Commencement of Suit-Bill-Habeas Corpus cum causa. 367 own understandings, without reference to principle or precedent, that is according to their whim or caprice, which has been reiterated by almost every common law writer on the Court of Chancery down to the present day (a); it is a little extraordinary that causes should have been brought to a hearing, and heard with so much of ceremony and of regard to form and regularity as the succeeding pages will exhibit. It has been observed that the Court of Chancery took its rise from all matters of grace (and the granting a subpoena was a matter of *grace) (b) having been committed by general delegation, expressed or implied, from the King to the Chancellor; therefore [*368] no writ was necessary, as at Common Law (c), to give jurisdiction over each particular case: the party who desired relief applied as he would to Parliament, or the Council, by a petition, which afterwards, as in Parliament, was called a Bill (d). This Bill commenced the Suit. The proceedings, as we learn from the records which have been printed by the Record Commissioners, were very analogous to those in the Council, which have been already adverted to. The plaintiff in his bill (e) simply detailed the facts; it was not necessary that the bill should use any particular phraseology, or that it should define or describe the cause of suit in any set or definite terms, as in a declaration at law: it was not founded on any regula juris; it frequently sought relief against some rule of law. All that the plaintiff had to show was that his was a case which ought to be entertained under the powers given by the general delegation; what were the kinds of cases over which jurisdiction was exercised will be the subject of after consideration. The bills almost universally pray a subpoena, sometimes a writ of Habeas Corpus cum causa, or writ of Certiorari alone, each of which has (b) See Treatise of Questions in Chancery, Harg. Tracts. i. 301; Seton, 112. The terms "Gratia Cancellaria" were used temp. Edw. I. Seton, p. 7. (c) V. sup. 226-7. (a) "As yet (temp. Jas. I.) the proceed views. The direct evidence of the, as I ings of the Court of Chancery were not conceive, erroneous nature of these reprereported, precedent not being considered bind- ́sentations will be noticed as we proceed. ing there as in other Courts." See Lord I must exempt Mr. Warren from the usual Campbell's Life of L. K. Williams, ii. p. common law notions (prejudices I will not 457; and see the description of the Court, say) on this subject. i. 397, 425, temp. Edw. IV. and p. 456, 499, temp. Cardinal Wolsey. There are many passages of like import; those which relate to the Court under the clerical Chancellors appear to have been introduced to impress the reader with the notion which Lord Coke in his time wished to inculcate (see i. p. 243) that everything went wrong because Common Law Chancellors were not continued to be appointed after the time of Edw. III., v. ib. i. 263, 269, ii. 211. It is more than insinuated that the three who were appointed in the latter part of the reign of Edw. III. (v. sup. p. 340) laid the foundations of the system of equity, imperfect as it is represented to have been, which the Clerical Chancellors transmitted to their successors, v. i. 269, 423, 5, &c. and Lord (e) The first Bill in English in the printed Campbell thinks that the case, a part of Calendars is temp. Hen. V.; before that time which he cites from the Year Books, heard they were in French. The proceedings in by A. B. Morton, (4 Hen. VII. 5, which case the Court of Chancery were designated will be noticed hereafter, Book III. ch. x)" by English Bill," in the time of Lord Ellesand the meager abridgments in Brooke and mere (Treatise, p. 45), though, as he obFitzherbert of cases found in the repertories serves, there were some bills in French of the Common Law Courts, support his down to 20 Hen. VI. (d) Some bills in the reign of Elizabeth were still addressed to the Queen. Thus in 1569 there is a bill of complaint exhibited to the Queen's Majesty, by her referred to the Lord Keeper; she being willing that if the substance of the allegations were true, he should take order by writ of injunction or otherwise for restitution to the plaintiff. Accordingly an injunction was issued with the usual words, "if the suggestions, &c. be true," Reg. Lib. B. 1569, fo. 304; another, B. 1582, fo. 322. 