The office and name of chancellor (however derived) was certainly known to the Roman emperors, with whom it originally seems to have signified a chief scribe or secretary, who was afterwards an officer, to whose Chancellor, and functions there were gradually added several judicial powers, together with a general superintendency over the other officers

Office of Lord

its history.

of the prince.

of double court, with separate forms of proceeding, did not prevent the existence of some inconveniences; and, for the purpose of securing all the advantages, and avoiding all the inconveniences of the former systems, the present system of blending law and equity practice was adopted in this State. In another part of this work an outline of the former systems will be given, before proceeding to explain the details of the present system of practice.

Principles of law and equity unchanged. It will be remembered that the matters under consideration relate to the practice of the courts, and not to the general rules of law, nor to the principles of equity, by which rights are to be decided, or wrongs redressed. The rules of law will remain unchanged, whether they are enforced by a court having nothing but a common-law jurisdiction, or by a court of equity, or by a court exercising both a legal and an equitable jurisdiction.

"Although the Code has abolished all distinctions between the mere forms of action, and every action is now in form a special action on the case, yet actions vary in their nature, and there are intrinsic differences between them which no law can abolish. It is impossible to make an action for a direct aggression upon the plaintiff's rights, by taking and disposing of his property, the same thing, in substance or in principle, as an action to recover for the consequential injury resulting from an improper interference with the property of another, in which he has a contingent or prospective interest. The mere formal differences between such actions are abolished. The substantial differences remain as before. The same proof, therefore, is required in each of these same kind of actions as before the Code, and the same rule of damages applies. Hence, in an action in which the plaintiff establishes a right to recover, upon the ground that the defendant has wrongfully converted property, to the possession of which the plaintiff was entitled at the time of the conversion, the proper measure of damages still is the value of the property; while in an action in which the plaintiff recovers, if at all, upon the ground that the defendant has so conducted himself, in the exercise of a legal right in respect to another's property, as unnecessarily and improperly to reduce the value of a lien, which the plaintiff could only enforce at some subsequent day, the damages must, of course, depend upon the extent to which that lien has been impaired." Goulet v. Asseler, 22 N. Y. (8 Smith) 228, 229, SELDEN, J.

The union of two systems of law and equity practice has not enlarged, nor has it diminished, the powers of the new court, either as to legal or equitable jurisdiction; in relation to the rights which they may declare; or the remedies which they may enforce. And where an injunction could not have been granted under the former practice by the old court of chancery, it cannot now be granted by the new court, because the equitable jurisdiction of the courts is not enlarged by the union of legal and equitable powers in one court, nor by the provisions of the Code. New York Life Ins. Co. v. Supervisors of New York, 4 Duer, 192; 1 Abb. 250. And see, also, as to the powers of the court, Hubbell v. Sibley, 50 N. Y. (5 Sick.) 468, 472; Matthews v. McPherson, 65 N. C. 189; Troost v. Davis, 31 Ind. 34, 39; Mordecai v. Stewart, 37 Ga. 364; Irick v. Black, 17 N. J. Eq. (2 C. E. Green) 189.

An action of trover could not have been maintained under the former practice without proof of an unlawful detention or a conversion of the property; and under the Code this proof is equally essential. Eldridge v. Adams, 54 Barb. 417. See Goulet v. Asseler, 22 N. Y. (8 Smith) 225. Although the Code abolished the forms of actions, yet the principles by which the former actions were governed still remain, and control as much now as formerly in determining the rights of parties. Ib.

The abrogation of the distinction between actions at law and suits in equity, by enacting that there should be but one form of action, which should be called "a civil action," did not obliterate the distinction between the two sorts of proceedings, so far as the federal courts are concerned. Thompson v. Railroad Companies, 6 Wall. 134; Walker v. Deville, 12 id. 440-442, note. And, if a civil action is brought in a State court, and it is essentially

The Roman Church adopted, amongst other accessories of imperial state, this office, and hence every bishop has to this day his chancellor, the principal judge of his consistory court. When the modern kingdoms of Europe were a common-law action, then the common law form, and not an equitable one, must be pursued if the case is removed into a federal court. Ib. An action in a common-law form cannot be prosecuted in a State court up to the removal of the cause to a federal court, and then have the form of the action changed into that of a suit in equity. Ib. If the original form of the action was in accordance with the practice of the State courts, no change will be necessary on the removal of the cause, as the federal courts will, in such cases, adopt and apply the practice of the State courts. Ib. But this adoption of the State practice is not to be understood as confounding the principles of law and equity, nor as authorizing legal and equitable claims to be blended together in one suit. Ib.

