Jurisdiction to regulate Apprentices. 696 that of his co-jurors, in an action for recovery of money, he having in his answer admitted that he had received the money, and that he had not repaid it (a). This interference of the Couft of Chancery no doubt had its effect in causing this ancient mode of proof, which the courts of law could not and the legislature would not repress, to go into disuse. When from the connections of a party to an action, his influence with the returning officer, or from any improper practices, a fair trial was not likely to be obtained, the court interfered by injunction to restrain the trial until proper measures were taken for insuring a fair trial (b). *In one case, on a petition preferred to the Queen, showing that the plaintiff was not likely to have an indifferent trial in the [*667] county of Chester, an order was made by the Chancellor for a trial in another county (notwithstanding a decree of dismissal founded on the matter not being within the jurisdiction), under the Queen's express command that the cause should be re-heard in this court (c). This interference of the Queen by way of appeal, however inconvenient from its irresponsible nature, was however strictly in accordance with principle, there being then, as we have seen, no regular court of appeal from the Chancellor (d). *CHAPTER IV. THE REGULATION OF APPRENTICES. [*698] AMONGST other matters which the Court of Chancery interfered with in those days, was the conduct of apprentices, where the statutes then in force did not afford any, or what was considered to be an effectual means of correcting their irregularities or misbehavior (e). In the 3 & 4 Philip and Mary is a bill in which the plaintiff complained that his apprentice, Whitney, had run away, and was harbored by one Robert Berverley, to the great loss of the plaintiff. Robert Berverley was sent (a) Cal. 120-122, temp. Hen. VII. The bill also sought that the defendant should be punished for the perjury. (b) Reg. L. B. 1659, fo. 150; so in Scrope v. Metcalfe, Reg. L. 36, 37, Hen. VIII. the court directed Common Law writs to issue to indifferent persons, not to the Sheriff or Coroner, according to the usual course, they being related to one of the parties. (c) Reg. Lib. B. 1587, fo. 623, Rachedale v. Jee. In one case the jurisdiction assumed by the court to correct the effects of fraudulent or improper practices, at law, was attempted to be made the instrument of fraud in the following way:-A bill was filed against the Sheriff alleging that he had corruptly impanneled a jury on the nomination of the Earl of Leicester, on a trial relating to some lands. The Queen had (e) 5 Eliz. c. 4. There have been many subsequent statutes, see Burn's Justice, title Apprentices. Reasons for abandonment of Jurisdiction in these cases. 698 for to appear before the Lord Chancellor, and on his appearance he was enjoined by the Lord Chancellor, that if the apprentice should at any time thereafter resort to his house or come to his company, that he should bring the said apprentice to the Lord Chancellor, to the intent that on the examination of the matter such further order should be taken as by equity and conscience should be thought meet and convenient (a). ABANDONMENT OF THESE SEVERAL HEADS OF JURISDICTION, AND THE REASONS. THE foregoing are the principal instances of what may be called the obsolete jurisdiction of the Court of Chancery in regard to civil rights and liabilities. By reason of the improvement in the administration of justice in the ordinary courts, and the extension of the action on the case, the necessity for the interference of the Court of Chancery in these cases has long since ceased, and the general principle which we have before noticed, which was always recognized in theory,-that where there is claim in respect of a legal right or liability, and the remedy at law is appropriate and effectual on the one hand, and there is no obstruction to a valid defence at law on the other, the Court of Chancery will not interfere, may now be considered as completely established (b). In actions on contracts entered into abroad, a legal fiction has been resorted to in the courts of law, namely, laying the venue by a videlicet ; for instance, by stating the transaction to have taken place at Calcutta or elsewhere, videlicet in the ward of Cheap in the county of Middlesex; so that the necessity for the exercise of the jurisdiction of the Court of Chancery in such cases has been superseded (c). Bills for changing the venue in actions at law, on the ground that the action could not properly be tried where laid, are noticed so late as 1684, in the time of Lord Keeper North. In Sir William Tyrringham's case, he being so powerful that right could not be had against him in the county of Bucks, the venue was changed upon a bill filed for that purpose only (d). Here perhaps we see the last remains of the ancient jurisdiction to assist the weak against the strong in questions purely of legal cognizance. However the courts of law have long since taken to (a) Richards v. Whitney, 3 & 4 Phil. & M., fo. 198, Heath, A. B. of York was Chancellor. (b) V. sup. p. 408. Lord Loughborough, C. in Williams v. Lord Lonsdale, 3 Ves. 757, inquired whether any case could be found where a person having a legal estate and only the legal estate, could come into this court for any purpose; perhaps the only instances are, for discovery, to perpetuate testimony, to quiet possession after repeated trials, and for an injunction to restrain (c) See Tidd's Practice, 4 ed. 363. Reasons for abandonment of Jurisdiction. 