Part 138

"Between the death, resignation, or removal of one chancellor, and the appointment of another, the Great Seal, instead of remaining in the personal custody of the Sovereign, was sometimes entrusted to a temporal keeper, either with limited authority (as only to seal writs), or with all the powers, though not with the rank of Chancellor. At last the practice grew up of occasionally appointing a person to hold the Great Seal with the title of 'Keeper,' where it was meant that he should permanently hold it in his own right and discharge all the duties belonging to it. Queen Elizabeth, ever sparing in the conferring of dignities, having given the Great Seal with the title of 'Keeper' to Sir Nicholas Bacon, objections were made to the legality of some of his acts,—and to obviate these, a statute was passed declaring that 'the Lord Keeper of the Great Seal for the time being shall have the same place, pre-eminence, and jurisdiction as the Lord Chancellor of England.' Since then there never have been a Chancellor and Keeper of the Great Seal concurrently, and the only difference between the two titles is, that the one is more sounding than the other, and is regarded as a higher mark of royal favor."

_Lord Campbell, Lives of the Chancellors, volume 1, page 40._

ALSO IN: _Sir W. R. Anson, Law and Custom of the Constitution, volume 2, page 150._

EQUITY: A. D. 1558. Increase of Business in the Court of Chancery.

"The business of the Court of Chancery had now so much increased that to dispose of it satisfactorily required a Judge regularly trained to the profession of the law, and willing to devote to it all his energy and industry. The Statute of Wills, the Statute of Uses, the new modes of conveyancing introduced for avoiding transmutation of possession, the questions which arose respecting the property of the dissolved monasteries, and the great increase of commerce and wealth in the nation, brought such a number of important suits into the Court of Chancery, that the holder of the Great Seal could no longer satisfy the public by occasionally stealing a few hours from his political occupations, to dispose of bills and petitions, and not only was his daily attendance demanded in Westminster Hall during term time, but it was necessary that he should sit, for a portion of each vacation, either at his own house, or in some convenient place appointed by him for clearing off his arrears."

_Lord Campbell, Lives of the Chancellors, volume 2, page 95._

EQUITY: A. D. 1567-1632. Actions of Assumpsit in Equity.

"The late development of the implied contract to pay 'quantum meruit,' and to indemnify a surety, would be the more surprising, but for the fact that Equity gave relief to tailors and the like, and to sureties long before the common law held them. Spence, although at a loss to account for the jurisdiction, mentions a suit brought in Chancery, in 1567, by a tailor, to recover the amount due for clothes furnished. The suit was referred to the Queen's tailor, to ascertain the amount due, and upon his report a decree was made. The learned writer adds that 'there were suits for wages and many others of like nature.' A surety who had no counter-bond filed a bill against his principal in 1632, in a case which would seem to have been one of the earliest of the kind, for the reporter, after stating that there was a decree for the plaintiff, adds 'quod nota.'"

_J. B. Ames, History of Assumpsit (Harvard Law Review, volume 2, pages 59-60)._

EQUITY: A. D. 1592. All Chancellors, save one, Lawyers.

"No regular judicial system at that time prevailed in the court; but the suitor when he thought himself aggrieved, found a desultory and uncertain remedy, according to the private opinion of the chancellor, who was generally an ecclesiastic, or sometimes (though rarely) a statesman: no lawyer having sat in the court of chancery from the times of the chief justices Thorpe and Knyvet, successively chancellors to King Edward III. in 1372 and 1373, to the promotion of Sir Thomas More by King Henry VIII., in 1530. After which the great seal was indiscriminately committed to the custody of lawyers or courtiers, or churchmen, according as the convenience of the times and the disposition of the prince required, till Sargeant Puckering was made lord keeper in 1592; from which time to the present the court of chancery has always been filled by a lawyer, excepting the interval from 1621 to 1625, when the seal was entrusted to Dr. Williams, then dean of Westminster, but afterwards bishop of Lincoln; who had been chaplain to Lord Ellesmere when chancellor."

_W. Blackstone, Commentaries, book 3, chapter 4._

EQUITY: A. D. 1595. Injunctions against Suits at Law. Opposition of common law courts.

"The strongest inclination was shown to maintain this opposition to the court of equity, not only by the courts, but by the legislature. The stat. 27 Elizabeth, c, l., which, in very general words, restrains all application to other jurisdictions to impeach or impede the execution of judgments given in the king's courts, under penalty of a praemunire, has been interpreted, as well as stat. Richard II., c. 5, not only as imposing a restraint upon popish claims of judicature, but also of the equitable jurisdiction in Chancery; and in the thirty-first and thirty-second years of this reign, a counsellor-at-law was indicted in the King's Bench on the statute of praemunire, for exhibiting a bill in Chancery after judgment had gone against his client in the King's Bench. Under this and the like control, the Court of Chancery still continued to extend its authority, supported, in some degree, by the momentum it acquired in the time of Cardinal Wolsey."