Joinder of actions, whether legal or equitable. Under the former system, a party sometimes erred in the choice of a court in which to obtain a remedy, and the result was delay and expense, if no other loss ensued. A party who instituted a suit in equity, when his remedy was at law, was turned out of that court to begin again; and the same was true, when an action was brought at law in a case where equity afforded the only relief. As the courts are now organized, where the same judge presides in all cases presented for adjudication, no one can be turned out of the supreme court upon the ground that his action was commenced in the wrong courts. But, before noticing what causes of action may be joined, it ought to be mentioned that the rules of law and the principles of equity have not been changed or blended, even when legal and equitable remedies are both sought in a single action. Formerly, an action at law and a suit in equity were both essential, in some cases, if full justice was done to both parties. By the present system, it is intended that one action shall attain the same result, with less delay, expense or difficulty than under the old practice. The former courts of law and the old court of chancery each had a separate jurisdiction, and each had a system of practice which differed materially from that of the other. The present system adopts the same practice for all classes of actions, or of remedies, so far as that result is practicable. And, in reference to the mode of commencing actions; the general mode of pleading; the practice on the trial; the mode of entering judgments and of enforcing them, and even the remedy by appeal, there is much that is alike, and where there is a difference, it is in those matters which are required by the nature of the action. But, while many of the proceedings and forms will be the same, whether the remedy sought be legal or equitable, there will be some proceedings and forms required in some classes of actions, which would not be appropriate in, nor would they be adapted to, the other. The same judge may hear an action at law or a suit in equity, and either action may be commenced by a summons; but, even in such a case, there will be some difference in the form of the summons. Again, an action upon a promissory note may require many proceedings, which are essentially like those in a suit in equity, for the adjustment of complicated equities; but yet there are, and there always must be, differences in the mode of conducting these actions. And it will be found, on a careful examination, that, except in the uniformity of general proceedings already mentioned, the courts adopt the equity practice in equitable suits and proceedings, and those of the common-law practice in actions at law. In most actions of a legal nature the issues are few and simple, and readily disposed of by a jury; but, in an intricate equity suit, there are many matters which no jury could possibly dispose of in a proper manner. In such cases, the practice in each action must be such as is appropriate under the circumstances; and, while pursuing such a mode, it does not interfere with the aforesaid principle that the practice in actions at law and in suits in equity have, so far as practicable, been united. The object in blending them was to secure as great uniformity as was attainable, but it was not considered any less important to retain all the advantages of both systems, and to use them whenever the ends of justice and the objects of the law would be best subserved. Uniformity in the practice is not to be limited to an attempt to reduce every kind of action to one form of proceeding, nor will it be secured by applying the same rules of proceeding in every case. In equitable actions there are, in nearly all cases, many steps to be taken which would not be proper in an action at law, and yet they are indispensable in equity proceedings. This difference does not in any manner interfere with the general rules of practice, which are VOL. II.-5

established upon the ruins of the empire, almost every state preserved its chancellor, but the jurisdictions and dignities varied in the different states according to their several constitutions. In all of them he seems to have had the supervision of charters, letters, and such other public instruments of the crown as were * authenticated in the most solemn manner; when, there[*28] fore, the use of seals was adopted, in or about the time of Edward the Confessor (c), the custody of the king's great seal was naturally entrusted to the chancellor, and with him it has ever since remained (d). In the present day, the office of Lord Chancellor is created by the mere delivery of the great seal into his custody; he thereby becomes, without writ or patent, an officer of the greatest weight, and power of any now subsisting in the kingdom, and superior in point of precedency to every temporal lord, except the king's sons, brothers, nephews, and uncles (e). He is invariably made a privy councillor, if not so previously (f); he is virtute officii prolocutor, or mouthpiece of the House of Lords, whether a peer or not (g), presiding as well over its legislative as its judicial sittings. To him belongs the appointment of all justices of the peace throughout the kingdom.

Being, in early times, usually an ecclesiastic (for none else were then capable

(c) See ante, vol. ii.

(d) It used to be said, that one Rembaldus who was called chancellor of Edward the Confessor, was the first in England who received that appellation (Ellesmere, Office of Chancellor, p. 12); but duties analogous to those of Edward's chancellor were certainly performed by a great officer or secretary of the king, whether called chancellor or not, in very much earlier times. See 1 Lord Campbell's Lives of the Chancellors, p. 3.

(e) Stat. 31 Hen. 8, c. 10.

(f) Selden (Office of Lord Chancellor, § 3) says that he is a privy councillor virtute officii; but see 1 Campb. Lives of the Chancellors, p. 16.

