mm 
 
 >umw 
 
 Ear* 
 
 fc **>J" 
 
 
 
 
 ^Q 
 
 ■H* 
 
 afeM 
 
 S3 
 
 ii@ 
 
 i«' 
 
 v*^ 
 
 
 F| 
 
 lihffi 
 
 w I 
 
 Hi 
 
 »f. 
 
 fe^^-" 
 
 ^/^A^ 
 
3* 
 
 (Bnrntll Cam l^rtynnl ffiihrary 
 
Cornell University Library 
 KFP 85.R25 
 
 Equity in Pennsylvania : 
 
 3 1924 024 706 370 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924024706370 
 
EQUITY IN PENNSYLVANIA. 
 
 A LECTURE 
 
 DELIVERED BEFORE THE 
 
 LAW ACADEMY OF PHILADELPHIA, 
 
 FEBRUARY i i, 1868. 
 
 BY 
 
 WILLIAM HENRY RAWLE, 
 
 ONE OF ITS VICE PROVOSTS. 
 WITH AN 
 
 APPENDIX, 
 
 BEING THE 
 
 REGISTRAR'S BOOK OF GOVERNOR KEITH'S COURT 
 OF CHANCERY. 
 
 PRINTED FOR THE LAW ACADEMY. 
 
 PHILADELPHIA: 
 KAY & BROTHER, 19 SOUTH SIXTH STREET, 
 
 LAW BOOKSELLERS, PUBLISHERS, AND IMPORTERS. 
 1868. 
 
Entered according to the Act of Congress, in the year 1868, by 
 
 THE LAW ACADEMY OF PHILADELPHIA, 
 
 in the Office of the Clerk of the District Court of the United States in and for the 
 Eastern District of the State of Pennsylvania. 
 
 PHILADELPHIA: 
 
 COLLINS, PRINTER. 
 
Extract from the Minutes of The Law Academy. 
 
 Resolved, That a Committee be appointed to wait upon 
 William Henry Rawle, Esq., to request him to permit the 
 publication of his Address delivered before The Law Academy 
 on the nth inst : — and further, 
 
 Resolved, That the Record of Governor Keith's Court of 
 Chancery be published as an appendix to Mr. Rawle's Address. 
 
 Feb. 12, 1868. 
 
 Sir, 
 
 The undersigned, a Committee appointed by The Law Aca- 
 demy, respectfully solicit of you for publication your Address 
 delivered before that body on Tuesday evening, February nth. 
 
 SAML. S. HOLLINGSWORTH, 
 W. W. WILTBANK, 
 GEO. W. SPIESE, 
 
 Committee, 
 
 Feb. 13, 1868. 
 To Wm. Henry Rawle, Esq., 
 
 710 Walnut Street, 
 Philadelphia, February 17, 1868. 
 Gentlemen, 
 
 I send you the manuscript of my Address before The Law 
 Academy, in compliance with your request. 
 
 Through the kindness of the Attorney-General, the consent 
 of the State Department to the publication of the Registrar's 
 Book has been procured. 
 
 Very respectfully yours, 
 
 WM. HENRY RAWLE. 
 Messrs. Saml. S. Hollingsworth, 
 
 W. W. WlLTBANK, 
 
 George W. Spiese, 
 
 Committee, £sTr. &c. 
 
ADVERTISEMENT. 
 
 After the manuscript of this lecture had been given to the 
 Law Academy, it was suggested that the interest of its subject 
 might warrant a more extended publication than the limited 
 number of copies printed for the use of its members. The 
 Committee of the Academy has, therefore, made such an 
 arrangement with the publishers as enables them to present 
 the lecture in this form to the profession. 
 
EQUITY 
 
 IN 
 
 PENNSYLVANIA. 
 
 More than forty years ago, the Provost and 
 Vice-Provost of this, our Law Academy, appoint- 
 ed as the subject of a dissertation to be prepared 
 during vacation, "Equity in Pennsylvania" — under 
 which head were to be considered the nature and 
 extent of the Chancery Powers of our State Judi- 
 ciary, and the manner in which they were exer- 
 cised. "The subject is to be treated," said the 
 Faculty, "in an historical as well as legal point of 
 view, and the whole reduced to a system under 
 proper divisions. The question whether, in Penn- 
 sylvania, a separate court of chancery is indispen- 
 sably necessary, is to be considered, and in case 
 the writer maintains the negative, he is to point 
 out the manner in which it may be supplied." 
 
 The modest essay which, in answer to this call, 
 was submitted by a student at law in his twentieth 
 year, now forms part of our legal literature. Its 
 merits have been recognized on both sides of the 
 
2 EQUITY IN PENNSYLVANIA. 
 
 Atlantic; it is read by every student; and you 
 gentlemen of the Law Academy, have especial 
 reason to be proud that the "Essay on Equity in 
 Pennsylvania, by Anthony Laussat, jr.," claims its 
 origin as an academical exercise of your Institu- 
 tion. The author of the essay, and those who 
 then composed the faculty, sleep in their honored 
 graves ; another generation, and still another, have 
 succeeded them, and the system itself, which, in 
 this little book, was so clearly traced and so ably 
 defended, has also yielded to the advance of time. 
 There may, therefore, in answer to your kind in- 
 vitation to address you, be a peculiar propriety in 
 attempting to take up, even though, longo intervallo, 
 the subject which has never since received a con- 
 nected consideration. 
 
 All of you are aware of the wide distinction 
 between equitable principles, and equitable juris- 
 diction — between the doctrines of equity, which, 
 at this day, are not less consistent and harmonious 
 than are those of the common law, and the pecu- 
 liar means by which they are enforced through 
 the process of a court of chancery. It has fallen 
 to the lot of Pennsylvania, through necessity, to 
 have blended together, in a single tribunal, equi- 
 table principles and equitable jurisdiction, and to 
 have dispensed those principles through the me- 
 dium of common law forms. The administration 
 
EQUITY IN PENNSYLVANIA. 3 
 
 of justice has, under this system, grown up from 
 its youth to its manhood, and now, after a century 
 of trial, while we still retain that system, we have, 
 of late, gradually but liberally, vested in our 
 courts equitable jurisdiction, to be exercised ac- 
 cording to the course and practice of chancery. 
 Thus, at the end of a century, we have, by our 
 course of legislation, frankly acknowledged that 
 to dispense equity through such remedies alone 
 as the common law affords must, in many cases, 
 amount to a denial of justice. 
 
 It is not a little singular that upon the other 
 side of the Atlantic — -in that country from which 
 we derived our laws — it has at last been acknow- 
 ledged that to administer equity in a court of 
 equity alone, and solely according to the course 
 and practice of chancery, must, in many cases, 
 be equally a denial of justice. Thus, while legis- 
 lation has, in the one country, been directed to the 
 administration of equitable principles in a court 
 of equity, it has, in the other, been directed to the 
 administration of those principles, in certain cases, 
 in the courts of common law. And thus both 
 countries have, after a long trial of each system, 
 approached each other, though over widely differ- 
 ent roads. It cannot be unprofitable to follow the 
 path which has thus been trod by our ancestors, 
 and by those of our own time. 
 
4 EQUITY IN PENNSYLVAVIA. 
 
 Years before Charles the Second, in 1 68 1, 
 granted by his charter to William Penn the 
 Province of Pennsylvania, chancery jurisdiction 
 seems to have been, in some fashion, exercised 
 over it and the other provinces by their governor.* 
 
 It is familiar to all of you that, by the express 
 provisions of that charter, the proprietary received 
 authority to appoint any judges, magistrates, and 
 other officers, for such causes, with such powers, 
 and in such form as to him or his heirs should 
 seem most convenient,^ and it was provided that 
 the laws for regulating and governing property 
 within the province " as well for the descent and 
 enjoyment of lands, as likewise for the enjoyment 
 and succession of goods and chattels, and likewise 
 as to felonies," be and continue the same as they 
 
 * Hazard's Annals of Pennsylvania, 424 ; Records of the Court of 
 Upland, 40. There were then about four thousand persons under the 
 government of New York on both sides of Delaware Bay and River. 
 In 1676, Sir Edmund Andross granted, in New York, an injunction to 
 stay execution on a judgment at law in the court of New Castle, upon 
 security being given, " and all proceedings, writings, and proofs to be 
 transmitted to New York for a final determination in equity." — New 
 York Records, cited in Hazard, supra. 
 
 "j" Charter of 4th March, 1 681, § 5. The section goes on to say, 
 " and to do all and every other thing and things which unto the com- 
 plete establishment of justice unto courts and tribunals, forms of judi- 
 cature and manner of proceedings do belong, although in these presents 
 express mention be not made thereof; and by judges by them delegated, 
 to award process, hold pleas, and determine in all the said courts and 
 tribunals, all actions, suits, and causes whatsoever, as well criminal as 
 civil — personal, real, and mixt." 
 
EQUITY IN PENNSYLVANIA. 5 
 
 were by the general course of' law in England 
 until the said laws should be altered by the pro- 
 prietary and freemen of the province.* 
 
 This charter would, therefore, by its terms, 
 have allowed the creation of a court of equity. 
 
 In the " Conditions or concessions" between 
 Penn and his " adventurers or purchasers," it was, 
 among other things, agreed that the laws as to 
 slanders, drunkenness, swearing, cursing, pride in 
 apparel, trespass, distress, replevins, weights and 
 measures, should be the same as in England, until 
 altered by law in the province,-]- and the " Laws 
 agreed upon in England" contained a provision 
 that in all courts, persons of all persuasions might 
 freely appear in their own way and according to 
 their own manner, and there personally plead 
 their own cause themselves, or, if unable, by their 
 friends. J 
 
 The "Great Law," as it was imposingly termed, 
 contained the same provision, and provided further, 
 that in every county there should be one court 
 erected, to which the inhabitants thereof might 
 every month repair for justice ; from this lay an 
 appeal to the Provincial Court, composed of not 
 less than five judges, who should hold quarterly 
 sessions ; and from this court, an appeal lay to the 
 
 *§6. t §7- 
 
 l 5 May, 1682, Art. VI. 
 
6 EQUITY IN PENNSYLVANIA. 
 
 Provincial Council, which was the "last jurisdic- 
 tion."* 
 
 In Penn's letter to "the Free Society of Traders," 
 after referring to the happy condition of the Indi- 
 ans, who, he says, " are not disquieted with bills of 
 lading and exchange, nor perplexed by Chancery 
 suits" he refers to the establishment of courts of 
 justice in every county for their well government, 
 but adds that, " to prevent lawsuits, there are 
 three peacemakers, chosen by every county court, 
 in the nature of common arbitrators, to hear and 
 end differences between man and man."j- These 
 peacemakers derived their authority from a statute 
 passed but a few months before Penn wrote, and 
 these laws are all which were then in force with 
 respect to the administration of justice. The 
 Society of Friends had, indeed, internal regula- 
 tions, by which all differences between its mem- 
 bers were submitted to their meetings. 
 
 When we reflect upon the simple-mindedness 
 of a people who could thus hope to administer a 
 science without the aid of scientific principles, we 
 will not be surprised to find that at the same 
 session which produced these peacemakers, two 
 laws were said to have been proposed to the 
 council, one compelling all young men over a 
 certain age to marry, and the other that two sorts 
 
 * io Dec. 1682. 
 
 I Penn's letter, 16 Aug. 1683; 1 Proud's History of Penna. 262. 
 
EgUITY IN PENNSYLVANIA. 7 
 
 of cloths only should be worn, one for winter and 
 one for summer use.* Nor does it appear that 
 the simplicity of manners and of morals which 
 should breathe through the every-day life of such 
 a people, preserved them from at least some of 
 those frailties to which flesh was heir ; for the 
 first case which seems to have been tried was an 
 assault and battery, in which both : parties were 
 found guilty; at the third meeting of the Pro- 
 vincial Council, three sheriffs sent in a petition 
 for the establishment of a fee bill ; the next day 
 one of the members of the council was fined five 
 shillings for " being disordered in drink ;" on the 
 next, a "bill for hog stealers" was introduced; and 
 one of the earliest matters which engaged atten- 
 tion was the building of prisons and houses of 
 correction, f 
 
 The administration of justice by. the Provincial 
 Council seems to have been — and perhaps from 
 
 * Proud's History, 238 ; Gordon's History, 80. This is asserted 
 doubtfully by the first, and positively by the second of these writers. 
 The proceedings themselves show no trace of such propositions. It is 
 familiar that for thousands of years, at different periods of civilization, 
 laws with respect to marriage and the regulation of dress have been 
 
 enacted Leckey's Rationalism in Europe, vol. 2, p. 311; Buckle's 
 
 Civilization, passim. In the Talmud it was ordained that a senator 
 must be married and have children of his own, for deep miseries of 
 families would be laid bare before him, and he should bring with him 
 a heart full of sympathy. — Article on The Talmud, London Quarterly 
 Review, October, 1867. 
 
 "|" 1 Colonial Records, p. 4 et seq. 
 
8 EQUITY IN PENNSYLVANIA. 
 
 necessity — a singular mixture of original and appel- 
 late jurisdiction. Thus, the petition of the inhabit- 
 ants of Duck Creek as to cutting a canal through the 
 marsh, was referred to the county court in which 
 the same did lie,* while the case of an ejectment 
 for lands in Bucks County, which came up from 
 the court of Philadelphia County, ended in the 
 cause being referred to the Bucks County court, 
 for " all causes shall be first tried where they 
 arise," and the Philadelphia court was then fined 
 forty pounds "for giving judgment against law."y 
 At the same time, original jurisdiction was exer- 
 cised in many cases — civil, criminal, and admi- 
 ralty ; a petition for the payment of boat hire — 
 another for the payment of seamen's wages — 
 another for the payment of a simple contract 
 debt — a complaint against a captain for beating 
 his crew on the high seas — an indictment for 
 passing counterfeit money, and another for witch- 
 craft (in which the prisoner was convicted of 
 "having the common fame of being a witch"), 
 were all considered and determined by the Pro- 
 vincial Council. In the middle of all this, the 
 question was asked in council, whether the peace- 
 makers should sit once a month — but the question 
 does not seem to have been answered. 
 
 Until 1684, the council would probably not have 
 hesitated to exercise occasional equitable jurisdic- 
 
 * I Colonial Records, p. 4. f Noble t>. Mann, July, 1683. 
 
EQUITY IN PENNSYLVANIA. 9 
 
 tion, as it had, before the charter, been exercised 
 by the Governor of New York.* But in this year, 
 two bills respecting courts of equity were passed. 
 The first of them, numbered 156, provided that 
 monthly and quarterly sessions be held in every 
 county by the respective justices, and that each 
 quarter sessions be as well a court of equity as law, 
 concerning any judgment given, in cases by law 
 capable of trial in the respective county sessions 
 and courts, and the other, numbered 158, entitled 
 "a bill that every court of justice should be a court 
 of equity as well as law," established a provincial 
 court, consisting of five judges, who should have 
 the trying and determining of all appeals from 
 inferior courts, also all trials of titles of land, and 
 all causes, as well criminal as civil, both in law 
 and equity, not determinable by the respective 
 county courts.*}" 
 
 The judges of this court were commissioned 
 by Penn on the 4th of August, 1684, a few days 
 before he sailed for England. £ 
 
 * See supra, p. 4, note. 
 
 f 1 Colonial Records, 47. The act itself differs somewhat from the 
 report in the minutes of Council. I regret to say that these acts, with 
 very many others, have never been published — a single copy exists, 
 compiled and printed by a member of the bar (for many years one of 
 your Vice-Provosts) for his own use, and to this collection I am in- 
 debted for many statutes that must otherwise have been obtained from 
 the manuscripts at Harrisburg. 
 
 I 1 Proud, 286; 1 Col. Rec. 68. 
 
10 EQUITY IN PENNSYLVANIA. 
 
 Neither the proceedings of the council nor of 
 the Assembly tell us much as to the forms of pro- 
 cedure under these acts of 1684, except that the 
 distinction between the law and the equity sides 
 of the court seems to have been strongly marked. 
 In 1686, we find the appointment, by the council, 
 of the judges for the next provincial court, author- 
 izing and empowering them as judges both of law 
 and equity,* and in the next year, the Assembly 
 came, with their Speaker, to the council, and 
 desired the explanation of some laws, which were, 
 they thought, " liable to divers interpretations or 
 expositions," of which one was "The law con- 
 cerning Quarter Sessions — how far the County 
 Quarter Sessions may be judges of equity as well 
 as law; and if after a judgment at law, whether 
 the same court hath power to resolve itself into a 
 court of equity, and to mitigate, alter, or reverse 
 the said judgment. "f The Quarter Sessions Court 
 thus referred to was the same established by the 
 act, No. 156, and the council rather evasively 
 answered, "that the law No. 156, made at New- 
 castle, doth supply and answer all occasions of 
 appeal, and is a plainer rule to proceed by. "J 
 
 In 1690, an act was passed, providing that "all 
 trials of titles of lands, all actions of debt, account, 
 
 * 1 Col. Rec. 142. t Id. 159. 
 
 J 1 Votes of Assembly, p. 41. The minutes of the House refer to 
 the act as No. I 57. 
 
EQUITY IN PENNSYLVANIA. i i 
 
 or slander, actions personal, and all actions civil 
 and criminal whatsoever, except treason, murder, 
 manslaughter, and other heinous and enormous 
 crimes," should be first tried in the proper county- 
 courts, which were to be held quarterly in every 
 county, "which county courts," says the act, "shall 
 be courts of equity for the hearing and determining 
 of all causes cognizable in the said court under 
 the value of ten pounds."* 
 
 It will have been observed that in none of these 
 statutes was any reference made to any particular 
 form of process or procedure. f 
 
 But in 1 70 1 was passed an elaborate "Act for 
 establishing courts of judicature in this province 
 and counties annexed," which provided that the 
 judges of the Common Pleas should have full 
 
 * § 197, Ch. 7, of the Session. In the report of the Revisers of the 
 Civil Code, this act is quoted as passed in 1693, and the language of 
 the act is not quite correctly given. 
 
 "j" Side by side with these laws had been several which had re- 
 enacted the provision in the " Laws agreed upon in England" that " in 
 all courts, all persons of all persuasions may freely appear in their own 
 way, and according to their own manner, and there personally plead 
 their own cause themselves, or if unable, by their friends." Such re- 
 enactments are to be found, in nearly the same words, in 1682 (ch. 43), 
 in 1683 (§66, ch. 4 of the Session), in 1693, and 1700 (ch. 91, A), 
 and that portion of these statutes which provides that parties may per- 
 sonally plead their own cause, may perhaps be considered as still in 
 force, except so far as supplied by the act of 21st March, 1806, which 
 provided that every suitor and party concerned shall have a right to be 
 heard by himself and counsel, or either of them. 
 
I 2 EQUITY IN PENNSYLVANIA. 
 
 power to hear and decree all such matters and 
 causes of equity as should come before them, 
 " wherein the proceedings shall be by bill and answer, 
 with such other pleadings as are necessary in 
 Chancery Courts, and proper in these parts ; with 
 power also to the said justices to force obedience 
 to their decrees in equity by imprisonment or 
 sequestration of lands, as the case may require." 
 And an appeal in equity cases lay to the Supreme 
 Court, which had power to make such decrees 
 thereon as should be agreeable to equity and 
 justice.* It would seem that, for some time at 
 least, no proceedings were had before this court. 
 In 1703, one of the council presented a complaint 
 that notwithstanding the laws of the government 
 had erected courts of equity, and the justices were 
 commissioned for the same, yet that, to the great 
 oppression of the people, there had been no such 
 courts held in pursuance of the present law, the 
 rules of court not having yet received so full a 
 sanction as it was thought might be requisite."}" 
 
 The statute itself was, however, soon after re- 
 pealed in England,]; and then commenced that 
 
 * Act of 1 70 1, ch. 2, MSS. Collection. This act was passed and 
 approved in the end of October, at the close of that stormy session 
 which resulted in the Charter of Privileges. I Proud, 434; 2 Col. 
 Rec. 23 &c. ; 1 Votes of Assembly, 143 et seq., passim. 
 
 f 2 Col. Rec. 115. 
 
 % In 1705- 
 
EQUITY IN PENNSYLVANIA. I 3 
 
 long and angry quarrel between the new governor, 
 the Provincial Council and the House, in which 
 the establishment of courts of judicature formed 
 an element. It is familiar to all that, in the early 
 history of England, the king, who was considered 
 the fountain of justice, exercised, through his 
 council, judicial functions, and that the chan- 
 cellor, who at first was merely an assistant, was, 
 from time to time, vested with certain of these 
 functions. He was a privy councillor by virtue 
 of his office ; he was the keeper of the king's 
 conscience ; the visitor, in right, of all hospitals 
 and colleges of the king's foundation ; the general 
 guardian of infants and lunatics, and had the 
 general superintendence of all charitable uses. 
 Besides which was the jurisdiction which he 
 exercised in his judicial capacity in the Court 
 of Chancery, on its common law and its equity 
 side. When the counties palatine were created, 
 these had their separate courts, and among them 
 their separate courts of chancery. The charters 
 of some of the principal American colonies made 
 them, in a measure, resemble the counties pala- 
 tine, and the doctrine that the office of chan- 
 cellor ought to vest in one who, under the great 
 seal of England, acted as the king's representative, 
 crossed the Atlantic, and was tenaciously supported 
 by the prerogative lawyers of the colony, and in 
 New York, in New Jersey, in Virginia, and in 
 
14 EQUITY IN PENNSYLVANIA. 
 
 South Carolina, the office of chancellor was exer- 
 cised by the Governor of the Province.* It has 
 been only within the recollection of many of us, 
 that in some of these States a different regulation 
 has been made. 
 
 Upon this point — whether the Governor of the 
 Province should or should not be the chancellor 
 — arose the contest which finally cost us our Court 
 of Chancery. Governor Evans proposed that him- 
 self, by virtue of his commission, and certain of 
 the council (whom he thus added in order to 
 strengthen his position) should have the power to 
 hold a court of equity ;-f- but the House were 
 opposed to such an extension of his authority, J and 
 this question was, as you will find from the minutes 
 of the Provincial Council and the proceedings of 
 the Assembly, tenaciously fought upon both sides. § 
 
 * The difference between the judicial systems in the several colonies 
 was, of course, in a great degree owing to the different character of 
 their several governments, which were, respectively, provincial, proprie- 
 tary, and charter governments. See passim I Story on the Constitution, 
 Chapters I. to XVII. ; Parke's Equity Jurisdiction in the United States, 48. 
 
 ■j" 2 Col. Rec. 263. 
 
 J 1 Col. Rec. 265 ; 1 Votes of Assembly, 106. 
 
 § 2 Col. Rec. 274, 288. On behalf of the governor, it was urged 
 that it was proper that this province should follow the example of New 
 York, New Jersey, and some other provinces, in which the offices of 
 chancellor and governor had always been united, but the House 
 deemed " that the Court of Equity should be lodged in commissioners 
 of the governor's appointing, whereby we prevent the council here to 
 fall into that inconsistency which the council table did by assuming 
 
EQUITY IN PENNSYLVANIA. 15 
 
 It is both sad and instructive, at this day, to 
 review this bitter quarrel, which lasted through 
 more than three sessions, during which the people 
 of the province suffered, while each party threw 
 up to the other its shortcomings, till, said the 
 Governor once, " If we have lived free from open 
 rapine, 'tis more owing to the honesty of the 
 people, than any public provision made against 
 it."* And yet in this very quarrel may be seen 
 
 unto itself a power to intermeddle in civil causes, and matters only of 
 private interest between party and party." (2 Col. Rec. 278, Nov. 27, 
 1706.) To this the governor answered that what was proposed was 
 the practice of all the governments in America — that it was " every- 
 where always thought most reasonable that those persons who, par- 
 ticularly chosen to counsel in matters of state and of the greatest 
 importance, should be considered the fittest to judge in matters of 
 equity. . . . The answer to this," he added, " as well as some other 
 cases, seems really to be, to divest the proprietary and governor and 
 all those about him, of power." (2 Col. Rec. 283.) The House 
 replied, that "if a law could pass here to settle the Court of Equity in 
 the governor and council, it might meet with a like rebuke at home, 
 as that part of the ordinance of Wales did, which gave the president 
 and council there the power of a chancery court," and which was 
 suppressed by the 1 W. & M. c. 27 (id. 288), and the governor re- 
 joined that "that particular court had been found to be an intolerable 
 burden," yet the queen, in most or all of her governments abroad, 
 expressly established her courts of equity in the governor and council 
 alone, and therefore if the same were done here, the old abusive 
 chancery of Wales could be no objection, since by the queen herself 
 such courts are settled in New York, Maryland, Virginia, and the 
 Islands, &c. (Id. 295-6.) 
 
 * Feb. 4, 1707; 2 Col. Rec. 312. 
 
1 6 EQUITY IN PENNSYLVANIA. 
 
 the germ of that spirit which, more than half a 
 century later, cost the crown its colonies. 
 
 At last, in 1 710, two years after Governor 
 Evans had been succeeded by Governor Gookin — 
 the latter as mild, steady, and economical, as the 
 former had been hot-headed, tactless, and ex- 
 travagant — another " Act for establishing courts 
 of judicature" was passed. Its equity powers 
 were not vested in the governor. A court of 
 equity was to be held by the Common Pleas 
 judges four times a year in every county, with 
 power "to hear and decree all such matters and 
 causes of equity as should come before them," and 
 express power was given to issue subpoenas and 
 all other process to "compel appearance, to award 
 commissions for the examination of witnesses, to 
 grant injunctions for staying suits at law and for 
 stopping wastes, * * observing, as near as may be, 
 the rules and practice of the High Court of Chancery 
 in Great Britain."* 
 
 An appeal lay from the decrees of these courts 
 to the Supreme Court, which was constituted, for 
 this purpose, a court of equity in every county 
 of the province. This act contained a proviso 
 
 * Bradford's Laws, Ed. 17 14, p. 120. Gordon says: " The judiciary 
 bill was a compromise between the proprietary and popular interests, 
 and most probably was opposed by the former before the throne" 
 (Gordon's History of Pennsylvania, p. 166); but the correctness of the 
 author's supposition may be doubted. 
 
EQUITY IN PENNSYLVANIA. 17 
 
 that the courts should have no powers to hear and 
 determine in equity any cause wherein sufficient 
 remedy might be had before any other magistrate 
 or judicature, either by the rules of the common 
 law or the laws of the province ; and when matters 
 of fact should arise in the hearing of any cause, 
 the court should first refer them to issue and trial 
 before the Common Pleas, before proceeding to 
 decree in equity. But, as might have been sup- 
 posed, this statute was, in 171 3, repealed in 
 council, the attorney-general objecting that the 
 clause as to determining no matter of fact save by 
 an issue at law, must make proceedings in equity 
 insufferably dilatory, and multiply trials at law in 
 plain cases to no manner of purpose.* 
 
 Again, in 171 5, "a Supreme or Provincial Court 
 of law and equity" was established, which had, in 
 general terms, authority " to hold pleas in equity 
 by bill, appeal, petition, or suit, to be brought or 
 exhibited in the said court by, for, or against any 
 person or persons whatsoever, for any discovery or 
 other matter relievable in equity, and for the 
 parties to proceed thereon and thereupon according 
 to such rules, and under and in such manner and form 
 as the Courts of Chancery and Exchequer in Great 
 Britain have used to proceed by." 
 
 After an infancy of four years, this court also 
 
 came to its grave. 
 
 * Penna. Archives, 158. 
 
I 8 EQUITY IN PENNSYLVANIA. 
 