699 themselves the jurisdiction which was formerly exercised by the Court of Chancery in changing the venue, so that the jurisdiction of the Court of Chancery on this head also has become obsolete, excepting as regards issues tried under its own directions. *As regards the general jurisdiction which the Court of Chan[*700] cery exercised in early times in regard to executory promises and implied obligations, or assumpsits, that also became in great part unnecessary. As the principles of equity administered by the Court of Chancery became better understood, they were gradually adopted and applied by the courts of common law (a) as governing principles in the action of assumpsit, (which was in fact, as we have seen, a creation founded on equitable principles,) so as to supersede, to a considerable extent, the necessity for the continued interference of the Court of Chancery; indeed, as before observed, there is scarcely an equitable principle which prevails in the Court of Chancery that has not long since been adopted and acted upon in that description of action (b). In leaving such cases to the law, the Court of Chancery has departed, in a great measure, from the general rule (c) by which it has been governed, of retaining its original jurisdiction, though the courts of law may have assumed or obtained an equitable jurisdiction. The introduction of the practice of granting new trials in the courts. of law must have greatly conduced to supersede the necessity for the interference of the Court of Chancery in regard to questions of legal cognizance, as the want of it must have imposed that necessity. The first instance to be met with in any book of legal authority of a new trial, with reference to the merits of the case on the evidence, is in the year 1665, temp. Charles II. (d). It is admitted that trials by jury in civil cases could not now subsist (e) without a power residing somewhere to grant new trials; misconduct, mistake, surprise and prejudice (ƒ), and the other grounds of failure which are now provided against by this expedient, must have operated, to say the least, equally in ancient times as now, and this consideration must, as has before been observed, have induced the Court of Chancery to take to itself the decision of legal questions in many cases which now appear to have been beyond the legitimate bounds of its jurisdiction. (b) When the subject matter is such as requires to be determined secundum æquum et bonum, as generally upon actions on the case, the judgments of the courts of law are guided by the most liberal equity," 3 Bla. Com. 436; and see Stratton v. Rastell, 2 T. R. 370, Cowp. Rep. 774. 793; and Pasley v. Freeman, 3. T. R. 65; & v. supra, p. 247. It would appear from the case of Sutton v. Errington, 22 Eliz. Cary, 139, that the courts of law were then considered to be the proper tribunals for determining cases depending upon promises or contracts of the description which are now designated under the term assumpsit, and not the Court of Chancery. (e) See Lord Eldon's judgment, Kemp v. Prior, 7 Ves. 249, 250. (d) Sty. Rep. 462. 466, new trials in ejectment were not permitted even then, because the verdict in ejectment was not conclusive, 2 Salk. 648; so that the winner was always at the risk of another action being brought. (e) Tidd's Pract. p. 800, 4th ed. (f) Tidd's Pr. ubi sup. Lush's Pr. ii. 530. *701 Obsolete Jurisdiction as to Wills. *CHAPTER VI. JURISDICTION OF THE COURT OF CHANCERY AS TO WILLS AND AS TO DIVORCE-ADMIRALTY JURISDICTION. It remains only to notice the obsolete jurisdiction of the Court of Chancery as to wills and as to divorce. The Court of Chancery, beside: interfering in regard to the payment of legacies, a jurisdiction which, as before mentioned, it has retained, appears to have assumed under its ecclesiastical chancellors, a concurrent jurisdiction with the Ecclesiastical Courts to decide as to validity of wills of personal estate where they were impeached as having been unduly obtained. As regards wills of real estate. So long as real estate not devisable by custom, could only be the subject of devise by first constituting a fidei commiss, or trust, the Court of Chancery was the only court which could have held jurisdiction as to wills of this description. After the Statutes of uses and of wills had been passed, devises of real estate, as we have seen, came under the cognizance of the courts of common law. But for a time the Court of Chancery appears to have retained jurisdiction to decide on the validity of wills which were impeached as having been obtained by fraud