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CORNELL UNIVERSITY LIBRARY 
 
 924 084 250 210 
 
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/cu31924084250210 
 
Equity in Pennsylvania 
 
 FROM THE 
 
 Historical Point of View 
 
 JAMES I. BROWNSON 
 
 PUBLISHED BY THE 
 WASHINGTON BAR ASSOCIATION 
 WASHINGTON, PENNSYLVANIA 
 
L317SL 
 
The following paper was prepared, not for publica- 
 tion, but to be read at a meeting of the Bar Association 
 of Washington County, Pennsylvania. It was so read on 
 January 10, 1914. The association requested the author 
 to permit the paper to be printed, and he then presented 
 to it the manuscript, together with the right of publica- 
 tion. 
 
Equity in Pennsylvania 
 
 From the Historical Point of View 
 
 The English word Equity is used in four principal 
 senses. 
 
 The first of these, which is pointed to by its etymo- 
 logical derivation, is that of equal and impartial, exact 
 and complete justice, the antithesis of what we designate 
 by the term "iniquity." It is in this general sense that it 
 is employed in our translations of the Bible. When the 
 Psalmist, speaking of the divine government, exclaims: 
 "With righteousness shall he judge the world, and the 
 people with equity," what he means is, that God will judge 
 fairly and justly, without respect of persons, and giving in 
 «ach case the judgment which exactly fits the circum- 
 stances. Upon this meaning of the term are based, and 
 •out of it have grown, the other meanings. 
 
 The second sense in which this word is employed is 
 that which is indicated in the celebrated definition of 
 Grotius, which probably first became familiar to most of 
 us when we read il (in translation) in Blackstone's Com- 
 mentaries. Grotius describes equity as "correctrix ejus 
 in quo lex, propter unwerxaliiatem, deficit" — the cor- 
 rector of that wherein the law, by reason of it univer- 
 sality, is defective. This statement, however, did not 
 originate with Grotius; it is said to be practically a trans- 
 lation into Latin from the Greek of a remark of Aristotle. 
 
 The law, necessarily, must lay down general rules, 
 -and in so doing it is impossible that it shall be expressed 
 
6 
 
 in such a way as lo provide explicitly lor all possible com- 
 binations of circumstances. Exceptional cases will from 
 time to time arise, either not foreseen when the law was 
 formulated, or else of such complexity that it is imprac- 
 ticable in such formulation to provide expressly for all of 
 them. Hence it will often happen that to apply the legal 
 rule to a case that is within its words would work iniquity, 
 producing results that manifestly were not intended. The 
 purpose and aim of the h>w arc presumed to have been to 
 work justice, and when it is found that, literally inter- 
 preted and carried out, it will work grievous injustice, it 
 is the part of equity, in the sense we are now speaking of, 
 to determine whether it was the intention of the law- 
 maker that such a case should be treated as within the 
 scope and purview of the law. Here we mean by equity, 
 as Blackstone remarks, (Book HI, 431,) nothing but the 
 sound interpretation of the law; and he adds: "But 
 there is not a single rule of interpreting laws, whether 
 equitably or strictly, that is not equally used by the judges 
 in the courts both of law and equity: the construction 
 must in both be the same; or, if they differ, it is only as 
 one court of law may also happen to differ from another. 
 Each endeavors to fix and adopt the true sense of the law 
 in question; neither can enlarge, diminish or alter that 
 sense in a single tittle." When a court, construing a 
 statute in the light of such considerations of justice as 
 have been alluded to, declares the case before it, although 
 within the words of the law, to be an exception to its uni- 
 versality, it is not dispensing with or setting the statute 
 aside — a thing which it has no authority to do. It reaches 
 its judgment, in the words of Grotius which immediately 
 follow the definition above quoted, 1 "non tollendo legis 
 obligationem, sed declarando legem in certo casu non 
 
 1 De Aequilate, sec. 12. 
 
obligare" — not by destroying the obligation of the law, but 
 by declaring that the law does not bind in the particular 
 case. That is to say, it is determining that such a case 
 was not intended by the legislature to be covered by the 
 general language of the act; or, in other words, it is mere- 
 ly declaring what is the true intent and meaning of the 
 enactment. Moreover, it is doing no more than the courts 
 of all civilized countries have been accustomed to do. 
 Equity in this sense is not peculiar to English-speaking 
 countries. It is a part of general jurisprudence. 
 
 But in England there grew up, by reason of circum- 
 stances peculiar to that country, a special system or code 
 of rules, administered by a separate court, 2 and co-exist- 
 ing with a different set of rules on the same subjects, ad- 
 ministered by other courts. This system is what is des- 
 ignated by the third sense of the term equity. And it 
 created certain rights, not recognized at law, but consti- 
 tuting the specific grounds upon which applications for 
 equitable relief are based. These rights are known as 
 equitable rights or "equities," and the fourth sense in 
 which the word is used is that which it bears when em- 
 ployed to designate such a concrete equitable right. 
 
 It is with equity in this third sense, as a separate sys- 
 tem of jurisprudence, and incidentally with these equit- 
 able rights, that we are particularly concerned in this 
 
 2 The English court of chancery was the original equity court, but 
 did not continue to be the only one within the realm. Such courts were 
 set up in the counties palatine, and in the two universities: Bouvier, 
 Law Diet., Court of Chancery. The court of requests was an inferior 
 court of equity, which was virtually abolished by a decision, rendered 
 in the reign of Elizabeth, that it had no contentious jurisdiction, and 
 was formally abolished by stat. 16 Car. I, c. 10: Campbell's "Lord 
 Chancellors," Chap. XLVIII. The court of exchequer exercised to some 
 extent jurisdiction in equity, principally in cases of tithes, in addition 
 to its jurisdiction as a court of law, having a law side and an equity 
 side: Bisph. Princ. Eq., note to sec. 4. The lord mayor's court of the 
 city of London had equity jurisdiction: Bouvier, Law Diet., ubi supra. 
 
8 
 
 paper. BuL I have stated and distinguished all of these 
 significations of the term, because, when used in its third 
 sense, it may be said to include all the others. The con- 
 crete equitable rights that are connoted by it as employed 
 in the fourth sense mentioned, are obviously included in 
 the third sense, as being the creations of the body of doc- 
 trines which constitute equity jurisprudence. The idea 
 of equal and exact justice is included in it, for the dis- 
 pensation of such justice is its aim and end — its very 
 raison d'etre. The making of exceptions to the univer- 
 sality of the law is included in its work, as essential to the 
 attainment of the kind of justice at which it aims. But its 
 work does not stop here; it goes very much further. Not 
 only does it recognize unexpressed exceptions to some of 
 the rules of law, but in the case of certain of these rules 
 it absolutely contradicts and reverses them. For ex- 
 ample, as I shall have occasion to mention later, the rule 
 of the common law was that a chose in action is not as- 
 signable; but equity declares that a chose in action is as- 
 signable. The third signification of equity, then, while it 
 includes each and all of the other three senses, is very 
 much more than the sum of those meanings put together, 
 for it embraces ideas not specifically covered by any of 
 the others, and in its totality it signifies a highly devel- 
 oped system of jurisprudence, made up of certain fixed 
 and settled doctrines enforced by certain remediaL 
 methods of its own (or, in later times, by adaptations of 
 other methods), in contradistinction to that other vener- 
 able system, the common law. 
 