 You will have observed that the life of these 
 statutes (the acts of 1701, 1710, and 171 5) — that 
 is, the period between their enactment here and 
 their repeal in Great Britain — was, respectively, 
 four, three, and four years, and it may be reason- 
 ably asked why they remained so long unrepealed, 
 and why, if so, they were repealed at all. The 
 answer, I believe to be, that the jealousy in Eng- 
 land of the exercise of power in the colony was 
 in proportion to the ignorance which was there 
 entertained of its real internal condition, and this 
 was well understood on this side of the Atlantic. 
 The colonists had, by the terms of the charter, 
 five years within which to transmit their laws 
 for approval, and, after their passage, they would 
 keep them here and act under them as long, 
 within that period, as they decently could ; 
 they were then sent to England, and, when re- 
 pealed there, other laws, as nearly similar as they 
 dared to pass, would be enacted here. When, 
 after some years, these were sent to the mother 
 country, they were repealed in council. 
 
 Nor was our province the only one which thus 
 suffered. In Massachusetts, at the very beginning 
 of the eighteenth century, four acts for establish- 
 ing courts of justice had, within seven years, 
 been sent, one after another, to England before 
 the royal approbation could be obtained.* 
 
 * 1 Parkes' Eq. Jurisdiction in the United States, Introduce, p. 50. 
 
EQUITY IN PENNSYLVANIA. 19 
 
 We come now to the first and last Court of 
 Equity which, as a separate tribunal, has existed 
 in our State. 
 
 William Keith had, in 1717, become the go- 
 vernor. In the following year Penn died, and in 
 the year after, the act of 17 15 was repealed. 
 Complaints as to the administration of justice 
 were then constant and well founded. Courts 
 had not, they said, been held for many terms.* 
 The opportunity was favorable, and the governor 
 was popular, for he had thoroughly studied the 
 errors of his predecessors. In a message to the 
 House in May, 1720, he informed them that it 
 having been represented to him that a court of 
 chancery was very much wanted, he had con- 
 sulted those learned in the law and others of good 
 judgment, who all agreed that the office of chan- 
 cellor could only be lawfully executed by him 
 who, by virtue of the great seal, might be under- 
 stood to act as the king's representative ; but, he 
 added, that upon this subject the opinion of the 
 House should principally direct his conduct. A 
 resolution was the next day unanimously passedf 
 that, considering the present circumstances of the 
 
 * See the subsequent petition to Governor Gordon, in 1735. 3 
 Votes of Assembly, 270. 
 
 "j" The unanimous passage of the resolution is not recorded in the 
 Votes of Assembly (2 Votes of Assem. 271), but in the minutes of the 
 Council it is stated to have been unanimous. 3 Col. Rec. 100. 
 
20 EQUITY IN PENNSYLVANIA. 
 
 province, it was the opinion of the House that 
 " for the present the governor be desired to open 
 and hold a court of equity for the province, with 
 the assistance of such of his council as he shall 
 think fit, except such as have heard the cause in 
 any inferior court." 
 
 The governor laid this resolution before the 
 council, who not only considered that he might 
 safely comply with the desire so expressed, but 
 that holding such a court might be of great 
 service to the colony, and was, moreover, agree- 
 able to the practice which had been approved of 
 in the neighboring governments. And here the 
 governor interposed, and referred to his own 
 want of experience in judicial affairs, and repre- 
 sented the great addition of attendance and fatigue 
 in the public business which would be thereby 
 laid upon him, but was pleased to add, neverthe- 
 less, that, considering the many marks of confi- 
 dence which had been shown him, he should not 
 decline to serve the public in that station, but 
 insisted that while, on the one hand, no court of 
 chancery could be held without him, so, on the 
 other, he should not fail of having a due assistance 
 from the council on their parts. The result of 
 this delicate coquetry was, that it was agreed 
 that no decree in chancery should be pronounced 
 but by the governor as chancellor, with the as- 
 sent of two or more of his six oldest counsellors, 
 
EQUITY IN PENNSYLVANIA. 21 
 
 who might also be employed as masters in chan- 
 cery.* 
 
 On the ioth of August, 1720, only four days 
 after the last proceedings of the council, appeared 
 the governor's proclamation. 
 
 It recited that "courts of chancery or equity, 
 though absolutely necessary in the administration 
 of justice, for mitigating, in many cases, the rigor 
 of the laws, whose judgments are tied down to 
 fixed and unalterable rules, and for opening a way 
 to the right and equity of a cause for which the 
 law cannot, in all cases, make sufficient provision, 
 have, notwithstanding, been too seldom regularly 
 held in this province in such manner as the 
 aggrieved subjects might obtain the relief which, 
 by such courts, ought to be granted," and declared 
 that, with the assistance of the council, the 
 governor proposed to hold a court of chancery 
 or equity on the 25th day of that month, "from 
 which date the said court will be and remain 
 always open for the relief of the subject, to hear 
 and determine all such matters arising within this 
 province aforesaid as are regularly cognizable 
 before any court of chancery according to the 
 laws and constitution of that part of Great Britain 
 called England."f 
 
 No published record exists of the proceedings 
 
 * 3 Col. Records, 100. 
 
 ■}■ 2 Votes of the Assembly, 270, 271-273. 
 
22 EQUITY IN PENNSYLVANIA. 
 
 of this, our only separate Court of Chancery, nor 
 is allusion made in any reported case, to any cause 
 said to have been determined therein. But I 
 became satisfied, from the familiarity with the 
 principles of equity shown in the early reported 
 cases, that there must have been a time when 
 those principles were administered in more or 
 less conformity with the course and practice of 
 chancery. A careful search was, therefore, made, 
 but a few weeks ago, among the old records and 
 archives of our state department, and there, in 
 one of the many cases in the main room, and 
 among a quantity of old and dusty books, was 
 found a modest folio, of no great size, and bearing 
 no title, which appeared to have hitherto escaped 
 the research of the curious. Its existence was 
 unknown to any of the state officials, and it bore 
 none of those marks of annotation and indorse- 
 ment which appear upon most of the colonial 
 archives. 
 
 It was the Registrar's Book of Keith's Court of 
 Chancery.* 
 
 * Since this was written, I have seen the report of the secretary of 
 the commonwealth in 1838 as to the publication of the Colonial 
 Records, in which, under the head of " Colonial Documents in the 
 Secretary's Office," he refers to "one book of records of chancery from 
 1729 to 1735," and afterwards among the records recommended to be 
 printed, he included " The volume of chancery proceedings before the 
 governor (who seems to have been ex-ojficio chancellor) and the 
 
EQUITY IN PENNSYLVANIA. 23 
 
 It commences, in the beautiful and clear hand- 
 writing of Charles Brockden, who was the first 
 registrar, with the oath of the chancellor taken 
 on the 25th of August, 1720, that "well and 
 truly he shall serve in the office of Chancellor of 
 this Province of Pennsylvania wherewith he is 
 intrusted, that he shall do right to all manner of 
 people, as well to Poor as to Rich, according to 
 ye laws and usages of that part of his Majestie's 
 Realm called England, that he shall not know nor 
 surfer the hurt nor disheriting of the King, nor 
 that the Rights of the Crown and the Proprietor 
 of this Province be distressed by any means as far 
 forth as he may it let, and if he may not let it, he 
 shall make it clearly and expressly be known, that 
 he shall do and purchase the King's profit and the 
 right of the Proprietor of the Province of Penn- 
 sylvania in all that he reasonably may." 
 
 Then follow the appointment and the oath of 
 Charles Brockden as registrar, and of James 
 Logan, Jonathan Dickinson, Samuel Preston, 
 Robert Hill, and Anthony Palmer as masters 
 in chancery. 
 
 The record of the causes in this court shows 
 curiously the nature and extent of the chancery 
 jurisdiction which it exercised. 
 
 masters in chancery." But the legislature did not act upon the 
 recommendation, so far as this book was concerned. It is now printed 
 as an Appendix hereto, through the kindness of the attorney-general. 
 
24 EQUITY IN PENNSYLVANIA. 
 
 Although the first case which it contains 
 (England v. Shute) is entitled "Anno n Georgii 
 Regis" (1724), yet it is probable that there were 
 many cases before this, for there are consecutive 
 entries of the appointment of masters in chan- 
 cery in the years 1720, 1721, 1722, and 1723, and 
 there are allusions and references in this case to 
 previous cases in the same court. 
 
 An attachment had issued against the defendant 
 for not answering, which his counsel moved to set 
 aside, " praying the chancellor that the several 
 heads from which he deduceth his arguments for 
 that purpose, may be set down, in order to have 
 the mind of the court the more clearly thereunto, 
 viz : 
 
 " 1. The attachment was not regularly entered 
 in the six clerk or Register Book. 
 " 2. The process was not signed by a six clerk or 
 one fully authorized. 
 
 " 3. The special cause of issuing the writ was not 
 endorsed thereon. 
 
 " 4. The writ ought to be close and not patent, 
 whereas this is an open writ. 
 
 " 5. No one is compellable to appear in any other 
 court than that which the writ commands, 
 whereas, by the style of this writ, it seems to 
 direct otherwise. 
 " 6. The seal ought to be always in the Chan- 
 
EQUITY IN PENNSYLVANIA. 25 
 
 cellor's custody, and not affixed without his 
 special direction." 
 
 But all these objections were overruled, on the 
 ground that the writ had, in all respects, con- 
 formed to the " constant practice of issuing writs 
 out of this court."* 
 
 To the fifth objection it was answered that "the 
 style complained of, viz : ' before us in our Court 
 of Chancery wheresoever it shall be in our pro- 
 vince of Pennsylvania' hath been hitherto used for 
 the style of this court." 
 
 In the case of Sanderlands v. Munday, in the 
 following year, the court, being informed that 
 the defendant's plea, answer, and demurrer "would 
 not be argued by any of the practitioners of the 
 court, for the many gross errors therein contained, 
 the defendants having procured them to be drawn 
 by some persons unskilful in the law," ordered 
 the same to be dismissed with costs, and that the 
 defendants a better answer make on or before a 
 certain day. 
 
 In this, as in many other cases, orders of the 
 court upon interlocutory applications begin with 
 the words, " The prayer of the petition appearing 
 to be agreeable to the practice of the High Court 
 of Chancery in England, it is ordered," &c. 
 
 * By the expression " this court," was probably meant not Keith's 
 Court in particular, but the Court of Chancery. 
 
26 EQUITY IN PENNSYLVANIA. 
 
 As to the cases in which our Court of Chancery- 
 exercised jurisdiction, we find bills for account — 
 for partition ; to subject real estate to the payment 
 of debts and legacies ; to stay waste ; to restrain 
 proceedings at law ; to take the testimony of wit- 
 nesses in foreign parts ; to settle differences be- 
 tween partners ; petitions for writs de lunatico 
 inquirendo, and many writs ne exeat provincia. I 
 will briefly refer to a few of the cases which thus 
 appear. 
 
 In the case of Shippen v. Shippen, which was 
 presented in 173 1, it appeared that Edward Ship- 
 pen died in 1714, having bequeathed a legacy of 
 £800 to his son William, and devised to his wife 
 Esther, certain real estate in trust to secure its 
 payment, with power of sale for that purpose. 
 The latter died in 1724, having appointed Samuel 
 Preston and Samuel Powell her executors, against 
 whom and Joseph Shippen (who was the testator's 
 residuary devisee) William Shippen filed a bill for 
 the payment of his legacy, and it was ordered 
 that the real estate devised, or so much thereof 
 as might be sufficient, be publicly sold by the 
 executors, so that from the sale the said £800 
 with interest be paid to the complainant on or 
 before a certain day named in the decree, the 
 surplus to be disposed of according to the original 
 trusts of the will. The sale was accordingly 
 
EQUITY IN PENNSYLVANIA. 27 
 
 made, and a return by the executors confirmed 
 absolutely.* 
 
 So, in the case of Philips v. Evans, which was 
 a bill filed to subject the real estate of a testator 
 to the payment of debts and legacies, the master 
 having, on the 6th of May, 1735, reported that 
 there were not sufficient assets in the hands of the 
 executor for the payment of the same, it was 
 ordered that the executors make sale of certain 
 lands in the manor of Moreland not devised by the 
 testator, and bring the money into court to abide 
 its order, and the record shows the disposition of 
 the fund.*} - 
 
 Emanuel Jocelin filed a bill against Robert 
 Charles, naval officer of Philadelphia, praying 
 for a commission to examine witnesses in the 
 Island of St. Christopher, which was issued and 
 returned; whereupon it was ordered "that a certi- 
 fied copy of the said examination be sent unto the 
 Court of Common Pleas of the county of Phila- 
 delphia where the information exhibited by the 
 
 * The registrar's book does not set forth all the facts which I have 
 stated above, some of which I have obtained from examination of the 
 wills in the register of wills' office. The proceedings in this cause 
 are recited at some length in a subsequent deed for this same property, 
 which is on record in our recorder's office. 
 
 ■f" Mr. Hazard, when collecting and arranging the Pennsylvania 
 Archives, came across this master's report (whose date corresponds 
 with that stated in the registrar's book), and also the decree, which 
 is in the same words. Pennsylvania Archives, 440-456. 
 
28 EQUITY IN PENNSYLVANIA. 
 
 naval officer qui tarn, &c, against sundry goods, 
 wares, and merchandise reclaimed by the com- 
 plainant Jocelin, is now depending."* 
 
 Upon a complainant's affidavit that the defend- 
 ants intended and threatened to pull down and 
 destroy some buildings and outhouses to which he 
 believed and was advised he had a good title, an 
 injunction to stay waste was issued, which, being 
 disregarded by one of the defendants, he was 
 attached to answer the contempt, and it was 
 ordered that he be examined by one of the 
 masters of the court upon certain interrogations 
 filed by the complainant, and remain in custody 
 until the coming in of the master's report. 
 
 Thomas Willing and others, creditors of William 
 Dowell, presented a petition setting forth that the 
 latter had been, for several months past, non compos 
 mentis, that he was unable to order his estate, and 
 had made alienation and waste thereof, whereby 
 the petitioners were in danger of losing their just 
 debts, and praying that a writ de lunatico inquirendo 
 might be granted, and it was ordered that the 
 writ do forthwith issue. 
 
 * It is familiar that the courts of common law were deemed to have 
 no power to procure the depositions of witnesses, which was always 
 done by a commission issued out of chancery. The testimony so 
 taken, when returned, was sent into the common law court. See 
 2 Story's Eq. Jur. § 1 5 14, passim. The statutes 13 Geo. III. 63, and 
 1 Will. IV. 32, were the first that gave to English common law courts 
 power to issue such commissions. 
 
EQUITY IN PENNSYLVANIA. 29 
 
 Lord Hardwicke said, more than a hundred 
 years ago, that the origin of the custody of idiots 
 and lunatics was more matter of curiosity than' 
 use,* and yet the exercise of the jurisdiction in 
 this Court of Chancery seems to call for a passing 
 notice. 
 
 The general opinion has been, that the jurisdic- 
 tion of the chancellor over idiots and lunatics was 
 specially delegated. It is certain that, originally, 
 their custody and that of their lands was a royal 
 prerogative, and though prior to the statute de 
 prerogatives regis, ~\ this custody was vested in the 
 lords of the fee,J yet this statute, introduced to 
 correct the abuses of that system, was said to be 
 only declaratory of the common law, and intro- 
 duced no new right in the crown. § It has been 
 thought that, before the passage of the statute, the 
 chancellor had committed to his care such idiots 
 and lunatics as the king had then charge of, and 
 that, after its passage, this branch of the preroga- 
 tive was generally, though not universally, dele- 
 
 * Ex parte Grimstone ; Ambler, 706 ; S. C, 4 Brown's Ch. Rep. 
 
 235- 
 
 ■j" 17 Edward II. c. 9 and 10. "The king shall have the custody 
 
 of the lands of natural fools, taking the profit of them without waste 
 
 or destruction, and shall find them their necessaries, of whose fee soever 
 
 the lands shall be holden. And after the death of such idiots, he shall 
 
 render them to the right heirs, so that by such idiots no alienation shall 
 
 be made, nor shall their heirs be disinherited." 
 
 J 1 Blackstone's Commentaries, 303. Shelford on Lunacy, 10. 
 
 § Beverley's Case, 4 Coke, 126; Oxenden v. Lord Compton, 2 
 Vesey, jr. 27, per Lord Loughborough. 
 
30 EQUITY IN PENNSYLVANIA. 
 
 gated to the chancellor by special appointment 
 under the sign manual, which took its origin 
 from the statute.* But Lord Campbell has con- 
 sidered that a commission de idiota inquirendo would 
 issue at common law from the Court of Chancery 
 under the great seal, and that the chancellor, 
 without any special delegation for this purpose, 
 would have authority to control its execution, and 
 he acted upon this opinion, when, being made 
 Chancellor of Ireland, the usual warrant under the 
 sign manual had, by some oversight, been omit- 
 ted to be delivered to him, and he made several 
 orders in lunacy before he received this warrant. ~f 
 
 * I Spence's Equitable Jurisdiction of the Court of Chancery, 418; 
 Stanton v. Percival, 5 House of Lords Cases, 284. The warrant has 
 been given to the Lord High Treasurer. Wigg v. Tiler, 2 Dickens, 553. 
 
 ")" I Campbell's Lives of the Chancellors, 35. Judge Story has said: 
 " If one might make a suggestion in a case where there seems no small 
 diversity of opinion, it would be that, upon general principles, the king, 
 as parens patrice, has an original prerogative to take care of all persons 
 and property of infants, of idiots, and of lunatics in all cases, where no 
 other guardianship exists. So long as any special guardianship exists by 
 law or custom in other persons, the prerogative of the crown is in- 
 active, but not suspended. The jurisdiction generally belongs to the 
 Court of Chancery, as delegate of the crown, except where it is speci- 
 ally or personally delegated, or restricted by statute. The Statute de 
 Prerog. Regis, ch. 9 and 10, has rendered special commissions for 
 certain purposes necessary to be granted under the sign manual ; and the 
 jurisdiction being in fact committed to the same person, has, in practice, 
 become mixed. If this view be admitted to be correct, it will clear 
 away some of the difficulties now encumbering the subject." 2 Story's 
 Eq. Jur. 1336, note. 
 
EQUITY IN PENNSYLVANIA. 31 
 
 I have paused to notice this, because there is no 
 pretence that Governor Keith ever received any 
 special delegation of jurisdiction as to idiots and 
 lunatics. He exercised it by right of his being 
 the chancellor. 
 
 John Meredith set forth in a petition that he, 
 being seised of a certain plantation in Bucks 
 County, and of sundry goods and chattels, did, 
 from his affection to his son Thomas, " and for 
 the better advancing him in the world, convey all 
 his estate in the premises to him the said Thomas, 
 who is now possessed of great part thereof, and 
 other goods and chattels acquired by his own 
 industry, but that of late the said Thomas is by 
 the visitation of God become non compos mentis and 
 wholly unfit for the government of himself and 
 his said estate ; and that having already, by the 
 craft of evil-disposed persons, sustained great 
 losses, and being in danger of sustaining much 
 greater, the said Thomas is like to be reduced to 
 beggary and want without the aid and interposi- 
 tion of this court, and therefore praying that a 
 writ de idiota inquirendo may be awarded, directed 
 to the sheriff of the county of Bucks, to inquire 
 into the truth of the premises by the oaths or 
 affirmations of good and lawful men of his baili- 
 wick, and in case the premises be found true, that 
 the said Thomas, together with his goods, chattels, 
 lands, and tenements aforesaid, may be committed 
 
32 EQUITY IN PENNSYLVANIA. 
 
 to the care, government, and management of dis- 
 creet and honest persons to be appointed by this 
 court as in such cases is usual." The sheriff 
 returned the writ which was awarded, with an 
 inquisition " whereby it appearing that the said 
 Thomas Meredith is not of composed mind, but is 
 unfit for the government of himself and his'estate," 
 the custody of the person and estate of the said 
 Thomas was committed to his father and cousin, 
 and the survivor of them. 
 
 Isaac Miranda presented a petition with an affi- 
 davit annexed, praying that for the reasons therein 
 set forth, the leaving a subpoena with the defend- 
 ant's attorney might be deemed good service, 
 which was granted, and the subpoena issued, and, 
 ten days after, he applied for an injunction " to 
 stop the sale of certain houses and lots of land to 
 be exposed to sale by virtue of a writ of venditioni 
 exponas issuing out of the Court of Common 
 Pleas of Philadelphia County," which was granted 
 accordingly. 
 
 Here was a case in which the chancellor ordered 
 what is called substituted service. Independently 
 of any statute, the Court of Chancery had no 
 power to order actual personal service to be made 
 out of the jurisdiction, but in some cases, the court 
 has ordered service to be effected within the juris- 
 diction on some person other than the actual 
 defendant, and has treated such service as valid 
 
EQUITY IN PENNSYLVANIA. 33 
 
 against him, and this practice was and is most 
 frequent in cases to restrain proceedings at law, 
 instituted by persons out of the jurisdiction of the 
 court.* 
 
 In another case, the complainant had obtained 
 an injunction to restrain the defendant from pro- 
 ceeding at law against him, and upon the coming 
 in of the answer, it was ordered, by consent, 
 " that the defendants be at liberty to proceed at 
 law against the complainant, so far as to obtain 
 judgment against him and his bail ; or otherwise 
 that he, the complainant, bring into this court 
 within three days the money sued for at law by 
 the defendants, subject to the direction of this 
 court ; wherein if he fails, the injunction to stand 
 dissolved." 
 
 The widow of Joseph Growdon had also ob- 
 tained an injunction to restrain proceedings at law, 
 and on the coming in of the answer, an order was 
 made that the injunction stand dissolved, unless 
 cause to the contrary be shown within ten days, 
 at the expiration of which time it was prayed that 
 the injunction might not be dissolved till the ex- 
 ceptions then being prepared to the answer should 
 
 * Anderson v. Lewis, 3 Brown's Ch. R. 429. 1 Daniel's Ch. Prac. 437. 
 Substituted service is now provided for by statute, both in England and 
 in Pennsylvania, though the English statute (15 and 16 Vic. c. 86, s. 5) 
 is much more ample, leaving the whole matter within the discretion of 
 the court. Our own statutes on the subject are referred to infra. 
 
 3 
 
34 EQUITY IN PENNSYLVANIA. 
 
 be heard, and the chancellor, a few days after, 
 ordered that both parties be heard the next day 
 on their respective applications, which was ac- 
 cordingly done, and the complainants were there- 
 upon ordered to file their exceptions on or before 
 the ioth of October next. And here the cause 
 rested till the following June, when the com- 
 plainant filed a petition setting forth " that not- 
 withstanding the injunction in this cause filed, the 
 defendant Lawrence Growdon, in the term of April 
 last, did proceed, ex parte, in the Supreme Court 
 of Pennsylvania, to try the said cause, and obtained 
 judgment thereupon, in open contempt of the said 
 injunction and in manifest violation of the course 
 of equity and justice, and now threatens, by exe- 
 cution of the said judgment, to eject the com- 
 plainant out of the lands settled upon her in 
 jointure, and therefore praying an attachment 
 against the defendant Lawrence Growdon, his 
 counsel and solicitors, for the contempt aforesaid, 
 and an injunction for quieting the complainants' 
 possession until the matters aforesaid be duly heard 
 and decreed upon in this honorable court." No 
 further proceedings appear in the cause. 
 
 Daniel Moore, collector of his majesty's cus- 
 toms at New Castle, filed a bill against Joseph 
 Browne, judge of the Court of Vice-Admiralty 
 for the Province of Pennsylvania, praying an in- 
 junction, which was awarded accordingly. A few 
 
EQUITY IN PENNSYLVANIA. 35 
 
 weeks after, the counsel for the owner or freighter 
 of the schooner Sarah, alleging that the injunction 
 had been obtained to stay proceedings "in a certain 
 cause then depending upon an information ex- 
 hibited in the said court by the complainant qui 
 tarn, &c, against the said schooner and her lading, 
 and the said judge, being the person enjoined, 
 had never apply'd to this court to have the same 
 injunction taken off, neither had the complainant 
 made any further proceedings in the cause since 
 the obtaining the said injunction, which is now 
 four weeks, and that the said Peter Baynton and 
 the other persons interested in the said vessel and 
 cargo are, therefore, much hurt and damnified 
 by this delay, it was therefore prayed that the 
 said injunction may stand dissolved," and it was 
 ordered that the complainant have notice to attend 
 the court at three o'clock on that afternoon, to 
 show cause why the injunction should not be dis- 
 solved, and upon proof of service of notice, it was 
 then ordered that the injunction stand dissolved, 
 unless within ten days the complainant show 
 cause to the contrary, and at the expiration of that 
 time, on proof of service of notice, the order was 
 made absolute and the injunction dissolved. 
 
 This, you will observe, was not an injunction to 
 restrain a party from proceeding at law, but an 
 injunction, as it was called, to restrain the Court 
 of Vice-Admiralty itself. It was, therefore, a 
 
36 EQUITY IN PENNSYLVANIA. 
 
 writ of prohibition, which, you are aware, was a 
 writ directed to the ecclesiastical, admiralty, and 
 some other courts, where they had concerned 
 themselves with any matter not within their juris- 
 diction. Thus, in a case at the close of the last war 
 with Great Britain, a petition was presented in the 
 English Chancery praying that a writ of prohi- 
 bition, returnable in the King's Bench, might 
 issue to the judge of the Admiralty Prize Court, 
 to prohibit him from further proceedings in hold- 
 ing pleas before him in any manner touching the 
 seizure of the brig Harmony, which had, in 
 ignorance of the treaty of peace, been captured 
 since its date. The writ was refused, not, of 
 course, by reason of any doubt as to the right to 
 issue it, for none such was even suggested, but 
 because the court thought that, under the circum- 
 stances of the case, it came properly within the 
 jurisdiction of the Prize Court.* 
 
 In the next year, certain part owners of a ship 
 presented a petition setting forth that the defend- 
 ant, who was part owner with them, had refused 
 
 * Ex parte Lynch, 1 Maddock, 20 (181 5). For the difference 
 between writs of prohibition to the Admiralty, and an injunction to 
 restrain parties from proceeding in admiralty courts, see the note to 
 Earl of Oxford's Case, 3 Leading Cases in Equity, 526; and as to pro- 
 hibitions to the admiralty courts in the colonies, see the opinion of the 
 attorney-general in 2 Chalmers' Opinions on the Colonies, 187 et seq. 
 
EQUITY IN PENNSYLVANIA. ^7 
 
 to join them in fitting out and loading the vessel 
 on a proposed voyage ; that she was about to sail 
 in ten days for Barbadoes, and that there being no 
 person in this government then acting as a judge 
 of the Court of Vice-Admiralty, they were obliged 
 to make this application to the governor, as chan- 
 cellor, to be aided by him in equity, and prayed 
 that, according to the custom and usage in such 
 cases, the chancellor would appoint appraisers of 
 the defendants' interests, they being willing to 
 account to him for the appraised value. The de- 
 fendant prayed for time that he might dispose of 
 his part of the vessel, and four days were given 
 him to either sell or join with the petitioners in 
 fitting out the ship, but he left town without 
 leaving any notice of what he had done or in- 
 tended to do, whereupon an appraisement was 
 accordingly ordered and had. 
 