(g) Lord Ellesmere's Office of Lord Chancellor. Gilb. w. 42. If the lord chancellor be not a peer, he, although still president of the House of Lords, is not entitled to address the house or vote.

equally applicable to either class of actions. Consistency in relation to joining actions at law and suits in equity does not require that the practice should be uniform in all particulars, for that is plainly impracticable. When as great uniformity as is practicable is attained, all the advantages of blending the two systems will have been secured. And the next important step will be to adopt a uniform and harmonious practice in relation to each class of actions, whether legal or equitable. And it is just here that some of the most perplexing questions have arisen. The present practice is much of it founded upon statutes, and the difference of opinion among judges in construing them has been greatly increased by the large number of judges who have decided the various questions as they arose in the course of actions. Material differences in the minds of the judges, and of their various modes of study and practice, in addition to the fact that many cases were decided without the aid of previous decisions, which were not then reported, have all tended to increase the number of contradictory adjudications. These inconveniences had, however, some corresponding advantages; for, if each judge had decided all his cases without the aid of previous decisions, there would remain the advantage of his own unbiased judg ment, acting independently of authority, and thus securing the reasoning of a strong mind after a thorough examination of the case. Conflicting decisions upon the same question are a serious inconvenience in the practice, and they have been somewhat the cause of incongruities in the practice. But much of this evil may now be avoided, for it may be safely said, that most of the difficult questions in the practice are now settled by a clear current of authority.

In some instances the true rule is so well settled that no one would question what the rule is. In other cases, there may be a conflict in the authorities, but even these cases are less numerous than one might imagine on a first thought; and, after a careful examination of all the authorities and the statutes, the true rule may be discovered, and a harmonious systein laid down for the convenience of the student, the profession and the courts.

of an office involving much knowledge of letters), and presiding over the royal chapel (h), he became, and is still, in a legal point of view, keeper of the king's conscience. He is also visitor, in right of the king, of all hospitals and colleges of the king's foundation. He also exercises the right of patronage of all livings of the king that are of small value; this patronage, in [*29] early times, extended to all of the king's livings whose annual value was 20 marks or under, and was chiefly exercised in favour of the clerks in chancery, who were usually ecclesiastics (i): afterwards, the right of presentation, without any restriction, was assumed by the chancellors, and livings up to the value of 20%. in the king's book (j) were included in this right, which has continued to the present day; the livings being in fact now looked upon and dealt with, even by the legislature, as if the advowsons were vested in the Lord Chancellor as a corporation.

The Lord Chancellor is, by the jurisdiction inherent in his office, the general guardian of all infants, idiots, and lunatics (k), and has the general superintendence of all charitable foundations (1). The duties arising from this position of guardianship and superintendence are now shared by other judges, and, moreover, have, by recent legislature, been lessened by the establishment of other functionaries (m).

* In addition to all these functions, the Lord Chancellor is the chief [*30] judge in the Court of Chancery, wherein there are two courts; the one ordinary, being a court of common law, the other extraordinary, being a court of equity (n) Though the Court of Chancery, in the most ancient times, was a court of record, for letters patent under the great seal were, and are always, recorded in the court (o), it was not originally a court where justice was administered; but from the very earliest times, out of the Court of Chancery, which has from this circumstance been called officina brevium and officina justitia, there have issued writs under the great seal directed to the king's jus

The Court of Chancery & court of record for letters patent, &c.

Officina brevium.

(7) Madox, Hist. of Exch. 42; 1 Campbell's Lives of the Chancellors, 4.

(i) See Christian's note to his edition of Blackstone's Commentaries, vol. iii. p. 48, n. 6. In order to make provision for the augmentation of the value of the chancellor's livings, an act has been recently passed to authorize the lord chancellor to sell the advowsons of certain livings, the price being applied in increasing their value. See the Lord Chancellor's Augmentation Act, 26 & 27 Vict. c. 120, under which a large number of the very small livings, the avowsons of which were vested in the lord chancellor, have passed into private hands.

(j) I. e., the valuation made in the time of Henry VIII., under 26 Hen. 8, c. 3.

(k) A warrant under the sign manual committing the care of idiots and lunatics to the chancellor is usually given to him on his receiving the great seal, but it would seem that the jurisdiction is inherent in the office. See Campbell's Lives, 15. Some further information on the custody of idiots and lunatics and their property will be found in the next chapter.

(1) By 52 Geo. 3, c. 101, summary means

for taking advantage of the control of the Court of Chancery have been provided. See post, p. 81.

(m) The Charity Commissioners, under 16 & 17 Vict. c. 137, now exercise a large control over endowed charities. As to what are endowed charities within their jurisdiction, see Governors of the Charity for the Relief of Clergymen's Widows v. Sutton, 27 Beav. 651.