 Practically, equity in the second sense, and equity in 
 the third sense, are so intermingled in the actual adminis- 
 tration, that they are not usually distinguished from each 
 other. But when we are investigating the origin and 
 sources of the separate equity system, it is as well to dis- 
 tinguish between them for the sake of clearness. 
 
To a man who, previously knowing nothing about the 
 subject, would hear or read a description of these con- 
 trasted systems of law and equity, as developed in Eng- 
 land, the whole thing would seem deliciously absurd. 
 "The entire object of both law and equity," he might say, 
 "is to produce and enforce justice; why then have two 
 codes, differing from each other in their rules for the de- 
 termination of what is justice, and administered by sep- 
 arate courts, so that the question of what the rights and 
 obligations of the parties arising out of a particular trans- 
 action shall be declared to be, depends upon which court 
 is hearing the case?" To the modern mind it does ap- 
 pear absurd, (although many wise and great men in the 
 past have argued that this separation of law and equity 
 is highly beneficial,) and we have, at least largely, cor- 
 rected its absurdities. Even in England law and equity 
 have been amalgamated, and the court of chancery has 
 become a division of the high court of justice. It is hardly 
 conceivable that if the founders of a state were creating 
 an entirely new frame of government, they would delib- 
 erately plan such a separation as developed in England. 
 The explanation of it in that country is entirely a his- 
 torical one. 
 
 English law, in the form which it finally took, may be 
 said to be of native growth. England did not, like the 
 continental nations, adopt the Roman law out and out as 
 the basis of her jurisprudence. Of course I am not to be 
 understood as saying that in no particular did she adopt 
 any of the principles or doctrines of the civil law. On the 
 contrary, modern researches have shown that in its early 
 development the common law was influenced by and im- 
 bibed principles from the civil law to a very much larger 
 extent than formerly was supposed. But at an early day 
 the Roman law fell into disfavor and became an object 
 of aversion, and thenceforth the common law developed 
 
10 
 
 on lines of its own. We may therefore say that, broadly 
 speaking, the common law, as a system, was indigenous 
 to the soil. As compared with the civil law, it was, at 
 least during the earlier English reigns, much less highly 
 developed and relatively crude. Moreover, there pre- 
 vailed in the English courts a spirit of narrowness, and a 
 disposition to adhere servilely to precedents, instead of 
 expanding legal principles and extending and adapting 
 legal remedies to meet changing conditions; and as Eng- 
 lish civilization became more complex and more highly 
 developed, the common law did not keep pace therewith 
 but settled down into rigidity. Hence cases would arise 
 from time to time for which the law as declared and ad- 
 ministered by the courts did not afford a remedy, or an 
 adequate remedy, and the natural course would be an ap- 
 plication for relief to the original fountain of justice, the 
 king in council. 
 
 As to the precise manner in which the chancellor 
 came to be the channel through which such relief was 
 obtained, somewhat different views have been advanced 
 by writers on the subject. All agree that his jurisdiction 
 is derived from that which remained in the king's council 
 after the partition of the great court of justice by the set- 
 ting up of the courts of exchequer, common pleas and 
 king's bench, i. e. the residuum of judicial powers which 
 had not been delegated to these courts. Without taking 
 time to discuss the exact way in which this came about, 
 let it suffice to say that not improbably, starting from the 
 practice of presenting petitions to the king in council, and 
 the reference of such petitions to the chancellor for in- 
 vestigation and consideration, the chancellors came in 
 course of time to be regarded as acting, independently of 
 the council, as the special representatives of the king for 
 the purpose of affording relief in cases for which a 
 remedy could not be obtained in the ordinary law courts, 
 
11 
 
 and eventually the conception that they constituted a 
 court for this purpose arose. By gradual steps, including, 
 as the historians affirm, successive usurpations on the 
 part of the chancellors, the mighty fabric of chancery 
 jurisdiction was built up. 
 
 "The equity administered by the early English chan- 
 cellors," says Professor Pomeroy, "and the jurisdiction of 
 their court, were confessedly borrowed from the aequitas 
 and judicial powers of the Roman magistrates:" Pom. 
 Eq. Jur. sec. 2. He also says that "in the earliest periods 
 the jurisdiction was ill defined, and was in some respects 
 even much more extensive than it afterwards became 
 when the relations between the equity and the common- 
 law tribunals were finally adjusted. This was chiefly due 
 to the troublous times, the disturbed condition of the 
 country, while violence and oppression everywhere pre- 
 vailed, and the ordinary courts could give but little pro- 
 tection to the poor and weak; when the powerful land- 
 owners were constantly invading the rights of their in- 
 feriors and overawing the local magistrates": Id. sec. 36. 
 In process of time equity developed into a scientific sys- 
 tem of jurisprudence, with as well defined and settled 
 limits and regulating principles as the common law itself. 
 
 Given this situation — there being two co-existing and 
 separately administered codes of rules, and courts of law 
 administering one system, and chancellors administering 
 another which professed to be intended to remedy defects 
 in the former, the probable thing to expect would be the 
 development of a spirit of antagonism between the law 
 and equity courts; and this is exactly what occurred. It 
 was greatly accentuated by the prevailing prejudice 
 which had grown up against the Roman law, upon which 
 the chancellors largely drew for their doctrines, and by 
 the view, entertained by the law courts, that the jurisdic- 
 tion in fact exercised by the chancellors consisted largely 
 
12 
 
 of unwarranted usurpations. The principal point of col- 
 lision was the extension by the chancellors of relief after 
 and against the judgment of a court of law, by enjoining 
 the party, on some equitable ground, from causing such 
 judgment to be enforced or making any use of it. Over 
 the right of the chancellor thus to interfere with judg- 
 ments at law the courts engaged in a struggle which 
 lasted for centuries. It culminated in a series of pitched 
 battles occurring during the reigns of Elizabeth and 
 James I. 
 