368 The Subpoena-Signature of Counsel to Bill. been already described; sometimes for a subpoena as well as one or other of those writs (a); in some instances a serjeant-at-arms to bring up the defendant is prayed for (b) sometimes an injunction (c). Some of the bills pray for surety for the peace as well as other relief; many of the bills simply ask for relief generally (d). In one instance the bill consists of interrogatories upon which it prays that the defendant may be examined (e). The bills always conclude in terms of supplication, as "for the reverence of God and for work of Charity," the plaintiff [*369] sometimes adding, "and he shall ever pray for you" (f);"and your petitioner shall ever pray, &c.," is still appended to every petition to the Chancellor. In ancient times the subpoena was not issued unless the case stated in the bill was considered to warrant it (g), and the Chancellor sometimes took the advice of some of the Judges on the subject (h). Sometimes a letter was first written by the Chancellor urging the defendant to do justice to the plaintiff (i). Letters missive to peers and "persons of honor," first appear in the time of Elizabeth (k). There are many entries of such letters missive in the registrar's books of that and the subsequent reigns. By Lord Wriothesley's Orders, 37 Hen. VIII. (1), no subpoena was to issue without a bill and the hand of the maker to it, upon pain of costs to be levied upon the clerk who issued the process, or his master. From an early period (m) the Signature of counsel "practising at the Chancery bar," was required to every bill,—that sanction for the issuing of the subpoena was substituted for the personal examination of the bill by the Chancellor; it was besides a security against the introduction of scandalous and irrelevant matter with which the parties were, as will presently be seen, too apt to defile the records when left to themselves. The subpoena required the defendant to appear "in propriâ persona" (n) in the Chancery at a day named, to answer to what should then (a) Cal. i. p. 22. 96. (b) Arundell v. Berkeley, temp. Hen. VI. Cal. i. 35, ib. 48, &c. (c) See Cal. ii. p. 16, temp. Hen. VI., which bill prays a supersedeas of the action; and Astel v. Causton, temp. Edw. IV. Cal. i. 108, for an injunction. Injunctions against waste, &c. will be considered under a separate head. (d) Cal. i. p. 1. p. 10. temp. Rich. II. &c. Some of these bills will be referred to hereafter. Sir H. Seton has concisely arranged the whole subject under distinct heads, and much of this Chapter is taken from his admirable little Treatise. (e) Mathew v. Oxenbrigge, temp. Hen. IV. Cal. i. 59; Discourse, &c. p. 95. (f) Int. al. see Discourse on the Judicial Authority of the M. R. p. 98. This was a bill addressed to the Earl of Salisbury during his year of office, temp. Hen. VI. (g) See the case Y. B. 22 Edw. IV. 6, Bro. Conscience, 23. Sir Thos. More adhered to this practice, Roper's Life, Barrington, p. 308, Notes. Lord C. Wriothesley charged the Masters with the duty of seeing that all process was correct in form prior to its being sealed, Sanders, vol. i. p. 8. (h) Norbury's Treatise, Harg. L. Tr. 332. (i) Leg. Judic. in Ch. 243. (k) Cal. i. 144; Reg. Lib. 8 & 9 Eliz. fo. 74. (1) At the end of the first Registrar's Book extant. (m)From the time of Sir Thomas More, according to the Treatise of the Masters, Har. Tracts, 302; but in the Renovatio Ordinum Cancellariæ, supposed to be of the time of Hen. V., is the following Order, "Item quod nullus scribens ad sigillum primum processum (videlicet) breve subpoena ad comparendum conficiat et ad sigillum producat priusquam billam cum manu unius Consiliariorum barram Cancellaria frequentancium recipiat et in filum Cancel larie imponat sub pena deposicionis ad scribendum manere ad sigillum," Section 17, Sanders, i. 7. d. (n) The matters brought before the court, as will be noticed hereafter, were to a great extent of a criminal nature, and in criminal proceedings personal appearance is still re Security given by the Plaintiff-Attachment. 369 and there be objected to him, "et ad faciendum ulterius et recipiendum quod Curia nostra consideraverit;" a penalty was added in the event of disobedience (a), from whence the writ obtained the name of subpæna. *By the statute 15 Hen. VI. c. 4 (b), before noticed, it was provided that no subpoena should issue till security was found by [*370] the plaintiff, to satisfy the defendant his damages and expenses in the event of his failing to prove the allegations in his bill; but this, like the security to prosecute with effect in the original writ at Common Law, and the pledges to prosecute added to the declaration, had fallen into disuse, or become matter of mere form in the time of Elizabeth. The personal appearance of both parties was considered essential that both might be at hand to give all the information the court might require, and be ready to do what the court should decree; and as regards the plaintiff, that he might be there to answer such costs as might be awarded against him (c). Originally it was only on special reasons shown, as great age and the like, that a person was allowed to sue here by attorney (d). If the defendant did not after service (e) of the subpoena appear at quired. The bringing up persons from all parts of the country is one of Mr. Norbury's complaints, temp. Jas. I. (a) In the Cal. i. p. 5, temp. Rich. II. there is a writ omitting the penalty, and requiring the defendant to appear "in consilio nostro in Cancellariâ;" it purports to have been issued, quibusdam certis de causis, which had been shown coram nobis in Cancellaria. This is the kind of writ which the Commons complained of under the name of " quibusdam certis de causis." In the Calendars, vol. i. p. 27, temp. Hen. VI. there is a regular subpœna; the form was never varied until the last reign; the penalty could not be enforced ut patet, 10 H. VII. 14, Crompt. 