 This case also deserves notice. It was not an 
 appeal to the chancellor as a sort of fountain of 
 justice and ex necessitate. You will observe that 
 the application was that the chancellor would 
 appoint these appraisers " according to the custom 
 and usages in such cases," referring plainly to the 
 admiralty jurisdiction of the Court of Chancery, 
 which, though now deemed obsolete, was cer- 
 tainly considered to be in force as late as the 
 time of Lord Nottingham, who, scarce fifty years 
 before, had, as chancellor, on several occasions, 
 
38 EQUITY IN PENNSYLVANIA. 
 
 distinctly asserted and exercised the admiralty 
 jurisdiction of his court.* 
 
 The case of Ellis v. Ellis was a long story of a 
 bill filed for a partition, in which John Ellis, one 
 of the defendants, was singularly recalcitrant. He 
 would not appear to the subpoena ad respondendum, 
 nor to an alias, whereupon he was attached and 
 committed. This was in June, 1733, and he 
 remained in jail till November, 1734, when, all 
 the other answers being in, Mr. Kinsey, the com- 
 plainants' counsel, moved that the bill be taken as 
 confessed against John Ellis, " who had hitherto 
 remained in custody and absolutely refused to 
 
 * See Peter Blad's case in the Privy Council, 3 Swanston, 603 
 (1673), when Lord Nottingham said, significantly, "/ stood up and 
 said, this is not a question of state, but of private injury," &c, showing 
 that in the Privy Council he spoke as chancellor, and in Blad v. Bam- 
 field, id. 605, he said : " I took this occasion to show that the Court of 
 Chancery hath always had an admiral jurisdiction not only per viam 
 appellationis, but per viam evocationis too, and may send for any cause 
 out of the admiralty to determine it here ; of which there are many 
 precedents in Noy's MSS. 88, and in my little book, in the preface, de 
 officio Cancellarii, sec. 18, and in my parchment book in octavo, tit. 
 'Admiralty.'" See also Denew v. Stock, id. 664, and Rex v. Carew, 
 id. 670, where he said : " 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 not concern depredations on the high seas, in which cases 
 the Chancery as well as the Admiralty hath a clear jurisdiction." The 
 " little book de officio Cancellarii" was written by Lord Nottingham 
 while in full practice at the bar. See 3 Campbell's Lives of the Chan- 
 cellors, 31Z. 
 
EQUITY IN PENNSYLVANIA. 39 
 
 answer, whereby he had contemned the authority 
 of the court (the other defendants having, by their 
 answers, disclaimed all right, title or interest in 
 or to the lands in question by the bill)," and the 
 court thereupon sent for Ellis, had the bill read to 
 him, and admonished him to answer it, " which, 
 that he might be the better enabled to do so, the 
 counsel for the complainant consented to his en- 
 largement, and to free him from all costs for con- 
 tempt ;" whereupon he was ordered to answer 
 the bill within a month. That time, and more, 
 elapsed, and still John Ellis " obstinately persisted" 
 in refusing to answer, and the complainants then 
 obtained a decree fro confesso. " Nevertheless, for 
 the greater satisfaction of the court, the counsel 
 produced divers deeds, evidences, and writings in 
 the bill mentioned, by which the court were suffi- 
 ciently satisfied of the truths of the several matters 
 and things in the complainants' bill contained," 
 and ordered that the complainants' third part of 
 the lands be set out to him in severalty by metes 
 and bounds by three persons named for that pur- 
 pose, and that the defendants do thereupon execute 
 conveyances of their interest in the same to him 
 accordingly, unless John Ellis should show cause 
 to the contrary on or before the first day of June 
 thereafter. 
 
 You are aware that the effect of a decree in 
 equity confirming the report of the master and 
 
40 EQUITY IN PENNSYLVANIA. 
 
 commissioners in cases of partition, merely ascer- 
 tains the purparts, and that the partition is 
 afterwards consummated by conveyances between 
 the parties.* Of course John Ellis would not 
 execute any conveyance, and Mr. Hazard has 
 printed in his collection of archives the affidavit 
 which he somewhere found, of the proof of 
 service of notice of the decree, which says 
 that Ellis "then and there declared that he had 
 been informed before that time that there was 
 a decree against him, but that he did not care."f 
 On the eleventh of June, the decree was, upon 
 this proof of service, made absolute. The partition 
 was, however, still incomplete, and the complain- 
 ant did not seem disposed to repeat his former ex- 
 periment of attachment, and upon the next day is 
 the entry, " a writ for the partition of the lands, 
 pursuant to the decree of this court, is issued." 
 This is the last entry in the cause ; and, whether 
 this was a commission, or an original process in 
 the common law court, or something analogous 
 to the judicial writ of partition, can only be con- 
 jectured. 
 
 The writs of ne exeat provincia were frequent. 
 
 * This is now altered by statute in this State. See infra. 
 
 •j - Pennsylvania Archives, p. 442. This disconnected paper and the 
 decree in Phillips v. Evans, already referred to, are, with the petition 
 and order hereafter noticed as to Quakers wearing their hats in court, 
 the only published records of this Court of Chancery. 
 
EQUITY IN PENNSYLVANIA. 41 
 
 As you know, this also was a prerogative writ, 
 and whatever may have been its origin, and its 
 former application only to political objects and 
 purposes of state for the safety of the realm, it 
 became, by custom and usage, applicable to private 
 cases, and though used therein at first with cau- 
 tion and jealousy, it has, within the last two 
 hundred years, been considered simply as a means 
 of obtaining equitable bail,* being confined, how- 
 ever, to cases of purely equitable debts and claims, 
 for it is considered that the writ shall not issue for 
 a demand in which the party can be held to bail 
 in an action at law.f To this rule there are two 
 
 * This writ had no place in the ancient common law, and the right 
 of every man to depart from the realm at his pleasure was expressly 
 recognized in Magna Charta and the Articles which preceded it. This 
 right had been encroached upon when Fleta and Britton wrote, and the 
 statute of 5 Richard II. c. 2 (which was repealed by 4 Jac. I. c. 1) 
 forbid all persons whatever to go abroad without license, except only 
 the lords and other great men of the realm and true and notable mer- 
 chants and the king's soldiers. " Upon what grounds," says Lord 
 Eldon, " the writ was originally applied to civil purposes, whether 
 upon the principle that no better service could be done to the state, 
 than to compel its subjects to do justice to each other, it is difficult to 
 determine ; but whatever the principle may have been, it is without all 
 question that this court, if not bound ex debito justicice (and I do not 
 say that it is so bound), is bound in the exercise of a sound discretion 
 to grant the writ if the case be a case where the writ ought to be 
 granted." Bcehm v. Wood, Turn, and Russ. 343. 
 
 + Note to De Carriere v. De Calonne, 4 Vesey, 592 ; 2 Story's Eq. 
 Jur. § 1470; Beames on Ne Exeat Regno, 29; Mitchell v. Bunch, 2 
 Paige, 606. 
 
42 EQUITY IN PENNSYLVANIA. 
 
 exceptions : one, in the case of alimony decreed 
 by the spiritual court, in which case, as that court 
 could not afford a complete remedy, a court of 
 equity has lent its assistance to the wife ;* and the 
 other, where equity has concurrent jurisdiction, as 
 in a suit for an account. -f Few of the cases in the 
 registrar's book, in which this writ was issued, 
 show the cause of action, but the practice as to 
 issuing the writ, and also as to dissolving it, seems 
 to have been according to the course and practice 
 of chancery. J 
 
 One case, indeed, is given at length : Miss 
 
 * See the cases cited in the note to 3 Daniels' Ch. Prac. 1802. 
 Although it was formerly held that the writ might issue before sentence 
 of divorce was decreed by the ecclesiastical court, yet it is now settled 
 that the writ can only be marked for sums actually due. 
 
 f 2 Story's Eq. Jur. § 1473. 
 
 J Lord Talbot said in ex parte Brunker, 3 P. Williams, 312, that 
 in his experience he never knew the writ granted without a bill in 
 equity first filed, but both previously and subsequently this has been 
 thought unnecessary (Lloyd v. Cardy, Pr. in Ch. 17 1 ; Roddam v. 
 Hetherington, 5 Vesey, 92; 3 Dan. Ch. Prac. 1810); and in several 
 of the cases in the registrar's book it will be found that the writ was 
 granted before bill filed, and in one of them an order was made that the 
 bill be filed by a certain day or the defendant have leave to depart. 
 The act of Congress of 2 March, 1793, ch. 22, § 5, provides that no 
 writ of ne exeat shall be granted, in the Federal courts, unless a suit in 
 equity be commenced. 
 
 The writ being, as has been said, simply a means of obtaining 
 equitable bail, is dissolved upon the defendant's giving security or pay- 
 ing the money into court, as was done in many of the cases in Governor 
 Keith's court, and the amount of the debt is always marked on the writ. 
 
EQUITY IN PENNSYLVANIA. 43 
 
 Bohn, alias Mrs. Miller, obtained a ne exeat against 
 George Miller, between whom and herself a mar- 
 riage had been, she said, celebrated, but never 
 consummated, which she had borne for a long 
 time, till he threatened her life and committed 
 other abuses. He sometimes gave out in speeches 
 that he would sell all that he was worth, and, by 
 virtue of his authority as a husband, take away the 
 complainant from her friends and relations to 
 parts remote and unknown, and at other times 
 that he would go and leave her behind, which 
 latter course would, she said, disable her from 
 moving her alleged ground of divorce. Her case 
 was stated in plainer language than I have used, 
 and the court having granted the writ, made an 
 appropriate order of reference, of which, however, 
 the result was favorable to the gentleman, and no 
 further proceedings seem to have been had in the 
 cause. 
 
 Nearly a hundred and forty years after Mrs. 
 Miller thus sought to restrain her fugitive hus- 
 band, another wife applied to the Court of Com- 
 mon Pleas of this county for a writ of ne exeat 
 against her husband, who having converted to his 
 own use certain of her securities, was about to 
 take them with him out of the country. The 
 writ was granted, and the case was said to be "a 
 remarkable one, inasmuch as it was the first 
 
44 EQUITY IN PENNSYLVANIA. 
 
 instance of the issuing of a writ of ne exeat by a 
 Pennsylvania court."* 
 
 The names of the counsel who practised in 
 Governor Keith's Court of Chancery are familiar 
 to most of us. John Kinsey, who was after- 
 wards chief justice, was engaged in most of 
 the cases, and Andrew Hamilton, Peter Evans, 
 Joseph Growdon, who was then attorney-gene- 
 ral, and Thomas Hopkinson were generally his 
 colleagues or opponents. The story is familiar 
 that in 1725 Mr. Kinsey, who was an eminent 
 " Friend," came into this court with his hat on, 
 and refused, by reason of his conscience, to re- 
 move it, whereupon it was taken off by order of 
 the chancellor, who was also himself a Quaker. 
 This produced " great consternation" in the pro- 
 
 * Dransfield v. Dransfield (1866), 23 Legal Intelligencer, 229. "It 
 is obvious," says the report of the case, " that the only question that 
 could arise in this case was, whether it was a proper one for the exer- 
 cise of this extraordinary jurisdiction ; in general, the writ of ne exeat 
 can only issue where an equitable debt is owing to the plaintiff, and our 
 act to abolish imprisonment for debt confines this class of cases within 
 a very narrow compass. This appears to have been a case in which, 
 by reason of the breach of trust, the husband, under the Pennsylvania 
 married women's act, had become equitably indebted to his wife ; and 
 besides, in Torlade v. Barrazo, 1 Miles, 385, note, Chief Justice 
 Marshall granted the writ of ne exeat in a case in which it could only 
 have been an equitable substitute for the action of trover and con- 
 version." In general, it is not considered that the power of chancery 
 to issue writs of ne exeat is taken away by the passage of laws abolishing 
 imprisonment for debt. 3 Daniels' Chan. Prac. 1801, n. 
 
EQUITY IN PENNSYLVANIA. 45 
 
 vince, and in a " humble address by the people 
 called Quakers," they represented to the governor 
 in respectful but very plain words, that his late 
 act, however slight, had a tendency to the sub- 
 version of their religious liberties, and they re- 
 minded him of the law which provided that in 
 all courts, all persons of all persuasions might 
 freely appear " in their own way and in their 
 own manner." It is gratifying to the lovers of 
 toleration to find that at once, upon the pre- 
 sentation of this address, it was made a standing 
 rule of court, that any practitioner of law or 
 person whatsoever professing himself to be one 
 of the people called Quakers, might be per- 
 mitted to officiate therein without being obliged 
 to observe the usual ceremony of uncovering his 
 head.* 
 
 Such is all the history which we now have of 
 our only Court of Chancery. It is probable that 
 an extended search among the records in our State 
 department may disclose more than you have 
 already seen, but it has, I think, been sufficiently 
 shown that there was a time in Pennsylvania, 
 when chancery jurisdiction was administered in a 
 court of chancery with more exactness and pre- 
 cision than we had probably supposed. 
 
 * 2 Proud's History of Pennsylvania, p. 200. The order provided 
 that the address be filed with the registrar, but no entry of it appears 
 in the book I have referred to. 
 
46 EQUITY IN PENNSYLVANIA. 
 
 How exactly, and when, this court became un- 
 popular, cannot now be distinctly ascertained. 
 Keith's quarrel with James Logan and the Penns 
 is matter of history, and we all know how, at last, 
 the Penns superseded Keith by the appointment, 
 in 1726, of Patrick Gordon. Soon after assuming 
 his office, the new governor acquainted the council 
 that being informed that there had been held for 
 some time past by the late governor, a court of 
 equity or chancery, and that several matters were 
 depending in that court touching which he had 
 frequently been applied to by the persons con- 
 cerned, to the end that he might take upon him- 
 self the execution of the office of chancellor, but 
 that he had hitherto declined the same until he 
 should be better informed how the said court 
 came to be created and have the advice of the 
 council which he desired on that head. The 
 latter replied that the erection of that court had 
 been in compliance with the unanimous resolu- 
 tion of the Assembly and the approbation of the 
 council, and it was the opinion of the present 
 council that the governor might lawfully take 
 upon himself the execution of the office that 
 there might be no stop in the administration 
 of justice, provided always that due regard be 
 had to the rule that the members of council 
 near Philadelphia should attend as his assistants. 
 
EQUITY IN PENNSYLVANIA. 47 
 
 Thus fortified by this opinion, Governor Gordon 
 took the oath of office as chancellor.* 
 
 But two of the causes appearing upon the 
 registar's book were decided by Sir William 
 Keith. All the others were in the time of his 
 successor, and the latest entry in any cause is 
 dated June 7th, 1736. But in February of 
 that year, a petition had come to the Assembly 
 from Bucks County, which was soon followed 
 by others, complaining of the Court of Chancery 
 " as it is at present established in the province." 
 The seed seems to have fallen upon good ground, 
 for, on the same afternoon,j" a message was sent to 
 the governor, requesting to be informed how the 
 Court of Chancery was constituted, which he 
 answered by sending them copies of all the pro- 
 ceedings in 1720. But the court so established 
 was, the legislature then seemed to discover, a 
 violation of the sixth article of the Charter of 
 Privileges, that no person should, at any time, be 
 obliged to answer any complaint relating to pro- 
 perty before the governor and council, or in any 
 other place but in the ordinary courts of justice, 
 and they proceeded to introduce a bill, not unlike 
 
 * It was then proposed that some certain rules for the better regula- 
 tion of the court and the speedier dispatch of business should be drawn 
 up, and David Lloyd, Chief Justice, and Andrew Hamilton were named 
 for that purpose. — Minutes of Council, 3 Colonial Records, 281. 
 
 -j- February 7, 1736; 3 Votes of Assembly, 253. 
 
48 EQUITY IN PENNSYLVANIA. 
 
 those which had formerly been repealed in council, 
 vesting the power of determining suits in equity 
 in the Common Pleas judges, and providing, more- 
 over, for a supreme court, to consist of three per- 
 sons commissioned by the governor, to hear 
 appeals from the decrees of the county courts, 
 and empowered also to take cognizance of all 
 matters in equity prima instantia, where the value 
 exceeded one hundred pounds. While they de- 
 bated the clauses of this bill, an angry correspond- 
 ence went on between the House, on one side, 
 and the governor and council, on the other. The 
 governor urged that, on his arrival, he had found 
 the court to have been established for years, and 
 the country in the practice of it ; if the fees were 
 too high, it would have been easy to have altered 
 them; but, he said, there could not be much com- 
 plaint as to that, since in the nine years that he 
 had presided there but two causes, and both by 
 consent, had been brought to a decree, and very 
 little other process had been entered there, and it 
 seemed strange how, all at once, such petitions 
 should be set a-foot over the province and come 
 in at the same time, without any particular 
 occasion being discovered therefor.* 
 
 * By the governor's remark as to but two causes being brought to a 
 decree, he, of oourse, meant a final decree ; and although the registry 
 of his court scarcely bears out his assertion, yet it is familiar that the 
 proportion of cases in chancery which are brought to final decree is not 
 
EQUITY IN PENNSYLVANIA. 49 
 
 In addition to the governor's letter, the council 
 also, at his suggestion, prepared an elaborate vindi- 
 cation of the Court of Chancery. They referred 
 to the fact that for more than eighteen years after 
 the Charter of Privileges, there had been in the 
 House " divers persons of figure and consideration," 
 than whom none were more capable of judging 
 of its true intent and meaning — many who had 
 been members of the House in 1701, when the 
 charter was adopted, and who were members of the 
 House in 1720, when the court was established. 
 They argued that the word property in the charter 
 had not its usual signification, but referred to cases 
 only of proprietary property,* which, they said, of 
 course should not be heard before the governor 
 and council; and that, in such a court of chancery 
 as this, the people were not obliged to answer 
 otherwise than in the "ordinary course of justice," 
 according to the words themselves of the charter, 
 and they dismissed the matter of the petitions 
 against the court, with the remark that " the 
 practice and method of obtaining names to peti- 
 tions amongst us are now so very well known, that 
 all persons of judgment must be sensible that the 
 
 very large. Certain it is, that the governor sat in not less than twenty- 
 nine cases, and that all of these, save very few, are marked upon the 
 registry, "ended." 
 
 * This was not only evasive, but in strange ignorance of the 
 principle of the sixth article of the Charter of Privileges. 
 4 
 
ijO EQUITY IN PENNSYLVANIA. 
 
 matter and not the numbers of the signers is prin- 
 cipally to be considered and regarded" — a sugges- 
 tion which the experience of several subsequent 
 generations has, perhaps, confirmed. 
 
 But to these papers, the House replied with 
 much force and dignity. No mere vote of the 
 House could, they said, erect a court of equity, 
 which could only be done by a law of the pro- 
 vince ; no opinion of counsel, nor silence of sub- 
 sequent assemblies were of any consideration, nor 
 indeed had they, upon strictest inquiry, been able 
 to find that any one ever thought of the charter 
 at the time ; no practice of other colonies could 
 be a precedent unless it were shown that they, 
 too, had a similar charter of privileges ; the re- 
 stricted definition of the word " property" was, 
 with submission, an absurdity; it was clear that a 
 court of equity could only be established by act 
 of Assembly, and then, and not before then, a suit 
 therein would be " in the ordinary course of 
 justice." No one pretended that in England the 
 king could, by his mere charter, create a court of 
 equity,* and if not the king, how much less the 
 
 * For this they cited " the case of one Flood, in 40th Eliz." The 
 case is Stepney v. Lloyd, Cro. Eliz. 646, also reported 4 Inst. 97. 
 The opinion of the attorney and solicitor-general in England, in 
 favor of the legality of Keith's Court of Chancery was that although 
 the king could not now erect, by a commission, a court of chancery in 
 England, where all necessary courts were already in being, yet Charles 
 
EQUITY IN PENNSYLVANIA. 51 
 
 deputy of the king's patentee. And, finally, they 
 suggested that if the governor and council were 
 mistaken as to their prerogative, they were not 
 the first great men who had exceeded their juris- 
 diction, and that, too, they added, referring to the 
 angry tone of the paper which they were answer- 
 ing, " without giving any such offence."* 
 
 Further proceedings seem to have stopped here. 
 The Assembly soon after adjourned without pass- 
 ing the act for establishing courts of equity, and 
 the governor continued to act as chancellor up to 
 the time of his death, but a few months after. 
 For when the Assembly met in August, they had 
 to lament the loss "of that worthy gentleman, our 
 late governor," whose duty had, they said, been 
 
 II. might, by his commission to Penn, have authorized him to erect 
 courts of equity without the consent of the legislature being necessary, 
 until Penn himself made it so by the Charter of Privileges; that such 
 consent had been given, in 1720, by their request to the governor to open 
 the court, and that the court thus opened, with their assent (but not with- 
 out), was no violation of the charter of 1701. — Brigbtlfs Eq. Jur. 32, 
 n. So, in 1703, the attorney-general (Sir Edward Northey) was of the 
 opinion that there was nothing in the clause in the charter of Massa- 
 chusetts Bay, which was submitted to him, which excluded the power 
 of the crown to erect by its prerogative a court of equity in that 
 province, " as by her royal authority they are erected in other of her 
 majesty's plantations, and it seems to me that the General Assembly 
 there cannot by virtue of this clause erect a court of equity." 1 Chal- 
 mer's Opinions, 482. The difference in the frame of government 
 between Massachusetts and some of the other colonies will, of course, 
 be remembered. See 1 Story on the Constitution, chapters iv. to xvii. 
 * 3 Votes of Assembly, 252 et seq. 
 
5 2 EQUITY IN PENNSYLVANIA. 
 
 so well discharged, both to the proprietaries and 
 the people. No successor of his office has ever 
 attempted to exercise chancery powers, and thus 
 it was that, as we are told, "Pennsylvania lost 
 the system, because her governor and representa- 
 tives could not agree by whom the office of chan- 
 cellor should be held,"* and equity, as a separate 
 system, slept for just one hundred years. 
 
 In the registrar's book it appears that on the 
 ist of September, 1739, the registrar, then Robert 
 Charles, applied to Governor Thomas for leave to 
 resign his office, and to deliver up the books and 
 papers in his custody, and an order was made that 
 he be dismissed from his office, and deliver up all 
 the books, papers, and writings in his custody to 
 Thomas Lowrie, secretary, to be by him kept till 
 further orders. 
 
 I have ventured, at the risk of being tedious, to 
 enter into these details of what some might con- 
 sider useless and obsolete history, with the desire 
 to ascertain how, and when, and why it was, that 
 we, in Pennsylvania, began to administer equitable 
 principles through the medium of common law 
 forms. The impression is, perhaps, a general one, 
 that such had always been our practice, and there 
 is not wanting authority in its favor. "I think it 
 not an ignorant prejudice," said a late chief justice, 
 
 * Mr. Binney's Eulogium on Ch. Justice Tilghman, Appendix to 
 1 6th Serg. & Rawle, 448. 
 
EQUITY IN PENNSYLVANIA. 
 
 53 
 
 " but high political wisdom which caused our 
 ancestors to refuse a court of chancery any place 
 among their judicial institutions. The men who 
 founded this commonwealth, who built up her 
 reputation, achieved her liberties and settled her 
 laws, knew very well the amount of good and evil 
 that such a court had done elsewhere, and, upon 
 sound and deliberate judgment, they repudiated it 
 as far as they could. The administration of law, 
 blended and mixed with equity principles, was a 
 happy conception. It was no bungling substitute, 
 but a most admirable improvement of both legal 
 and chancery practice."* 
 
 But the review which we have just taken of our 
 earlier history may induce us rather to adopt the 
 conclusion, arrived at by equally high authority, 
 " that this (the absence of a court of chancery) 
 was the consequence of a jealousy of the principles 
 and practice of that court entertained by the 
 people, is not indicated by their early juridical 
 history, "f 
 
 And the history of other colonies discloses much 
 of the same feeling. In Massachusetts there had 
 been the same disagreement as to the office of 
 chancellor, but we are told that the unpopularity 
 of a court of chancery does not seem to have been 
 
 * Black, C. J., in Finley v. Aitken, 3 Pittsb. Leg. Int. 2, cited in 
 Brightly's Eq. Jur. 27, note. 
 
 •f Mr. Binney's Eulogium, supra. 
 
54 EQUITY IN PENNSYLVANIA. 
 
 caused by any aversion or dislike of the people to 
 such a court, but by a disagreement between them- 
 selves and their parent government as to the man- 
 ner in which the tribunal should be established. 
 In New York, there was no question as to the 
 necessity or expediency of a court of chancery, 
 but much question whether the governor or the 
 council should be chancellor.* 
 
 Our ancestors seem, from the first, to have re- 
 cognized the distinction between law and equity, 
 and to have desired that their principles should 
 be administered, if not in separate tribunals, yet 
 at least in distinct and separate branches of the 
 same tribunal, as was, until lately, the case in 
 the Court of Exchequer. It is quite likely, when 
 we consider that most, if not all, our earlier 
 judges were laymen, incapable, of course, of ob- 
 serving the scientific difference between law and 
 equity, and prone, therefore, to blend them to- 
 gether, that, at times, equitable principles were 
 administered in the courts of common law. But 
 if our judges were laymen, our bar was composed 
 of men who understood their profession, and who 
 would have been unlikely to have considered the 
 
 * Parkes' History, supra, Introduction, p. 53. It is rather singular 
 that, with the exception of an article in the North American Review, 
 written by Judge Story (1820, New Series, vol. xi. p. 142, see 
 Story's Life and Letters, vol. i. p. 379), the only history of equity juris- 
 diction in the United States should have been written by an English 
 lawyer. 
 
'EQUITY IN PENNSYLVANIA. 55 
 
 mixture of law and equity in a single tribunal 
 as an act of high political wisdom.* When, too, 
 we add to this history of the times the expressions 
 of regret, in the early reported cases, of the ab- 
 sence of a court of chancery, we are constrained 
 to think that some wrong has been done to the 
 lawyers and the judges of that day; it was not 
 voluntarily that they forced the jurisdiction of 
 equity upon the common law courts, to be ad- 
 ministered as best it might, but when they had no 
 alternative, they made the most of the materials 
 that were given them. 
 
 We must not of course suppose that it was first 
 and only in Pennsylvania that the courts of com- 
 mon law recognized and enforced equitable prin- 
 ciples. We find in the Year Books the doctrine 
 that parcels of land subject to a common charge 
 are liable in the inverse order of their alienation ; 
 there, too, we find that an executor cannot purchase 
 
 * In the early case, in 1768, of Swift z>. Hawkins, 1 Dallas, 17, 
 where the plaintifF opposing the introduction of evidence to show want 
 (qu. failure) of consideration of a bond, Chief Justice Allen remarked 
 that there being no court of chancery in our province, it was necessary, 
 to prevent a failure of justice, to admit the defence, and he added that 
 he had known this to be the constant practice of the courts of the 
 province for thirty-nine years past. If the chief justice thus spoke 
 from his actual knowledge, this would carry back the practice to the 
 year 1729, three years after Keith's retirement, when the unpopularity 
 of the Court of Chancery had probably at least commenced ; but if he 
 referred to his own recollection of the practice, it is proper to remember 
 that the chief justice was originally a merchant, and only came on the 
 bench in 1750. 
 
56 EQUITY IN PENNSYLVANIA. 
 
 a debt of his testator and claim more than he paid 
 for it ; the law of bailments is especially a matter 
 of trust and confidence, while the introduction of 
 the action of assumpsit as a means of enforcing 
 equitable demands, the doctrines of equitable 
 estoppel, of relief from the penalty of a bond, of 
 contribution among sureties, and of the discharge 
 of a surety by giving time to the principal — all are 
 cognizable in courts of law. 
 
 But in Pennsylvania we had to go much farther, 
 and to administer every equitable principle in a 
 common law court. That we accomplished as 
 much as we did, may be matter of wonder, but 
 it can be no matter of wonder that many equitable 
 principles were not administered at all. 
 
