, together with a copy of the bill; and if he neglects to appear, then he may be served with a subpoena; and, if he continues still in contempt, a sequestration issues out immediately against bis lands and goods, without any of the mesne process of attachments, &c. which are directed only against the person, and therefore cannot affect a lord of parliament. The same process issues against a member of the house of commons, except only that the lord chancellor sends him no letter missive.

:

The ordinary process before mentioned cannot be sued out till after the service of the subpoena, for then the contempt begins; otherwise he is not presumed to have notice of the bill and therefore by absconding to avoid the subpoena a defendant might have eluded justice, till the statute 5 Geo. II. c. 25. which enacts that, where the defendant cannot be found to be served with process of subpoena, and absconds (as is believed) to avoid being served therewith, a day shall be appointed him to appear to the bill of the plaintiff; which is to be inserted in the London gazette, read in the parish church where the defendant last lived, and fixed up at the royal exchange; and, if the defendant doth not appear upon that day, the bill shall be taken pro confesso.

But if the defendant appears regularly, and takes a copy of the bill, he is next to demur, plead, or answer.

A demurrer in equity is nearly of the same nature as a demurrer [446] in law; being an appeal to the judgment of the court, whether the defendant shall be bound to answer the plaintiff's bill; as, for want of sufficient matter of equity, therein contained; or where the plaintiff,

" pag. 50.

1 Vern. 421.

18 Rym. Foed. 193.

upon his own shewing, appears to have no right; or where the bill seeks a discovery of a thing which may cause a forfeiture of any kind, or may convict a man of any criminal misbehaviour. For any of these causes a defendant may demur to the bill." And if, on demurrer, the defendant prevails, the plaintiff's bill shall be dismissed if the demurrer be over-ruled, the defendant is ordered to answer.19

A plea may be either to the jurisdiction; shewing that the court has no cognizance of the cause: or to the person; shewing some disability in the plaintiff, as by outlawry, excommunication, and the like: or it is in bar; shewing some matter wherefore the plaintiff can demand no relief, as an act of parliament, a fine, a release, or a former decree. And the truth of this plea the defendant is bound to prove, if put upon it by the plaintiff. But as bills are often of a complicated nature, and contain various matter, a man may plead as to part, demur as to part, and answer to the residue. But no exceptions to formal minutiae in the pleadings will be here allowed ; for the parties are at liberty, on the discovery of any errors in form, to amend them. (x)

An answer is the most usual defence that is made to a plaintiff's bill. It is given in upon oath, or the honour of a peer or peeress: but where there are amicable defendants, their answer is usually taken without oath by consent of the plaintiff. This method of proceeding is taken from the ecclesiastical courts, like the rest of the practice in chancery: for there, in almost every case, the plaintiff may demand the oath of his adversary in supply of proof. Formerly this was done in those [447] courts with compurgators, in the manner of our waging of law: but this has been long disused; and instead of it the present kind of purgation, by the single oath of the party himself, was introduced. This oath was made use of in the spiritual courts, as well in criminal cases of ecclesiastical cognizance, as in matters of civil right; and it was then usually denominated the oath ex officio: whereof the high commission court in particular made a most extravagant and illegal use; forming a court of inquisition, in which all persons were obliged to answer in cases of bare suspicion, if the commissioners thought proper to proceed against them ex officio for any supposed ecclesiastical enormities. But when the high commission court was abolished by statute 16 Car. I. c. 11. this oath ex officio was abolished with it; and it is also enacted by statute 13 Car. II. st. 1. c. 12. "that it shall not be lawful for any bishop or ecclesiastical "judge to tender to any person the oath ex officio, or any other oath where"by the party may be charged or compelled to confess, accuse, or purge "himself, of any criminal matter." But this does not extend to oaths in a civil suit, and therefore it is still the practice, both in the spiritual courts and in equity, to demand the personal answer of the party himself upon oath. Yet if in the bill any question be put, that tends to the discovery of any crime, the defendant may thereupon demur, as was before observed, and may refuse to answer.

cr

If the defendant lives within twenty miles of London, he must be sworn before one of the masters of the court: if farther off, there may be a de

x En eest court de chauncerie, home ne serra prejudice par son mispledging ou pur defaut de forme, mes solonque le veryte del mater, car il doit agarder solonque consciens, et nemi ex rigore juris. (Dyversite des courts, edit. 1534, fol. 296. 297. Bro. Abr. t. jurisdiction. 50 )

(18) See Mitf. Pl. 150. et seq.

(19) If a demurrer be overruled, the defendant may at the hearing demur óra tequs, thoughs not where he pleads to the bill. 1 Sim. & Stu. 227. et vid. Mitf. Pl. 178. et seq.

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