47 a. It is matter of surprise that John de Waltham, M. R., should have gained so much celebrity by his supposed invention of such an idle form, and moreover that it should have been continued down to our day. (b) This is treated as a statute by Lord Coke and all his cotemporaries, but it has been doubted whether it really was so; see Hargrave's Note, Law Tr. p. 348. 438. (c) "The law of nature requires," said the Chancellor, (Y. B. 9 Edw. IV. 14, No. 9.) "that the parties shall be present." Lord K. Bridgman took occasion, when he could, to examine the parties in court, North's Life of Guildford, i. 219. In Elizabeth's time it was very common. Thus parties were called upon in open court to say whether they intended to do as the Acts suggested, (Reg. Lib. B. 1570, fo. 383,) and were made to enter into recognizances to keep their promises to the court, and were punished with contempt if they broke them, B. 1571, fo. 2, &c. (d) V. Stonehouse v. Stanshawe, temp. Hen. VI. Cal. i. 29. That is a bill praying to be at liberty to make attorneys to sue in all courts. In the time of Lord Bacon, every suitor who could afford it, had an attorney; see his Table of Fees, in Tothill. In Lord Ellesmere's Treatise, p. 38, and in Lord K. Coventry's Orders, 1635, Beames, p. 74, it is said, that the Six Clerks were the only attorneys in the court; but by the general Order, 27 Hen. VIII. the Six Clerks were to stand at the bar of the court, three on one side and three on the other, without speaking or crying, but when they shall be commanded by the court, Sanders's Orders, i. p. 9. The notices of "Attornati" or Attor neys in the Renovatio Ord. Cancell., temp. Hen. V. § 13, ibid.; and in Tothill, 8. 15. 24. 275; and the Order of Lord C. Hatton, for excluding the public, by which the attorneys of parties were to be admitted, seems inconsistent with the Six Clerks having been the only attorneys. In Lord Coventry's time, it seems the under-clerks were the acting parties; they afterwards became principals in executing many of the original duties of the Six Clerks. Servientes, narratores, attor nati, et apprenticii, are mentioned by Fleta as the different orders of practitioners in his time (Edw. II.) Lib. 2, c. 37. The Statute of West. 2d, c. 10, had allowed suitors to appear in the different Courts of Law by attorney. Apprentices at law, and attorneys at law, it would seem, constituted formerly one class, Serjeant Manning's Case of the Serjeants, p. 188-9, and p. 45. (e) In one case the bill prays a subpoena to the sheriff to serve the subpoena on the defendants, the plaintiff not daring to serve them, temp. Hen. VI., Cal. i. 43. The old antipathy to this writ had not subsided in 370 Commission of Rebellion—Interlocutory Applications. the time fixed, or get an order for the extension of the time (a), he was treated as acting in contempt of the court, and an attachment issued against him; a second and a third attachment were sometimes *issued (b). In early times, as before noticed, the sheriff was [*371] ordered to distrain on the defendant's property, if he made default (c); according to the latter practice, the defendant in default was sent to the Fleet, and fined at the discretion of the court. If he could not be found, a commission of rebellion issued against him (d). After bill filled, and injunction (e) or Habeas Corpus cum causis, or Certiorari might be applied for, on a sufficient case being stated; and, according to the early practice, as it would appear from Lord Bacon's Orders after noticed, on the mere statements in the bill (f), before appearance or answer (g). In certain cases, a writ of ne exeat regno might be obtained (h). But it appears that it was frequently made a condition to the obtaining an injunction, that the money in question should be paid into court (i). In the time of James I., an injunction to stay proceedings at law, might, as now, be obtained as of course, where the defendant made default in appearing or answering (k). When an injunction was applied for on the part of an infant, it seems that sureties were required to enter into a bond that the allegations in the bill were true (1); and in many cases, down to 1592, plaintiffs on applying for an injunction were required to enter into a recognizance to prove the surmises contained in the bill (m). If the defendant stood out the process of subpoena, the attachment, the second attachment, viz., attachment with proclamations, and a commission of rebellion, without appearing or answering, if the suit were about land, a commission was issued to put the plaintiff in possession until the defendant should appear or answer, as the case might be (n). Lord Bacon confined injunctions for possession to the enforcing of decrees. [*372] *SECTION II.