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Rules as to Discovery-Sir Moyle Finch's Case.

miseth he knoweth not, and without them he supposeth he cannot sue *at the common law, it was resolved,-That if the defendant [*679] make no title to the land, then the court hath just jurisdiction to proceed for the evidence ; but if he make title to the land by his answer, then the plaintiff ought not to proceed; for otherwise by such a surmise inheritances, freeholds and matters determinable by the common law, shall be determinable here in Chancery, in this Court of Equity;" and on the certificate of the judges, founded on this amongst other resolutions, the Chancellor in that case (Sir Moyle Finch's case) reversed his decree (a). Succeeding Chancellors have to some extent acted according to the spirit of these resolutions; but they have sustained the original jurisdiction, and taken to themselves the decision on the whole matter, wherever the case in respect of which the discovery is sought has called for the exercise of any of the acknowledged branches of its equitable jurisdiction (b); and also in those cases where its machinery has been considered to be requisite for a just and fair investigation and decision of the matter thus in cases where an account is sought which cannot be effectually taken without the aid of the searching powers of the Court of Chancery, to detect fraud (c) or thoroughly to investigate the transaction, the Court of Chancery exercises jurisdiction, though the case may be cognizable at law. The further consideration of this subject is reserved for the after part of this work.

Some of the rules which have since governed the Court of Chancery in compelling discovery, may be traced in the records of the times we are now considering, though the modern system has mostly been framed by the judges of later times.

The granting discovery in aid of legal titles was considered to be to some extent discretionary. Lord Nottingham held that a person who had gotten an estate as occupant according to the law as it then stood (d), was not entitled to a discovery of the deeds (e).

The same eminent judge, however, appears to have considered that a legal title, whether acquired by gift or grant (for instance, under a will), gave a right to discovery of deeds even against the most favored [*680] of persons, a purchaser for valuable consideration without notice (f). But it is plain that Lord Eldon was of opinion that in such a case discovery ought not to be enforced (g), even after the person entitled had recovered at law.

(a) 4 Inst. 84, 85. At this time, as already noticed, the greatest jealousy of the Court of Chancery prevailed in the Common Law Courts. The fourth Inst., as is well known, was published from Lord Coke's Notes after his death, and it has been doubted whether the report of this case is in all respects accurate.

(b) 1 Fonb. p. 12, et seq. Lord Nottingham, in Parker v. Dee, 2 Ch. Ca. 200, 201, which however was a very special case, said, "When this court can determine the matter, that shall not be an handmaid to other courts, nor beget a suit to be ended elsewhere."

(c) The jurisdiction was sustained in all cases of fraud, mainly on the ground of the

power of the court to elicit discovery, Choice Ca. in C. Introd. p. 44.

(d) A legislative provision to make estates pur autre vie assets, and to get rid of title by special occupancy, which was afterwards accomplished by the stat. 29 Car. II. c. 3, § 12; and 14 Geo. II. c. 20, § 9, was then in contemplation.

(e) 1 Freeman, 313; but see 2 Freem. 84, n. (2).

(f) Rogers v. Seale, 2 Freeman, 84; the merely primâ facie title of an heir at law was not sufficient as against a purchaser, he had first to establish his title at law, Burlaw v. Cooke, 1 Freeman, 24.

(g) See Walwyn v. Lee, 9 Ves. 84.

Rules as to Discovery-Preservation of Testimony.

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No person, in any case, was compellable to answer to that which would subject him to a penalty or a forfeiture, civilly or criminally (a), but a person might be compelled to discover whether his interest had expired (b). These rules are still adhered to (c).

Where a person had deeds in his possession relating to the matter in question he was not protected from production by saying they did not belong to the plaintiff, "because the defendant therein will be his own judge whether they belong to the plaintiff or not," therefore he was ordered to answer what he had, and to bring them "to be viewed to whom they belonged (d). The law on this subject can hardly be said. to have been settled until the present reign; it will be fully considered hereafter.

A man was bound to answer in the affirmative or negative, as to his own acts. As to a fact which happened three years before, the defendant was ordered to answer directly; answering to remembrance was held not to be sufficient in such case (e).

There are instances in the time of Elizabeth and Charles I. of the plaintiff in a suit in the Court of Chancery being examined on interrogatories (f); in one case he was directed to be examined expressly at the hearing of the cause (g).

SECTION II.-The Preservation of Testimony-Conclusion of Book the Third.

