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Proceedings, Papers, Writings, Passages or Proofs, both in Dutch and English Time, beforthwith Transmitted hither, for a final Determinacon in Equity.

Given under my Hand in New Yorke this 25th day of May 1676.

E; ANDROS.

To the Justices of the Peace of Newcastle in Deleware."1

A petition for equitable relief preferred by Arnoldus la Grange to Governor Andros in connection with the litigation concerning the title to Tinicum Island will be found in the archives, but the action taken thereon by the governor is not recorded.2

With the further history of equity in New York we are not directly concerned. By an act passed soon after the separation from Pennsylvania a court of chancery was authorized but the law seems to have been disregarded. Lord Bellomont, the governor, writing to the lords of trade October 19, 1700, says: "There is a great want of a court of chancery here, but nobody here understanding it rightly I delay appointing one till the judge and attorney general's coming from England." The lords, in reply, directed him to establish the court at once and in the following year the court was proclaimed by ordinance of his successor, Lieutenant Governor Nanfan. Nothing, however, of importance seems to have been done and it would appear that some of the governors disliked the responsibility. Lord Cornbury, who was also appointed royal governor of New Jersey, wrote to the lords of trade on May 7, 1711:

1 V Pennsylvania Archives (2d series), 679.

2 VII Pensnylvania Archives (2d series), 799.

3 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.).

4 New York Colonial Documents, Vol. IV, 882.

"In both plantations I have been pelted with petitions for a Court of Chancery; and I have been made acquainted with some cases which very much require such a court, there being no relief at common law, I had ordered the committee of both Councils to form a scheme for such a court, but to no purpose; the trust of the seals they say constitute a chancellor, and unless the Governor can part with the seals there can be no chancellor but himself. I have already more business than I can attend to, besides I am very ignorant in matters, having never in my life been concerned in any one suit. So I earnestly beg your lordship's directions as to that Court.”

The court was also a favorite object of attack by the popular party. Governor Hunter on January 1, 1712,

wrote:

"The country here, in general, groaned for a Court of Chancery which had been discontinued for some time before my arrival in these parts. *** I gave a public notification of that court being opened, and the House of Representatives, in their angry mood resolved that the erecting of such a court without their consent was against law."2

In spite of this and similar attacks the court maintained its existence until reorganized after the Revolution and adoption of the constitution of 1777, but the amount of business transacted was comparatively small until the time of Chancellors Livingston and Kent.

In Pennsylvania and Delaware, as we have seen, Penn took over the local courts very much as he found them, exercising a supervisory jurisdiction through the provincial council. On the hearing of appeals before the latter body equitable principles were applied as is illustrated by the case of Bellamy v. Watson, described in the court below as "an action of Trasspase and ejectment" for land on Prime Hook. The case was tried at Lewes on May 27, 1683, before a jury who found a ver

1 IV New Jersey Archives, 70.

2 New York Colonial Documents, Vol. V, 298.

dict for the defendant.1 The plaintiff appealed to the governor and council who heard the case in July and were unanimously of the opinion that one Smith, under whom the defendant claimed, had no title in law or equity. They entered judgment for the plaintiff, he to pay the defendant for his improvements, the value of which was to be fixed by appraisers, and gave the defendant four months' time in which to remove his crops, stock and "other moveable concernes."2 A year later it is recorded that the difference between Watson and Bellamy was amicably settled by mutual conveyances, "and thus they agreed & shaked hands." In another case that came before the council, that body seems to have been in doubt whether they ought to proceed in law or equity, but the nature of the business is not given.1

By the Act of May 10, 1684, passed at New Castle, it was provided that the "Quarter Sessions be as well a court of Equity as Law, Concerning any Judgment given in Cases by Law capable of Triall in the respective County Sessions and Courts,"5 and by another chapter of the same act a provincial court was constituted, the judges of which were given cognizance of appeals and all causes both in law and equity not determinable by the county courts. This enactment seems to have caused some misgivings for in 1685 the council "Ordered that a bill be drawn up That ye Word Equity be left out in ye Law off County Courts." The conception of equity then entertained is illustrated by the following case taken from the minutes of the court of common pleas of

1 Sussex County Records (Turner), 97.
2 I Colonial Records, 21, 4, 5 mo. 1683.
3 I Colonial Records, 65, 14, 6 mo. 1684.
4 I Colonial Records, 63, 20 4 mo. 1684.
Charter and Laws of Pennsylvania, 167.
6 I Colonial Records, 75, 3, 2 mo. 1685.

Chester County, where the court sitting in equity, modified its own judgment previously entered at law.

"Josua Hastings v. Francis Yarnall. The Declaration was read-the answer was read. Judgment for plaintiff 25 shillings with costs of suit. Upon which the defendant makes his appeal to the next court of equity for this county.

1686 at a court of equity held at Chester ye 5th day of the 1st week of ye 10th month, 1686

Commissioners present, John
Bluston, Samuel Lewis, John
Simcocke, Robert Wade, Geo.
Maris, Robert Pile, Bartholo-
mew Coppoche, Robert Eyre
Clech.

Francis Yarnall of this county preferred a bill to this court wherein he required a remedy against ye verdickt of Jury and Judgment of court obtained against him by Joshua Hastings of ye same county, at the last court of Common Pleas held for this county, at Chester, the 3rd and 4th days of this present weeke. Upon which it was decreed that Francis Yarnall should pay 10 shillings and bear half the charges of that court."1

Such proceedings gave offense to the people, as unduly interfering with the verdicts of juries, and in 1687 the assembly asked for a conference with the council upon certain questions, among them "how far ye County Quarter Sessions may be Judges of Equity as well as Law and if after a judgment in Law whether the same Court hath power to Resolve itselfe into a Court of Equity, and Either Mitigate, alter, or Revers ye said Judgment." The council answered evasively that the law made at New Castle "doth supply and answer all occasions of appeal, and is a plainer rule to proceed by.”

13

By the Act of May 10, 1690, it was provided that the county courts "shall be Courts of equitie for the hearing

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

2 I Colonial Records, 159, 12, 3 mo. 1687.

3 I Votes of the Assembly, 41.

and determining all matters and causes cognizable in the said Court, under the value of ten pounds," and that the provincial court should have the hearing and determining of all appeals from the county courts both in law and equity. This statute was substantially reenacted in 1693 during the administration of Governor Fletcher of New York. During all this time there were frequent petitions to the council, for relief against judgments of the courts, several of which were relegated to the county or provincial courts for a hearing in equity.3

2

The relief given under the name of equity would seem to have been similar to the discretionary powers of the courts now exercised on rules to open judgments, or in controlling verdicts on motions for new trials, and there is no trace of formal chancery proceedings. Nevertheless the popular dislike of any interference with verdicts is voiced in a further complaint of the assembly, in 1694, stating that the judges had too great liberty to destroy or make void the verdicts of juries and praying that they might be instructed not to decree anything in equity to the prejudice of judgments before given in law. Even more vigorous would have been their remonstrance if there had been an attempt to introduce real chancery pleading, but this was foreign to the spirit of Penn's legislation, which permitted "all persons to freely appear in their own way and personally plead their own cases themselves, or if unable, by their friends."

1 Charter and Laws of Pennsylvania, 184. The assembly tried to strike out the word equity, I Votes of the Assembly, 57. 2 Charter and Laws of Pennsylvania, 214, 225. See also Act of November 27, 1700, II Statutes at Large, 134.

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.

4

5

I Votes of the Assembly, 79.

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

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