 In their efforts to put an end to what they regarded as 
 an unwarranted attempt to overturn the law of the land, 
 the common law courts, stirred up by Sir Edward Coke, 
 who was the chief champion on that side of the contro- 
 versy, resorted to the weapon of indictments under the 
 Statute of Praemunire, 27 Edw. Ill, against chancery 
 lawyers who dared to move for injunctions against the 
 enforcement of judgments at law. That statute had im- 
 posed severe penalties upon all "which do sue in any 
 other court to defeat or impeach the judgments given in 
 the king's court." It was claimed by the champions of 
 equity that this statute was aimed merely against foreign, 
 that is the ecclesiastical courts, and had no reference to 
 the king's court of chancery, but the common law courts 
 held that suing in chancery came within its provisions. 
 The most famous of these indictments was one that was 
 preferred in 1588 against Serjeant John Heal, of the Inner 
 Temple, for bringing on behalf of a client a suit in chan- 
 cery for relief against a judgment. The Tudor and 
 Stuart monarchs frequently meddled with proceedings in 
 the law courts in a way that later ages would not have 
 tolerated, and Elizabeth personally interposed in the case 
 of Serjeant Heal, taking in this instance the side of chan- 
 cery. She called the judges before her, and gave them a 
 sharp lecture, intimating to them her royal pleasure that 
 
13 
 
 the indictment be not sustained. In consequence the in- 
 dictment was quashed, though this action was put by the 
 court upon the ground of a mistake of a name in it, the 
 judges not receding from the position that the Statute of 
 Praemunire applied. Lord Ellesmere, who was the lord 
 chancellor, was stoutly determined to uphold his juris- 
 diction, and continued to sustain bills for relief against 
 judgments. A few years later the celebrated case of 
 Throckmorton v. Finch came up in his court. 
 
 In the reign of Philip and Mary Thomas Throck- 
 morton received from the crown a valuable lease of land 
 which was the site of the former Priory of Raveston, the 
 lease containing a condition that it should become void 
 upon a failure to pay rent for forty days after it became 
 due. An accidental default occurred during the reign of 
 Elizabeth, Throckmorton's servant having been robbed 
 while on his way with the money to pay the rent. Before 
 the next pay-day the queen's receiver accepted the rent 
 so in arrear and gave an acquittance for it, and for 
 twenty-one years thereafter the rent was regularly and 
 promptly paid, accepted and receipted for. Notwith- 
 standing all this, the queen, having declared a forfeiture 
 for the default that had occurred by delay in the one pay- 
 ment of the rent, conveyed the land to another person 
 who afterwards conveyed to Sir Moyle Finch. Finch 
 then made a new lease, and his lessee brought ejectment 
 in the exchequer against Throckmorton. That court held 
 that by the failure to pay the defaulted instalment of 
 rent within forty days after it fell due, the lease was for- 
 feited and became ipso facto void; that the lapse of time 
 before a forfeiture was asserted, and the subsequent pay- 
 ment and acceptance of rent, did not affect the queen as 
 would have been the case with a private person; and that 
 the land was at her ample disposal and the conveyance 
 made by her passed a good title. The plaintiff accord- 
 
14 
 
 ingly recovered a judgment for it against Throckmorton, 
 which was affirmed by the exchequer chamber. But 
 Throckmorton was not yet willing to give up his claim to 
 the leasehold, and he filed a bill in chancery to obtain re- 
 lief from this forfeiture and the monstrously unjust judg- 
 ment enforcing it, in which bill he averred, as the equit- 
 able ground for such relief, that the non-payment of the 
 rent was not wilful but the result of unavoidable accident, 
 to-wit, the loss of the money, with which it was intended 
 to be paid, by the robbery of his servant when actually on 
 the way to make the payment. The defendant demurred 
 to the bill, on the ground that equity had no right to in- 
 terfere after a judgment at law. Lord Ellesmere was 
 about to overrule the demurrer and order the defendant 
 to answer the bill, when Elizabeth interfered, this time on 
 the side of law as against chancery, ordering him to refer 
 the demurrer to the consideration of the twelve judges. 
 Ellesmere submitted, and the judges naturally decided 
 that the demurrer must be sustained. 3 
 
 But the controversy between the courts was not ended 
 thereby. Lord Ellesmere still continued to give relief 
 against judgments at law, and there were more indict- 
 ments under the Statute of Praemunire. In the year 1616, 
 in the reign of James I, the controversy again came to a 
 head, Ellesmere still being chancellor and Coke being the 
 lord chief justice. In order that it might be finally set- 
 tled, Sir Francis Bacon, then the attorney general, and 
 Lord Ellesmere, induced the king to interpose. A com- 
 mission of crown lawyers, headed by Bacon, was ap- 
 pointed by the king to report on the question in dispute. 
 They did so, stating as a ground for sustaining the chan- 
 cery jurisdiction the ingenious quibble which has ever 
 
 3 The statements in the text regarding Throckmorton v. Finch are 
 based upon the account of that case given in Judge Charles E. Phelps's. 
 "Falstaff and Equity." 
 
15 
 
 since been quoted in the books, that chancery "does not 
 assume to undo the judgment, but only to restrain the cor- 
 rupt conscience of the party." This is, undoubtedly, the 
 form which the action of chancery would take; the in- 
 junction against the enforcement of the judgment would 
 not be addressed to the court which pronounced it, but to 
 the party alone, restraining him only. But, looking be- 
 neath the mere form to the substance and effect of the 
 action, what practical and substantial difference is there 
 between undoing the judgment and restraining the party 
 from taking any benefit by it? So far as he is concerned, 
 it is a case of "six of one and half a dozen of the other." 
 On the commission's report the king decided in favor of 
 the chancery jurisdiction, and by a prerogative order 
 established the right of chancery to relieve against an in- 
 equitable judgment at law. Coke submitted to this, and 
 the active war between the courts terminated. The chief 
 justice, however, remained unconvinced, and afterwards, 
 in his Institutes, stoutly maintained that the jurisdiction 
 exercised by the chancellor on this subject was contrary 
 to the statute of 27 Edw. III. After his death the question 
 ■was again mooted at intervals, and so late as 1695 Lord 
 Chief Baron Atkyns published an elaborate treatise in 
 support of Coke's doctrine, but this jurisdiction was there- 
 after exercised by equity without controversy or interrup- 
 tion. 
 
 The results of the final establishment of the suprem- 
 acy of the doctrines of equity over the rules of the com- 
 mon law are to be seen at this day in the jurisprudence of 
 our state. 
 