 The history of the system may, perhaps, be 
 divided into three several periods of time — 
 
 First, from the abolition of the Court of Chan- 
 cery in 1736, or a little before this time, to the 
 adoption of the new Constitution in 1790. 
 
 Secondly, from 1790 to the passage of the act of 
 1836; and 
 
 Thirdly, from that time to the passage of the 
 act of 1857. 
 
 Mr. Laussat has considered the subject down to 
 the year 1826, when he wrote his essay, and I shall 
 but briefly go over this ground. 
 
 The first reported case before the Revolution 
 was one that arose in 1768, where, in an action of 
 
EQUITY IN PENNSYLVANIA. 57 
 
 debt on a bond, the court admitted evidence of a 
 want of consideration,* which, said the chief 
 justice, was a matter of necessity in order to pre- 
 vent a failure of justice, there being no court of 
 chancery in the province. f 
 
 In the year 1785, Chief Justice McKean, in 
 charging a jury upon the question (not, unhappily, 
 unknown in our own times), whether a bond could 
 be paid in a currency which was then depreciated, 
 said that the want of a court with equitable 
 powers like those of the chancery in England, 
 had long been felt in Pennsylvania. The institu- 
 tion of such a court, he observed, had once been 
 agitated here, but the Houses of Assembly, ante- 
 cedent to the Revolution, successfully opposed it, 
 because they were apprehensive of increasing, by 
 that means, the power and influence of the gover- 
 nor, who claimed it as a right to be chancellor. 
 For this reason, many inconveniences had been 
 suffered. No adequate remedy was provided for 
 a breach of trust, no relief could be obtained in 
 cases of covenants with a penalty, &c. This 
 defect of jurisdiction had, he said, necessarily 
 obliged the court, upon such occasions, to refer 
 the question to the jury under an equitable and 
 
 * Probably a misprint for failure of consideration. Mere want of 
 consideration would be no defence, either at law or in equity, to an 
 action on a sealed instrument. 
 
 ■f Swift v. Hawkins, 1 Dallas, 17. 
 
58 EQUITY IN PENNSYLVANIA. 
 
 conscientious interpretation of the agreement of 
 the parties, and it was upon that ground that they 
 must consider and decide the cause.* 
 
 Later in the same year came up the case of a 
 scire facias on a mortgage, under our most simple 
 and efficient statute of 1705 (an act which, after 
 a hundred and sixty-two years of trial, has not 
 been attempted to be improved), in which the 
 doctrine of tacking was sought to be introduced. 
 The plaintiff contended that it was not enough 
 that the mortgagor should pay to the mortgagee 
 the principal and interest of his money, with 
 costs, but that equity would also subject the mort- 
 gaged premises to the payment of subsequent sim- 
 ple contract debts due the mortgagee, and it was 
 ingeniously urged that the chancery jurisdiction for 
 redemption of mortgages having been transferred 
 by the legislature to the common law courts, these 
 would take care that he who claimed equity should 
 do equity. But it was held, that although courts 
 of law in this State had, in some instances, adopted 
 chancery rules to prevent the absolute failure of 
 justice, yet in this case there was no necessity to 
 usurp the power of a court of chancery ; there 
 was a positive statute directing the mode of pro- 
 ceeding upon mortgages, entirely different from 
 those prescribed in England, and which confined 
 the remedy of the mortgagee to the recovery of 
 
 * Wharton v. Morris, I Dallas, 125. 
 
EQUITY IN PENNSYLVANIA. 59 
 
 the principal and interest due on the mortgage.* 
 And it is familiar to all of you that the doctrine 
 of tacking has never been recognized in Pennsyl- 
 vania, -j- 
 
 Immediately after the commencement of the 
 Revolution, the Constitution of 1776 gave to our 
 courts, besides their other powers, those of a court 
 of chancery so far as related to the perpetuation 
 of testimony, the obtaining of evidence from 
 places not within this State, the care of persons 
 and estates of those non compotes mentis,^ " and 
 such other powers as may be found necessary by 
 future general assemblies, not inconsistent with 
 the Constitution." 
 
 No " such other powers" were, however, then 
 granted, if we except the acts of 1786 and i78o.§ 
 The first of these authorized the Supreme Court, 
 upon bill or petition filed setting forth the loss of 
 deeds or other writings, to issue a subpoena, re- 
 quiring the persons named to appear and make 
 answer or oath, to refer the cause to a master, and 
 to make such decree as to justice and equity should 
 appertain, and this statute is in force at this day. 
 The statute of 1789 simply authorized a proceed- 
 
 * Dorrow v. Kelley, 1 Dallas, 142. 
 
 f Anderson v. Neff, 11 Sergeant & Rawle, ZZ3. Thomas's Appeal, 
 6 Casey, 378, went to the verge of the opposite doctrine. 
 J See supra, note to pages 28, 29. 
 § Acts of 28 March, 1786, and 28 September, 1789. 
 
60 EQUITY IN PENNSYLVANIA. 
 
 ing in the nature of a bill of discovery against 
 garnishees in cases of foreign attachment. 
 
 Upon the formation of the new Constitution of 
 1790, the question of chancery powers, and, in- 
 deed, of a separate court of chancery itself, came 
 up for debate. As to this, it need only now be 
 said, that the political events of the past years had 
 impressed upon most of the members of the con- 
 vention " a bitter animosity to everything that 
 savored of unusual power," and the efforts of the 
 lawyers of that body in favor of chancery powers, 
 or a separate chancery court, failed to succeed.* 
 The utmost that was done was that, in place of 
 the concluding clause in the Constitution of 1776 
 to which I have referred, were inserted the words, 
 " 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 
 other courts, as they shall judge proper for the 
 administration of justice." But the power to 
 establish a separate court of chancery thus given 
 to the legislature was not exercised, nor, for nearly 
 half a century afterwards, was any equitable juris- 
 diction given to the courts then in existence, save 
 in the most parsimonious manner. The acts, such 
 as they were, you will find referred to in the 
 
 * See Minutes of Council of 1790, pp. 38-42. 
 
EQUITY IN PENNSYLVANIA. 6 1 
 
 Report in 1835 of the Revisors, "On the adminis- 
 tration of justice." Their sum was little more 
 than the grant of powers to compel trustees to 
 account, to appoint and dismiss them, to compel 
 answers on oath in certain cases of execution, and 
 to complete the contract for the sale of lands, in 
 cases where the vendor had died. The much 
 more important class of cases, viz : the specific 
 performance of contracts inter vivos was, until 
 1836, left to the common law courts. 
 
 I will not now detain you by working out the 
 problem which was thus attempted to be solved. 
 
 Apart from certain general heads of equitable 
 jurisprudence, Mr. Laussat has considered, first, the 
 equities of a plaintiff as administered in the courts 
 of common law, and secondly, the equities of a 
 defendant. 
 
 As to the former, he has reverted to the decision 
 which rendered unnecessary the profert of a bond — 
 which gave a remedy not only against a surviving 
 partner, but also against the representatives of a 
 deceased partner — and which recognized the right 
 of an equitable plaintiff to sue in the name of his 
 assignor, giving the former and not the latter, the 
 control over the action. Principally, however, 
 and naturally, he has dwelt upon the head of spe- 
 cific performance, enforced, with us, as to lands, 
 by means of the action of ejectment, and as to 
 chattels, by means of the action of replevin. As 
 
62 EQUITY IN PENNSYLVANIA. 
 
 to the former, you are all familiar with the prac- 
 tice by which a conditional verdict, to be released 
 on the specific performance of the contract, was 
 made the ingenious, though clumsy substitute for 
 the neat, simple and flexible remedy which equity 
 provides. It was confessed that the substitute was 
 insufficient when the defendant, without relying 
 on the statute of frauds, confessed a parol unper- 
 formed agreement,* and it is obvious, that where 
 the equity of the complainant to specific perform- 
 ance, however clear in itself, is partially met by 
 the equity of the defendant for compensation, it 
 may be difficult to work out the equity of the 
 latter in an action of ejectment brought by the 
 former. The same remark will of course apply 
 to the case of an ejectment as a means of enforcing 
 a resulting trust. 
 
 With respect to the action of replevin as a 
 means of enforcing the right to specific chattels, 
 while it may be admitted that with us, as in some 
 of our sister States, a broader remedy exists than 
 is the case in England, " lying in all cases where 
 one man improperly detains the goods of another, 
 it is, in no instance, effective to enforce a specific 
 return of chattels ; since a claim of property, and 
 bond given, is always sufficient to defeat a recla- 
 
 * Mr. Laussat's Essay, p. 56. But as to this, it must be remarked 
 that in a really contentious litigation, such a waiver of the right of 
 pleading the statute could not occur. 
 
EQUITY IN PENNSYLVANIA. 63 
 
 mation, no matter what may be the eventual issue 
 of the contest.* 
 
 With respect to the equities of a defendant, Mr. 
 Laussat has classed these under the heads of want 
 of consideration, fraud, mistake and accident, set- 
 off, and performance ; in a word, the defendant 
 was considered entitled to give in evidence any- 
 thing which, ex czquo et bono, should defeat the 
 plaintiff's right to recover. 
 
 And whatever may be said as to the insufficiency 
 of the remedy afforded to a plaintiff, it must be 
 acknowledged that as to the protection given to a 
 defendant, we were in advance of the law as else- 
 where administered. " It must sound oddly to a 
 foreigner," says a great living legal author, - ]- " that 
 on one side of Westminster Hall, a man shall re- 
 cover an estate without argument, on account of 
 the clearness of his title, and that on the other side 
 of the hall, his adversary shall, with equal facility, 
 recover back the estate." And yet scarcely twenty 
 years after these words were written, we find in 
 the English "Common Law Procedure act," \ that 
 it shall be lawful for the defendant (or plaintiff in 
 replevin) in any cause in any of the superior 
 courts in which, if judgment were obtained, he 
 would be entitled to relief on equitable grounds, 
 
 * McGowin p. Remington, 2 Jones, 56. 
 
 ■f Lord St. Leonards ; Sugden's " Letters to a Man of Property," p. 4. 
 
 J 17 and 18 Victoria, § IZ5. 
 
64 EQUITY IN PENNSYLVANIA. 
 
 to plead the facts which entitle him to such relief 
 by way of defence, " and the said courts are 
 hereby empowered to receive such defence by 
 way of plea, provided that such plea shall begin 
 with the words 'for defence on equitable grounds/ 
 or words to the like effect."* 
 
 And thus we find, after long years of different 
 experience and of travel over different paths, the 
 older and the younger country approach each 
 other. 
 
 Indeed it is easy to see why in the administra- 
 tion of equitable principles through the medium 
 of common law forms, the plaintiff should suffer, 
 rather than the defendant. The common law had 
 its origin in the wants of the people, and grew 
 with their necessities. Its forms soon assumed 
 certain definite channels, through which, and 
 through which alone, the law was administered. 
 Thus we had the different forms of action, modes 
 of trial, rules of evidence, means of enforcing 
 
 * " The statute does not say," said Parke, B., in the Mines Royal 
 Society v. Magnay, 10 Exchequer, 489, "that the courts of common 
 law are to give relief on equitable conditions, but that a plea shall be 
 allowed which discloses a defence upon equitable grounds." And such 
 an equitable defence can, it is held, be pleaded only in cases where the 
 plea sets up an equity that will entitle the party pleading it to an uncon- 
 ditional and perpetual injunction ; and where the common law court 
 overrules the plea as not establishing a case for unconditional relief, the 
 defendant may still apply to the Court of Chancery for an injunction. See 
 note to Chitty's Collection of Statutes (London, 1865), p. 785. 
 
EQUITY IN PENNSYLVANIA. 65 
 
 judgments, and, in time, the outlines of these 
 forms became more defined, and the forms them- 
 selves necessary incidents to the administration of 
 the common law. If a plaintiff brought an 
 action ex delicto when it should have been ex con- 
 tractu, he was turned out of court, and it was 
 natural that at times new cases should arise, to 
 which no form of action was applicable, not even 
 that very comprehensive one, the action of trespass 
 on the case. 
 
 The forms of action and the rules of pleading 
 necessarily were, to some extent, rigid. Had 
 it been otherwise — had suitors been permitted 
 to seek redress through the courts in their 
 own way — uncertainty and fraud would have 
 entered, where now certainty of proceeding, and 
 justice in result, are ornaments of the juris- 
 diction. And whatever may be, in any respect, 
 the defects and the rudeness of the common law, 
 " we should ever remember," said a late chan- 
 cellor, "its favor to personal liberty, and its admi- 
 rable machinery for separating law and fact and 
 assigning each to a distinct tribunal, wherein it 
 excels all other systems of jurisprudence which 
 have appeared."* 
 
 It is true that these forms and rules of the 
 common law may be, and in Pennsylvania they 
 
 * Lord Campbell; I Lives of the Chancellors, 33, note. 
 5 
 
66 EQUITY IN PENNSYLVANIA. 
 
 were, tempered and moulded to meet many cases 
 which, in strictness, should be remedied only in 
 equity. And with us, for a time, owing to a 
 more primitive condition of society, the ability 
 of the judges, aided by the ingenuity of the bar, 
 enabled us so to mould these forms and rules as 
 to include the most common and simple classes 
 of equitable remedies.* But with advancing 
 civilization, questions of a more complicated 
 nature must constantly arise, which common law 
 forms are wholly inadequate to comprehend, and 
 any attempt to mould these forms so as to include 
 cases to which they are inapplicable, must change 
 the very principle and character of common law 
 procedure. Take, for example, the case of nui- 
 sance. It is true that the infliction of a nuisance 
 is contrary to the principles of the common law, 
 
 * Of the period of time between the abolition of Keith's Court of 
 Chancery and the commencement of the Revolution, it has been said : 
 " Scientific equity fell under general proscription, and with some few 
 exceptions was made to give place to a spurious equity, compounded of 
 the temper of the judge and the feelings of the jury, with nothing but 
 a strong infusion of integrity to prevent it from becoming as much the 
 bane of personal security, as it was the bane of science. It was to 
 expel this usurper that the days and nights of Chief Justice Tilghman 
 were devoted — a work suggested, it is true, by that distinguished prede- 
 cessor to whom he owed his office, but consummated by himself and 
 his colleagues, to whom we owe a debt not to be acquitted, for having 
 fully established the principles of methodized and scientific equity in 
 their just sway, as part of the common law of the land." — Mr. Binney's 
 Eulogium, supra. 
 
EQUITY IN PENNSYLVANIA. 67 
 
 but it is idle to deny that the forms of the com- 
 mon law, mould them as we will, are inadequate 
 to the speedy and efficient redress of the evil. 
 Hence it was, that from the very necessity of the 
 case, the party injured was allowed to take the 
 law into his own hands and abate the nuisance. 
 But as this opened the door to breaches of the 
 peace, it was necessary, in order to prevent a still 
 greater evil, to provide that the nuisance should 
 be abated peaceably, the effect of which was, of 
 course, to reduce the privilege to nothing, for 
 when the aggressor offered resistance, the party 
 aggrieved was still driven to the common law 
 remedies, viz : the assize of nuisance, and the 
 writ quod permittat prosternere, or, in case of a 
 public nuisance, an indictment. A contrast can 
 scarcely be borne between these impracticable 
 forms of the common law, and the facile, sum- 
 mary, and powerful remedy by injunction, in 
 which the nuisance, if proved, is judicially re- 
 dressed as speedily as the aggrieved party could 
 abate it himself. 
 
 Shall cases be further added ? Cases of pre- 
 ventive justice enforced by injunction — to restrain 
 proceedings at law where, from the nature of the 
 case, no adequate remedy can be had in the courts 
 of law — to restrain waste where the writ of estrepe- 
 ment would be wholly inadequate — to restrain the 
 transfer of negotiable paper — the disclosure of 
 
68 EQUITY IN PENNSYLVANIA. 
 
 confidential communications — the piracy of trade- 
 marks— the infringement of copy-right and of 
 patent-right — the invasion of corporation fran- 
 chises, which, alone, has in modern times opened 
 almost a new volume of equitable jurisdiction ; 
 shall I add to these the jurisdiction in cases of 
 discovery — of the reformation, the cancelling and 
 the delivering up of instruments — of specific per- 
 formance — of account — of partition — of contri- 
 bution — of marshalling assets — of confusion of 
 boundaries — of bills quia timet and bills of peace ? 
 Can the most ardent admirer of the common law 
 refuse to acknowledge that, at least in some of 
 these cases, the remedy afforded by that law is 
 inapplicable and ineffective ? 
 
 It is impossible that much of all this should 
 not have been felt by the profession. True it is, 
 that the want of familiarity with the forms of 
 equitable procedure had, especially in the interior 
 counties, brought about a distaste for equitable 
 principles save through those common law forms 
 by which, and by which alone, they had been 
 administered. Still, it was felt, both on the bench 
 and at the bar, that the system was, at the best, a 
 makeshift. " Before the Revolution," it was said 
 in 1826, "when the bench was rarely graced by 
 professional characters, juries were considered 
 almost the same as chancellors," and although 
 a certain degree of control had naturally ensued, 
 
EQUITY IN PENNSYLVANIA. 69 
 
 much was still unavoidably left to the jury. 
 "And how uncertain," it was added, "is the 
 result of a suit committed to twelve men, how- 
 ever honest and upright, unused to professional 
 intricacy and scientific principles, and whose 
 decision is not binding on another jury, either 
 in the same or an exactly similar case that may 
 succeed. * * * In fact, it is time to reduce the 
 uncertain corruscations of Pennsylvania equity to 
 the safe and steady light of chancery."* And in 
 the following year, when our bar met to listen 
 to the tribute paid to the memory of that judge, 
 who, more than any other, " taught us how to 
 clothe a large body of equity in the drapery of 
 the law,"f we were told that " in those cases in 
 which equity consists in the very methods of her 
 administration, the chief justice looked for final 
 relief from the representatives of the people, and 
 he waited patiently, and was content that they 
 should wait the instruction of time. Is the hope 
 
 * Address to the "Associated Members of the Bar of Philadelphia," 
 by William Rawle, senior. So, as was said by Chief Justice Gibson, 
 in 1832, in speaking of the doctrine which in Pennsylvania allowed a 
 purchaser to defend from payment of unpaid purchase-money of real 
 estate, though the defect might not be covered by the covenants in the 
 deed, " the greatest practical evil of the doctrine is that it subjects the 
 contract to the control of a jury, prone to forget that to cut a man loose 
 from his bargain from motives of humanity is the rankest injustice." 
 Lighty v. Shorb, 3 Penna. R. 451. 
 
 j- Mr. Binney's Eulogium on Chief Justice Tilghman, supra. 
 
JO EQUITY IN PENNSYLVANIA. 
 
 vain," it was added, " that the opinion of this 
 pure and enlightened judge may be received in- 
 stead of that instruction ?" So from the bench it 
 was soon after said, " As we cannot hope to see a 
 separate administration of equity, we are bound 
 to introduce it into our system as copiously as our 
 limited power will admit."* 
 
 The time came at last, and the history of the 
 introduction of equitable jurisdiction and its sub- 
 sequent extension is in the highest degree in- 
 structive. 
 
 Under the joint resolution of our legislature of 
 the 23d of March, 1830, three commissioners 
 were, as you are aware, authorized to revise the 
 civil legislation of our State, and, among other 
 assigned duties, they were directed to report 
 whether it would be expedient to introduce any 
 and what change in the forms and mode of pro- 
 ceeding in the administration of the laws. The 
 commissioners appointed under this resolution 
 made several reports, the last of them being 
 in the year 1836, and that "On the Administra- 
 tion of Justice" in 1835, in which the subject 
 of chancery jurisdiction was considered, is the 
 most elaborate of them all. Themselves men of 
 large experience and practice under the system 
 which had prevailed for more than a hundred 
 
 * Torr's Estate, 2 Rawle, 253. 
 
EQUITY IN PENNSYLVANIA. 71 
 
 years, the revisers considered that " the whole 
 theory of equitable jurisprudence was already in- 
 corporated with our code, and that its principles 
 circulated through all the channels of our judicial 
 system." For the purpose, however, of determin- 
 ing whether such a system was sufficient to meet 
 every reasonable requirement in the administration 
 of justice, they referred to the general heads of 
 equitable jurisprudence. 
 
 We have seen that both the constitutions of 
 1776 and 1790 gave to the Supreme Court and 
 the several courts of common pleas, the power of 
 a court of chancery as far as related to — 
 
 1. The perpetuating of testimony; 
 
 2. The obtaining of evidence from places not 
 within the State ; 
 
 3. The care of the persons and estates of those 
 who are non compos mentis. 
 
 The revisers, in their draft of the proposed laws, 
 gave to the same courts these same powers in the 
 same words. But they recommended the addition 
 of the following powers, which had not thereto- 
 fore been exercised save through the medium of 
 common law forms : — 
 
 4. The control, removal, and discharge of trus- 
 tees, and the appointment of trustees and settle- 
 ment of their accounts ; 
 
 5. The supervision and control of all corpora- 
 tions, other than those of a municipal character, 
 
72 EQUITY IN PENNSYLVANIA. 
 
 and unincorporated societies or associations and 
 partnerships ; 
 
 6. The care of trust-moneys and property, and 
 other moneys and property made liable to the con- 
 trol of the said courts ; 
 
 7. The discovery of facts material to a just 
 determination of issues and other questions, aris- 
 ing or depending in the said courts ; 
 
 8. The determination of rights to property or 
 money claimed by two or more persons, and in 
 the hands or possession of a person claiming no 
 right of property therein ; 
 
 9. The prevention or restraint of the com- 
 mission or continuance of acts contrary to law, 
 and prejudicial to the interests of the community, 
 or the rights of individuals ; 
 
 10. The affording specific relief, where a re- 
 covery in damages would be an inadequate 
 remedy ; 
 
 "And in such other cases as the said courts have 
 heretofore possessed such jurisdiction and powers 
 under the constitution and laws of this common- 
 wealth." 
 
 " And," it was added, " in every case in which 
 any court as aforesaid shall exercise any of the 
 powers of a court of chancery, the same shall be 
 exercised according to the practice in equity pre- 
 scribed or adopted by the Supreme Court of the 
 United States, unless it be otherwise provided by 
 
EQUITY IN PENNSYLVANIA. 73 
 
 act of Assembly, or the same shall be altered by the 
 Supreme Court of this commonwealth by general 
 rules and regulations, made and published as is 
 hereinbefore provided." 
 
 The jurisdiction was, therefore, to extend to 
 the heads of 
 
 Trusts and trustees, 
 
 Corporations, 
 
 Partnership, 
 
 Discovery, 
 
 Interpleader, 
 
 Injunction, and 
 
 Specific performance. 
 As to mortgages, the revisers conceived that our 
 system of proceeding by scire facias was so simple 
 and effective as to need no change. 
 
 They deemed it inexpedient, notwithstanding 
 the regrets expressed in the cases of Yohe v. 
 Barnet* and Slifer v. Beates,f to give any authority 
 to enforce a wife's equity to a settlement, deeming 
 the English rule to be unsatisfactory that the 
 wife's equity would be enforced only when the 
 husband came into a court of chancery to obtain 
 the possession of her property, and would not 
 interfere when she could so obtain it in a com- 
 mon law court. 
 
 As to the persons and estates of infants, there 
 was, they considered, obviously no need of legis- 
 
 * 1 Binney, 363. f 9 Sergeant & Rawle, 182. 
 
74 EQUITY IN PENNSYLVANIA. 
 
 lation. The guardians of their persons and estates 
 were fully under the jurisdiction of the Orphans' 
 Court. Those questions which might arise be- 
 tween parents as to their custody, were decided 
 upon writs of habeas corpus, and upon the subject 
 of their marriage, the Orphans' Court had never 
 interfered. 
 
 With respect to charities, it was said that the 
 common law courts had the power to dismiss and 
 appoint trustees for charitable as well as other 
 uses, but none to keep them in the channel of the 
 donor's intention, and the cypres doctrine had 
 been distinctly repudiated ;* the only powers were 
 the indirect ones of removing the trustees upon 
 cause shown, and of determining, on the settle- 
 ment of the trust accounts, whether the funds 
 had been properly applied, and though these 
 remedies were admitted to be but indirect and 
 even insufficient, it was deemed that the nature of 
 the questions on trusts for religious and charitable 
 purposes was so delicate that it was better to sug- 
 gest no change. 
 
 The practice of chancery in cases of boundary, 
 partition, and dower was referred to, and the 
 superiority of a commission over an inquest in the 
 two latter admitted, but these heads were not 
 added to the list. 
 
 * See now the act of 26th April, 1855, § 10, Pamphl. L. 331. 
 
EQUITY IN PENNSYLVANIA. y 5 
 
 The jurisdiction under the heads of accident, 
 mistake, fraud, enforcing delivery of specific 
 chattels, and relief against forfeitures and penalties, 
 was considered to be sufficiently exercised in the 
 common law courts. 
 
 As to the manner in which equitable jurisdic- 
 tion should be exercised, the revisers considered, 
 first, that the establishment of a separate court of 
 chancery was unadvisable ; and, secondly, that the 
 union of a court of chancery with existing courts 
 of law — as was the case with the Court of Ex- 
 chequer in England, and was and is the case in 
 the Circuit Court of the United States — was even 
 less advisable. They recommended, therefore, 
 thirdly, that the common law courts should con- 
 tinue to administer equitable principles through 
 the medium of common law forms as theretofore, 
 but with the addition of chancery forms and materials 
 in certain specified cases. 
 
 It is easy for us, at this day, to wonder at the 
 reserve with which the grant of equitable juris- 
 diction was suggested to the legislature, but limited 
 as this jurisdiction was, it was too enlarged for the 
 legislature of thirty years ago. 
 
 They passed the bill as reported by the revisers, 
 giving to the Supreme Court and the several courts 
 of common pleas, the powers of a court of chan- 
 cery so far as related to the first six heads I have 
 just referred to, and here they stopped, so far as 
 
j6 EQUITY IN PENNSYLVANIA. 
 
 jurisdiction throughout the State was concerned. 
 But to the Supreme Court when sitting in banc 
 in Philadelphia, and to the Court of Common 
 Pleas of that county, they gave the jurisdiction of 
 a court of chancery so far as related to — 
 
 i . The supervision and control of partnerships, 
 and corporations other than municipal corpora- 
 tions ; 
 
 2. The care of trust-moneys and property, and 
 other moneys and property made liable to the 
 control of the said courts; 
 
 3. The discovery of facts material to a just de- 
 termination of issues and other questions, arising 
 or depending in the said courts ; 
 
 4. The determination of rights to property or 
 money claimed by two or more persons in the 
 hands or possession of a person claiming no right 
 of property therein ; 
 
 5. The prevention or restraint of the com- 
 mission or continuance of acts contrary to law and 
 prejudicial to the interests of the community or 
 the rights of individuals ; and 
 
 6. The affording specific relief where a re- 
 covery in damages would be an inadequate remedy. 
 
 Thus the jurisdiction under these heads was 
 withheld by the legislature from the State at large, 
 and confined to Philadelphia County, and in order 
 to preclude every doubt, it was expressly provided 
 that no process to be issued by the courts of that 
 
EQUITY IN PENNSYLVANIA. yj 
 
 county or the Supreme Court sitting therein, 
 under the chancery powers so granted, should, at 
 any time, be executed beyond the limits of that 
 county. 
 