I proceed to a consideration of the jurisdiction exercised for obtaining and recording the evidence of witnesses whose testimony was likely to be lost before any trial could be had of an existing or anticipated *question, or what is now called taking the examination of witnesses de bene esse and in perpetuam rei memoriam.

[*681]

According to the Roman system of procedure where a person had a prospective cause of action, or was liable to a future action to which he alleged he would have a sufficient defence, and he could show that there were just grounds for believing that he might lose the benefit of the testimony of the witnesses who could prove his case-in the one case before he could bring his action, in the other before the time when he might be sued he might under the jus civile apply to the Prætor or Præses of the province to have his witnesses examined, and their testimony preserved, to be used when occasion required (h).

(a) Toth. p. 69, ib. 79, 80. temp. Eliz., Bishop v. Bishop, 15 Car. I. 1 Rep. Ch. 77. (b) Toth. p. 69.

(c) Wigram on Discovery, 81, &c. Altorney-General v. Lucas, vii. Jurist, 1082. (d) Rotheram v. Saunders, Toth. p. 71, 37 Eliz.

(e) 9 Edw. IV. 41, No. 26, Toth. p. 71, Oswald v. Pennant, 38 & 39 Eliz. et v.

Choice Ca. 107.

(f) Toth. p. 211, 12 & 13 Eliz. fo. 380, whether before or after decree does not appear.

(g) Ib. 6 Car I. Kent v. Benham.

(h) Dig. ix. 2, 40, and Gothofred's note (h). The instance given, is the case of an obligation securing a debt payable at a future time, having been destroyed before the time of payment had arrived, so that an action on the Lex Aquilla for the amount of the damage could not then be sustained, as in case payment should be made at the time appointed, notwithstanding the destruction of the obligation, no damage would be sustained, et v. Cod. xi. 5, 2. This would seem to show that although witnesses were examined orally (v. sup. and Dict. of Antiquities, Art. Judex, by Mr. Long, p. 529),

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Modern Statutes relating to Equitable Jurisdiction.

The constitution of the courts of law and their mode of proceeding by writ would hardly admit of the exercise of a jurisdiction for recording of testimony with a view to future proceedings. Besides it would have been necessary to create an establishment of officers specially for the purpose. But as all evidence was taken in the Court of Chancery, equally as in the Ecclesiastical Courts (a), by written depositions only, the recording of testimony for the purposes of future litigation or defence, naturally fell to the Court of Chancery, and there are records of bills filed for this purpose from an early period (b). The testimony that was taken in such suits was published when the evidence was required to be used in any court in which the litigation might be pending (c).

There is no record of any commission for the examination of witnesses abroad, at least that I have been able to find, down to the period to which this part of the present volume extends.

Having concluded the subject of the ancient jurisdiction of the Court of Chancery, so far as it appears to have formed the basis of the modern [*682] jurisdiction of the court, it may not be improper, though by anticipation, to introduce a short summary of the Acts of Parliament by which some of the doctrines of the Court of Chancery have since been regulated, and by which its doctrines and practice have been incorporated in the law, though most of them have been noticed in the preceding pages.

The legislature has regulated the exercise of the jurisdiction of the Court of Chancery, confirming the principle, in the instance of forfeiture by non-payment of rent-by the Stat. 4 Geo. II. c. 28 § 3, the terms on which relief may be given to lessees on forfeiture by the non-payment of rent have been fixed.

The legislature has also in some instances extended its jurisdictionby the Stat. 11 Geo. IV. & 1 Will. IV. c. 40, executors have been made trustees for next of kin of the undisposed of residue, the Court of Chancery having advanced a great way toward making them so, and greater efficiency has been given to its process, particularly by the Act 1 & 2 Vict. c. 110, which has already been noticed.

The legislature has in several cases enlarged the jurisdiction of the Courts of Common Law by analogy to that of the Court of Chancery, so as in some instances to render the further interference of the Court of Chancery unnecessary, though generally, as before noticed, the court has retained its original jurisdiction.

By the Stat. 4 Edw. III. c. 7. an action of trespass was given to exe

their evidence was officially recorded in writing. Lord Chief Baron Gilbert, in his "Forum Romanum," p. 22, seems to have considered that the examination of witnesses in civil cases was by written depositions, not viva voce; but this cannot have been the case till after the ordinary and extraordinary jurisdiction of the Prætors and Præsides had been amalgamated.

(a) This circumstance, as before observed, distinguished the course of proceeding in the Court of Chancery from that

of the Common Law, and which was pointed at by the Commons, (v. supra, p. 344) as one of their great objections to the court.