 When Pennsylvania was settled by colonists from 
 England, the settlers, according to established doctrine, 
 brought with them the English law and jurisprudence so 
 far as adapted for their situation in the new country. The 
 
16 
 
 law so brought by them consisted not only of the princi- 
 ples of the common law, and statutory modifications 
 thereof, but also of the principles of equity jurispru- 
 dence.* 
 
 Some settlements had been made within the bounds 
 of what is now Pennsylvania before William Penn be- 
 came the proprietary, and these were a part of the terri- 
 tory which Charles II in 1664 granted to the Duke of York, 
 afterwards James II. They continued under the Duke of 
 York's government until 1681. During that regime, as 
 will be seen on consulting the volume containing the Duke 
 of York's Book of Laws, and the charter and laws of the 
 Province of Pennsylvania, which was published in 1879 
 under the direction of the Secretary of the Common- 
 wealth in pursuance of the act of June 12, 1878, P. L. 203, 
 provisions were made for the administration of equity 
 by the courts. 
 
 By a royal charter dated March 4, 1681, the same 
 king, Charles II, granted the province of Pennsylvania to 
 William Penn, who then gave it a new judicial organiza- 
 tion, very simple at first, but gradually developed and 
 remodeled. The government of the province, as finally 
 organized, was carried on by a lieutenant governor, ap- 
 pointed by the proprietary, assisted by a governor's coun- 
 cil, and by an assembly or legislature. Laws passed by 
 
 4 I remark here, once lor all, that general statements, contained in 
 this paper, to the effect that the principles of equity developed in Eng- 
 land are in force in Pennsylvania, must be understood as subject to cer- 
 tain exceptions and qualifications. For example, the doctrine of "tack- 
 ing," in connection with mortgages, is not recognized here. See Dor- 
 row v. Kelly, 1 Dall. 144; Anderson v. Neff, 11 S. & R. 208, 223. And the 
 cy-pres doctrine was adopted only in a modified form and to a limited 
 extent: Witman v. Lex, 17 S. & R. 88, 92-3; Philadelphia v. Girard's 
 Heirs, 45 Pa. 9, 28; though afterwards somewhat extended by the acts 
 of April 26, 1855, P. L. 328, sec. 10; May 26, 1876, P. L. 211, and May 9, 
 1889, P. L. 173. 
 
17 
 
 the assembly were subject to abrogation by the king in 
 council. 
 
 Various attempts were made to establish in the pro- 
 vince, by law, the chancery jurisdiction. In 1684, and 
 again in 1690, bills were passed conferring equity juris- 
 diction upon the courts, but these acts were repealed by 
 William and Mary in 1693. 
 
 In 1701 an act was passed for the establishment of 
 courts of judicature in the province, which specially 
 clothed judges of the county courts with equity powers, 
 and also vested equity jurisdiction in the provincial court. 
 This was repealed in England in 1705. 
 
 In 1710 another statute for the establishing of courts 
 of judicature was enacted, conferring equity powers on 
 the county court judges, and making the supreme court a 
 court of appeal in equity. This was repealed by the king 
 in council in 1713. 
 
 In 1715 a supreme or provincial court of law and 
 equity was provided for, authorized to hold pleas in 
 equity according to the rules, manner and form used in 
 the courts of chancery and exchequer in Great Britain. 
 This law shared the fate of its predecessors, being re- 
 pealed in England in 1719. 
 
 The fact, which at first sight appears very remark- 
 able, that each of these laws was allowed to stand for sev- 
 eral years before repeal, although some of them were to 
 a considerable extent re-enactments of provisions pre- 
 viously repealed, is explained by William Henry Rawle r 
 in his lecture on Equity, by the statement that under the 
 terms of their charter the colonists had five years within 
 which to submit their laws to England for approval, and 
 after their passage would delay their transmission as long 
 as they decently could, in the meantime acting under 
 them; and when, on their being sent to England, they 
 would be repealed, other laws, as nearly similar as they 
 
18 
 
 dared to pass, would be enacted, and acted under until 
 these too got to the royal council and met with repeal. 
 
 One more attempt to make provision for the exer- 
 cise of chancery jurisdiction was made. Sir William 
 Keith was the lieutenant governor of the province from 
 1717 to 1726. He had, by his course in siding with the 
 people as against the proprietaries in several matters, 
 acquired much popularity and influence in the province. 
 He sent a message to the legislature in May, 1720, in which 
 he "informed them that it having been represented to him 
 that a court of chancery was very much wanted, he had 
 consulted those learned in the law and others of good 
 judgment, who all agreed that the office of chancellor 
 could only be lawfully executed by him who, by virtue of 
 the great seal, might be understood to act as the king's 
 representative; but, he added, that upon this subject the 
 opinion of the House should principally direct his con- 
 duct. A resolution was the next day unanimously passed 
 that, considering the present circumstances of the pro- 
 vince, 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 coun- 
 cil as he shall think fit, except such as have heard the 
 cause in any inferior court.' " (Rawle, Eq. 19, 20.) 
 
 This resolution having been laid before his council, it 
 was agreed that he should act under it, and that the court 
 should be held by the governor as chancellor, with the as- 
 sistance of members of the council, who might also be 
 employed as masters in chancery. Accordingly in Aug- 
 ust, 1720, the governor issued a proclamation announcing 
 that the court would be opened on the 25th of that month. 
 
 This was the only separate court of chancery that 
 Pennsylvania ever had. It lasted for about sixteen years, 
 when it was discontinued in consequence of another reso- 
 lution of the assembly. During Governor Keith's time 
 
19 
 
 the court did not- meet with much opposition or distrust, 
 but when he was succeeded as governor by Patrick Gor- 
 don, in whose disposition to care for the interests of the 
 people there was not the same confidence, opposition be- 
 gan to develop, originating in the feeling that it was un- 
 safe to have the governor, who was the appointee of the 
 proprietaries, at the head of an important court before 
 which would be likely to come matters in which the pro- 
 prietaries were personally interested. Objection was also 
 made to the heavy fees charged, and to the requirement 
 that persons from every part of the province should at- 
 tend the court at Philadelphia. This opposition culmi- 
 nated in a petition to the assembly, which led that body in 
 1735 to adopt a resolution declaring the court of chancery 
 as then established to be "contrary to the charter of privi- 
 leges granted to the freemen of this province." The 
 reference here is not to the king's charter, but to a charter 
 or grant of privileges made by William Penn on October 
 28, 1701, to the inhabitants of Pennsylvania, in which he 
 provided, inter alia, that no person should be obliged to 
 answer any complaint, etc., relating to property, "before 
 the governor in council, or in anj r other place but in the 
 ordinary courts of justice, unless appeals thereunto shall 
 be hereafter by law appointed," and provided further that 
 no law should be made, nor anything done, contrary to 
 any part of this charter, without the consent of the gover- 
 nor for the time being and six-sevenths of the assembly. 
 As this court of chancery was to be held by the governor 
 and members of his council, it was contended by the as- 
 sembly that it was a direct violation of the charter of 1701. 
 A statement of facts was drawn up and submitted to the 
 attorney general and solicitor general of England, for the 
 purpose of obtaining their opinion upon the legality of the 
 action establishing this court. This statement and the 
 opinions given upon it, are printed in an appendix to the 
 
20 
 
 first volume of Dalias's Reports. Both of the officers 
 agreed that the court was not in violation of the charter 
 of 1701, because the resolution of the assembly asking the 
 governor to establish it was a sufficient consent to a de- 
 parture from the provisions of that charter; and the solici- 
 tor general went even further, holding that "the proceed- 
 ings in a court of equity may justly be called the ordinary 
 course of justice," and therefore in no event could the 
 court be an infringement of the charter. The assembly 
 had contended, in the controversy between it and the gov- 
 ernor which followed the resolution of 1735, that no mere 
 vote of assent by the house could erect a court of equity: 
 that this could be done only by a law of the province, and 
 that only in a court so established could a suit be said to 
 be "in the ordinary course of justice." 
 
