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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. 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.2 So also by the vendee, upon tendering the purchase money. Difficulties were encountered, as might be expected, in cases involving a construction of the statute of frauds which are too technical for discussion here.1

3

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.5

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

1 Laussat's Equity in Pennsylvania, Troubat and Haly's Practice, chapter on Ejectment.

2 Mitchell v. De Roche, 1 Yeates's Reports, 12 (1791). 3 Hawn v. Norris, 4 Binney's Reports, 77 (1811).

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.

5 McCullum v. Coxe, 1 Dallas's Reports, 150 (1785). Wheeler v. Hughes, 1 Dallas's Reports, 23 (1776).

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,1 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."

The first reported case describing the practice of giving in evidence, under the plea of payment, matters of equitable defense is Swift v. Hawkins3 already referred to, "the Magna Charta," says Mr. Justice Duncan, "of this branch of equity." 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 evi

1 Rawle's Equity in Pennsylvania, 63.

2 Laussat's Equity in Pennsylvania, 66. Of the second class of cases, Pollard v. Shaffer, 1 Dallas's Reports, 210 (1787), is an example.

31 Dallas's Reports, 17 (1768).

4

▲ Mackey v. Brownfield, 13 Sergeant & Rawle's Reports, 240 (1825).

dence. 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,2 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. The same liberality as to evidence was not favored under the plea of non assumpsit. It was said by Chief Justice Tilghman that if the circumstances afforded grounds for relief in equity, the defendant should give notice of special matter under the plea of payment.

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3

In the action of covenant, the plea of performance, or covenants performed, almost obsolete in England, was,

1 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."

2 Lewis v. Morgan, 11 Sergeant & Rawle's Reports, 234 (1823). Compare Hollingsworth v. Ogle, 1 Dallas's Reports, 257 (1788). 3 Pepper and Lewis's Digest of Decisions, Vol. 16, col. 27376. * Dunlap v. Miles, 4 Yeates's Reports, 366 (1807).

with notice of special matter held sufficient to support any evidence which would discharge the defendant in equity. In ejectment an equitable defense would protect the defendant's possession, but by statute2 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.3

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. 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

1 Bender v. Fromberger, 4 Dallas's Reports, 436 (1806).

2 Act of April 13, 1807, 4 Smith's Laws of Pennsylvania, 476. 3 McCutchen v. Nigh, 10 Sergeant & Rawle's Reports, 344 (1823).

4 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).

1

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." 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.2 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, and by widening the scope of the writ of scire facias. As has been shown, more sensible counsel prevailed and limited chancery powers were extended to the courts by statute.

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3

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

1 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.

2

Opinion of Chief Justice Black in Finley v. Aitken, 1 Grant's Reports (Pa.), 83 (1854), at page 95.

3 Livezey v. Gorgas, 2 Binney's Reports, 192 (1809). The record of the trial will be found in Brackenridge's Law Miscellanies, See also Barnet v. Ihrie, 17 Sergeant & Rawle's Reports, 174 (1828).

438.

4 Laussat's Equity in Pennsylvania, 136.