_J. Reeves, History English Law (Finlason's edition.), volume 5, pages 386-387._

{1991}

EQUITY: A. D. 1596. Lord Ellesmere and his Decisions.

Kerly says the earliest chancellors' decisions that have come down to us are those of Lord Ellesmere. He was the first chancellor to establish equity upon the basis of precedents. But compare Reeves (Finlason's), History English Law, volume 3, page 553, who mentions decisions in the Year Books.

_Kerly, History of the Court of Chancery, page 98._

EQUITY: A. D. 1601. Cy Pres Doctrine.

"There is no trace of the doctrine being put into practice in England before the Reformation, although in the earliest reported cases where it has been applied it is treated as a well recognized rule, and as one owing its origin to the traditional favour with which charities had always been regarded. Much of the obscurity which covers the introduction of the doctrine into our Law may perhaps be explained by the fact that, in the earliest times, purely charitable gifts, as they would now be understood, were almost unknown. The piety of donors was most generally displayed in gifts to religious houses, and the application of the subject matter of such gifts was exclusively in the Superiors of the different Orders, and entirely exempt from secular control. From the religious houses the administration of charitable gifts passed to the Chancellor, as keeper of the King's conscience, the latter having as 'parens patriae' the general superintendence of all infants, idiots, lunatics and charities. And it was not until some time later that this jurisdiction became gradually merged, and then only in cases where trusts were interposed, in the general jurisdiction of the Chancery Courts. It is not necessary to go into the long vexed question as to when that actually took place. It is enough to say that it is now pretty conclusively established that the jurisdiction of the Chancery Courts over charitable trusts existed anterior to, and independently of, the Statute of Charitable Uses, 43 Eliz., c. 4. As charitable gifts generally involved the existence of a trust reposed in some one, it was natural that the Chancery Court, which assumed jurisdiction over trusts, should have gradually extended that jurisdiction over charities generally; but the origin of the power, that it was one delegated by the Crown to the Chancellor, must not be lost sight of, as in this way, probably, can be best explained the curious distinct jurisdictions vested in the Crown and the Chancery Courts respectively to apply gifts Cy pres, the limits of which, though long uncertain, were finally determined by Lord Eldon in the celebrated case of Moggridge v. Thackwell, 7 ves. 69. If we remember that the original jurisdiction in all charitable matters was in the Crown, and that even after the Chancery Courts acquired a jurisdiction over trusts, there was still a class of cases untouched by such jurisdiction, we shall better understand how the prerogative of the Crown still remained in a certain class of cases, as we shall see hereafter. However this may be, there is no doubt that when the Chancery Courts obtained the jurisdiction over the charities, which they have never lost, the liberal principles of the Civil or Canon Law as to the carrying out of such gifts were the sources and inspirations of their decisions. And hence the Cy pres doctrine became gradually well recognised, though the mode of its application has varied from time to time. Perhaps the most striking instances of this liberal construction are to be found in the series of cases which, by a very strained interpretation of the Statute of Elizabeth with regard to charitable uses, decided that gifts to such uses in favour of corporations, which could not take by devise under the old Wills Act, 32 Hen. VIII., c. 1, were good as operating in the nature of an appointment of the trust in equity, and that the intendment of the statute being in favour of charitable gifts, all deficiencies of assurance were to be supplied by the Courts. Although, historically, there may be no connection between the power of the King over the administration of charities, and the dispensing power reserved to him by the earlier Mortmain Acts, the one being, as we have seen, a right of Prerogative, the other a Feudal right in his capacity as ultimate Lord of the fee, it is perhaps not wholly out of place to allude shortly to the latter, particularly as the two appear not to have been kept distinct in later times. By the earlier Mortmain Acts, the dispensing power of the King, as Lord Paramount, to waive forfeitures under these Acts was recognised, and gifts of land to religious or charitable corporations were made not 'ipso facto' void, but only voidable at the instance of the immediate Lord, or, on his default, of the King and after the statute 'quia emptores,' which practically abolished mesne seignories, the Royal license became in most cases sufficient to secure the validity of the gift. The power of suspending statutes being declared illegal at the Revolution, it was deemed prudent, seeing that the grant of licenses in Mortmain imported an exercise of such suspending power, to give these licenses a Parliamentary sanction; and accordingly, by 7 and 8 William III., c. 37, it was declared that the King might grant licenses to aliens in Mortmain, and also to purchase, acquire, and hold lands in Mortmain in perpetuity without pain of forfeiture. The right of the mesne lord was thus passed over, and the dispensing power of the Crown, from being originally a Feudal right, became converted practically into one of Prerogative. The celebrated Statute of 1 Edward VI., c. 14, against superstitious uses, which is perhaps the earliest statutory recognition of the Cy pres doctrine, points also strongly to the original jurisdiction in these matters being in the King." The author proceeds to trace at some length the subsequent developments of the doctrine both judicial and statutory. The doctrine is not generally recognised in the United States.

