tion of the economic waste involved in a dual and highly artificial procedure, before one more simple and rational could be evolved. Conservative opinion hesitates to endorse these changes, and the tendency, displayed in many jurisdictions, to overload procedure with petty statutory details, that ought to be left to the rules of court, shows an immature conception of the principles of law reform. If this is true today, how poorly prepared was the eighteenth century for experiments in jurisprudence, with a bar nourished on technicalities and trained to state almost every legal right in procedural terms. Pennsylvania was one of the most persistent of the colonies in its opposition to the introduction of a court of chancery, and its courts were the most fertile in devising expedients to decrease the inconveniences resulting from such opposition, and this, although in the immediately adjoining colonies chancery had a fairly successful development. In the early period, political conditions had much to do with the failure of the only serious attempt to establish such a court. After the Revolution, opposition to the extension of equity jurisdiction long continued as a political tradition, in spite of the changed attitude of the leaders of the bar. While the territory on the Delaware was under the government of the Duke of York it would seem to have been the intention to administer equity, in the popular sense of that word, through the court of assizes. Among the laws of April 2, 1664, was one that provided: "In regard it is almost impossible to provide Sufficient Lawes in all Cases, or proper Punishments for all Crimes the Court of Sessions shall not take further Cognizance of any Case or Crimes, whereof there is not provition made in some Lawes but to remit the case or Crime, with the due Examination and proof to the Next Court of Assizes where matters of Equity shall be decided, or punishment awarded according to the discretion of the Bench and not Contrary to the known Laws of England."1 This was amended at the court of assizes held in September, 1665, as follows: "Where the Originall Point is matter of equity the proceedeings shall bee by way of Bill and delivering in Answers upon Oath and by the Examination of witnesses, in like manner as is used in the Court of Chancery in England. And due regard must be had that the Defendant have timely notice thereof, as is appointed at Common Law; which is eight dayes warning before the Court shall sitt."2 In the following February it was ordained that "matters of Equity under five pounds may be tried in Town Courts and if under twenty at Sessions." This investing of the lower courts with equitable powers was undoubtedly intended to lessen the hardship of seeking relief in a distant court meeting but once a year, and its practical application was probably limited to giving effect to the more obvious equities of defendants. That such was the case, would appear from the instructions of Governor Andros to the justices of the court at New Castle dated August 14, 1677, in reply to a query on their part. "As to penal Bonds or such like cases of Equity it is the custom & practice of Courts here, to hear & judge thereof according to Equity, wch you may also observe as Allowed by Law.”3 At the court for Deal, afterwards Sussex, County held June 13 and 14, 1682, Henry Stracher obtained a verdict against Peter Groundyk in an "action of the case," the nature of which is not disclosed, whereupon 1 Charter and Laws of Pennsylvania, 35. "Peter Groundyk peticon the Court that he may have That was this day Tryd betwene Henry Stracher Ant this peticoner to be Tryd in Equiety, the next Court by bill and Answer as is use in the Court of Chancrey in England which the Court would A perswaded him to A dissisted in it; and rest himselfe satisfied in what was allready done; but through his perswading the Court grant the peticoner his request; provided that the proceeding be put in in due time According to Law."1 At the September court, however, nothing is recorded as to the "Tryal in Equiety" which the justices seem to have been reluctant to undertake. There are also instances where the governor at New York assumed the equitable power of granting relief against oppressive judgments at law, of which the following order is an illustration: By the Governor Whereas Hendrick Jansen Van Bremen, of Swanyck or Paerden Hook, near Newcastle in Delaware River, hath preferr'd a Petition unto me setting forth, that having heretofore, in the Time of the Dutch, received great Damage in his Corne, by Mr Wm Toms Horses, by Reason of his insufficient Fence; It was Ordered, that Mr Toms Land there, should be Sold in Vendue, which said Order being not effected, The Petitioner since the Restoration of the English Government, took the said Horses off his Land, and sent them to Mr Tom at New Castle, desiring they might be kept from his Corne; But the Petitioner still sustaining Damage, without Relief, he acknowledges that in Passion, he rashly and unadvisedly, shot one of the said Horses, with small shot, whereof he not long after dyed; Whereupon Mr Tom Sued the Peticonr in the Court of Newcastle, from the which Appealing to the High Court, Judgment past against the Peticonr there for Six Hundred Guild rs to be paid by him to Mr Tom, for his Horse, besides One Hundred Guildrs Charges; But was neither call'd, nor heard there; Wherefore I have thought fitt, & do hereby Order, that the said Hendrick Jansen giving Security, by binding over his Person and Estate, to makegood his Complaint, That Execucon be Suspended; And that all the 1 Sussex County Records (Turner), 76. 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 3 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. |