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dict for the defendant. 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."? 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. 4

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. ? 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 ) Commissioners present, John held at Chester ye 5th day Bluston, Samuel Lewis, John of the 1st week of ye 10th Simcocke, Robert Wade, Geo. month, 1686

Maris, Robert Pile, Bartholomew 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.”3

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.

? 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

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.4 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."5

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.

3 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.

* I Votes of the Assembly, 79.

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

The prolonged controversy between the assembly, the governors and the home government over the court laws that took place in the early years of the eighteenth century has been sufficiently discussed and will be referred to here only in so far as it affected equity jurisdiction. The Act of October 28, 1701,' believed to have been drafted by David Lloyd, contained this provision:

"That the said justices in the respective county courts shall have full power, and are hereby empowered and authorized to hear and decree all such matters and causes of equity as shall come before them in the said courts, wherein the proceedings shall be by bill and answer, with such other pleadings as are necessary in chancery courts and proper in these parts, with power also for the said justices to force obedience to their decrees in equity, by imprisonment or sequestration of lands, as the case may require.”

An appeal was given to the provincial court, which was empowered to revoke, alter and confirm decrees according to equity and justice.

This act, which was repealed by the queen in council on February 7, 1705, because the lords commissioners for trade conceived that so far from expediting the determination of lawsuits it would impede the same,2 attempted to introduce a more elaborate procedure without actually committing the courts to the English practice, and, like all half measures, would have led to confusion and litigation. One can imagine the unlearned judges of the county courts deciding how much chancery pleading was “proper in these parts.” There is no trace of any proceedings had under its authority; in fact Chief Justice Guest in 1703 made a complaint to the council

1 II Statutes at Large, 148. See Charter and Laws of Pennsylvania, 300.

2 II Statutes at Large, 481.

“That notwithstanding ye Laws of this Govmt had erected Courts of Equity & ye Justices, have a power also in their Commission for ye same: Yet that to ye great oppression of ye People, there have been no such courts as yet held in pursuance of ye present Law, the Rules of ye said Court not having yet recevd so full a sanction as tis thought may be requisite."'i.

It was ordered that the rules should be produced at the next session of the council, but nothing further appears to have been done until September, 1704, when Guest moved that the rules agreed on by the county court should be enforced in all the courts. Finally in the following April the rules prepared by “certain persons skilled in the law” were laid before the council and approved, but not long afterwards the governor was notified of the repeal of the act.

The controversy that followed between the governor and council on the one side and the speaker and assembly on the other was the first real crisis in the history of equity in Pennsylvania. Lasting as it did for three sessions of the legislature we can gather some information as to the respective plans submitted for the organization of the courts, although the text of the bills has not come down to us. Chancery was the chief bone of contention. Governor Evans wished to act as chancellor assisted by the council, in accordance with the practice recently established in the crown colonies, and it would seem that the assembly was at first inclined to yield this point "provided that the court meddle not with matters wherein sufficient remedy may be had in any other court” 4 whether by the rules of the common law or the laws of the province. But the country members were afraid that too much of the business of the courts

1 II Colonial Records, 115, 29, 11 mo. 1703–4. 2 II Colonial Records, 164, 15, 7 mo. 1704. 3 II Colonial Records, 189, 13, 2 mo. 1704-5. 4 II Colonial Records, 263, 23, 7 mo. 1706.

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