 Governor Gordon continued to act as chancellor until 
 his death in August, 1736, but, notwithstanding the opin- 
 ions of the attorney and solicitor general, no successor of 
 his ever attempted to exercise the chancery powers. 
 
 The records of this court, as found in the Registrar's 
 Book, are printed by Mr. Rawle as an appendix to his lec- 
 ture. Some of them are very interesting reading. 
 
 Keith's court having died n natural death, and no pro- 
 vision being made by the assembly for another court to 
 take its place, (which is said to have been because the 
 governor and the assembly could not agree as to who 
 should exercise the office of chancellor,) it became neces- 
 sary for the ordinary courts to deal with the situation thus 
 created. 
 
 Not only were the principles of equity recognized as 
 in force m Pennsylvania, but it was also realized that, by 
 reason of the fact that the common law had in previous 
 ages developed in such a form, and had assumed such a 
 shape, as to be inadequate, alone, for the government of 
 modern civilization, these equity principles were abso- 
 
21 
 
 luteiy needed to supplement it, and without them it was 
 impossible to administer justice in a manner suited to the 
 needs of the commonwealth. The view entertained was 
 that the doctrines and principles of equity were just as 
 much a part of the law of Pennsylvania as was the com- 
 mon law, and therefore the regular courts, as courts estab- 
 lished to administer justice, could decide cases regularly 
 brought before them in accordance with these principles, 
 but that, as they had not been invested with the chancery 
 powers, (that is, with the right to use the special remedies 
 and forms which appertained to proceedings in the Eng- 
 lish chancery,) the only way in which they could deal 
 with equity principles was by trea ting them as rules which 
 had become incorporated in the law of Pennsylvania ; and 
 hence, in order that the beneficent doctrines of equity 
 might not be merely splendid abstractions — to be admired 
 but not used — the courts should mold and adapt the com- 
 mon law forms in such a way as to make it practicable to 
 use them as the means of working out and applying the 
 equivalents of the appropriate equitable remedies. And 
 this the courts set themselves to do. 
 
 I do not mean to suggest that the idea of using com- 
 mon law forms for the administration of equity principles 
 was first conceived and put in practice after the abolition 
 of the chancery court. A remark of the chief justice in 
 Swift v. Hawkins, 1 Dall. 17, hereafter to be more particu- 
 larly referred to, indicates that, to some extent at least, 
 equitable rights were allowed to be asserted in common 
 law suits even during the operation of the separate court 
 of chancery, and this must have been merely the continua- 
 tion of a practice introduced before that court was set up. 
 What I do say is, that after the chancery court was aban- 
 doned the judges set themselves to the work of extending 
 such practice, and systematically molding and adapting 
 the forms of the common law so as to fit them for the en- 
 
22 
 
 forcement of every principle of equity that was capable of 
 so being administered. 
 
 Time would fail me were I to attempt a complete 
 treatise upon the system of remedies which the courts de- 
 veloped, or even to go into a specification of all of these, 
 and I shall have to confine myself to giving a few illustra- 
 tions of the manner in which they dealt with the situation. 
 
 1. Equitable defenses. The case of Swift v. Haw- 
 kins, 1 Dall. 17, (1768,) was an action of debt upon a bond. 
 The defendant, under the plea of payment, offered to 
 prove that he had received no consideration for the bond. 
 The offer was objected to because "the consideration of a 
 bond is not inquirable into, the passing of the bond being 
 a gift in law of the money." This objection was unques- 
 tionably good at common law. This defense was one 
 which the law did not allow to be made in such an action. 
 The common law rule was that the obligor's seal dis- 
 pensed with the necessity of a consideration and rendered 
 inquiry into it inadmissible because immaterial. If a 
 man voluntarily put his seal to an obligation which was 
 not in violation of any prohibition or policy of the law, 
 he absolutely bound himself, and it may be said that, 
 practically, no defense was open to him except pleading 
 an acquittance or release. 5 Shylock speaks in strict ac- 
 cord with the common law rule when, on the trial of the 
 action brought by him in the court of the Duke of Venice 
 
 5 According to the ancient common law, even proof of actual pay- 
 ment of the money would not, alone, have been a defense, because it 
 was held that a bond could not be avoided by bare averment and parol 
 proof, but only "by a sufficient writing or by some other thing of as high 
 authority as the obligation is," and hence, if one indebted upon a sealed 
 obligation paid the debt in full, but neglected to obtain release or a sur- 
 render of the instrument, he might be compelled by suit to pay the 
 money a second time: Doctor and Student, ch. xii., Pom. Eq. Jur., 
 sec. 70. 
 
23 
 
 upon the bond given by Antonio, he says, in reply to an 
 impassioned speech of Gratiano : 
 
 "Till thou canst rail the seal from off my bond, 
 Thou but offend'st thy lungs to speak so loud." 
 But equity looked at the matter in a different light. 
 She did not attempt to disregard the legal rule that a seal 
 dispenses with the necessity for a consideration, and 
 therefore, mere want of consideration is not a defense to a 
 sealed obligation; but she drew a distinction between 
 want of consideration and failure of consideration: see 
 Candor & Henderson's App., 27 Pa. 119; Sherk v. Endress, 
 3 W. & S. 255, 257; Snyder's Est., 7 Kulp 409; Anderson 
 v. Best, 176 Pa. 498. When a man, without stipulating 
 for any consideration, sealed and delivered his bond, 
 equity left hirn to be governed by the rule of law; but if 
 he had given the obligation upon the understanding and 
 agreement that he was to receive a consideration for so 
 doing, then equity regarded it as unjust, if he failed to re- 
 ceive such consideration, to permit the obligation to be 
 enforced against him. Accordingly, where there had 
 been a failure of consideration, she would interfere by 
 enjoining the obligee from enforcing the bond by means 
 of an action upon it at law. In short, failure of considera- 
 tion was an equitable defense, and in Swift v. Hawkins 
 the defendant was setting up such a defense in a court of 
 law. (Although the wording of the reporter's very con- 
 densed statement of the facts might on its face mean that 
 there was a want rather than a failure of consideration, 
 the actual meaning must have been that the defendant 
 had failed to receive a consideration that had been stipu- 
 lated for.) The court held that, there being no court of 
 chancery in the province, there was a necessity, in order 
 to prevent a failure of justice, to let the defendant, under 
 his plea of payment, make this defense, and Chief Justice 
 Allen said that he had known this to be the constant prac 7 
 
24 
 
 tice of the courts of justice in the province for the preced- 
 ing thirty-nine years. 
 