-Commission to take Answer-Answers Disclaimers-Pleas. When the defendant appeared, he was, according to the original con the time of Elizabeth; the registrar's books (b) Cal. ii. p. 62, Edw. IV. on his impeachment (Parkes, 62, 4 Inst.), amongst his other arbitrary acts granted injunctions without bill. (g) In Coll v. Ovey, Cal. i. 108, there is an answer praying that the injunction obtained by the plaintiff may be dissolved. (h) Crompton, 65 b; the power to issue the writ in civil cases is there referred to (c) 37 Edw. III. Introd. to Close R. p. xxx. stat. 5. Rich. II. c. 2. (i) Tothill, p. 37; and see the case of Mitchell v. Myrmyun, Cal. i. p. 87. (k) Cary, p. 160, &c. () 5 & 6 Eliz. fo. 53. (m) A. 1592-3, fo. 774. (n) Ratcliffe v. Ratcliffe, 36, 37 Hen. VIII. fol. 227; Ap. Howel v. Dunne, 1 & 2 Edw.VI. fol. 12; the defendant being a person of honor (a knight), the Chancellor had pre stitution of the court, examined personally before the Chancellor (a), latterly, perhaps, more frequently before the Master of the Rolls. No doubt on most occasions, when the party appeared personally, a recommendation or rebuke from the Chancellor settled the matter at once (b), which may account for there being in early times so many bills without any account of ulterior proceedings. There are, however, several entries from early times of the answers and examinations of the defendants (c). If the defendant, from sickness, or for any other reason, could not appear personally (d), on an application on his behalf (e) a commission under the Great Seal was issued, directed to one or more persons, requiring them to take the answer and examination of the defendant to the bill, which was for this purpose annexed to the commission, on oath, and to return it into the Chancery, under their seals, by a certain day (f). If the defendant had no interest in the matter, he might put in a Disclaimer (g). The defendant besides answering the bill, as required, might at the same time make his defence by what was in the nature of a plea at the common law, though, as before noticed, so much of the answer as related to the discovery was at variance with all the rules of the common law. There are several answers which appear to have been drawn under legal advice (h), or perhaps by the prothonotary or the clerks of the Chancery, acting, in this respect, like the prothonotaries at law. Many begin with a protestation against the truth and sufficiency of the matter contained in the bill, similar to that which is now *used in a plea (i). [*373] It is very common for the answers to insist that the plaintiff's remedy is at common law, "whereof he understands not," says the defendant in one case, "that the King's Court of Chancery in this case will have knowledge" (k), or in the Spiritual Court (); but still the defendant usually answers the bill: one defendant proceeds thus— "Nevertheless, for declaration of the matter to you, my Lord Chancellor, I say, &c. ;" and then proceeds to answer the bill (m). The answers frequently end with a general traverse of the facts alleged in the bill, and an offer of proof of the facts alleged in the answer, and a prayer to viously sent him a letter warning him to tions, Norbury's Treatise, Hargr. Tr. p. 438. appear as he did to peers. (a) Cal. i. 27, 28. 31. 42, &c. (b) There are some records of the accords made between the parties, sometimes with mutual releases, Cal. i. 76, temp. Edw. IV. &c. (c) John v. Earl of Oxford, Cal. i. 27; et v. ib. i. 28. 31. 42. (d) A special reason had to be given to obtain a commission to take the answer, temp. Hen. VIII. and his successors, v. int. al. 36 & 37 Hen. VIII. fol. 215; 5 & 6 Eliz. fol. 30; B. 1754, fol. 387; but then it was on account of the delay it occasioned. (e) Down to James I. the Master of the Rolls heard motions by attorneys, and their clerks, for time to answer, and the like; just as the Masters now do by the late regula (f) Int. al. Clyfford v. Apulderfield, Cal. i. 106, temp. Edw. IV., there is also the return to the commission. (g) This kind of pleading is first mentioned by Tothill, p. 15, but not as a novelty. (h) In the time of Sir N. Bacon, pleadings appear to have been mostly drawn by counsel, Tothill, p. 59; et v. supra, p. 369. (i) Int. al. Cobbethorn v. Williams, temp. Hen. VI. Cal. i. 52; Seton, 118. (k) Int. al. Arkenden v. Sturkey, temp. Hen. VI. Cal. i. 36; this is the first answer printed in the Calendars. (1) Ibid. and Sharp v. Temper, temp. Edw. IV. Cal. i, 64, &c. (m) Arkenden v. Sturkey, ubi sup., and several others. |