(b) There is a bill of this description, temp. Hen. VI. Cal. i. 27; Hen. VII. ib. i. 120; et v. Reg. Lib. 36, 37, Hen. VIII. Egylfield v. and Senhawes v. Senhawes, Cary, 126, 22 Eliz. ib. 122, and Lord Bacon's Orders.

(c) 5 & 6 Phil. & Mary, Cary, p. 50. Choice Ca. 112; there the action was pending in a Court Baron.

Equitable Jurisdiction exercised by Courts of Law.

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cutors or administrators for trespasses affecting the goods of their testator or intestate.

By the Stat. 4 Anne, c. 16, objections to pleadings theretofore treated as fatal, were removed, and defendants were allowed to plead several matters (§ 4); payment of money, secured by bond, after the day was allowed to be pleaded (§ 12); and actions of account were permitted to be brought against the executors of guardians, bailiffs, and receivers, and others (§ 27).

By the Stat. 9 & 10 Will. III. c. 17 § 3, a legal remedy was given in the case of lost bills of exchange, and by the Stat. 14 Geo. II. c. 20 § 5 in the case of lost recovery deeds.

By the Stat. 8 & 9 Will. III. c. 11 § 8 relief was given at law against penalties in certain cases, making them a security only for the amount due.

By the Stat. 2 Geo. II. c. 22 § 13, and 8 Geo. II. c. 24, the defendant was allowed to plead a set-off to the plaintiff's demand.

By the Stat. 55 Geo. III. c. 192, repealed and re-enacted by 7 Will. IV. & 1 Vict. c. 26 § 1 and 3, relief was given against the want of a surrender of a copyhold.

*By the stat. 3 & 4 Will. IV. c. 42, § 2, an action of trespass [*683] or trespass on the case, is given to the executors of a person deceased for an injury done to the real estate of the testator in his life time; and against the executors of a deceased for any wrong committed by him in his lifetime to another in respect of his property real or personal, contrary to the maxim of law, that actio personalis moritur cum persona (a).

The Courts of Common Law have also been armed with certain powers which formerly only belonged to the Courts of Equity.

By the stat. 1 Will. IV. c. 22, courts of law are enabled to examine witnesses abroad, and by the stat. 1 & 2 Will. IV. c. 58, the jurisdiction of the courts of law is extended to cases of Interpleader (b).

It has been already mentioned that the Courts of Common Law have in some instances of themselves, independently of the large importation of the equitable doctrines of the Court of Chancery in the action of assumpsit, adopted other equitable doctrines of the Court of Chancery; as in the instance of the discharge of sureties by reason of the acts of the principal creditor; and that they have in some cases relaxed their rules, as in the instance of the rule as to profert. The courts of law have also long since assumed a species of equitable jurisdiction over their proceedings by staying the Postea, that is the record on which the verdict which is the foundation of the judgment is founded, and by consequence the judgment; and sometimes after judgment, by staying execution until the party shall have complied with terms similar to those which would have been imposed by the Court of Chancery (c).

(a) See Price v. Evans, 2 Ch. Ca. 217, where Lord Nottingham prophesied that the common law would come to this at last. This summary has been taken in part from Sir H. Seton, p. 26.

(b) By some accident this statute was

omitted to be introduced, p. 297, supra.

(c) The following is an early instance, Smith v. Thoms, Reg. L. A. 1603, fo. 616, an action was brought on a bond for payment of money. On the trial it appeared that the money was paid, but not at the day,

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Subject of the Fourth Book.

Having now completed the proposed sketch of the several heads of the jurisdiction of the Court of Chancery which may be considered as the basis of its modern jurisdiction, I proceed to give a similar sketch of the Obsolete Jurisdiction of the Court of Chancery, principally with a view to showing how far the Court of Chancery has been instrumental in the improvement of the law.

so the plaintiff had a verdict. The judge at law would not suffer the verdict to be entered till bonds of arbitration were executed by both parties, and the postea was not to be delivered out till the award was made. The plaintiff at law having declined to attend the arbitrator, and seeking to enforce the judgment, the parties had at last to come

into the Court of Chancery for an injunc tion. The author of Chancery Vindicated, App. to 1 Ch. Rep. 44, supposed to be Loid Ellesmere, notices this jurisdiction as then incipient, adding "by what law they do so themselves best know." The extent to which this is now carried may be seen in Mr. Warren's Law Studies.