_H. L. Manby in Law Magazine & Review, 4th ser., volume 15 (London, 1889-90), page 203._

EQUITY: A. D. 1603-1625. Equity and the Construction of Wills.

"After a violent struggle between Lord Coke and Lord Ellesmere, the jurisdiction of the Court of Chancery to stay by injunction execution on judgments at law was finally established. In this reign [James I.] the Court made another attempt,—which was speedily abandoned,—to determine upon the validity of wills,—and it has been long settled that the validity of wills of real property shall be referred to courts of law, and the validity of wills of personal property to the Ecclesiastical Courts,—equity only putting a construction upon them when their validity has been established."

_Lord Campbell, Lives of the Chancellors, volume 2, page 386._

EQUITY: A. D. 1612. Right of Redemption.

The right to redeem after the day dates from the reign of James I. From the time of Edward IV. (1461-83) a mortgagor could redeem after the day if accident, or a collateral agreement, or fraud by mortgagee, prevented payment.

_Kerly, History of the Court of Chancery, page 143._

{1992}

EQUITY: A. D. 1616. Contest between Equity and Common-Law Courts.

"In the time of Lord Ellesmere (A. D. 1616) arose that notable dispute between the courts of law and equity, set on foot by Sir Edward Coke, then chief justice of the court of king's bench; whether a court of equity could give relief after or against a judgment at the common law? This contest was so warmly carried on, that indictments were preferred against the suitors, the solicitors, the counsel, and even a master in chancery, for having incurred a 'praemunire,' by questioning in a court of equity a judgment in the court of king's bench, obtained by a gross fraud and imposition. This matter being brought before the king, was by him referred to his learned counsel for their advice and opinion; who reported so strongly in favor of the courts of equity, that his majesty gave judgment in their behalf."

_W. Blackstone, Commentaries, book 3, page 54._

EQUITY: A. D. 1616. Relief against judgments at law.

"This was in 1616, the year of the memorable contest between Lord Coke and Lord Ellesmere as to the power of equity to restrain the execution of common-law judgment obtained by fraud. … The right of equity to enforce specific performance, where damages at law would be an inadequate remedy, has never since been questioned."

_J. B. Ames, Specific Performance of Contracts (The Green Bag, volume 1, page 27)._

EQUITY: A. D. 1671. The Doctrine of Tacking established.

"It is the established doctrine in the English law, that if there be three mortgages in succession, and all duly registered, or a mortgage, and then a judgment, and then a second mortgage upon the estate, the junior mortgagee may purchase in the first mortgage, and tack it to his mortgage, and by that contrivance 'squeeze out' the middle mortgage, and gain preference over it. The same rule would apply if the first, as well as the second incumbrance, was a judgment; but the incumbrancer who tacks must always be a mortgagee, for he stands in the light of a bona fide purchaser, parting with his money upon the security of the mortgage. … In the English law, the rule is under some reasonable qualification. The last mortgagee cannot tack, if, when he took his mortgage, he had notice in fact … of the intervening incumbrance. … The English doctrine of tacking was first solemnly established in Marsh v. Lee [2 Vent. 337], under the assistance of Sir Matthew Hale, who compared the operation to a plank in shipwreck gained by the last mortgagee; and the subject was afterwards very fully and accurately expounded by the Master of the Rolls, in Brace v. Duchess of Marlborough [2 P. Wms. 491]."

_J. Kent, Commentaries, part 6, lecture 58._

EQUITY: A. D. 1702-1714. Equitable conversion.

"He [Lord Harcourt] first established the important doctrine, that if money is directed either by deed or will to be laid out in land, the money shall be taken to be land, even as to collateral heirs."

_Lord Campbell, Lives of the Chancellors, volume 4, page 374._

EQUITY: A. D. 1736-1756. Lord Hardwicke developed System of Precedents.

It was under Lord Hardwicke that the jurisdiction of Equity was fully developed. During the twenty years of his chancellorship the great branches of equitable jurisdiction were laid out, and his decisions were regularly cited as authority until after Lord Eldon's time.

_Kerly, History of the Court of Chancery, pages 175-177._

EQUITY: A. D. 1742. Control of Corporations.