 In the spring of 1840, a little more equitable 
 jurisdiction was doled out to Philadelphia County, 
 and to it alone, by giving to the Supreme Court 
 within that county, and to its Court of Common 
 Pleas, equity jurisdiction in all cases over which 
 courts of chancery entertained jurisdiction on the 
 grounds of fraud, accident, mistake or account ;* 
 and in a later statute it was added, "whether such 
 fraud, accident, mistake or account be actual or 
 constructive.""}" The distinction between actual 
 and constructive fraud is familiar to all of us. It 
 may be more difficult to define what may be con- 
 structive accident, mistake or account. 
 
 In the autum of 1840, the legislature gave the 
 first extension of equity powers beyond this county, 
 by providing, in a curiously drawn statute, that 
 the Supreme Court, the several district courts and 
 courts of common pleas should have all the 
 powers and jurisdiction of courts of chancery in 
 settling partnership accounts, and such other 
 accounts and claims as by the common law and 
 usages of the court had heretofore been settled by 
 
 * Act of 13th June, 1840, Pamphl. Laws, 671. It was the 39th 
 section of "an act for regulating election districts." 
 
 f Act of 16th April, 1845, § 3, Pamphlet Laws, p. 542. 
 
78 EQUITY IN PENNSYLVANIA. 
 
 the action of account render, and it should be in 
 the power of the party to proceed either by bill 
 in chancery or at common law, but no bill in 
 chancery should be entertained unless counsel 
 should certify that the case was of such a nature 
 that no adequate remedy could be obtained at law, 
 or that the remedy therein was attended with 
 great additional trouble, inconvenience, or delay.* 
 
 In 1844, the District Court of Alleghany 
 County received all the chancery powers that had 
 theretofore been conferred upon any other court 
 of the commonwealth. f 
 
 In the next year an important act was passed,]; 
 of which the last section gave equitable jurisdic- 
 tion in all cases of dower and partition in Phila- 
 delphia County, and the first two regulated, in an 
 elaborate manner, appeals in equity suits in that 
 county from the Court of Common Pleas to the 
 Supreme Court " from any interlocutory or final 
 order or decree," but so much of the act as related 
 to interlocutory decrees was repealed within a 
 month,§ and I need not, therefore, dwell upon 
 its provisions. It is easy to imagine how the 
 machinery of a court of equity, part of whose 
 usefulness consists in having, if necessary, an 
 
 * Act of 13th October, 1840, Pamphl. Laws, 7. 
 
 "j" Act of 29th April, 1844, Pamphl. Laws, § 2, P. L. 526. 
 
 I Act of 17th March, 1845, Pamphl. Laws, 158. 
 
 § Act of 8th April, 1845, § 4, Pamphl. Laws, 543. 
 
EQUITY IN PENNSYLVANIA. 79 
 
 almost daily control over the cause, would be 
 clogged by an appeal taken to any and every in- 
 terlocutory decree made therein, where such appeal 
 operated, upon security being given, as a suspen- 
 sion of proceedings in the cause. It is familiar, 
 that save upon points where the determination 
 complained of was merely the result of the exer- 
 cise of discretion, in a case when the matter com- 
 plained of was fairly a subject for the exercise of 
 discretion (as for example the question of costs), 
 an appeal from the decree of the court which 
 pronounced it was according to the course and 
 practice-of chancery, though it did not, of course, 
 stop the proceedings under the decree complained 
 of, without the special order of the court. It 
 was otherwise in the common law courts ; no 
 writ of error lay save to the final judgment of the 
 court below, and it has been in consequence of 
 our habit of administering equity through com- 
 mon law forms, that we have at times forgotten 
 the different modes of procedure in the two 
 tribunals. Thus, a very recent act provides that an 
 appeal shall lie in all cases where a special injunc- 
 tion shall be granted, but that the pendency of 
 such appeal shall not prevent the operation of the 
 injunction, or the proceedings in the original suit,* 
 
 * Act of 14th February, 1866, Pamphl. Laws, 48. 
 
80 EQUITY IN PENNSYLVANIA. 
 
 but it seems to have been forgotten that such was 
 an ordinary practice of the Court of Chancery.* 
 
 In 1848, the same jurisdiction and power were 
 given to the courts in Philadelphia County as to 
 the discovery of facts, as was possessed by courts of 
 chancery. -j- 
 
 You will remember that under the revised acts 
 of 1836, it was especially provided that no chan- 
 cery process issued by the Supreme Court or 
 Court of Common Pleas in Philadelphia County 
 should, at any time, be executed beyond the limits 
 thereof, but in 1852, the first step was taken 
 towards the diffusion of general chancery powers 
 throughout the State. A statute in that year J de- 
 clared that nothing in that part of the act of 1836 
 should be construed to prevent the Supreme Court 
 from exercising original jurisdiction in equity, in 
 any of the cases enumerated therein, within any 
 of the counties of this commonwealth, or to pro- 
 hibit the process of the court from running into any 
 other county ; but the Supreme Court, when in ses- 
 sion in any district, should exercise original juris- 
 diction, in the cases enumerated, throughout the 
 State, and provision was made for causes not 
 finally determined before the close of a session 
 
 * 2 Daniel's Chancery Practice, I 548, passim. 
 
 ■\ Act of 10th April, 1848, § 4, Pamph. Laws, 449. 
 
 J Act of 8th April, 1852, § I, Pamph. Laws, 291. 
 
EQUITY IN PENNSYLVANIA. 8 I 
 
 in any district, being certified to the next dis- 
 trict,* &c. 
 
 At last, in 1857, the opposition to the extension 
 of equity jurisdiction seems to have broken down, 
 and the legislature then gave to the courts of 
 common pleas of the several counties of the com- 
 monwealth, in addition to the powers and juris- 
 diction theretofore possessed and exercised, the 
 same chancery powers and jurisdiction then vested 
 in the courts of Philadelphia County, with similar 
 provisions for an appeal to the Supreme Court.-}- 
 
 And thus, after the lapse of nearly a century 
 and a half, we find, once more, chancery jurisdic- 
 tion throughout the State of Pennsylvania. 
 
 Certain recent acts, however, extending chan- 
 cery powers, have been restricted to the county 
 of Philadelphia. In 1858, jurisdiction was given 
 within this county to the Supreme Court and the 
 Court of Common Pleas in all cases of disputed 
 boundary between adjoining and neighboring 
 lands, whether the parties held under the same 
 
 * Two provisos were added : one that the court should not have 
 original jurisdiction under that act to supervise any partnerships or 
 unincorporated associations, and the other, that it should not be con- 
 strued to repeal that provision, in the act of 1 844, which prohibited the 
 issuing of any injunction until a sufficient bond of indemnity should 
 have been given ; but it is difficult to see why the latter proviso was 
 deemed necessary. 
 
 f Act of 14th February, 1857, Pamphl. L. 39. 
 6 
 
82 EQUITY IN PENNSYLVANIA. 
 
 or different titles,* and in the following year, this 
 was extended to cases where such boundaries had 
 become confused or rendered uncertain by lapse 
 of time, by natural causes, or by the act, neglect 
 or default of the owner or occupant.f In 1863, 
 the jurisdiction under the former of these acts 
 was extended to Alleghany County. J 
 
 The jurisdiction in cases of partition may be 
 here particularly noticed. It is familiar that 
 courts of chancery issue commissions for partition, 
 not under the authority of any act of Parliament, 
 but on account of the difficulty attending the 
 process at law, where the plaintiff must prove 
 his title as he declares, and also the titles of the 
 defendants, and this was attended with so much 
 embarrassment that, by analogy to the jurisdiction 
 in cases of dower, partition was obtained by bill. 
 There were advantages and disadvantages which 
 attended this. The advantages were obvious : 
 Where upon a bill filed, the court obtained juris- 
 diction of the subject-matter, it could give not 
 only the specific relief which, and which alone, a 
 writ of partition could afford,§ but it could adjudi- 
 
 * Act of 15th April, 1858, Pamphl. L. 267. 
 
 f Act of 5th April, 1859, Pamph. L. 359. 
 
 I Act of 15th April, 1863, Pamph. L. 499. 
 
 § Writs of partition were abolished in England by the act of 3 and 
 4 William IV. c. 27, and now the only mode of obtaining partition is 
 by deed between the parties, or in equity. 
 
EQUITY IN PENNSYLVANIA. 83 
 
 cate any question properly arising under the plead- 
 ings. Under such a bill, both real and personal 
 estate might be divided — an account might be 
 had, and the judgment of the court might be 
 readily obtained upon questions of title between 
 the joint owners.* The principal disadvantage 
 was that while, at law, the final judgment that 
 the partition be and remain firm and stable for- 
 ever, operated of itself to transfer the legal estate 
 to the several parties, a decree in equity, as has 
 been already remarked,*}" merely ascertained and 
 allotted the purparts, and the partition was after- 
 wards consummated and perfected by conveyances 
 between the parties, and where any of these were 
 minors, the execution of the conveyances was 
 respited until their majority, \ and there was no 
 power to decree a sale, in case the partition could 
 not be made without prejudice to or spoiling the 
 whole. 
 
 It is instructive to observe the difference of the 
 manner by which the inconvenience attending the 
 respiting of conveyances in the case of minors has 
 been remedied in England, and in Pennsylvania : 
 There, the infant had, after coming of age, a day 
 
 * See passim, note to Mundy v. Mundy, I Supplement to Vesey, 
 jr. 171 ; notes to Agar v. Fairfax, 2 Leading Cases in Equity, 398. 
 
 f Supra, p. 39. 
 
 t Brook v. Lord Hertford, 2 P. Williams, 518; Attorney-General 
 v. Hamilton, 1 Maddock, 21 ; Jackson v. Edwards, 7 Paige, 405. 
 
84 EgUITY IN PENNSYLVANIA. 
 
 to show cause against the decree, but since the 
 Trustee Act of 1850,* the court, instead of giving 
 him a day to show cause, declare him a trustee, 
 within the meaning of the Act, of such parts of 
 the property as have been allotted in severalty 
 to the other parties.f Here all the analogies 
 attending the administration of equitable prin- 
 ciples are observed. But our own legislation on 
 the subject is another instance of the effect of 
 our habit of administering these principles through 
 common law forms. In 1857, the legislature 
 passed an act, which in cases of partition in equity 
 provided for the allotment of the purparts by the 
 master, and the awarding of the sums to be 
 charged for owelty of partition, and then declared 
 
 * 13 and 14 Vict. c. 60; 4 Chitty's Statutes, 794. 
 
 ■if Bowra v. Wright, 4 De Gex and Smale, 265 ; S. C. 3 Eng. Law 
 and Eq. R. 190. The 7th section of the act provides that " where 
 any infant shall be seized of any lands upon any trust, it shall be lawful 
 for the court to make an order vesting such lands in such persons, in 
 such manner, and for such estate, as the court shall direct; and the 
 order shall have the same effect as if the infant had been twenty-one 
 years of age, and had duly executed a conveyance of the lands in the 
 same manner, for the same estate;" and the 30th section provides that 
 "where any decree shall be made by the court for the partition of any 
 lands, it shall be lawful for the court to declare that any of the parties 
 to the suit wherein such decree is made, are trustees of such lands 
 within the meaning of this act, and, thereupon, it shall be lawful for 
 the court to make such orders as to the estates, rights, and interests of 
 such persons as the said court might, under the provisions of this act, 
 make concerning the estates, rights, and interests of trustees." 
 
EQUITY IN PENNSYLVANIA. 85 
 
 that the decree confirming a partition should have 
 the same effect as a judgment of a court of law in like 
 cases, and of course no deeds are, therefore, neces- 
 sary.* For some reason, this statute was confined, 
 in its operation, to the county of Philadelphia, 
 but in 1863, provision was made for a sale of the 
 property by the master, in case all the parties to 
 the partition should refuse to take the same at the 
 valuation, and the master was directed to make 
 return of the sale, and, upon its approval, to exe- 
 cute a deed of the property sold to the purchaser,^ 
 and this act does not seem to be restricted as to 
 its local operation. J 
 
 * Act of 14 March, 1857, Pamph. L. 97. Griffith v. Phillips, 
 3 Grant's Cases, 381. 
 
 "j- Act of 22d April, 1863, Pamph. L. 519. 
 
 J Before leaving this subject, it may be remarked that in a recent 
 case in England (Clarke v. Clayton, 2 GifFard, 335, i860), upon a bill 
 filed for partition, the Vice-Chancellor (Stuart) said that a commission 
 in a partition suit was an expensive and generally a very unnecessary 
 proceeding ; under its improved practice, the court could give facilities 
 for dividing the estate in a way much more satisfactory and less ex- 
 pensive than the old mode of proceeding by commission, even in cases 
 where there was adverse litigation, and he therefore ordered a decree 
 that the estate be divided into equal third parts, and then that the par- 
 ties were entitled in the proportion which had been shown, with liberty 
 to each of the parties to bring in proposals, before the judge in chambers, 
 for partition. The decree was in substance thus : Upon motion for a 
 decree, &c, this court doth declare that the real and leasehold estates of 
 the testator ought to be divided into equal third parts, and doth order 
 and decree the same accordingly. And it is ordered that one of the said 
 third parts be allotted in severalty to the plaintiffs, one other third part 
 thereof to the defendant Venton, and the remaining third part thereof 
 
86 EQUITY IN PENNSYLVANIA. 
 
 Recent statutes have also conferred upon the 
 several courts of common pleas, jurisdiction in 
 equity, in cases arising under the general plank- 
 road law.* 
 
 I have already referred to the early decision in 
 which our courts refused to import into our system 
 some of the incidents of chancery jurisdiction in 
 cases of mortgages. Since that time, a class of 
 mortgages, then comparatively unknown, has 
 become very common. I mean mortgages given 
 by a corporation to a trustee to secure the pay- 
 ment of bonds which are issued and sold in 
 the market. In i860, a bill in equity was filed 
 by the trustees under such a mortgage for its 
 
 to the defendant Clayton. And it is ordered that proposals for a parti- 
 tion of the said hereditaments among the said persons and in the said 
 proportion be laid before the judge for his approval. And it is ordered 
 that the plaintiffs and the defendants do hold and enjoy their respective 
 thirds in severalty according to such allotments, and do execute mutual 
 assurances to each other of such respective thirds according to their 
 respective interests therein, such assurances to be settled by the judge 
 in case the parties differ. — Then followed the usual order as to produc- 
 tion of title-papers, &c, and leave to apply for further instructions. 
 
 * Act of 14th April, 1854, P. L. 374. This was probably owing 
 to the decision in Commonwealth v. Wellsboro' Plank-Road Co. 1 1 
 Casey, 152, where a bill having been filed to enjoin the collection of 
 tolls on the ground that the road was not properly in order, it was 
 dismissed by the Supreme Court, who held that the general plank-road 
 law gave a special remedy by throwing open the gates. The act of 
 1 2th April, 1867, P. L. 71, as to the equity jurisdiction in cases of 
 fraudulent insolvency of banks, seems rather to impose a duty on 
 assignees than to confer any new equity jurisdiction. 
 
EQUITY IN PENNSYLVANIA. 87 
 
 foreclosure, and a decree for the sale of the 
 premises was entered in the court below. But 
 this was reversed by the Supreme Court, who 
 held that the grant of equity powers by the legis- 
 lature did not extend to cases of mortgages, nor 
 could they be so construed in this case under the 
 jurisdiction as to trusts and trustees.* But not 
 long after, the legislature declared that the Su- 
 preme Court should have and exercise all the 
 powers and jurisdiction of a court of chancery in 
 all cases of mortgages given by corporations,*}" and 
 it is familiar to all, that under this act proceedings 
 have been had involving very many millions of 
 dollars. 
 
 We have seen that the acts of 1701, 1710, and 
 171 5 had given to all the county courts jurisdic- 
 tion in matters of equity, and this jurisdiction, 
 like that of Keith's Court of Chancery, was not 
 prescribed, limited, nor defined. But the acts 
 which have given to our present courts equitable 
 jurisdiction, have confined it to certain specifically 
 enumerated heads, and to these alone. These, 
 however, are sufficiently numerous to cover most 
 of the cases in which equitable relief is needed. 
 Thus we have the jurisdiction under the heads of 
 partnership, corporations (other than those of a 
 
 * Ashhurst v. Montour Iron Co. 1 1 Casey, 30. 
 ■j- Act of 11 April, 1862, Pamph. L. 477. 
 
88 EQUITY IN PENNSYLVANIA. 
 
 municipal character), trust, discovery, interpleader, 
 injunction, specific performance, fraud, accident, 
 mistake, account, dower, partition, boundary, 
 mortgages of corporations, obtaining evidence 
 beyond the State, and the perpetuation of testi- 
 mony. It is seldom that a case arises in which a 
 party finds himself without a remedy, where he 
 has a right which is properly cognizable in equity. 
 
 But the grant of these chancery powers has not, 
 in theory, taken away from our common law 
 courts the administration of equitable principles, 
 though the limits of its exercise have perhaps, in 
 practice, been gradually narrowed, and the former 
 tendency towards its extension has certainly been 
 checked. We have a law side and an equity side 
 in our courts, as was formerly the case in the Court 
 of Exchequer ; but upon the law side we also 
 administer equitable principles. And so, as we 
 have seen, do the common law courts in Eng- 
 land at this day, on behalf of the defendant, 
 when complete relief can be given in the action 
 pending. 
 
 One word (for I have already detained you too 
 long) as to the present form of equity pleadings. 
 These are now simple in the extreme. In Eng- 
 land, the act of 15. and 16 Victoria, c. 86,* and the 
 subsequent orders of 7th of August, 1852, abolished 
 
 * 3 Chitty's Collection of Statutes, 882. 
 
EQUITY IN PENNSYLVANIA. 89 
 
 the writ of subpoena — provided that the bill should 
 contain a concise narrative of the facts, divided into 
 paragraphs of distinct allegations, and should pray 
 specifically the relief sought. No interrogations 
 were allowed to be contained in the bill, but 
 were to be filed separately. Provision was also 
 made for simplicity in the answer, which was to 
 be in the first person, and, like the bill, divided 
 into distinct statements. The practice of except- 
 ing to bills for impertinence was abolished, pro- 
 vision was made for the oral examination of 
 witnesses, and many other alterations in practice 
 and pleading, as to which time will not allow me 
 to dwell. Many of these alterations have been 
 adopted in the recent Rules of Equity Pleading 
 promulgated by our Supreme Court. One of 
 them, the 58th, as to the oral examination of wit- 
 nesses on motions for preliminary injunctions, 
 which was intended to dispense with the use of 
 affidavits, which were justly deemed demoralizing 
 and unreliable, has been since repealed, at the 
 request, as I understand, of the judges of the 
 courts of common pleas, who have complained 
 that the loss of time caused by the oral examina- 
 tions was even a greater evil than that which it 
 sought to redress. 
 
 You have thus been kind enough to follow me 
 in the rapid retrospect which I have taken of the 
 
go EQUITY IN PENNSYLVANIA. 
 
 history of equity in Pennsylvania. Certainly, no 
 State was ever more " traduced and taxed of other 
 nations" for having, through mere necessity, en- 
 grafted one branch of the science of jurisprudence 
 upon another. There have not been wanting 
 those who, without perhaps taking the time to 
 study the philosophy of our system or its history, 
 have accused us of blending indiscriminately toge- 
 ther the principles of law and equity, administer- 
 ing both with but an imperfect knowledge of 
 either, and "producing thereby a hybrid monster 
 with none of the virtues and all the vices of either 
 parent," and a sneering analogy has been suggested 
 to the well-known opening lines of the Ars 
 Poetica — 
 
 Humano capiti cervicem pictor equinam, &c. 
 
 How undeserved has been much of all this you 
 may now judge; for history — that philosophy 
 which teaches by example — has, I think, suffi- 
 ciently vindicated us from these aspersions. 
 
 Nor can it be said that with us at the present 
 day much evil is produced by allowing equitable 
 principles to be administered in our common law 
 courts. The chief evil of the system once was, 
 that it was the only system — the means were in- 
 adequate to the end — but now that we have other 
 means, let us not decry those which for a time 
 served us so well, especially when we see that 
 elsewhere, others have at this day begun to 
 
EQUITY IN PENNSYLVANIA. 91 
 
 adopt, through choice, some part of that which, 
 long ago, we were forced to adopt through ne- 
 cessity. 
 
 Yet while it may be admitted that the science 
 of equity can never be fully administered through 
 the medium of trial by jury, there is, I think, in 
 the fact that we have no separate court of chan- 
 cery^that we have an equity side to our common 
 law courts — a great benefit to both the bench and 
 the bar. Abler pens than mine have dwelt upon 
 the advantages which a judge derives from the 
 mixing with the outside world which comes from 
 trying causes at Nisi Prius,* and any one who has 
 mingled with the chancery and the common law 
 bar in England, cannot fail to be struck with the 
 difference between them — a difference which can 
 be attributed only to the atmospheres in which 
 they respectively live. 
 
 And here then I must pause — here even upon 
 the very threshold of my subject — for we have 
 but entered the outer court of that temple which 
 has so many sanctuaries. Having thus trodden 
 these dry and rugged paths, there is, indeed, every 
 temptation to dwell upon the beauties of that 
 science whose object is "the amelioration of the 
 
 * See passim the Report of the Committee of the New York Bar, in 
 1827; Parke's Eq. Jur., Introduction, p. 35. 
 
92 EQUITY IN PENNSYLVANIA. 
 
 law in that wherein, by reason of its universality, 
 it is deficient." But from other sources than a 
 mere popular lecture, must be learned the de- 
 velopment of that system which, in England, ex- 
 hibits so completely the adaptation of human 
 wisdom to human frailties and shortcomings. 
 And when you seek to know how far the princi- 
 ples of equity, transplanted to this side of the 
 Atlantic, have here taken root and flourished, you 
 will find that— in the language of that accom- 
 plished writer whose loss we were forced to de- 
 plore so soon after he had given to the profession 
 the last fruits of his matured labor and judg- 
 ment — 
 
 "Upon the whole, the jurisprudence of this 
 country has developed an equity system scarcely 
 less comprehensive or less complete than that 
 which has been established in England, and it is 
 a conclusive testimony to the wisdom and practi- 
 cable usefulness of the English chancery, that, at 
 the suggestions of experience, its scheme has been 
 adopted substantially, throughout a country not 
 influenced by considerations of authority, but pro- 
 ceeding freely in quest of essential justice, and 
 under the guidance of a reason proud of its inde- 
 pendence."* 
 
 * Mr. Wallace's Preface to the American edition of "White and 
 Tudor's Leading Cases in Equity." 
 
EQUITY IN PENNSYLVANIA. 93 
 
 The good work to which one of your Associa- 
 tion lent his hand so many years ago, and to 
 which I have ventured to make some addition, has 
 shown some of the difficulties under which Equity 
 in Pennsylvania has struggled, and we may now, 
 from our checkered experience, be all the better 
 able to appreciate that which, denied to us so 
 long, we have at last received in the fulness of 
 time. 
 
APPENDIX. 
 
 THE REGISTRAR'S BOOK OF 
 
 GOVERNOR KEITH'S COURT OF 
 CHANCERY. 
 
[*I] 
 
 Anno Septimo Georgij Regis Magnas '72° 
 
 Britaniae, &c. Augt;s - 
 
 Pensilvania, sct. 
 
 The Honourable William Keith Esq. Governour of this 
 Province &c. took ye Qualification for Chancellor of sd. Pro- 
 vince to this effect vizt: That well and truly he shall serve 
 in the Office of Chancellor of this Province of Pensilvania 
 wherewith he is Intrusted ' That he shall do right to all man- 
 ner of People as well to Poor as to Rich according to ye Laws 
 and Usages of that Part of his Majesties Realm called Eng- 
 land. That he shall not know nor Suffer the hurt nor dis- 
 heriting of the King nor that the Rights of the Crown and 
 the Proprietor of this Province be Distressed by any means as 
 far forth as he may it let, and if he may not let it he shall 
 make it clearly and expressly be known. That he shall do 
 and Purchase ye Kings Profits and the Right of the Proprietor 
 of the Province of Pensilvania in all that he reasonably may. 
 
 In Council. 
 
 Charles Brockden Gent, was appointed Register of the Eodm die. 
 Court of Chancery for this Province who did then thereupon 
 Qualify himselfe by takeing the Solemn Affirmation according 
 to Law to this effect vizt: That he would well and faithfully 
 execute ye Office of Register of the Court of Chancery of 
 this Province according to ye best of his Skill and Learning. 
 
 Before the Governour in Cane. 
 
 James Logan Esqr. a Member of the Governour's Council Eodm die. 
 of this Province was Appointed one of the Masters of the 
 Court of Chancery for the same Province Who did then 
 
4 APPENDIX. 
 
 thereupon Qualify himselfe by takeing the Solemn Affirmation 
 according to Law To this effect vizt: That he would well 
 and faithfully execute and discharge the Office of one of the 
 Masters of this Court according to ye best of his Skill and 
 Learning. Before ye Govr. in Cane. 
 
 Eodm die. Jonathan Dickinson Esqr. Nominated by ye Governour a 
 
 Master in Cane. Who thereupon Qualified accordingly &c. 
 
 Ut Supra. 
 
 Samuel Preston Esqr. Nominated by the Governour a 
 
 Master in Cane. Who thereupon Qualified accordingly 
 
 &c. Ut Supra. 
 Eodm die. Richard Hill Esq. Nominated by the Governour a Master 
 
 in Chanc. Who thereupon Qualified accordingly &c. Ut 
 
 Antea. 
 Eodm die. Anthony Palmer Esq. Nominated by the Governour a 
 
 Master in Cane. Who thereupon Qualified accordingly 
 
 &c. On Oath. Ut Antea. 
 October 4. William Trent Esq. Nominated by the Governour a 
 
 Master in Cane. Who thereupon Qualified accordingly 
 
 &c. Ut Antea. 
 
 1721 
 
 1722 
 
 [*2] Ao. 8°. Georgij Rs. 
 
 Aug. 19. Thomas Masters Esq. Nominated by the Governour a 
 
 Master in Cane. Who thereupon Qualified accordingly 
 
 &c. Upon his Solemn Affirmation. Ut Antea. 
 July 25. Robert Assheton Esq. Nominated by ye Governour a 
 
 Master in Cane. Who thereupon Qualified accordingly 
 
 &c. On Oath. Ut Antea. 
 Eodm die. William Assheton Esq. Nominated by ye Governour a 
 
 Master in Cane. Who thereupon Qualified accordingly 
 
 &c. Ut Antea. 
 Mch. 1st. John French Esq. Nominated by ye Governour a Master 
 
 in Cane. Who thereupon Qualified accordingly &c. Ut 
 
 Antea. 
 
 Ao. io° Georgij Rs. 
 
 1723 
 
 July 30. Andrew Hamilton Esq. Nominated by ye Governour a 
 
APPENDIX. - 
 
 Master in Cane. Who thereupon Qualified accordingly &c. 
 Ut Antea. 
 
 Henry Brooke Esq. Nominated by ye Governour a Master Eodm die. 
 in Cane. Who thereupon Qualified accordingly &c. Ut 
 Antea. 
 
 Ao. 12° Georgij Rs. 
 
 1725 
 
 William Fishbourn Esq. Nominated by ye Governour a June 17th. 
 
 Master in Cane. Who thereupon Qualified accordingly 
 
 &c. Upon his affirmation. Ut Antea. 
 
 1 1726 
 
 Thomas Graeme. Nominated by ye Governour a Master Aug. 4. 
 in Cane. Who thereupon Qualified accordingly &c. Upon 
 his Affirmation. Ut Antea. 
 
 Evan Owen nominated by ye Governour a Master in Eodm die. 
 Cane. Who thereupon Qualified accordingly &c. On 
 
 Affirmation. Ut Antea. 
 