 In Mackey v. Brownfield, 13 S. & R. 239, (1825,) where, 
 under the plea of payment with leave, the defendant in a 
 scire facias sur mortgage was allowed to show that only a 
 part of the sum for which the mortgage was given had 
 actually been advanced to him, the remainder of the loan 
 being still in the hands of the mortgagee, Mr. Justice Dun- 
 can said of Swift v. Hawkins : "This case may be called 
 the Magna Charta of this branch of equity, and has ever 
 since been followed, and rules of court universally estab- 
 lished requiring notice of the special matter, fraud, or 
 failure of consideration, intended to be given in evi- 
 dence." 
 
 Thus a plea filed in an action at law became a sub- 
 stitute for a bill in equity. 
 
 2. Equitable claims by plaintiffs. Similarly, a plain- 
 tiff was allowed to maintain an action based upon an 
 equitable right in himself, making the action a substitute 
 for a bill in chancery. The sustaining of an action not 
 grounded upon a legal right was, of course, a common law 
 solecism; but this was done under the maxim that equity 
 regards that as done which ought to be done; that is to 
 say, for the purpose of sustaining the action the court 
 would, according to the doctrine that in fictione juris 
 semper subsisiit aequitas, presume that the defendant had 
 done whatever was necessary to invest the plaintiff with 
 the right to sue. 
 
 A most interesting illustration of this practice is found 
 in the case of Martzell v. Stauffer, 3 P. & W. 398, (1832). 
 The father of the plaintiff had by his will created a trust 
 for the benefit of the latter, who was a habitual drunkard. 
 Under the will a certain fund was set aside, the income of 
 which was to go for the benefit of the plaintiff, and the 
 
25 
 
 executors were to appoint a trustee to handle that fund. 
 The defendant was so appointed, and, having this fund in 
 his hands, became insolvent and proved to be an unfaith- 
 ful trustee. This action of indebitatus assumpsit was 
 brought by the cestui que trust, with the express consent 
 and approval of the surviving executor, for the purpose of 
 getting the fund out of the hands of the defaulting trustee. 
 The trial court charged that the plaintiff could not re- 
 cover, but the supreme court reversed, Mr. Justice Rogers 
 saying that if we had a court of chancery the remedy 
 would be plain, it being a settled principle of that court 
 that a trustee who mismanages, or by existing or impend- 
 ing insolvency puts in jeopardy, the assets in his hands, 
 should be prevented from further interfering with the 
 estate, and it is a common practice to order him, in default 
 of security, to bring the money into court, whereupon the 
 court would appoint a receiver of it; that, for want of a 
 court of chancery, the courts of Pennsylvania were ob- 
 liged, from necessity and to prevent a failure of justice, to 
 resort to a common law action, which, although a less 
 direct and more clumsy mode, had been made effectual in 
 many cases to accomplish equitable relief; and that the 
 principle had been settled that equitable relief will in- 
 variably be granted when it can be done consistently with 
 the forms known to the common law. 
 
 In this case, as is obvious, the plaintiff would have 
 been a proper complainant in a court of chancery. As the 
 cestui que trust for life of the fund held by the trustee, he 
 Avould have had a standing to ask the chancellor to inter- 
 vene and take the fund out of the defaulting trustee's, 
 hands, and, treating this action as a substitute for such a 
 bill in equity, the court held that it could be maintained 
 with him as the plaintiff. But the action was in form a 
 suit for the recovery of the money by the cestui que trust, 
 and by the very terms of the trust he was not allowed to 
 
26 
 
 handle the money. Justice Rogers, referring to this dif- 
 ficulty, says that it can be obviated by the court's controll- 
 ing the process of execution upon the judgment that may 
 be recovered, so as to require that, when made, the money 
 shall be brought into court by the sheriff, which can be 
 accomplished either by entering a special judgment or by 
 merely endorsing on the writ of execution an order giving 
 directions to the sheriff; that such recovery of the fund 
 would have the effect of terminating the defendant's trus- 
 teeship, and it would then devolve upon the surviving 
 executor to appoint a successor, who would be entitled to 
 receive the fund under the orders of the court. 
 
 Observe the ingenuity with which in this case a 
 method was worked out of giving, under common law 
 forms, the complete relief that a chancery court would 
 have given in the case, had there been one. 6 
 
 Before leaving the present head I should add the re- 
 mark that such a departure from common law rules as the 
 allowing a suit to be brought in the name of a plaintiff 
 having only an equitable right, was not carried further 
 than necessity required. Therefore this was not permit- 
 ted in a case where a party had, by the assignment of a 
 non-negotiable chose in action, an equitable title thereto. 
 
 At common law a chose in action was not assignable. 
 Certain choses in action, such as bills of exchange and 
 promissory notes, were in time made exceptions to this, 
 
 t> In the same year in which this case was decided, the legislature by 
 the act of March 29, 1832, P. L. 190, section 57, clause XIX, provided a 
 writ by means of which the orphans court, in the case of a trust sub- 
 ject to its jurisdiction, where the trustee is wasting or misapplying the 
 trust property, or is about to abscond and carry it out of the jurisdic- 
 tion, could accomplish, in a more direct and effectual manner, the very 
 relief which this decision worked out, viz. the taking of the trust funds 
 or effects into the custody of the sheriff, to the end that they may be 
 brought within the control of the court and be further disposed of in 
 accordance with its order. 
 
