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tration. Godfrey Brown mortgaged land in Cheltenham township to the Trustees of the General Loan Office of the Province and subsequently conveyed to Philip Fox. Fox paid the mortgage and then it was found that two deeds in the chain of title, that had been pledged to the trustees according to the custom of their office, were lost, and, although diligent search had been made in the loan office and elsewhere, they could not be found. Therefore “to prevent the damages and mischiefs which may arise from the loss of the said deeds," on petition of Philip Fox, it was enacted that the grantors in said deeds and their heirs be barred and forever excluded from all claims to the said premises which should vest in the petitioner absolutely, saving the rights of others than the said grantors.
The first legislative attempt to give equitable relief by a general act, was contained in the Act of January 22, 1774,2 to compel trustees and assignees of insolvent debtors to execute their trusts. By this law the courts of common pleas were empowered, on petition, to appoint commissioners to audit the accounts of such trustees and upon their report to order the trustees to forthwith pay the creditors their just proportions of the funds with which they were charged.
The next halting step was taken in the constitution of 1776 which contained the following clause:
“The supreme court and the several courts of common pleas of this commonwealth shall, besides the powers usually exer
1 May 20, 1767, VII Statutes at Large, 122. There is an interesting act of September 29, 1781, X Statutes at Large, 366, by which a title was confirmed to an equitable grantee who had failed to get a legal title, owing to the error of a conveyancer, but the commonwealth had a direct interest in the case because the legal title had, by the error referred to, become vested in an attainted traitor whose lands had been forfeited.
2 VII Statutes at Large, 382. Supplied March 24, 1818. 7 Smith's Laws of Pennsylvania, 131.
cised by such courts, have the powers of a court of chancery, so far as relates to the perpetuating testimony, obtaining evidence from places not within this state, and the care of the persons and estates of those who are non compotes mentis, and such other powers as may be found necessary by future general assemblies, not inconsistent with this constitution.”ı
No such other powers were conferred except by the Act of March 28, 1786,2 which authorized the supreme court upon bill setting forth the loss of deeds or other writings, to issue a subpoena, requiring the persons named to appear and answer; to refer the matter to a master and upon his report to make such order and decree as to justice and equity should appertain. This statute appears to have been occasioned by the frequent complaints of the loss of deeds which could only be remedied by private acts such as those already referred to. By the Act of September 28, 1789,3 proceedings akin to discovery were authorized in foreign attachment. The plaintiff after judgment against the defendant was permitted to exhibit interrogatories to the garnishees, who were required to answer under oath.
On the twenty-fourth of November, 1789, there met at Philadelphia a convention to draft a new constitution for the state. The members were abler and more representative men than those who had framed the shortlived constitution of 1776. The committee of nine who prepared the first draft of the proposed constitution included James Wilson, William Lewis, Alexander Addi
1 Chapter II, section 24 of the Constitution of 1776, Proceedings of the Constitutional Conventions of 1776 and 1790, 61; Act of January 28, 1777, § 4; 1 Smith's Laws of Pennsylvania, 427.
2 2 Smith's Laws of Pennsylvania, 375. This act was limited to five years, but was revived and extended to the court of common pleas in 1793 and made perpetual by the act of February 16, 1866, P. L. 50.
3 2 Smith's Laws of Pennsylvania, 500.
son and James Ross. The plan submitted by them included a high court of chancery presided over by a chancellor with state-wide jurisdiction, and a court of chancery in each judicial district, or circuit, except that in which the high court should be held, presided over by the president judge of the court of common pleas with the same power as the chancellor except that of granting injunctions to stay proceedings or suspend judgments at law. From a decree in chancery in any circuit an appeal was allowed to the chancellor of the state. Determined opposition to this plan developed in the convention and after a prolonged contest in committee of the whole, the provision for a court of chancery was struck out of the judiciary article and limited equity powers were conferred on the existing courts in the following words:
Art. V. Section VI. “The supreme court and the several courts of common pleas shall, beside the powers heretofore usually exercised by them, have the powers of a court of chancery so far as relates to the perpetuating of testimony, the obtaining of evidence from places not within the state, and the care of the persons and estates of those who are non compotes mentis. And the legislature shall vest in the said courts such other powers to grant relief in equity as shall be found necessary; and may, from time to time, enlarge or diminish those powers; or vest them in such other courts as they shall judge proper for the due administration of justice.”1
So ended the last effort to obtain a separate court of chancery in Pennsylvania. This much was conceded, the legislature was authorized not only to extend the equity powers of the existing courts, but to vest them in such other courts as they should judge proper. But the latter power was not exercised by the creation of a separate court, nor were equity powers conferred upon
1 Proceedings of the Constitutional Conventions of 1776 and 1790, 159, 301, 350, 354, 362, 364.
the ordinary courts in a systematic manner. From time to time, under the compulsion of sheer necessity, equitable jurisdiction was extended by a series of acts the mere recital of which is wearisome.1 Delaware, however, whose political and judicial history was so long and so intimately associated with that of Pennsylvania, took the step declined by her sister commonwealth and established a separate court of chancery by the constitution of June 12, 1792.2
As we have seen, the constitutions of 1776 and 1790 expressly conferred upon the courts the power to grant relief in certain cases. Of these, the first, the perpetuation of testimony, was exercised directly under the constitution in accordance with chancery practice; the second, the obtaining of evidence from places out of the state, by commissions and rule of court;' as to the third, the care of idiots and lunatics, the power of determining the question of insanity was exercised through the medium of a commissioner and inquest according to chancery practice. In addition the legislature by a series of acts, prior to 1836, conferred additional powers the most important of which were to compel trustees to account, to discharge and dismiss them, to compel the conveyance of the legal estate where the trust had expired, to compel discovery in aid of execution in certain cases relating to corporations and corporate stock, and to compel the specific performance of a contract
1 Troubat and Haly's Practice, chapter II. 2 American Constitutions, 179.
3 In Taylor v. Jolly, Supreme Court of Pennsylvania, September Term, 1773, Docket 6, 365, there is a rule to take the depositions of a witness in New Jersey “before any magistrate there,” on three weeks' notice.
4 This practice as well as the whole subject of lunatics and habitual drunkards was soon afterwards regulated by the act of June 13, 1836, P. L. 592, and its supplements.
for the sale of lands, where the vendor had died, by an order empowering the executors or administrators to execute a deed.
If the sum total of legislation seems meagre today, it can only be said that public opinion in regard to law reform moves slowly, and the bar, while dissatisfied with some features of the system, was not clear as to the direction reform should take. As will be seen presently, the simpler equities had been worked out through the common law actions and it was thought practicable to extend this method by the revival of neglected actions and an extension of their remedial effects. Such was the thesis maintained by Mr. Laussat in his brilliant essayand the favorable reception it received shows how obstinately loyal a bar may become to an inadequate system that they have been taught to revere. These views were respected by the commissioners to revise the civil code when, in 1835, they took up the question of equity. Some of the subjects ordinarily dealt with in a court of chancery, such as mortgages, they found had been fully covered by statutes; others could be covered in the same manner by acts that they had prepared; others were within the sphere of the orphans' courts. It was in the peculiar means of administering preventive justice that the courts of equity possessed a decided superiority over the courts of law, and it was here that the Pennsylvania system was most defective and the recommendations of the commissioners most radical. The commissioners were opposed to a separate court of chancery as unnecessary, and also opposed to keeping up a separate chancery organization in the existing tribunals. The courts, they
1 Rawle's Equity in Pennsylvania, 61.
2 Laussat's Equity in Pennsylvania (1826). This essay was prepared as a student's dissertation for the Law Academy.