 1730 
 
 Thomas Lawrence nominated by the Governour a Master July 23. 
 in Can. who thereupon qualified accordingly on Oath. Ut 
 Antea. 
 
 Ralph Asheton nominated by the Governr. a Master in Eod. di< =. 
 Can. who thereupon qualified accordingly on Oath. Ut Antea. 
 
 Clement Plumsted nominated by the Govr. a Master in Eo<i - die - 
 Can. who thereupon qualified accordingly on affirmation. 
 Ut Antea. ,„, 
 
 Samuel Hassel Esqr. nominated by the Governor a Master A P- 8th - 
 in Can. who thereupon qualified accordingly on Oath. Ut 
 Antea. , 
 
 Charles Osborne Was appointed an Examiner in the Court Jany. 22nd. 
 of Chancery for this Province Who did then thereupon Qualify 
 by taking the Solemn Affirmation to this effect, Vizt. That 
 he shall duly justly and equally Examine their Causes that 
 shall be Committed unto him That he shall be Attendant as 
 well to further ye Kings Business and ye Business of the 
 Proprietary of this Province as also ye same Causes and that 
 he shall not publish or shew the Depositions before Publica- 
 tion in the Court without the Warrant of the Court. 
 
 Patrick Bard Was Appointed an Examiner as above Who March 15. 
 thereupon Qualified accordingly &c. on Oath. Ut Supra. 
 
3 APPENDIX. 
 
 [ *5 ] Anno 1 3 Georgij Regis. 
 
 I7 2 7 PeNSILVANIA, SCT. 
 
 Thursday the 6th of April Ao. Di. 1727. 
 
 Before the Honourable Patrick Gordon Esq. Lieutenant 
 Governour of this Province and Chancellor of the same and 
 Richard Hill, Robert Assheton, Samuel Preston, Anthony 
 Palmer and William Fishbourn Esqrs. Masters in Cane. 
 
 Upon ye humble Petition of Charles Brockden Register in 
 Chancery for this Province Setting forth That his duty in- 
 cumbent in other Offices in this Government and the 111 state 
 of his health will not longer permit him to Officiate as Regis- 
 ter of this Court And therefore Praying that it may please the 
 Chancellor to Dismiss him from the sd. Office of Register 
 and Appoint some other fit Person Register in his Stead and 
 Order the delivering of all the Writings Books and Papers 
 in his Custody belonging to this Court unto such new 
 Appointed Register. And ye sd. Charles Brockden having 
 this day humbly moved this Honourable Court on ye Subject 
 of ye same Petition It is Ordered by the Court That the sd. 
 Charles Brockden as he hath requested be Dismissed from ye 
 Office of Register of this Court That Mr. Robert Charles 
 Secretary of Council of this Province be Qualified for Regis- 
 ter in his Stead And that ye sd. Charles Brockden thereupon 
 deliver up All and Singular the Books Minutes Pleadings and 
 other Writings in his Custody as Register aforesd. unto ye 
 sd. Robert Charles by Indenture. 
 
 P. Cur. 
 
 In Pursuance of which Appointment the said Robert 
 Charles did thereupon qualify himself by taking an Oath 
 according to Law to this Effect, that he would well and 
 faithfully execute the Office of Register of the Court of 
 Chancery of this Province according to the best of his skill 
 and Learning. 
 
 Before the Governour in Can. 
 
APPENDIX. 
 
 Anno 1 3 Regni Regis Georgij Secundi. [ *6 ] 
 
 Pennsylvania, ss. September ist 1739. 
 
 Upon the humble Application of Mr. Robert Charles 
 Register in Chancery for this Province of Pennsylva., setting 
 forth, that he is about to depart the said Province, and to 
 return to Great Britain, and therefore praying that he may be 
 dismissed from the said Office, and a fitt Person appointed in 
 his Stead, to whom the several Books, Papers and Writings 
 to the said Office belonging, in the Custody of him the said 
 Robert Charles, and likewise those yet remaining in the hands 
 of Mr. Charles Brockden the former Register may be de- 
 livered up. It is this day Ordered by the Honble. George 
 Thomas Esq. Lt. Governor and Commander in Chief of the 
 Province afd. and Counties of Newcastle, Kent and Sussex 
 on Delaware, that the said Robert Charles be dismissed from 
 this office aforesaid, and that all and singular the Books 
 Papers and Writings thereunto belonging in his Custody and 
 in Mr. Brockdens, be by them respectively delivered up by 
 Indenture, to Mr. Thomas Lawrie Secretary, to be by him 
 kept till further Order. 
 
 7 
 
 [The pages between 6 and 17 are blank in the original^ 
 
1724-5 
 
 APPENDIX. 
 
 [ *i7 ] Anno n° Georgij Regis. 
 
 Joseph England and als. Complts. John Kinsey per Quer. 
 Cont. 
 Thomas Shute &c. Defdts. 
 
 The Complts. Bill filed. 
 
 March 20. Subpoena ad responds, issued. Returnable 29th Instant. 
 Mch. 26. The Defdts. Appearance entered. 
 
 30. Rule to the Defendants to file their Answer by the 8th of 
 
 April next, or shew cause to the contrary, or an attachment. 
 
 p. J. Kinsey P. Complts. 
 
 April 9th. Notice given the Complts. of the Dfts. Motion in Court 
 
 for Dismission of the Complts. Bill, for Insufficiency, as soon 
 
 as Council can be heard. 
 
 Pr. James Parnell p. Defdts. 
 
 1724 
 April 13th. His Excellency Sr. William Keith will hear the Defdts 
 
 Motion by their Council on Tuesday the 20th of this Instant 
 
 April. 
 
 Chas. Brockden Regr. Cane. 
 
 20th. Upon the Motion of Mr. Parnell and Mr. Assheton for 
 Dismission of the Complts. Bill of Complaint, suggesting to 
 the Court that the Proceedings of Mr. Kinsey in this Cause 
 for the Complts. are irregular, And the sd. Kinsey producing 
 to the Court the Notice of this Motion served upon his 
 Clyents, and the same being read and the Matter debated by 
 the Council on both sides, It is Ordered by the Court that 
 the Motion of the Dfts. Council be overruled For the too 
 much Generality contained in the sd. Notice of Motion, 
 And that there be a further Rule for the Defdts. to file their 
 Answer with the Register of this Court on or before the 
 Tenth Day of May next insuing or attacht. to issue. 
 
 Per Cur. 
 
 May 10th. Petition of the Defdts in this Cause to the Chancellor 
 with their Affidavit to Support it, filed. 
 
APPENDIX. g 
 
 Attacht. issued for Contempt in not answering pursuant to nth. 
 an Order of this Court in this Cause. Returnable 27th 
 Instant. 
 
 Messrs. Assheton and Parnell appear for the Defdts. to 27th. 
 answer the contempt for which the Attacht. was issued against 
 them. 
 
 Notice of a Motion by Mr. Parnell and Mr. Assheton in June Sth. 
 this Cause filed. And the same day Mr. Kinsey for the 
 Complts. served with Copy thereof. 
 
 p. Cha. Brockden. 
 
 The Chancellor appoints the 17th Instant for a hearing June nth. 
 Motion in this Cause. 
 
 James Steel's Disclaimer and Answer, fEled. 16. 
 
 Affidavit of James Steel and Thomas Shute fRled. 
 
 It is ordered that the Sheriff have the Bodies of Thomas 17th. 
 
 Shute and James Steel Defdts. in this Cause in this Court on 
 
 Wednesday the 23rd of this Instant June, to answer their 
 
 Contempt, for which an Attacht. of this Court was lately 
 
 awarded against them. Until which day on Request of the 
 
 Defts. their Council being absent, the Hearing of the Defts. 
 
 Motion for setting aside sd. Attacht. is (by Consent of the 
 
 Complts.) respited. [ *i8 ] 
 
 Per Cur. 
 
 1725 
 Exceptions to the Defdt. James Steele's, answer fHled. June 19th. 
 
 Per Kinsey. 
 
 The Sheriff served with Copy of the Rule of 17th Instant n. 
 
 in this Cause. 
 
 Per Cha. Brockden. 
 
 23rd June. 
 Mr. James Alexander for the Defts. made a Motion in the 
 Court for setting aside an Attachment issued out of this 
 honble. Court against the Defdts. the nth day of May last 
 and returnable the 27th of the Same Month for their not 
 answering Praying the Chancellor that the several heads from 
 which he deduceth his Argumts. for that purpose may be set 
 down in Order to have the Mind of the Court the more 
 clearly thereunto Vizt. 
 
10 APPENDIX. 
 
 First. For that the Attacht. was not regularly entered in 
 the Six-Clerk or Register Book. 
 
 2dly. For that this Process is not Signed by a Six-Clerk, 
 or any one fully and regularly authorized. 
 
 3<ily. For that the special Cause of issuing this Writt is 
 not thereon indorsed. 
 
 4thly. For that the Writt ought to be Close and not Patent 
 Whereas this Writt is an open Writt. 
 
 5thly. For that no Person is compellable to appear in any 
 other Court than that to which the Writt commands ; Whereas 
 by the Stile of this Writt it seems to direct otherwise. 
 
 6thly. For that the Seal ought to be always in the Chan- 
 cellor's Custody and not affixed without his special Direction. 
 
 Upon hearing Council on both Sides, the Court took the 
 special Matters into Consideration, and Over-ruled the Motion 
 of Mr. Alexander. 
 
 First. For that the Attacht. was well entered the Register 
 and issued pursuant to an order of this Court of the 21st of 
 April last. 
 
 2ndly. For that this Process is signed by the Register of 
 this Court with Mr. Kinsey's name thereunto Clerk for the 
 Complts. agreeably to the constant Practice of issuing Writts 
 out of this Court. 
 
 3<ily. For that the Praecipe or Note of the Writt (setting 
 forth the particular matter for which this Writt was issued) 
 was filed with the Register. And so to the end of such In- 
 dorsement fully answered. 
 
 4-thly. For that the Writt is such as this Court has always 
 used and find no Inconvenience arising from this Method of 
 sealing such. 
 
 5thly. For that the Stile in the Writt (objected against by 
 Mr. Alexander under the fifth head of Argt.) vizt : before us 
 in our Chancery wheresoever it shall be in our Province of 
 Pensilvania, has been hitherto used for the Stile of this Court. 
 
 6thly. For that the Chancellor's Direction for sealing this 
 Writt and all others regularly issuing out of this Court is 
 special. 
 
 [ *io. J Whereupon Mr. Alexander further moved for dis- 
 charging the Prisoners Setting-forth, that Interrogatories were 
 
APPENDIX. j , 
 
 not filed in 8 Days after their Appearance entered with the 
 Register, whom Mr. Alexander urged to the Complts. Clerk 
 with whom their Pleadings were filed — 
 
 And the Matter being debated by Council on both Sides, 
 this Motion of the Defdts. Council, is also over-ruled For 
 that the Council or Sollicitors appearing in the Cause must 
 be allowed and understood here to be the Clerk of this Court, 
 unto whom all Notices in that Case are to be directed Since 
 a Multiplication of Officers here seems impracticable and if 
 established would become a grievous Burthen to the Subject. 
 
 Whereupon Mr. Alexander further moved for an Order of 
 this Court, for striking the Name of James Stell, one of the 
 Dfts. in this Cause, out of the Complts. Bill of Complaint 
 upon his Disclaimer And that Thomas Shute, the other 
 Defendt. and also James Steel (if the Motion for Striking 
 out his Name of the Bill Complaint shall be over-ruled) may 
 have a longer Time to answer in. To the first Part of this 
 Motion Mr. Kinsey objected their not giving him timely 
 Notice, yet agreed to argue the Matter next Morning, on the 
 Dfts. paying costs in Case the Motion was overruled. 
 
 24th June. 
 
 Mr. Alexander renewed his Motion of Yesterday for more 
 Time to answer, for want of certain Writings and Conference 
 to be had with Andrew Hamilton, as set-forth in the Defts. 
 affidavits. And the Council for the Plaintiffs insisting, that 
 besides the Title to the lands, to which those Writings re- 
 lated, there was a fraudulent Will and other Things suggested 
 in the Complts. Bill, to which the Defts. ought to be com- 
 pelled to answer, Mr. Alexander for the Defts. said that the 
 whole matter of the Bill being to ascertain the Title of Lands, 
 they could not answer it by Parts, but if the PlaintifPs 
 Council insisted on any Matter of Fraud, it must be first 
 proved and if he thought fitt, he might take proper measures, 
 by examining Witnesses de bene esse or otherways to answer 
 his Purpose. 
 
 Hereupon the Chancellor did Order that the Deft. Thomas 
 Shute have further time to Answer the Complts. Bill by the 
 First day of September next. 
 
APPENDIX. 
 
 And, upon the further Motion of Mr. Alexander which 
 was agreed Yesterday to be argued this Morning a Disclaimer 
 of James Steel one of the Defts. was read, praying that his 
 Name might be struck out of the Plaintiffs Bill of Complt. 
 The Council on both Sides were fully heard and after mature 
 Advisement by the Court had thereupon It was adjudged that 
 the sd. Disclaimer was good as to his Title to the Lands con- 
 tained in the Bill. But as to other Matters, in the sd. Bill 
 also contained, It is Ordered by the Court, that he the said 
 James make answer by the 1st day of September next. 
 
 Per Cur. 
 
 Anno 1 2° Georgij Regis. 
 
 [ *20 ] x 7 2 5- August 26th. 
 
 The several Petitions of the Defdts. in this Cause, to the 
 Chancellor, with their several Affidavits annexed to support 
 sd. Petitions ffiled. 
 
 August 28th. 
 Upon the several Petitions (with affidavits annex'd) of the 
 Defdts. in this Cause, filed with the Register of this Court 
 the twenty sixth Day of this Instant August, praying the 
 Chancellor for a longer Time to answer the Complts. Bill of 
 Complaint than is given them by a Rule of this honble. 
 Court, of the twenty fourth Day of June last past, which 
 Ordereth the sd. Defts. to make Answer by the First day of 
 September next. It is Ordered that the sd. Defts. by their 
 Council, attend his Excellency the Governour, in the Court 
 of Chancery on Wednesday the sd. First Day of September 
 next, on the Subject of those Petitions And give Notice 
 thereof to the Complts. or their Council in this cause. 
 
 Per the Chancellor. 
 
 September 1st. 
 Upon the humble Request of Mr. Growden the Defts. 
 Council, to his Excellency for prolonging the time to Hear 
 these Defdts. Motion pursuant to the above Rule of the 28th 
 of August last past, It is Ordered, that the same Rule be 
 continued until Saturday the Fourth Day of this Instant Sep- 
 
APPENDIX. ! ., 
 
 tember. That sd. Defdts. by their Council, then attend his 
 Excellency in the Court of Chancery, on the Subject above 
 And give due Notice thereof to the Complts. or their Council 
 in this Cause. 
 
 Per the Chancellor. 
 
 September 4th. 
 
 Upon hearing the Council on both Sides, relating to the 
 Defdts. Petitions for more Time in this Cause, It is Ordered 
 That the Defts. be further indulged to make Answer to the 
 Plaintifs Bill of Complaint on or before the First day of De- 
 cember next And this Order to be peremptory Unless other 
 more Sufficient Reasons, than has hitherto been offered to 
 this Court shall be set forth agreeably to the Practice in the 
 Chancery of England and to the full Satisfaction of this Court. 
 
 Per Cur. 
 
 The Petition of the Defts. in this Cause to the Chancellor, Nov. 27th. 
 with their affidavits to Support it ; ffiled. 
 
 The Chancellor will hear the Parties in this Cause, on the Dec. 9th. 
 Subject of the Defts. Petition ; To-morrow at Three of the 
 Clock in the Afternoon. 
 
 Upon hearing the Counsel on both Sides and the Council Dec. 10th. 
 for the Plaintiffs insisting that the Defts. be obliged after so 
 many Delays as they have been favoured with already to make 
 such answer as they can do to the Bill without Sight of the 
 Deeds mentioned, It is ordered that the Defts. do by the 
 tenth of the next month peremptorily make such Answer as 
 they are able unto the Plaintiffs Bill of Complt. Or that the 
 Matter of the sd. Bill be then held Pro Confesso. 
 
 Per Cur. 
 
 1726 
 The Answer of James Steel one of the Deft, filed. [*2i ] 12 Jany. 
 
 The Answer and Demurrer of Thomas Shute the Other « 
 Dft. filed. 
 
 The Demurrer of Thomas Shute to the PlfFs. Bill of 18. 
 
 Complt. to be argued when the Chancellor shall appoint a 
 
 Time. 
 
 Per Ra. Assheton p. Dfts. 
 
H 
 
 APPENDIX. 
 
 Jan'y 29. Notice That the First of February next the Court will be 
 
 moved for Quashing ye Demurrer of Thomas Shute &c. 
 Per Ja. Graeme p. Complts. ; filed. 
 
 29- Notice That the sd. 1st February next the Court will be 
 
 moved That the Name of James Steel one of ye Defts. be 
 Struck out of the Complts. Bill. And be dismist with Costs. 
 
 p. J. Growdon per Defts. filled. 
 
 1st Feby. f or as much as it appears by the Several Rules that have 
 
 been made by this Court in Favour of the Defnt. Thomas 
 Shute for giving him further Opportunities from Time to 
 Time to make a sufficient Answer to the Plaintiffs Bill of 
 Complaint That the sd. Thomas Shute ought not to have 
 offered any Demurrer, but to have proceeded to Answer the 
 Matters contained in ye Plaintiffs Bill of Complaint against 
 him ye said Thomas And for as much as the sd. Thomas 
 Shute his Demurrer and Answer jointly filed with the Register 
 of this Court cannot by the Practice and Rules in Chancery 
 be received as a complyance with the last peremptory Rule 
 for Answering the Plaintiffs Bill It is therefore Ordered That 
 the sd. Demurrer be quashed as out of Time with Three 
 Pounds Costs. Nevertheless the Court does not think fitt to 
 make the sd. Rule Absolute in this Case on the Defnt. 
 Thomas Shute, by taking the Matter of the Bill pro Confesso 
 against him Therefore it is Ordered that the sd. Thomas 
 Shute do make a sufficient and plain Answer to the Matters 
 contained in the sd. Bill of Complaint against him on or 
 before the Twenty fifth day of March next Or Attacht. to 
 issue of Course. 
 
 Per Cur. 
 
 Feb. 2 1 st. The Petition of Joseph England on Behalf of himself and 
 the other Complts. in this Cause That they may be admitted 
 to examine Witnesses de bene esse ; ffiled. With J. Eng- 
 land's Affidavit to Support it also ffiled. 
 
 Upon an affidavit being made agreeable to ye Practice and 
 Rules in Chancery the Prayer of this Petition is allowed. 
 
 Per the Chancellor. 
 
 Mch. 25. The Answer of Thomas Shute one of the Defts. ffiled. 
 
APPENDIX. 
 
 J 5 
 
 The Petition of James Steel Dqft. in this Cause to [ *22 ] Feb. 9. 
 the Chancellor with Affidt. ffiled Wth. Order thereupon. 
 
 Spa. Issued with Complts. to reply ret. 20th March next. Feb. 10. 
 
 The several Reps, of dixt. Complts. and J. Steele and T. Mch. aoth. 
 Shute filed. 
 
 Feb. 10th. 
 
 Joseph England and wfe and als. Complts. 
 cont. 
 Thomas Shute and al. Defts. 
 
 Complants. Bill Complt. filed. 
 
 Spa. ad respd. England and al. v. Andr. Hamilton, George Feb. 10. 
 Fitzwater and David Evans issued Ret. 22 March next 
 ensuing. 
 
 Spa. ad repd. England al. v. Peter Pole, Thomas David 
 and Daniel Kidd issued Ret. 22 March next ensuing. 
 
 Spa. ad repd. England and al. v. Simon Butler, Thomas 
 Edwards, and John David issued Ret. 22 March next ensuing. 
 
 Spa. ad respd. England and al. v. John Edwards, Squire 
 Boon and David John Ret. 22 March next ensuing. 
 
 Spa. ad respd. England and al. v. Daniel Davis, David 
 Evans and David Williams Ret. 22 March next ensuing. 
 
 Spa. ad respd. England and als. v. Simon Matthews, Joseph 
 Eaton and John Bartholemew Ret. 22 March next ensuing. 
 
 Spa. ad respd. England and al. v. Jenkin Evans, Mark 
 Evans and James David Ret. 22 March next ensuing. 
 
 Andrew Hamilton, George Fitzwater, David Evans Peter Mch. 22. 
 Pole Thomas David Daniel Kidd Simon Butler Thomas 
 Edwards John David John Edward Squire Boon Daniel 
 Davis David Williams Simon Mathews Joseph Eaton Jno. 
 Bartholemew Jenkin Evans Mark Evans and James David. 
 
 ads 
 
 Joseph England and wfe and al. appear by Mr. Peter Evans 
 p. those Defts. 
 
 David John David Evan Thomas Shute and James Steele Mch. 23. 
 
 ads 
 Dixt Complts. appear by sd. Mr. Evans per those Defts. 
 
!6 APPENDIX. 
 
 Aug't 6. [ *23 J PENSA. SCT. 
 
 Thursday the 6th day of April Ao. Dome. 1727 Before the 
 Honble. Patrick Gordon Esq. Lieut. Governour of this Pro- 
 vince and Chancellor of the Same and Richard White, Robert 
 Assheton, Samuel Preston, Anthony Palmer and William 
 Fishbourn Esqs. Masters in Cancer. 
 
 Andrew Hamilton George Fitzwater David Evans Jenkin 
 Evans Mark Evans James David Joseph Eaton John Bar- 
 tholomew Daniel Davis David Evan David Williams John 
 Edwards John David Peter Pole Thomas David and Daniel 
 Fridd Defts. 
 
 ads 
 
 Joseph England and Elizabeth his Wife Henry Flower, 
 William Robinson and Richard Hall Complts. 
 
 Messrs. Hamilton and Growden per Defts. 
 Messrs. Kinsey and Graeme per Complts. 
 
 Upon the Motion of Messrs. Hamilton and Growden for 
 Dismission of a Bill Complt. lately Exhibited agt. these Defts. 
 by the Complts. and filed in the Court. For that the Lands 
 Deeds Rents and Profitts Demanded in a Bill of Complt. 
 formerly Exhibited and now Depending in this Court at the 
 suit of those Complts. agt. ye sd. Thomas Shute and James 
 Steel are ye same Lands Rents and Profitts Demanded agt. 
 all these Defts. in this Second Bill Whereunto ye sd. Thomas 
 Shute and James Steel are likewise made Defts. And for that 
 the same Bill Complt. now Exhibited being only for adding 
 Parties to the former Bill The Names of them the said 
 Andrew Hamilton George Fitzwater David Evans Jenkin 
 Evans Mark Evans James David Joseph Eaton John Bar- 
 tholemew Daniel Davis David Evan David Williams John 
 Edward Squire Boon David John Simon Butler Thomas 
 Edwards John David Peter Pole Thomas David and Daniel 
 Kidd are added without any Order of Court or Petition for 
 ye Purpose Filed or entered Pursuant to ye sd. Rules of this 
 Court. 
 
 And Upon hearing Council on both Sides and taking ve 
 matter into Advisement It is Ordered by the Court That this 
 
APPENDIX. 
 
 J 7 
 
 1725 
 
 Second Bill of Complt. of these Complts. agt. all of ye sd. 
 Defts. be Dismissed That ye Writts thereupon Issued against 
 them be Null and Void And that ye sd. Complts. Pay these 
 Defts. five Pounds Costs. 
 
 Per Cur. 
 
 Anno ii° Georgij Regis. 
 
 Jonas Sanderlands Complt. John Kinsey per Quer. 
 cont. 
 Henry Munday and uxr. Defts. 
 
 The Complt. Bill filled. 22 April. 
 
 Subpoena ad respond, issued. Returnable First of May 23d. 
 next. 
 
 The Defts. Appearance, entered. 1 May. 
 
 Rule to the Defts. to file their Answer by the Seventeenth 8th. 
 Instant, or shew Cause to the Contrary, or Attacht. to issue. 
 
 The Defts. Demurrer to the Complts. Bill filled. n- 
 
 Per Mr. Assheton. 
 
 The Demurrer to be argued when the Chancellor will 25. 
 please appoint a Time. 
 
 Per Assheton per Defts. 
 
 The Chancellor Appoints a Hearing the Seventeenth Instant. IIth J une - 
 
 17th June. 
 Upon the Motion of Mr. Kinsey of Council for the Com- 
 plainant, Signifying his Consent (in the Absence of Mr. 
 Assheton of Council for the Defts. in this Cause) for requit- 
 ing the Time for hearing the Demurrer of the Defts. in this 
 Cause argued. It is Ordered that Wednesday the twenty 
 third Day of this Instant June, be set down for hearing the 
 Argumt. thereupon. 
 
 Per Cur. 
 
 24th June. 
 
 Upon the Motion of Mr. Assheton, for Dismission of the 
 
 Complts. Bill For that the Same was not signed, when the 
 
 Demurrer filed Ordered that the Bill stand the Complt. paying 
 
 Twenty Shillings Costs to the Defts. And that the Demurrer 
 
l8 APPENDIX. 
 
 be over-ruled and that the Defts. file their Answer in Thirty 
 Days, or Attacht. to issue. 
 
 Per Cur. 
 
 14 July. The Defdts. Answers, Pleas and Demurrer's; ffiled. 
 
 Anno 12° Georgij Regis. 
 
 23d September. 
 Upon the Motion of Mr. Kinsey, of Council for the 
 Plaintiff setting forth the Defts. neglect of putting down for 
 Argt. their Plea Answer and Demurrer, filed with the Re- 
 gister the twenty fourth Day of July last past, agreeably to 
 the Practice of this Court. And therefore praying that the 
 same Plea, Answer and Demurrer may be dismissed with 
 Costs and that the Defts. a better Answer, make. The Court 
 taking the Matter into Consideration, and being also informed 
 that the same Plea Answer and Demurrer would be argued 
 by any of the Practitioners of the Court, for the many gross 
 Errors therein contained the sd. Defts. having procured it to 
 be drawn by some Person unskilful in the Law. Therefore 
 Ordered that the same Plea, Answer and Demurrer as filed 
 as aforesd. be dismissed with Costs to the Complt. And that 
 the Defdts. a better Answer make on or before Thursday the 
 [ *28 ] Fourth day of November next insuing. 
 Nov. 4th. The Defts. Answer ffiled. 
 
 26. The Complt's. Replication ffiled. 
 
 30. Issued Subpoena to the Defts. to rejoin and join in Comis- 
 
 sion to examine Witnesses. Returnable 15 Decern, next. 
 Dec. 4th. The Affidavit of James Barber, of Service of Subpoena to 
 rejoin &c, ffiled. 
 15. The Defts. Rejoinder ffiled. 
 
 Jan'y 22. Rule to Defts. to examine their Witnesses, if any they 
 
 have, by the 29th Instant. 
 29. Petition to the Chancellor by the Complt. that the Depo- 
 
 sitions formerly taken may be read upon the Hearing this 
 Cause ; ffiled. The Prayer of the Petition appearing to be 
 agreeable to the Practice of tli; High Court of Chancery in 
 England — it is allowed. 
 
 Per the Chancellor. 
 
APPENDIX. !0 
 
 Second Rule to the Defts. to examine their Witnesses by Jan. 31st. 
 the 7th of February before the Examiner. 
 
 Rule to the Defts. to shew Cause, if any they can, why Feb'y 8th. 
 Publication should not pass in this Cause on the 15th of 
 February Instant. 
 