(n) In old times often called the Latin and the English sides of the court, from the languages employed in the pleadings respect ively used. The bill in the equity side long continued to be called the English bill.

(0) A patent is a record in chancery upon which a scire facias may issue, and it is a sufficient record whereon to found it." R. v. Sir O. Butler, 3 Lev. 223; Bac Abr. tit. " Sci. Fa." C. 138; Bynner v. The Queen, 9 Q. B. 523. Letters patent for invention, though issued out of chancery as being under the great seal, have long been treated in a different manner from other letters patent. The earliest statute regulating their grant is 18 Hen. 6, c. 1. It has been followed by a long series of statutes; the present general statute is 15 & 16 Vict. c. 83.

tices or the sheriffs to give such remedy as the occasion required (p). When the circumstances of a case were similar to others that had preceded it, old established forms were, by the rule of the court, adopted; but when new cases arose, which could not be dealt with under any existing form of action, in order to prevent the harsh or imperfect judgment which might otherwise ensue, a new form of writ was sought for.

This was the custom not only among our Saxon ancestors before the institution of the Aula Regia (q), but also* after its dissolution, in the reign [*31] of Edward I. (r), and, perhaps, during its continuance in that of Henry II. (s).

The chief judicial employment of the chancellor in these very early times, therefore, must have been in devising, with the assistance of his clerks, new writs directed to the courts of common law, to give remedy in cases where none was before administered (t). To quicken the diligence of the clerks in chancery, who were supposed to be too much attached to ancient precedents, it is Statute of West- provided by the statute of Westminster the second (13 Edw. 1, minster 2. c. 24), that "whensoever from thenceforth a writ shall be found in the chancery, and in a like case falling under the same right, and requiring like remedy, no precedent of a writ can be produced, the clerks in chancery shall agree in forming a new one: and if they cannot agree, it shall be adjourned to the next parliament, where a writ shall be framed by consent of the learned in the law (u), lest it happen for the future that the court of our lord the king be deficient in doing justice to the suitors:" and the [*32] statute gives a variety of new precedents of writs, some of them for cases previously unprovided for. Thus is accounted for the number of writs of trespass on the case to be met with in the ancient register, whereby the suitor had relief according to the exigency, and adapted to the special circumstances and justice of his case (x).

In process of time, however, the chancellor came to do more than furnish the first ingredients of judicial action; he always sat as a member of the Aula Regia, and was accustomed generally to attend the king in person for the purpose, amongst other things, of giving him advice; indeed, he was doubtless the principal legal adviser on all occasions. It was natural, therefore, that he

(p) Mirror of Justice, 176, ed. 1646.

(9) Nemo ad regem appellet pro aliqua lite, nisi jus domi consequi non possit. Si jus nimis severum sit, alleviatio deinde quæratur apud regem. LL. Edg. c. 2. In very early times, the mode in which the relief was granted was by plaint to the king, who, with the assistance of his chancellor or secretary, framed a writ or letters to the judges: the most ancient form of such writ being as follows:-" Rex, &c. (to the judge.) Questus est nobis A. quod B., &c., et ideo tibi (vices nostras in hac parte committentes) præcipimus quod causam illam audias et legitimo fine decidas." Mirror of Justice, p. 8.

(7) Lambard Archeion, 59.

(8) Joannes Sarisburiensis (who died A. D. 1182, 26 Hen. 2), speaking of the chancellor's office in the verses prefixed to his Polycraticon, has these lines:

"Hic est qui leges regni cancellat iniquas, Et mandata pii principis æqua facit."

(t) See Chief Baron Gilbert's reasons for the institution of the officina brevium, History and Practice, p. 10.

(u) 1. e., the clerks or masters in chancery, of whom Fleta, lib. ii. ch. 12, says, “ Cui (cancellario) associantur clerici honesti et circumspecti Domino Regi jurati qui in legibus et consuetudinibus Anglicanis notitiam habent pleniorem quorum officium est supplicationes et querelas conquerentium audire et eis super qualitatibus injuriarum ostensurum debitum remedium exhiberi per brevia Regis;" and elsewhere, Episcopi autem collaterales et socii cancellarii esse dicuntur præceptores eo quod brevia causis examinatis remedialia fieri præcipiant et hoc quandoque tam sive denariis ad opus Regis tam sive fine," &c.

(r) Lambard Archeion, ed. 1635, p. 61. A discretion as to issuing a new form of writ has been called into exercise in times much more recent than that of Edward I. See The Rioters' Case, 1 Vern. 175.