"That the directors of a corporation shall manage its affairs honestly and carefully is primarily a right of the corporation itself rather than of the individual stockholders. … The only authority before the present century is the case of the Charitable Corporation v. Sutton, decided by Lord Hardwicke [2 Atk. 400]. But this case is the basis … of all subsequent decisions on the point, and it is still quoted as containing an accurate exposition of the law. The corporation was charitable only in name, being a joint-stock corporation for lending money on pledges. By the fraud of some of the directors … , and by the negligence of the rest, loans were made without proper security. The bill was against the directors and other officers, 'to have a satisfaction for a breach of trust, fraud, and mismanagement.' Lord Hardwicke granted the relief prayed, and a part of his decision is well worth quoting. He says: 'Committee-men are most properly agents to those who employ them in this trust, and who empower them to direct and superintend the affairs of the corporation. In this respect they may be guilty of acts of commission or omission, of malfeasance or nonfeasance. … Nor will I ever determine that a court of equity cannot lay hold of every breach of trust, let the person be guilty of it either in a private or public capacity.'"

_S. Williston, History of the Law of Business (Harvard Law Review, volume 2, page 158-159)._

EQUITY: A. D. 1782. Demurrer to Bill of Discovery.

"Originally, it appears not to have been contemplated that a demurrer or plea would lie to a bill for discovery, unless it were a demurrer or plea to the nature of the discovery sought or to the jurisdiction of the court, e. g., a plea of purchase for value; and, though it was a result of this doctrine that plaintiffs might compel discovery to which they were not entitled, it seems to have been supposed that they were not likely to do so to any injurious effect, since they must do it at their own expense. But this view was afterwards abandoned, and in 1782 it was decided that, if a bill of discovery in aid of an action at law stated no good cause of action against the defendant, it might be demurred to on that ground, i. e., that it showed on its face no right to relief at law, and, therefore, no right to discovery in equity. Three years later in Hindman v. Taylor, the question was raised whether a defendant could protect himself for answering a bill for discovery by setting up an affirmative defence by plea; and, though Lord Thurlow decided the question in the negative, his decision has since been overruled; and it is now fully settled that any defence may be set up to a bill for discovery by demurrer or plea, the same as to a bill for relief; and, if successful, it will protect the defendant from answering."

_C. C. Langdell, Summary of Equity Pleading, pages 204-205._

{1993}

EQUITY: A. D. 1786. Injunction after Decree to pay Proceeds of Estate into Court.

"As soon as a decree is made … , under which the executor will be required to pay the proceeds of the whole estate into court, an injunction ought to be granted against the enforcement of any claim against the estate by an action at law; and accordingly such has been the established rule for more than a hundred years. … The first injunction that was granted expressly upon the ground above explained was that granted by Lord Thurlow, in 1782, in the case of Brooks v. Reynolds. … In the subsequent case of Kenyon v. Worthington, … an application to Lord Thurlow for an injunction was resisted by counsel of the greatest eminence. The resistance, however, was unsuccessful, and the injunction was granted. This was in 1786; and from that time the question was regarded as settled."

_C. C. Langdell, Equity Jurisdiction (Harvard Law Review, volume 5, pages 122-123)._

EQUITY: A. D. 1792. Negative Pleas.

"In Gun v. Prior, Forrest, 88, note, 1 Cox, 197, 2 Dickens, 657, Cas. in Eq. Pl. 47, a negative plea was overruled by Lord Thurlow after a full argument. This was in 1785. Two years later, the question came before the same judge again, and, after another full argument, was decided the same way. Newman v. Wallis, 2 Bro. C. C. 143, Cas. in Eq. Pl. 52. But in 1792, in the case of Hall v. Noyes, 3 Bro. C. C. 483, 489, Cas. in Eq. Pl. 223, 227, Lord Thurlow took occasion to say that he had changed his opinion upon the subject of negative pleas, and that his former decisions were wrong; and since then the right to plead a negative plea has not been questioned."

_C. C. Langdell, Summary of Equity Pleading, p. 114, note._

EQUITY: A. D. 1801-1827. Lord Eldon settled Rules of Equity.

"'The doctrine of this Court,' he [Lord Eldon] said himself, 'ought to be as well settled and as uniform, almost, as those of the common law, laying down fixed principles, but taking care that they are to be applied according to the circumstances of each case. I cannot agree that the doctrines of this Court are to be changed by every succeeding judge. Nothing would inflict on me greater pain than the recollection that I had done any thing to justify the reproach that the Equity of this Court varies like the Chancellor's foot.' Certainly the reproach he dreaded cannot justly be inflicted upon his memory. … From his time onward the development of equity was effected ostensibly, and, in the great majority of cases, actually, by strict deduction from the principles to be discovered in decided cases, and the work of subsequent Chancery judges has been, for the most part, confined, as Lord Eldon's was, to tracing out these principles into detail, and to rationalising them by repeated review and definition."

_D. M. Kerly, History Court Chancery, page 182._

EQUITY: A. D. 1812. Judge Story.