 The Complt. Petition, praying that a Peremptory Day be 21. 
 sett by which the Deft, be obliged to examine their Witnesses, 
 if they should think Proper, Or that Publication should Pass 
 in this Cause ffiled. 
 
 Let the Defts. be served with Copy of this Petition and a 23. 
 Rule peremptory to examine their Witnesses in fifteen Days 
 from this Date Otherways Publication to Pass. 
 
 Per the Chancellor. 
 
 Affidavit of Thomas Giffing, of service of the Deft, with Mch. 8. 
 
 Copy of the last mentioned Petition and Order ffiled. 
 
 Affidavit of Prudence Munday one of the Dfts. ffiled. 9- 
 
 Monday the 28th Day of this Instant March is sett down H- 
 
 for a Hearing in this Cause. 
 
 Per the Chancellor. 
 
 Subpcena ad audiendum Judiciam issued Returnable 28th 
 Inst. 
 
 For as much as the twenty eighth of March Instant was 2 5- 
 sett down for a Hearing in this Cause But the Chancellor 
 being in the Country in so ill a state of Health that he cannot 
 Travel to Town for some Time — It is therefore Ordered that 
 the Cause be adjourned to be heard on Monday the Fourth 
 Day of April next insuing. 
 
 Per the Chancellor. 
 
 Affidavit of Service of Subpcena ad audiendum Judiciam March 28. 
 ffiled. 
 
 Affidavit of Service of Rule to adjourn the Hearing 4 April 4. 
 April ffiled. 1 
 
 Mr. Kinsey for the Complt. moving the Court for a hear- 
 ing in this Cause in pursuance of the several Rules of this 
 Court of the 14 and 25 Days of March last past Mr. James 
 Graeme for the Defts. opposed the Motion Praying that the 
 Hearing may be respited alledging that the Defts. were not 
 regularly served with Rules to examine Witnesses. They 
 
2 o APPENDIX. 
 
 having certain material to examine. Upon hearing Council 
 on both Sides It is Ordered that Publication be prolonged 
 unto the 24th Day of this Instant April That the Defdts. pay 
 Forty Shillings Costs That the Hearing in this Cause be 
 adjourned until the First Day of May next And that the 
 [ *2o, ] Defdts. then attend Gratis. 
 
 Per Cur. 
 
 15. Subpoena to Witnesses, ex pte. Defts. to John Wright 
 
 John Reece and Thomas Phillips Returnable 18th Instant. 
 
 The same to John Minshall John Wade and James Mather 
 returnble. 20th Ins't. 
 
 20. The Same to Ruth Hoskins Catherine Fairlamble Robert 
 
 Barber, retble. 21st Ins't. 
 
 20. Attachment agt. John Wright for his not Yielding Obedi- 
 
 ence to a Writt of Subpa. to Witness on ye Part of Defts. 
 ads Complts. retble. 22nd Instant. 
 
 The same agt. Robert Barber ret. 22 Inst. 
 
 20. Affidavit of James Bingham of service of diet Subpas. on 
 
 Wright and Barber to Witness Ex Pte. Defendt. 
 
 26. Petition of diet Wright and Barber to discharge them of 
 
 said Contempt With the Governor's Order accordingly &c. 
 thereon Indorsed. 
 June 4th. The Cause being at hearing and debated by Council on 
 both sides Vizt. Kinsey and Growden for ye Complts. and 
 Graeme for ye Defts. Before Sr. William Keith Chancellor 
 and Richard Hill Robert Assheton Henry Brooke and 
 Thomas Graeme Masters in Chancery. 
 
 The Chancellor Pronounced a Decree in Substance as is 
 more Particularly and at large set forth in the Ingrossment In 
 the bundle of Pleadings in this Cause under the Hand of Sr. 
 William and Henry Brooke a Master in Chancery. 
 
 [*3 X ] Anno imo Georgij 2di Regis. 
 
 Daniel Moore Esq. Collector of His Majties. Customs 
 at Newcastle. 
 
 Cont. 
 
 Joseph Browne Esquire Judge of the Court of Vice Ad- 
 miralty for the Province of Pennsylvania. 
 
APPENDIX. 21 
 
 The Complts. Bill, praying an Injunction — filed. a' 7 * 7 
 
 Upon the motion of Peter Evans Esqr. Council and So- Eodm die. 
 licitor for the Complainant an Injunction is awarded accord- 
 ing to the Prayer of the Bill. 
 
 Present Sept. 21st. 
 
 The Chancellor. 
 
 Richard Hill and Wm. Fishbourn Mars, in Chancery. 
 
 Upon the Motion of James Logan Esquire, in behalf of Peter 
 Baynton Owner or Freighter of the Scooner Sarah alledging 
 that whereas the Complainant obtained an Injunction against 
 Joseph Browne Esqr. Judge of the Court of Vice Admiralty 
 of this Province, to stay his proceeding in a certain Cause 
 then depending before him, upon an Information exhibited in 
 the said Court by the Complt. qui tarn &c. against the said 
 scooner and her Lading &c. and the said Judge being the 
 Person enjoined had never applyd. to this Court to have the 
 same Injunction taken ofF, neither had the Complainant made 
 any further Proceedings in the Cause since the obtaining the 
 said Injunction, which is now four Weeks and that the said 
 Peter Baynton and the other Persons interested in the said 
 Vessell and Cargoe are therefore much hurt and damnified by 
 this Delay, It was therefore prayed that the sd. Injunction 
 may stand dissolved. It is Ordered that the Complainant 
 have notice to attend this Court at three a clock in [ ^32 ] 
 the afternoon to shew Cause why the said Injunction should 
 not be dissolved. 
 
 P. M. Present Septm. 2 ist. 
 
 The Chancellor. 
 
 Richard Hill Samuel Preston Isaac "I Esqrs. Masters 
 Norris Wm. Fishbourn J in Chancery. 
 
 Upon the Motion of James Logan Esquire, in behalf of 
 Peter Baynton, claiming that it appears by Affidavit that Peter 
 Evans Solicitor for the Complainant had Notice given him to 
 attend this Honble. Court at three a clock this afternoon ; 
 and the said Peter Evans or any other Person in behalf of the 
 Complainant not appearing to shew any Cause against the 
 Dissolution of the aforesaid Injunction, it was therefore 
 
22 APPENDIX. 
 
 * 
 
 prayed that the sd. Injunction may stand Dissolved. Which 
 is Ordered accordingly, unless the Complainant or his Sollici- 
 tor having notice thereof, shall in two days shew unto this 
 Court good cause to the contrary. 
 Sept. 27. Affidavit of Edward Perril of service of the Complainants 
 
 Council with a Copy of the above Order — filed. 
 
 And the foregoing Order touching the said Injunction was 
 then made absolute and the same Injunction Dissolved. 
 
 [*35] 
 
 Charles Blakey Attorney of Arthur Moore and John 
 Atkinson and Administrator of the Goods and Chattells of 
 Thomas Suxpitch deceased late Mariner of the Ship Aphia 
 Galley. 
 
 Cont. 
 
 George Smith Master of the said Ship. 
 1727 
 Sep. 21st. Affidavit of the Complainant in order to obtain a Writt of 
 
 Ne Exeat Provincia against the Deft, filed. 
 
 And upon Motion <5f Andrew Hamilton Esqr. Council for 
 
 the Complainant a Writt is granted. 
 
 Per the Chancellor. 
 
 The Deft, having made Satisfaction to the Complainant 
 and paid the Costs was discharged. 
 Ended. 
 
 [ *37 ] James Parrish. 
 
 Cont. 
 John Dickinson one of the Executors of the last Will 
 
 and testament of John Wilson deceased. 
 
 1 727 
 Deer. 8th. Affidavit of the Complainant, in order to obtain a Writt of 
 
 Ne Exeat Provincia agst. the Defendt. — filed. 
 
 And upon Motion of Mr Hamilton Council for the Com- 
 plainant It is Ordered that the said Writt issue, and that the 
 Complainant file his Bill in four days, otherwise the said 
 Writt to stand dissolved. 
 
 Per the Chancellor. 
 
 Ended. 
 
APPENDIX. 23 
 
 [*39J 
 William Cole, Henry Newton and Joseph Kirk- 
 bridge Part owners of the Ship New Bristol Hope. 
 
 Cont. 
 Thomas Wathell another Owner of the said Ship. 
 
 . . 1728 
 
 A Petition of the Complainants setting forth that the Deft. Ap. 25. 
 
 being owner of seventeen sixty fourth parts of the said Ship 
 had been often requested by the other Owners to joyn with 
 them in fitting out and loading his part of the said ship on a 
 Voyage proposed to be made to Bristol in England or to the 
 Island of Barbadoes, but had refused to contribute his pro- 
 portionable part That the said Ship being now near laden, is 
 about to depart in ten days for the Island of Barbadoes, That 
 there being no Person in this Government to the Petrs. 
 Knowledge acting as a Judge of the Court of Vice Admi- 
 ralty, they are obliged to make this Application to the Gover- 
 nor as Chancellor to be aided by him in Equity And therefore 
 praying that, according to the Custom and Usage in such 
 Cases the Chancellor would please- to appoint some proper 
 Persons to value and appraise the said Thomas Wathells 
 Share of the Ship aforesaid the Petrs. being willing to be 
 accountable to the said Wathell for the value at wch. the 
 same shall be appraised — filed. 
 
 Upon hearing the Matter this day before the Chancellor Ap. 26. 
 Time was prayed by the Defendant that he might dispose of 
 his part of the said Ship ; Which is accordingly granted and 
 Time is given him to the thirtieth Instant for that Purpose, 
 or otherwise to joyn proportionably with the other Owners 
 in fitting out and loading the said Ship. [ *4_o J 
 
 An affirmation of Alexander Seaton Master of the said May 1st. 
 Ship setting forth that he went to the Defendant's house to 
 enquire if he had disposed of his Share of the said Ship, or 
 was willing to joyn the other Owners in fitting out and load- 
 ing her pursuant to the Order of the 26th Ulto. and that the 
 Deft, was gone out of Town without leaving (as the Affirmt. 
 verily believes) any notice to the said Owner of what he had 
 done or intended to do therein — filed. 
 
 An Order directed to Alexander Wooddrop and Thomas Eodem die. 
 
24 APPENDIX. 
 
 Willing of the City of Philadelphia merchants and James 
 Parrish of the same Ship Wright or to any two of them for 
 appraising the Defendants Share of the said Ship is issued. 
 
 Per the Chancellor. 
 
 Return is made by Thomas Willing and James Parrish 
 that they value the Seventeen sixty fourth parts of the said 
 Ship the Share of Thomas Wathell at Two hundred and 
 forty pounds current money of Pennsylva. clear of all 
 charges upon the Outsett of this Present Voyage. 
 
 Ended. 
 
 Evan Jones Complainants. 
 
 Cont. 
 
 William Allen and Joseph Turner Defts. 
 
 Mr. Hamilton for Defts. 
 1728 
 May 8. The Complainants Bill filed. 
 
 Eod. die. The Defendants Answer filed. 
 
 Upon hearing the Matter by Council It is Ordered that 
 the Sheriff" of the City and County of Philadelphia cause the 
 Moiety of the Scooner Swallow and of the One hundred and 
 sixteen barrells of Pitch and fifty four barrells of Tar, in the 
 Bill of Complaint mentioned, the Property of Mitchel 
 Downes and attached at the Suit of the Defendants in the 
 Court of Common Pleas of the said City and County for a 
 Debt of One hundred and seventy four pounds six shillings 
 and ten pence due to them by the said Mitchell, to be ap- 
 praised and thereafter sold to the highest Bidder, and that the 
 money arising from the said Sale do remain in the hands of 
 the Sheriff" to abide the Judgement of the said Court of Com- 
 mon Pleas. 
 Ended. 
 
 [ *45 ] Anno 2db. Georgij Secundi Regis. 
 
 1728 August 13th. 
 Present 
 The Chancellor 
 And two Masters in Chancery. 
 
25 
 
 APPENDIX. 
 
 Upon a Petition this day presented to the Chancellor by 
 Thomas Willing of Philadelphia Merchant in behalf of him- 
 self and others Creditors of William Dowell of the same 
 place Merchant setting forth that the said Dowell hath been 
 for sevl. months past and now is Non Compos Mentis and 
 is like so to continue, that he is unable to Order his Estate 
 and hath made alienation and Waste thereof, whereby the 
 Petitioners are in danger of losing their just Debts, and 
 therefore praying that a Writt de Lunatico Inquirendo may 
 be granted to enquire of the Lunacy of the said William 
 Dowell; And upon the Motion of Mr. Hamilton for the' 
 Petitioners It is Ordered that the said Writt forthwith issue. 
 
 Anna Maria Bohm als. Anna Maria Miller. [ *47 ] 
 
 Mr. Hamilton per Quer. 
 Cont. 
 George Miller her husband. 
 
 1728-9 
 A Petition of the Complainant setting forth that a marriage Jan. 6. 
 
 was celebrated between her and the Defendant but by reason 
 of his Impotency never Consummated, that she was for a 
 long time unwilling to divulge his Shame, till by other abuses, 
 and threatening his Life, she finds herself obliged to do it, 
 That he hath sometimes given out in speeches, that he would 
 sell all he is worth, and by Virtue of his authority as a Hus- 
 band take away the Complainant from her Friends and Re- 
 lations to parts remote and unknown, and at other times that 
 he would sell all he is worth and goe to parts unknown, and 
 leave the Complainant behind, by which means it will not be 
 in the Complainants Power to Prove his Impotency or be re- 
 lieved from the Bond of the same pretended Marriage and 
 therefore praying a Writt of Ne Exeat against the Deft, 
 until he shall give Security to answer the Bill of Complaint 
 now preparing to be filed against him and abide the further 
 Order of this Court — filed. 
 
 Affidavit made by the Complainant of the Facts Sett forth J an 'y 6 - 
 in her Petition filed. 
 
 Upon the Motion of the Complainant's Council on the Eod. die 
 3 
 
2 6 APPENDIX. 
 
 foregoing Petition and Affidavit a Writt of Ne Exeat against 
 the Deft, is Ordered. 
 
 Per the Chancellor assisted by 
 
 [ *48 ] two Masters in Chancery. 
 
 '7 2 9 
 Oct. 9th. A Petition of the Complainant setting forth that tho' she 
 
 is well assured the Defendant can never, by Reason of his 
 Frigidity and Incapacity and being defective in the Conforma- 
 tion of the parts necessary for Generation, consummate his 
 Marriage, yet as he does insist that he hath consummated the 
 same, and hath offered as a Proof of his ability and compleat 
 Conformation, to be visited by Physicians and for that Pur- 
 pose hath named on his part John Kearsley and Christopher 
 De Witt, the Petr. begs that Doctor Thomas Graeme and 
 Patrick Baird may be on her part added, and an Order issued 
 to them for visiting the Body of the said Defendant — filed. 
 
 Interrogatory's on the part of the Complainant agt. the 
 Defendant were at the same time filed. 
 Oct. nth. An order by Consent of the Parties was issued to Thomas 
 Graeme, John Kearsley Christopher De Witt and Patrick 
 Baid for the Purpose in the above Petition sett forth. 
 
 Per the Chancellor. 
 
 Anno 3tio. Georgij Regis. 
 
 Report of the said Physicians, concluding with their 
 Opinion, that for the Reasons in the said Report mentioned 
 the Defendant is capable of consummating his Marriage filed. 
 
 [ *5i ] Sept. 16th 1729. 
 
 The Revd. Archibald Cumings M. A. Commissary ap- 
 pointed in and for the Province of Pennsylvania pursuant to 
 his Majesties Royal Letters Patent to the Right Reverend 
 Father in God Edmund Lord Bishop of London did this 
 day take the Oaths of Allegiance and Supremacy and likewise 
 the Oath of a Commissary as directed by the CXXVII Canon 
 of the Church of England and did also subscribe the Articles 
 of Religion mentioned in and according to the said Canon. 
 
 Before the Chancellor 
 
APPENDIX. 
 
 2 7 
 
 Anno 4010. Geo. 2di Regis. [*53] 
 
 John Thomas. Mr. Hamilton per Quaeren. 
 
 Cont. 
 Owen Thomas. 
 
 '73° 
 
 Petition of the Complainant, in order to obtain a Writt of j un e 18th. 
 Ne Exeat against the Defendant filed. 
 
 Affirmation of the Complainant in Support of the allega- 
 tions contained in his Petition filed. 
 
 Upon the Motion of the Complainant Council on the above 
 Petition and Affidavit a Writt of Ne Exeat is granted and 
 Security ordered to be taken in three Hundred Pounds. 
 Per the Chancellor assisted by- 
 four Masters in Chancery. 
 
 The Sherif returns that he hath taken Security on the June 20th. 
 Writt aforesaid. 
 
 The Complainants Bill filed. a 9 th. 
 
 Subpoena ad respond, issued Ret. the 3rd of July. 
 
 Affidavit of the Service of the said Subpoena by Joseph July 3rd. 
 Harrison filed. 
 
 The Defendants Appearance entered. Eod. die. 
 
 Ended. 
 
 Anno 4mo. Georgij 2di Regis. [ *55 ] 
 
 William Shippen. Mr. Hamilton p. Quserente. 
 
 Cont. 
 Joseph Shippen et al. to witt Saml. Preston Saml. Powel. 
 
 The Complainants Bill filed. j une 29th _ 
 
 Subpoena ad respd. issued Ret. the 3rd of July. 
 
 The Defendants appear. July 3. 
 
 Rule to the Defendants to file their Answers by the 10th 
 Instant or shew Cause to the Contrary or attacht. to issue. 
 
 The Defendant Joseph Shippen brings a Paper signed by 4th. 
 him, but not sworn to, as his Answer. 
 
 The Answer of Preston and Powel Defts. — filed. 8th. 
 
2 8 APPENDIX. 
 
 Anno 4to. Georgij 2di Regis. 
 
 Rule to the Deft. Shippen that he a better Answer make 
 by the Eighteenth Instant. 
 July 18th. The Answer of the Deft. Shippen filed. 
 
 The Chancellor appoints a Hearing on the 23rd Instant. 
 *3 d - Before the Chancellor and James Logan 
 
 William Fishbourn, Clement Plumstead 
 Thomas Lawrence and Ralph Assheton Esqr. 
 Masters in Chancery. 
 
 Upon hearing the Answer of Samuel Powell and Saml. 
 Preston and the Answer of Joseph Shippen to the Bill of 
 Complaint exhibited against them by William Shippen and 
 taking the matter into Advisement this Court does Order 
 and Decree that the Lands Messuages and Tenements de- 
 vised in Trust by the Testator Edward Shippen to Esther 
 Shippen for the Payment of Eight hundred Pounds with 
 Interest to the Complainant, or so much thereof as may be 
 sufficient to answer the said Sum and Interest be publickly 
 sold to the best advantage by the said Samuel Powel and 
 Samuel Preston Executors of the Last Will of the said 
 Esther Shippen, so that from such Sale the said Eight hundred 
 Pounds with Interest from the thirty first day of October last 
 to the Day of Payment, be paid to the said Complainant on 
 or before the tenth Day of September next ensuing. And 
 it is further Ordered and Decreed that if after such sale and 
 [ *56 ] Payment made, any Money be remaining in the 
 hands of the said Samuel Powel and Samuel Preston, or any 
 of the said Lands Messuages and Tenements devised as afd. 
 remain unsold, the said Samuel Powel and Samuel Preston 
 as Executors of the last Will of the said Esther Shippen do 
 convey and deliver the same in such manner as the said Esther 
 Shippen was empowered to do by the last Will and Testa- 
 ment of the said Edward Shippen. 
 
 Per Cur. 
 
 1732 
 May 26. The Report of Samuel Powel and Samuel Preston in 
 
APPENDIX. 
 
 20 
 
 pursuance of the Decree afd. with an accot. annexed 
 
 filed. 
 
 Before the Chancellor and Clement Plum- Eod. die. 
 
 stead Thomas Lawrence Ralph Assheton 
 and Samuel Hassel Esqrs. Masters in Chan- 
 cery and Js. Norris Esqr. Mar. 
 
 Was read the Report and Account of Samuel Powel and 
 Samuel Preston Executors of the last Will and Testament 
 of Esther Shippen late of Philadelphia Widow deceased, who 
 was Devisee and Trustee of the last Will and Testament of 
 Edward Shippen late of Philada. Merchant deceased ; of the 
 Sales of several Messuages Lotts of Ground and Lands in 
 the City and County of Philadelphia decreed to i>e sold for 
 the Payment of a Legacy of Eight hundred Pounds and 
 Interest devised to William Shippen by his Father the said 
 Edward Shippen together with the Account of sevl. Receipts 
 and Payments made in pursuance and in Consequence of the 
 said Decree. Which said Report together with the sales and 
 other Proceedings therein mentioned are approved and con- 
 firmed, unless the Parties concerned or some Person in their 
 behalf, shall shew Cause to the contrary on or before the 
 fifth day of June next, of which Rule Notice is ordered to 
 be given to the Deft. Joseph Shippen. Per Cur. 
 
 Anno 6to. Georgij 2di Regis. [ *57 ] 
 
 1732 
 Affidavit of Francis Sherard of Notice by him given on June 3d. 
 
 the 1st Instant to the Deft. Joseph Shippen of the last Order 
 
 in this Cause by delivering to the Deft, a Copy thereof filed. 
 
 None appearing to shew Cause, the Order aforesd. is made 10th. 
 
 absolute. 
 
 Per the Chancellor. 
 
 Anno 4to. Georgij 2di Regis. [*59] 
 
 Isaac Miranda Complt. Mr. Kinsey p. Quser. 
 
 Cont. 
 John Acworth Defendt. 
 
3° 
 
 APPENDIX. 
 
 •73 1 The Complainants Bill filed. 
 
 Ap. 6th. 
 
 Eod. die. A Petn. of the Complt. with Affidat. annexed praying for 
 
 the Reasons therein sett forth that leaving a Subpoena with 
 the Defendants Attorney may be deemed good Service filed. 
 Be it so. p. the Chancellor. 
 
 Eod. die. Subpoena ad respondendm. issued Ret. 8th. 
 
 A Petition of the Complainant and affidt. of the Truth 
 of the Facts therein contained with a Certificate of certain 
 Auditors appointed by the Court of Common Pleas filed. 
 Eod. die. Before the Chancellor and Samuel Preston, 
 
 Anthony Palmer, Henry Burke, Thomas Law- 
 rence and Samuel Hassell Masters in Chancery. 
 
 Upon reading the Petition and Affidavit of Isaac Miranda 
 the Complainant, praying an Injunction to stop the Sale of 
 certain Houses and Lotts of Land to be exposed to Sale by 
 virtue of a Writt of Venditioni Exponas issuing out of the 
 Court of Com. Pleas for the City and County of Phila. And 
 upon Motion of Mr. Kinsey Council for the Complainant It 
 is Ordered that an Injunction issue according to the Prayer 
 of the Petn. and it is issued this day accordingly. 
 
 Per Cur. 
 
 [*63J 
 
 Cornelius Vanhorne and John McEvers Complts. 
 
 Cont. 
 
 Jonathan Lees Factor to Joseph Clegg and Richd. 
 
 Gradwell. Kinsey p. Quaer. 
 
 Evans for Dfts. 
 
 Maoist. Petition of the Complainants praying for the Reasons 
 
 therein sett forth a Writt of Ne Exeat agst. the Dfts. until 
 he shall have given security &c. and answered to certain 
 Interrogatory's to be exhibited on the part of the Complain- 
 ants filed. 
 
 The Prayer of the Petn. is granted. 
 
 Per the Chancellor. 
 
 5th. The Writt of Ne Exeat issued. 
 
 13th. Affidavit of Jonathan Lees filed. 
 
APPENDIX. 
 
 3' 
 
 Interrogatorys on the part of the Complainants with the 25th. 
 Answer of Jonn. Lees thereunto before one of the Masters 
 of the Court filed. 
 
 Before the Chancellor, and Henry Brooke May 1. 
 
 Clement Plumstead and Saml. Hassell Esqr. Masters. 
 
 Mr. Evans moves for dissolving the Writt of Ne Exeat 
 issued agst. Jona Lees he having fully answered the Inter- 
 rogatory's exhibited by the Complainant and being willing to 
 deposite the money which he hath in his hands belonging to 
 Joseph Clegg or to give Security for ye same. 
 
 Lett notice of this motion to be given to the Complainant's 
 Council and that they attend this Court on Thursday the 
 27th Instant. 
 
 Per Cur. 
 
 Affidavit of Notice served on Mr. Kinsey per Mr. Lees May 26. 
 filed. 
 
 Before the Chancellor and the above named Masters. 27. 
 
 Upon Mr. Evan's Motion for dissolving the Writt of Ne 
 
 Exeat and upon reading the Affidavits Interrogatories and 
 
 Answers and hearing Council on both sides It is Ordered 
 
 that Jonathan Lees be discharged of the said Writt upon his 
 
 depositing in the hands of the Register of this Court [ ^64 ] 
 
 the sum of twelve Pounds five Shillings and one penny the 
 
 Effects of Joseph Clegg which by his Affidavit he hath 
 
 acknowledged to be in his hands, it appearing to this Court 
 
 that the Goods shipt on board the Pine Apple Richard 
 
 Pinketh Master were shipt before the Attacht. was laid and 
 
 that Jonathan Lees the Garnishee is not answerable for the 
 
 same. 
 
 Per Cur. 
 
 1733 
 The money deposited pursuant to the above Order was Ap. 5. 
 
 this day paid by the Register to Willing and Shippen by 
 
 Order of Cornelius Vanhorne the Complainant. 
 
 Ended. 
 
3 2 
 
 APPENDIX. 
 
 Anno 510. Georgij Secundi Regis. 
 
 [*6j2 Emanuel Jocelin Complt. 
 
 Cont. Kinsey per Quaer. 
 
 Robert Charles Navl. OiFr. of Phila. Deft. 
 
 1731 
 Nov. 1 2th. The Complts. Bill filed. 
 
 Eod. die. The Deft, appears Gratis and consents that a Commission 
 
 as prayed in the bill issue he having leave to name two Com- 
 missioners on his part, wch. is agreed to by the Complainant. 
 
 Ap. 1st. A Commission directed to Gilbert Flemming Thomas 
 
 Bororey James Gregory and Robert Jesson of the Island of 
 St. Christopher Gent, or to any three or two of them for 
 examining Witnesses as well on the Part of the Complainant 
 as on the part of the Defendant is issued. 
 
 Per the Chancellor. 
 
 Sept. 25th. The Commission aforesaid is returned sealed up under the 
 hands of three of the Commissioners and their Seals by George 
 Dukeman, whose Affidavit of having received the same at the 
 hands of Robert Jesson and that it hath not been opened or 
 altered since he received it, is this day filed. 
 
 Nov. 6. Publication papers by Consent of Parties. 
 
 Whereupon it is Ordered that a certified Copy of the said 
 Examinations be sent into the Court of Common Pleas of the 
 County of Philadelphia where the Information exhibited by 
 the Naval Officer qui tarn &c, against sundry Goods Wares 
 and Merchandizes reclaimed by the Complainant Emanuel 
 Jocelin is now depending. Per the Chancellor. 
 
 Ended. 
 
 Anno 6to. Georgij 2di Regis. 
 
 [ *6°. J James Axford et Ux. Complts. 
 
 Cont. Kinsey p. Quaerent. 
 
 Richard Haines et Ux. Defts. 
 