or improper practices. Instances are to be found in the reign of Elizabeth and James I. (a). The Court of Chancery also appears to have exercised jurisdiction to apply its equitable doctrines to devises without disturbing the will. Thus devises which were void at law by reason of a misrecital, or on other grounds which brought into operation the equitable doctrines of the Court of Chancery in regard to accident and mistake, were "holpen in equity" (b), probably by converting the legatee or devisee into a trustee; and frauds and mistakes in regard to the insertion of particular clauses in a will were in some cases corrected (c). But it is evident that even in the reign of Elizabeth, the doctrines of the courts of law and of the Court of Chancery in regard to what should be considered to be a valid devise of lands had become assimilated, and that it was considered that the trial of the validity and effect of a devise of a real estate properly belonged to the courts of common law (d). (a) Reg. L. 1590, A. fo. 457, a will of personal estate; 20 Jas. I. A. fo. 222, Toth. p. 285-6, ed. 1671. (b) Cary, p. 79, ed. 1649; 6 Car. I., Toth. 286. (c) Reg. Lib. 38 Eliz. fo. 968 A. (d) In a case which took four days in hearing in which it was established to the satisfaction of the court that a condition annexed to a devise of real estate in a will had been inserted by fraud, and contrary to the directions of the testator, the plaintiff was decreed to restore the possession of the premises to the defendant, and suffer him peaceably to enjoy them during his life, until the plaintiff should recover them at law; and in the event of his bringing an action for that purpose, it was not to be tried in the county of Southampton, but to be tried at bar in the K. B. or C. P. Reg. L. 1589, A. fo. 295. There are decrees recognizing the principle stated in the text, 15 Eliz. Reg. L 1573, A. fo. 7 & fo. 89; & 1584, A. fo. 201. Sir C. Hatton was Chancellor, who, as we have seen, was averse, in all cases, to entertain jurisdiction on legal questions. In a case, Reg. Lib. 1604, B. fol. 941, where it was plain at the hearing that the *It was equally settled, at least in the time of Charles I., that the jurisdiction to decide on the validity of wills of personal estate, on whatever grounds they might be impeached, belonged to the Ecclesiastical Courts alone (a), and such is the modern doctrine; however, a person who may have a good title at law under a will, may in some cases be converted into a trustee for another by the application of the equitable doctrines of the Court of Chancery (b). Divorce.-Tothill, in his Transactions of the Court of Chancery (c), states that there are on the rolls of the court two decrees for divorces (but of what description he does not mention), in the time of Henry VIII., and two in the time of Elizabeth, after verdicts in the Court of Queen's Bench, I presume for adultery. I have been unable to discover them, even with the help of Mr. Munro. It is not unlikely, however, that the Court of Chancery, under its clerical chancellors, exercised jurisdiction to decree a divorce a vinculo matrimonii; that jurisdiction is exercised by the Court of Chancery in America (d), it was in all probability carried over there from England. At the time we are speaking of, and down to the passing of the Marriage Act, 6 & 7 Will. III., c. 6, the legal validity of marriages depended entirely on the doctrines of the Ecclesiastical Courts, and these courts possessed the power of decreeing the performance of contracts of marriage (e), as well as of pronouncing a decree for a divorce. There is a suit in Chancery very like a suit for the specific performance of a contract on the part of the relations, for a marriage between two young persons, members of the respective families of the Booths and the Traffords, of Cheshire, A. D. 1573, which the Queen #personally commanded the Lord Keeper to take cognizance of, and under [*703] his directions the marriage took place. It is hardly necessary to say that the Court of Chancery does not now entertain jurisdiction in regard to the matrimonial contract; it belongs to the Ecclesiastical Court and the Legislature. The Court of Chancery also in ancient times exercised, concurrently with the Admiralty, a jurisdiction in respect of depredations on the seas, which is now exercised by the Court of Admiralty alone. "And," says Lord Nottingham, in one of his judgments, published by Mr. Swanston, "first, I observed that this cause was properly in Chancery upon many accounts, not only as it was a scire facias to repeal letters patent, but as it was a cause of state; and likewise as it was a marine cause, and did concern depredations on the sea, in which cases the Chancery as well as lington v. Cann, Barnardist. 130, Strickland v. Aldridge, 9 Ves. 519, Lord Eldon ; & Chamberlaine v. Chamberlaine, 2 Freeman, 34, & 1 Cox, 414. (c) P. 61, ed. 1649; p. 124, ed. 1671. (d) See Parkes' New York Revised Statutes, p. 76. (e) 2 Rop. Husb. & W. Append. 445-6; and see Reg. v. Milles, Dom. Proc. Feb. 1843, vii. Jurist, 912. |