27 
 
 being given the quality designated by the term negotiabil- 
 ity. Our act of May 28, 1715, 1 Sm. L. 90, further altered 
 the law by authorizing the assignment of bonds and other 
 specialties by means of a writing under seal and attested 
 by two witnesses, and empowering the assignee to bring 
 suit thereon in his own name; by virtue of which act an 
 assignment so made has the effect, it may be said, of pass- 
 ing a legal title, though it is held that the assignee takes 
 subject to pre-existing equities between the original 
 parties: Wheeler v. Hughes, 1 Dall. 23. But as to choses 
 in action that are neither negotiable nor within the pro- 
 visions of the act of 1715, the rule has always been at law 
 that they are not assignable, while in equity an assignment 
 has been upheld, so that the. assignee would acquire an 
 equitable title thereto, the legal title remaining in the 
 assignor. An assignment of a bond or specialty not made 
 in conformity with the act of 1715 by being under seal and 
 attested by two witnesses, would have the same effect as 
 an assignment of a chose to which the statute did not 
 apply; i. e. it would pass simply an equitable title: Bunt- 
 ing v. Railroad Co., 81 Pa. 254. 
 
 In all cases of such equitable assignments equity re- 
 garded the assignor as holding the legal title to the obliga- 
 tion in trust for his assignee, and as under the duty of do- 
 ing whatever was requisite to enable the assignee to enjoy 
 the benefit of the transfer made to him. Accordingly it 
 would compel him to permit the assignee to bring a suit 
 on the instrument in his name. Hence all that was neces- 
 sary for the Pennsylvania courts to do in cases of equitable 
 assignments was to enforce the equity principle that the 
 assignee had the right to use the assignor's name in bring- 
 ing suit; and this was done. The action would be brought 
 in the name of the obligee to the use of his assignee, who 
 throughout the case would be treated as the real plaintiff, 
 having absolute control of the action and being alone held 
 
28 
 
 responsible for costs. This practice was finally regulated 
 by the act of April 23, 1829, 10 Sm. L. 455, to some extent, 
 the act also providing that the death of the assignor pend- 
 ing the suit should not abate it, and that in certain cases 
 the assignee might proceed in his own name. 
 
 3. Specific performance. The rules just referred to, 
 "viz. that either an action at law, or a defense to such an 
 action, could be grounded upon an equitable right, being 
 established, the way was opened for the administration of 
 the equitable remed}' of specific performance. The action 
 that was commonly employed for this purpose in the case 
 of contracts for the sale of land was ejectment, and by 
 means of this action this relief might be given to either a 
 plaintiff or a defendant. The ingenious method by which 
 ejectment was rendered available for the purpose was by 
 resorting to the plan of rendering conditional verdicts, an 
 expedient which, after having been extensively employed 
 in practice, was sustained by the supreme court: Cool- 
 baugh v. Pierce, 8 S. & R. 418. In a case where, in pur- 
 suance of the contract, possession had been taken by the 
 vendee, but the purchase money had not been paid in full, 
 the vendor might bring ejectment on his legal title, and in 
 such a case the vendee was allowed to set up his equity as 
 a defense, claim the opportunity of paying the balance of 
 the purchase money, and ask that on his so doing the con- 
 tract be specifically performed. In such circumstances 
 relief would be given him by means of a conditional ver- 
 dict, the jury rendering a verdict for the plaintiff for the 
 land described in the writ, to be released upon the defend- 
 ant's paying, within a time fixed by the jury, the balance 
 owing, the amount of which the verdict would liquidate; 
 and the making of a deed by the plaintiff could be pro- 
 vided for by adding a further condition that he should not 
 be entitled to receive the money until this should be done. 
 
29 
 
 If the defendant failed to comply with the terms so fixed, 
 the verdict would become absolute, and his equitable title 
 would be gone; but if he did so comply, he would obtain 
 the equivalent of a decree of specific performance by a 
 chancellor. 
 
 Suppose, however, that the vendee were not in posses- 
 sion : he would then, for the purpose of obtaining specific 
 performance, be allowed to base an action of ejectment 
 against the vendor upon the equitable title which the con- 
 tract vested in him. To allow ejectment to be maintained, 
 against the holder of the legal title, by a plaintiff having a 
 mere equitable right, was a legal anomaly, but, regarding 
 the action as a substitute for a bill in equity, it ceased to 
 be illogical. If the vendee had paid the purchase money 
 in full, he would be entitled to a verdict absolute in the 
 first instance. But if any of the purchase money still re- 
 mained to be paid, the verdict in his favor would be a con- 
 ditional one, specifying the amount to be paid by him and 
 the time when or within which such payment should be 
 made, and making such payment the condition of his right 
 to enforce the verdict by obtaining possession of the land. 
 
 The action of ejectment would not, however, serve to 
 effect complete specific performance in all cases. Sup- 
 pose the vendee to be in possession and to have paid all 
 the purchase money, and that after receiving the purchase 
 money the vendor has refused to give a deed. How could 
 the vendor be forced in such a case to make the deed? By 
 a conditional verdict for damages. The refusal or neglect 
 to convey the legal title would be such a breach of contract 
 on the vendor's part as would sustain an action for dam- 
 ages. If the jury should give a verdict for substantial 
 damages, with the condition that these should be released 
 upon the vendor's conveying the title to the vendee, this 
 would bring the vendor to time by making it decidedly to 
 his interest to perform his contract obligation in order to 
 
30 
 
 get rid of the damages. In his essay on Equity in Penn- 
 sylvania, written in 1825 and reprinted in the First Annual 
 Report of the Pennsylvania Bar Association (1895,) Mr. 
 Laussatt says that it was the regular practice of the courts, 
 whenever the plaintiff was in equity entitled to have a 
 specific act performed by the defendant, to compel this by 
 granting conditional damages, so large in amount that the 
 defendant would find it to his advantage to yield to the 
 plaintiff the equity which was the subject of the suit: page 
 *48. A number of cases are found in the books in which, 
 the plaintiff having filed a stipulation to release the dam- 
 ages that might be awarded, when the defendant should 
 perform the act in question, the court has advised the jury 
 to give damages sufficient in amount to operate in bring- 
 ing about such action by the defendant : see, for example, 
 Clyde v. Clyde, 1 Y. 92; Walker v. Butz, 1 Y. 574; Anony- 
 mous, 4 Dall. 147; and see also Decamp v. Feay, 5 S. & R. 
 323, 328, approving such a practice. 7 
 
 The action of replevin was used to enforce specific 
 performance of contracts for the sale of personal prop- 
 erty, in the exceptional cases in which equity would grant 
 such relief, just as the action of ejectment was employed 
 for real estate. 
 
 4. Trusts. The case of Martzell v. Stauffer, already 
 cited, is an illustration of a method of protecting a trust 
 estate by means of a common law action. It is obvious 
 that the form of relief which the supreme court worked 
 out in that case amounted to the equivalent of a chancery 
 
 7 The idea of using conditional damages as the means to compel the 
 defendant to perform some act, was not first conceived in Pennsylvania. 
 It is said that in the reign of Edward IV Fairfax counseled his col- 
 leagues in the common law courts to resort to this device as a means 
 of checking the progress of the clerical chancellors in drawing litiga- 
 tion into their court. 
 