 July 28. Affidavit of Clement Hall in behalf of ye Complainants 
 
 this day filed. 
 Eod. die. Upon motion of the Complainants Council a Writt of Ne 
 
 Exeat against the Defts. is granted. 
 
 Per the Chancellor. 
 
APPENDIX. 
 
 33 
 
 1732 
 
 Solomon Goade Complt. [ *7 J ] 
 
 Cont. 
 Francis Tones Defendt. 
 Petition of the Complainant and Affidavit of the Facts Sept. 19. 
 therein sett forth, in order to obtain an Injunction filed. 
 
 Upon Motion of Mr. Assheton Council for the Com- Eod. die. 
 plainant an Injunction is allowed according to the Prayer of 
 the Petition. Per the Chancellor. 
 
 [*73] 
 Jacob Diemer, Michael Hillegas, Peter Hillegas, 
 
 Joost Schmidt, Hendrick. Weller, Jacob Siegel, and 
 
 Wilhelm Rohrich in behalf of themselves and divers other 
 
 members of the German reformed Church in Philadelphia 
 
 Complainants. 
 
 Cont. 
 Jacob Reiff Defendant. 
 
 Growdon for Quasr. 
 
 Hopkinson for Deft. 
 
 1732 
 
 Petition and Affidavits of Complainants filed. Novem. ^ 
 
 Upon Motion of the Complts. Council on the said Petition Eod. die. 
 and affidavit a Writt of Ne Exeat against the Deft, is granted. 
 
 Per the Chancellor. 
 
 The Sherif of Philadelphia returns that he hath taken se- 
 curity on the Writt aforesaid. 
 
 j 1733 
 
 Notice of a Motion by Mr. Hopkinson, on Monday the June 20th. 
 25th Instant for discharging the Defendant and his Sureties 
 from the Bond by them entered into on the Writt of Ne 
 Exeat. 
 
 The Notice for this day countermanded and new notice 25. 
 
 for to-morrow given the Complainants Council p. Affidavit 
 of Mr. Hopkinson filed. 
 
 Upon Motion this day made by Thomas Hopkinson Sollr. 26. 
 
 for Jacob Reiff and upon reading an Affidavit of the Service 
 of Notice of Motion on the Petitioners Sollicitor and his 
 Clerk, and also upon reading the Registers Certificate that no 
 Bill of Complaint is filed in this Cause It is Ordered that 
 unless the Petitioners or their Sollicitor file their Bill of Com- 
 plaint against the said Jacob Reiff on or before Tuesday next 
 4 
 
J«iy 
 
 1 2th. 
 
 
 14- 
 
 Sept. 
 
 4- 
 
 '733 
 Feb. 
 
 -4 
 20th. 
 
 24 APPENDIX. 
 
 the 3rd of July the said Jacob ReifF be at Liberty to depart 
 this Province, and that the said Jacob ReifF his Manucaptors 
 or Securities be discharged from a Bond or Recognizance 
 entered into by them on a Writt of Ne Exeat Provincia 
 issuing out of this Court and that the said Petitioners pay to 
 the said Jacob ReifF full Costs to be taxed by a Master. 
 Whereof lett the Petitioners have notice. 
 
 Per the Chancellor. 
 
 1733 
 July 3rd. [ *74 ] On Motion of the Plaintiffs Sollicitor and by Con- 
 sent of the Defendants Sollicitor, further Time is given the 
 Petitioners to file their Bill to witt to Thursday the 12th 
 Instant under the Rule aforesaid. 
 
 Per the Chancellor. 
 
 The Petitioners Bill of Complaint filed. 
 
 Subpoena ad respondm. issued ret. ye 20th Instant. 
 
 The Answer of the Defendant filed. 
 
 Notice of a Motion by Mr. Hopkinson on Friday the 22nd 
 Instant for vacating the Bond or recognizance entered into 
 pn the Writt of Ne Exeat issuing out of this Court and Affi- 
 davit of the Service of the said Notice filed. 
 Feb. 22. Upon Motion this day made by Mr. Hopkinson of Council 
 
 for the Deft, and by Consent of Mr. Growden of Council 
 for the Complt. It is Ordered that the Bond or Recognizance 
 entered into by the Defendant and his Sureties on a Writt of 
 Ne Exeat Provincia issuing out of this Court be vacated and 
 discharged, the Defendant entering into Bond with sufficient 
 Sureties in the sum of Five Hundred Pounds current Money 
 of America to abide by and full fill such Order or Decree of 
 this Court as shall be made on the Hearing of this Cause. 
 
 Per the Chancellor. 
 
 [*79J 
 
 Evan Ellis Complt. 
 
 Cont. 
 John Ellis, Theodore Ellis, Jane Jones, John Jones, 
 Nathan Lewis, William Lewis, Zepthath Lewis, Enos 
 Lewis, David Lewellyn, David Lewellyn junr., John 
 Humphreys and Jane his Wife, Anne Lewellyn, Edward 
 Jones and Gainer his Wife, Humphrey Jones and {Cathe- 
 rine his Wife Defts. 
 
APPENDIX. ,r 
 
 The Complt's Bill filed. 1732-3 
 
 ei_ 1 it* it* /■ J an - 29th. 
 
 bubpoenas ad respondendum issued. Ret. the 26th inst. Feb'y 9th. 
 
 The Appearance of all the Defendants entered, except of 26. 
 Edward Jones and Garner his Wife who live out of the Pro- 
 vince as 'tis said and of Tohn Ellis. 
 
 1733 
 
 Another Spa. ad resm. John Ellis issued. Ret. 25th instant. April 4th. 
 
 Affidavit of Service of the said Spa. by Owen Roberts filed. May 21st. 
 Attachment directed to the Sherif of the County of Bucks June 5th. 
 agst. John Ellis for contempt issued Ret. 18th Inst. 
 
 Per the Chancellor. 
 
 The Sherif aforesaid returns that he hath taken John Ellis 18th. 
 
 whose Body he hath ready this day as by the said Writt he is 
 
 commanded. And the said John Ellis is committed to Prison 
 
 until he answers the Contempt. 
 
 1 173 3-4 
 
 Rule that the Defts. Theodore Ellis, Jane Jones, John Mar. id. 
 
 Jones, Nathan Lewis, William Lewis, Jepthath Lewis, Enos 
 Lewis, David Lewellyn, David Lewellyn junr., John Hum- 
 phrey's and Jane his Wife, Anne Lewellyn, Humphrey Jones 
 and Katherine his Wife answer the Complainants Bill in this 
 Cause on or before the 12th day of this inst. March or an 
 attachment against them to issue. 
 
 Lett Notice of this Rule be given them. 
 
 Per the Chancellor. 
 
 '73+ 
 
 The Answer of the last named Dfts. filed. Nov. 27th. 
 
 Before the Chancellor and Isaac Norris 30th. 
 
 Thomas Lawrence Masters in Chancery. 
 
 Anno 8vo. Georgij 2di Regis. 
 
 Upon Motion of Mr. Kinsey Council for the [ *8o ] 
 Complainant that the Bill of Complaint should be taken as 
 confessed agt. John Ellis who had hitherto remained in Cus- 
 tody, and obstinately refused to answer thereunto whereby 
 he had Contemned the Authority of this Court (the other 
 Dfts. having by their Answer disclaimed all Right, Title or 
 Interest in or to the lands in Question by the Bill) The 
 Court made a Rule for bringing up the said Ellis, who 
 appearing in Court, the said Bill was read to him, and the 
 
36 APPENDIX. 
 
 Disclaimer of the other Defendants and he was admonished 
 to answer the said Bill, which that he might be the better 
 enabled to do, the Council for the Complt. consented to his 
 Enlargement and to free him from all Costs for Contempt 
 Whereupon it is Ordered that the Deft. John Ellis make 
 Answer to the Bill of Complaint within the Space of One 
 month, or otherwise the same to be taken as confessed. 
 
 Per Cur. 
 
 '735 
 
 April 15. Spa. agst. John Ellis and the other Defendants to Hear 
 
 Judgment issued Ret. the 29th Instant. 
 19- Affidavit of the Complainant of Service of the said Spa. 
 
 on the Defendant John Ellis filed. 
 
 Eod. die. Before the Chancellor and James Logan, Saml. 
 
 Preston, Henry Brooke, Clement Plumstead, Ralph 
 Assheton, Saml. Hassell Esqrs. Masters in Chancery. 
 Upon the opening of the Matter this present day by Mr. 
 Kinsey of Council for the Complainant, and reading an Affi- 
 davit of the Service of a Spa. to hear Judgment upon the 
 Deft. John Ellis. It was alledged on behalf of the same 
 Complainant that by virtue of the former Order of this 
 Court and pursuant to the practise of the Court of Chancery 
 in like Cases the Bill afd. ought to be taken as Confessed, 
 for that the said John Ellis from time to time obstinately 
 persisted in refusing to make any Answer thereunto and 
 therein had contemned the Authority of this Court. Never- 
 theless for the greater Satisfaction of the Court, the Council 
 afd. produced divers Deeds, Evidences and Writings in the 
 [ *8i ] Bill mentioned by which the Court were sufficiently 
 satisfied of the Truths of the several Matters and Things in 
 the Complainants said Bill of Complaint contained. Where- 
 upon, and upon hearing as well the Council afd. on the part 
 of the Complainant and the Council for the other Defts., 
 this Court have thought it fitt and do therefore so Order and 
 Decree that the Lands Tenements and Hereditaments in the 
 Bill mentioned, late the Inheritance of Margaret Jones als. 
 John in the Bill named be divided by Malachi Jones, Owen 
 Evan, and John Jones of the County of Phila. Gentlemen, 
 or any two of them in such manner as to allot and assign the" 
 
APPENDIX. 27 
 
 equal third parts (Respect being had to the Value of the same) 
 unto the Complainant Evan Ellis, so as not to interfere with 
 the part of the same Lands claimed by the Deft. Theodore 
 Ellis To Have and to Hold to him his Heirs and Assigns for 
 ever in Severalty, and that peaceably and quietly to be en- 
 joyed agst. any Claim and Demand of the Defts or any of 
 them or any others claiming under the said Margaret Jones. 
 And it is further Ordered and Decreed that the same John 
 Jones, Jane Jones, Nathan Lewis, Wm. Lewis, Jepthath 
 Lewis, Enos Lewis, David Lewellyn, David Lewellyn junr., 
 John Humphreys and Jane his Wife and John Ellis do make 
 a Conveyance of the same third part to him the said Evan 
 Ellis accordingly, and that on executing such Conveyance 
 the same Defts., except John Ellis, be excused from the Pay- 
 ment of any Costs to the same Complainant, but that the 
 same John Ellis do pay to the said Complainant Evan Ellis 
 his full Costs of suit thereupon to be taxed, Unless Cause to 
 the contrary of any of the Premises decreed as afd. shall be 
 shewn to this Court by the same John Ellis on or before the 
 first day of June next. 
 
 Per Cur. 
 
 1735 
 Affidavit of John Williams of the service of Notice of the June nth. 
 
 Decree afd. and that the same would become abso- [ *82 ] 
 
 lute unless Cause shewn to the Contrary as afd. on the Deft. 
 
 John Ellis. 
 
 And the decree afd. is made absolute. 
 
 Per the Chancellor. 
 
 A Writt of Partition of the Lands pursuant to the Decree June 12. 
 of this Court is issued. 
 
 Per the Chancellor. 
 
 Anno 6to. Georgij 2di Regis. 
 
 [*8 5 J 
 Marens Tucks Complt. 
 
 Cont. Kinsey per Quasr. 
 
 Thomas Carvell Deft. 
 
 1732-3 
 The Compli. Bill filed. Feb'y 9. 
 
 Spa. ad respd. issued Ret. 26th Instant. 
 
38 
 
 APPENDIX. 
 
 J ?33 Upon Affidavit of the Complainants Soil, filed and upon 
 
 Apl. ioth. f . . ,„ 
 
 Motion this day made an Injunction to stop the Proceedings 
 
 at Common Law is issued. 
 
 Per the Chancellor. 
 
 [ *%9 J Anno 7mo. Georgij 2di Regis. 
 
 John Philips Admr. of ye Goods of Mary Ashton 
 formerly Mary Dunn deceased, Richard Morgan and 
 Jane his Wife late Jane Dunn and Sarah Dunn Complts. 
 
 Cont. 
 Thomas Evans and Margaret his Wife formerly Mar- 
 garet Dunn and Ralph Dunn Defts. 
 
 Kinsey per Quasr. 
 Evans per Defts. 
 The Complainants Bill filed. 
 Spa. ad respd. issued Ret. 18th instant. 
 The Defendants Appear by Mr. Evans. 
 The Answer of the Dfts. filed with an Account Annexed. 
 Spa. for the Dfts. to Hear Judgment Ret. ye 30 inst. 
 30. Before the Chancellor and Isaac Norris and 
 
 Thomas Lawrence Esqrs. Masters in Chancery. 
 
 The Complainants Bill of Complaint, and the Defts. 
 Answer with an Account annexed being read It is Ordered 
 on the Motion of the Complainants Council and with Con- 
 sent of the Dfts. Council that the Account exhibited be re- 
 ferred to Thomas Lawrence Esqr. a Master in this Court to 
 examine and report what Share of the personal Estate of 
 Ralph Dunn remains in the hands of the Defendants. 
 
 Per Cur. 
 
 Anno 8mo. Georgij 2di Regis. 
 
 May 6. The Report of the Master filed in pursuance of the above 
 
 order. 
 A U g. I4 . Before the Chancellor and Ralph Assheton 
 
 and Samuel Hassell Esqrs. Masters in Chancery. 
 
 It appearing by the Report of the Master, to whom the 
 Accounts exhibited by the Defendants in this Cause were 
 
 1733-4 
 
 ' Feb. 2. 
 
 4th. 
 
 18th. 
 
 1734 
 July 24th. 
 
 Nov. 1 2th. 
 
APPENDIX. 
 
 referred, that there are not sufficient Assetts remaining in the 
 Executrixs hands for the Payment of the Debts and Legacies 
 in the Bill mentioned ; On the Motion of Mr. Kinsey of 
 Council for the Complainant and by Assent of Mr. Evans 
 of Council for the Defts. It is Ordered that the said [ *c<o J 
 Executrix make Sale of the Two hundred acres of land 
 lying in the Manner of Moreland, and not devised by the 
 Will of the Testator, as soon as conveniently may be, and 
 that the Monies arising by the Sale be brought into Court 
 subject to such order as the Court shall think proper to make 
 concerning the same : And that the further Consideration of 
 the Report aforesaid be deferred till that time. 
 
 Per Cur. 
 
 Anno omo. Georgij Regis. 
 
 On the sale of the Lands pursuant to the Order afd. there 
 was deposited in the Regrs. hands Notes and Cash amounting 
 to One hundred and sixty Pounds 
 Whereof 
 
 Fifty Pounds wh. consist of the Defts. were paid to John 
 Phillips Complt. per receipt. 
 
 Fifty Pounds by Consent of Parties to Wm. Branson in 
 right of Richard Morgan and Jane his Wife Complts. pr. 
 Bransons Receipt. 
 
 Fifty Pounds by Consent afd. to Thomas Walmsley who 
 since exhibiting the Bill intermarried with Sarah Dunn 
 another of the Complts. per receipt. 
 
 Anno ymo. Georgij Regis. [ *93 J 
 
 William Ghiselm, junr., Katherine Gheselm and 
 Hannah Ghiselm Infants by Elizabeth Ghieselm their 
 Mother and next Friend Complts. 
 
 Cont. 
 William Ghiselm Defendants. 
 
 Kinsey per Cjuaer. 
 
 Petition of the Complainants by the Mother and her Mar. 
 Affidat. to the Truth of the Contents thereof filed. 
 
 39 
 
 1733-4 
 
4 o 
 
 APPENDIX. 
 
 Eod. die. Upon Motion of the Council for the Petitioners on ye 
 
 Petn. and Affidavit aforesaid a Writt of Ne Exeat agst. the 
 Deft, is issued. 
 
 Per the Chancellor. 
 
 '9 th - The Complainants filed. 
 Eod. die. Spa. ad respd. issued Ret. 
 
 Ended. 
 
 Anno Septo. Georgij Secundi Regis. 
 
 [ *97 ] Thomas Edwards Complt. 
 
 Cont. 
 John White and John Cadwallader Exers. of the last 
 Will and Testament of Tr. Roberts deceased. 
 
 Kinsey per Quaer. 
 
 March 19th The Complainants Bill filed. 
 Spa. ad respd. issued Ret. 
 
 The Appearance of the Defendants entred. 
 
 1734 
 
 July nth. Rule to the Defts. to file their Answer by this day 
 Se'enight or shew Cause to ye contrary or an Attachment 
 to issue. 
 Ended. 
 
 [ *99 J William Howell and Martha his wife Com- 
 plainants. 
 
 Cont. 
 John White and John Cadwallader Exrs. of the last 
 Will and Testament of John Roberts deceased. 
 
 Kinsey per Quaer. 
 
 March 19th The Complts Bill filed. 
 Spa. ad respd. issued Ret. 
 The Appearance of the Dfts. entred. 
 July 11. Rule to the Dfts. to file their Answers by this day 
 
 Se'enight or shew Cause to ye contrary or an Attachment 
 to issue. 
 Ended. 
 
APPENDIX. 
 
 41 
 
 Anno 8vo. Georgij Regis. 
 
 Lawrence Reynolds Complainant, 
 Agst. 
 John Bewley and Rebecca his Wife and 
 Kennedy Farrell and Isabella his wife 
 
 [ *ioi ] 
 
 nd j Defts 
 ife/ 
 
 The Complainants Bill filed. June 26. 
 
 Spa. for the Defendt. to Answer Ret. ye 3rd of July next. 29. 
 
 The Appearance of Bewley and his Wife entred. juiy 3. 
 
 Rule to them to file their Answer by this day se'enight or 18. 
 shew Cause to ye contrary, or an Attacht. to issue. 
 
 Plea for the Defts. Bewley and his Wife filed per Kinsey. Aug. 3rd. 
 
 Affidavit of the Service of the Subpoena on Farrell and 27th. 
 his Wife Defts. by Peter Aston filed. 
 
 An Attacht. against them is issued Ret. 31st inst. Eod. die. 
 
 Per the Chancellor. 
 
 Before Service of the attachment they appear and offer to Eod. die. 
 pay the Costs that shall be awarded against them. 
 
 John Knowles and John Smith Executors in [*i05J 
 
 the last Will and Testament of Michael Jobson, deceased, 
 
 Complts. 
 
 Agst. Kinsey per Quasr. 
 
 Samuel Jobson Deft. 
 
 1734. 
 The Complainants Bill filed. juiy 20th. 
 
 A Writt of Ne Exeat agst. the Dft. is issued. Eod. die. 
 
 Per the Chancellor. 
 
 [ *ioo, J 
 Edward Drury Complt. 
 Agst. 
 Richard and Catherine Berwicks Exers. of the last 
 Will and Testament of Simon Berwick, deceased, Dfts. 
 
 Growdon and Hopkinson per Quaer. 
 Kinsey per Dfts. 
 
 r 734 
 
 The Complainants Bill filed. Sept. 6th. 
 
 5 
 
4 2 
 
 APPENDIX. 
 
 Eod. die. An affidavit of the Complainant filed. And upon Motion 
 
 of his Council an Injunction to stop the Proceedings at 
 Common law is issued. 
 
 Per the Chancellor. 
 
 Oct. 31st. Subpoena to answer filed Ret. ye 9th Proxo. 
 Nov. i. The Defendants appear. 
 
 2.0. The Answer of the Df t Richard Berwick filed. 
 
 27- The Answer of the Df t Catherine Berwick filed. 
 
 Before the Chancellor and Isaac Norris and 
 Thomas Lawrence Esquires Masters in Chancy. 
 3 °" Upon Motion of the Defendants Council and with Con- 
 
 sent of the Council for the Complainant. It is Ordered that 
 the Defendants be at Liberty to proceed at Law agst. Ed- 
 ward Drury the Complainant,, so far as to obtain Judgment 
 against him and his Bail ; Or, otherwise that he the said 
 Complainant bring into this Court within three days the 
 Money sued for at law by the Defts., subject to the Direc- 
 tion of this Court, wherein if he fails, the Injunction to stand 
 dissolved. 
 
 By the Court. 
 
 [*nrj 
 Jan. 18. A Petition of John Meredith setting forth that he being 
 
 seized in his Demesne as of Fee of and in a Plantation of 
 the County of Bucks containing by Estimation about One 
 hundred and Eighty Acres of Land and being also possessed 
 of Sundry Goods and Chattells, did, from his Affection to 
 his Son Thomas Meredith, and for the better advancing him 
 in the World convey all his Estate in the Premisses to him 
 the said Thomas who is now possessed of great part thereof 
 and of other Goods and Chattells acquired by his own In- 
 dustry but that of late the said Thomas is by the Visitation 
 of God become Non Compos Mentis and wholly unfitt for 
 the Government of himself and his said Estate, and that 
 having already by the Craft of evil disposed Persons sustained 
 great Losses and being in danger of sustaining much greater 
 the said Thomas is like to be reduced to Beggary and Want 
 without the aid and Interposition of this Court, and therefore 
 
APPENDIX. , 2 
 
 praying that a Writt de Ideota inquirendo may be awarded 
 directed to the Sherif of the County of Bucks to enquire 
 into the Truth of the Premisses by the Oaths or Affirmns. of 
 good and lawfull men of his Bailywick and in case the Pre- 
 misses be found true that the said Thomas together with his 
 Goods Chattels Lands and Tenements afd. may be com- 
 mitted to the Care Governt. and Management of discreet 
 and honest Persons to be appointed by this Court as in Such 
 Cases is usual — filed. 
 
 A Writt according to the Prayer of ye Petn. is awarded. Jan. 25. 
 
 By the Chancellor. 
 
 The Sherif returns the Writt afd. together with [ *H2 ] Feb. 24th. 
 an Inquisition, whereby it appearing that the said Thomas 
 Meredith is not of Composed Mind but is unfitt for the 
 Government of himself and his Estate, a Writt is this day 
 issued committing the Custody of the said Thomas, and of 
 all his Lands Tenements Goods and Chattels, to John Mere- 
 dith the Father, and to James Meredith the Cousin, of the 
 said Thomas, and to the Survivors of them. 
 
 By the Chancellor. 
 
 Elizabeth the Widow of John Read Complts. [*H3] 
 
 against 
 
 Richard Mitchell Deft. 
 
 Kinsey for ye Complt. 
 
 1734—5 
 The Complainants Bill filed. Mar. 7 th. 
 
 Spa. to answer filed Ret. ye 19th Instant. 
 
 The Defendant appears. >9- 
 
 [*»5] 
 
 Ann Growdon Widow of Joseph Growdon Complt. 
 
 Agst. 
 
 Lawrence Growdon Deft. 
 
 Evans for Complt. 
 
 Kinsey for Deft. 
 
 '735 
 The Complts. Bill filed. A P . nth. 
 
44 
 
 APPENDIX. 
 
 Eod. die. Upon Motion of the Complts. Council an Injunction to 
 
 stop the Proceedings at Law against her is issued. 
 
 Upon the Motion of Mr. Evans and with the Consent of 
 
 Mr. Kinsey Leave is given to amend the Bill of Complaint. 
 June 2.8. The Bill of Complaint amended, is this day filed, wherein 
 
 Anne Growdon Joseph Growdon and Hannah Growdon 
 
 are Complts. against Lawrence Growdon and Grace Lloyd 
 
 Defendants. 
 30th. The Defds. by Mr Kinsey appear Gratis. 
 July 21. The Separate Answer of Lawrence Growdon and of Grace 
 
 Lloyd Defts filed. 
 Aug. 30. Petition of Lawrence Growdon Deft, for dissolving the 
 
 Injunction because of the Delay of the Proceedings on the 
 
 part of the Complainants filed. 
 Eod. die. The Injunction to stand dissolved unless Cause to the 
 
 contrary be shewen on or before the 10th day of September 
 
 next whereof the Complainant forthwith have Notice. 
 
 Per the Chancellor. 
 
 Sept. 10. Petition of Joseph Growdon with a Certificate under the 
 
 hand of Dr. Thomas Graeme, Physician, praying for the 
 Reasons therein sett forth that the Injunction may not be 
 dissolved until the Exceptions he is preparing to the Dft's' 
 Answers be filed and heard — filed. 
 
 16. On the Motion of the Council for the Defendants It is 
 Ordered that both Parties be heard to-morrow forenoon at 
 eleven a clock on the subject matter of their respective 
 Petitions whereof lett the Complts. have Notice forthwith. 
 
 By the Chancellor. 
 
 17. [*u6] Before the Chancellor, and Samuel Preston 
 
 Clement Plumstead, Thomas Lawrence and 
 Ralph Assheton Esqrs. Mars, in Chancy. 
 
 Upon reading the Petition and hearing the Council on both 
 Sides It is Ordered that the Complainants file their Excep- 
 tions to the Answers of the Defendants on or before the 10th 
 of October next. 
 
 By the Court. 
 
 '735 ^ • ci j 
 
 Oct. 9. Exceptions filed. 
 
APPENDIX. 45 
 
 Anno nono Georgij 2di Regis. 
 . . . '736 
 
 A Petition of the Complainant Anne Growdon, setting June 1st. 
 forth, that notwithstanding the Injunction in this Cause 
 issued, the Defendt. Lawrence Growdon in the Term of 
 April last, did proceed ex parte in the Supreme Court of 
 Pennsylvania, to try the said Cause, and obtained Judgment 
 thereupon, in open Contempt of the said Injunction, and in 
 manifest Violation of the Course of Equity and Justice, and 
 now threatens, by Execution of the said Judgment, to eject 
 the Complainant out of the Lands settled upon her in 
 Jointure, and therefore praying an Attachment against the 
 Deft. Lawrence Growdon his Council and Sollicitors for the 
 Contempt aforesd, and an Injunction for quieting the Com- 
 plainants possession, until the matters afd. be duly heard and 
 decreed upon in this Honble. Court filed. 
 
 [*I23] 
 
 James Portues Complt. 
 
 Agst. 
 
 Christopher Tapham, Edward Williams and Joseph 
 
 Drinker Defts. 
 
 Evans for ye Complainant. 
 
 1735 
 Affidavit of the Complainant that the Defts. intend and Octr. 29th. 
 
 threaten to destroy some Buildings or Outhouses to which 
 
 he believes and is advised he has a good Title in Fee Simple 
 
 filed. 
 
 Upon Motion of the Council for the Complts. and on Eod. die. 
 
 the Affidavit aforesaid, an Injunction to stay waste is issued. 
 
 By the Chancellor. 
 
 Affidavit of Charles Hughes of the Service of the said 30th. 
 
 Injunction upon the Defendants, and of a Contempt of the 
 same by Edwd. Williams filed. 
 
 An Attacht. agt. Edwd. Williams Ret. ye 4th inst. is Novem. 1. 
 issued. 
 
 The Sherif returns that he hath attached Edwd. Williams, 4'h. 
 
 whom he hath here readv this day. 
 
4 6 
 
 APPENDIX. 
 
 Interrogatorys on the part of the Complainant to be ad- 
 ministered to Williams upon the Contempt afd. filed. 
 
 Upon Motion of the Complainants Council It is Ordered 
 that Ralph Assheton one of the Masters of this Court ex- 
 amine Edwd. Williams on the Interrogatorys afd. and report 
 thereon and that in the meantime the said Edwd. Williams 
 be continued in Custody till such Report is made. 
 
 By the Chancellor. 
 
 THE END. 
 

 M&k