31 
 
 decree removing an unfaithful trustee, settling an account 
 against him, and ordering him to pay over the amount for 
 which he is found accountable. 
 
 To a very great extent, however, the common law 
 forms were inadequate to enable the courts to supervise 
 and control the execution of express trusts, and this fact 
 led the legislature to pass laws, from time to time, pre- 
 vious to the equity act of 1836, providing for the appoint- 
 ment and discharge of trustees and for the regulation in 
 divers particulars of their acts. 8 
 
 But in the large class of cases in which equity raises 
 what are known as resulting and constructive trusts, com- 
 mon law actions usually afforded the means of establish- 
 ing and enforcing these very effectually. This could be 
 done as to land in an action of ejectment; as to chattels in 
 replevin or trover, and as to money in assumpsit. 
 
 5. Reformation. At common law a written agree- 
 ment could not be controlled or varied by parol evidence. 
 If by fraud, accident or mistake something were included 
 therein to the inclusion of which the parties had not 
 mutually agreed, or something which was agreed on and 
 intended to be included were omitted, so that the contract 
 as written did not express the true agreement of the 
 parties, the one to whose prejudice this had occurred was 
 forced to appeal to the court of chancery for relief ; for, if 
 
 8 Power to regulate the trusts created by deeds of voluntary assign- 
 ment was conferred in 1818; and by acts passed in 1825, and 1828 pro- 
 visions were made for the appointment, and for the discharge after 
 settlement of their accounts, of trustees in other trusts. See also the 
 Act of 1831, P. L. 192. On June 14, 1836, two days before the approval 
 of the act conferring full chancery powers as to subject-matters therein 
 mentioned, including trusts, an act went into effect giving extensive 
 jurisdiction over trustees: P. L. 630. By the act of March 29, 1832, 
 P. L. 190, jurisdiction over testamentary trustees, guardians, executors, 
 etc., was conferred upon the orphans court. 
 
32 
 
 the writing were brought before a court of law by an 
 action upon it, that court would not listen to parol evi- 
 dence the purpose of which was to vary its terms by show- 
 ing that it did not correctly express the agreement in the 
 making of which the minds of the contracting parties had 
 actually met. But our courts established the practice of 
 permitting the writing to be in effect reformed in the 
 course of the trial of an action brought upon it. This is 
 what Mr. Justice Paxson meant — as a subsequent passage 
 in his opinion shows — when he remarked in Phillips v. 
 Meily, 106 Pa. 536, that "the English rule that parol evi- 
 dence is inadmissible to vary the terms of a written instru- 
 ment does not exist in this state." 
 
 The rules of equity on the subject of reformation have 
 been followed with reference to such alteration of a writ- 
 ing by parol evidence: quoad hoc, the judge sits as a chan- 
 cellor, and it is for him to decide whether a sufficient case 
 has been made out to justify reformation by a chancellor 
 supposing the testimony offered for the purpose to be be- 
 lieved; it is only in the event that he decides this question 
 in the affirmative that he will then submit the case to the 
 jury, with instructions that, if they find the allegations 
 made to be true, they may treat the instrument as if it had 
 been reformed. Thus the functions of the judge as a 
 chancellor, and the functions of the jury, are not confused 
 but kept distinct. 
 
 6. Opening confessed judgments. As Justice Mitchell 
 suggests, in his little book on Motions and Rules, if Black- 
 stone could attend a few of our Pennsylvania motion 
 courts, he would be likely to think that the doctrine of his 
 definition of final judgments as being "such as at once put 
 an end to the action'' has been strangely perverted; for 
 with us, in a large proportion of cases, the entry of a final 
 judgment on a warrant is but the beginning of litigation. 
 
33 
 
 The payee of a judgment nole takes it to the prothono- 
 tary's office and has judgment entered upon it. Thereby 
 the law solemnly adjudges his right to collect so much 
 money from the maker of the note. But the defendant 
 then comes into court with an application to have the 
 judgment opened in order that he may be let into a de- 
 fense; and thus a long continued and costly litigation is 
 set on foot, in part falsifying Judge Duncan's remark in 
 Swan v. Scott, 11 S. & R. 155, 163, that "the judgment of 
 the law, like the hand of death, puts an end to all strife." 
 Chief Justice Gibson, in Gallup v. Reynolds, 8 Watts 424> 
 says that this practice of opening judgments entered on 
 a warrant of attorney to let in a defense specially sworn 
 to, is peculiar to our jurisprudence; that there are no 
 traces of it in the English books, for, though the English 
 courts would set aside the judgment, and order the war- 
 rant to be delivered up, if it appeared that it had been pro- 
 cured from an infant or feme covert, or for an illegal 
 consideration, or the like, yet no instance could be found 
 in the English courts of a judgment opened in our sense 
 of the term. He goes on to state that in our practice the 
 opening of a judgment is not setting it aside; it does not 
 destroy the plaintiff's lien for whatever may ultimately 
 be found to be owing, and it deprives the judgment "of 
 no quality but its maturity for execution." In short, open- 
 ing is simply extending to the defendant the opportunity 
 of presenting a defense which he has not yet had a day in 
 court to bring forward. This practice, will therefore be 
 seen to be the equivalent of the application to the chan- 
 cellor tor relief against a judgment at law, to which ref- 
 erence has been made in connection with the history of 
 equity in England, and our appellate courts have declared 
 this to be its nature. In Kellogg v. Krauser, 14 S. & R. 137, 
 where an application to open was made, Tilghman, C. J., 
 says that on proof of a fraud practiced on the defendant 
 
34 
 
 by the plaintiff, a court of chancery "might have enjoined 
 him against proceeding on the judgment, and the court 
 of common pleas, having ascertained the fact, may give 
 relief in some manner equivalent to an injunction." The 
 rule has been well settled that the application to open a 
 judgment is essentially an equity proceeding, the relief 
 applied for being in effect the decree of a chancellor; 
 from which it follows that the applicant must make out 
 such a case as would justify a chancellor in making such 
 a decree : Knarr v. Elgren, 19 W. N. C. 531 ; English's App., 
 119 Pa. 533; Jenkintown Nat. Bank's App., 124 Pa. 337; 
 Koch v. Biesecker, 7 Super. Ct. 37. The judge, acting as 
 a chancellor, restrains the plaintiff from prosecuting ex- 
 ecution process pending the investigation of the defense 
 set up, and, after hearing the testimony in regard to it, 
 determines whether the evidence as a whole presents a 
 case sufficiently strong to justify the grant of relief by a 
 chancellor in case the testimony for the defendant be 
 believed; if it is, an order opening the judgment will be 
 made, to the end that the defendant may have his testi- 
 mony considered by a jury; otherwise the application 
 will be refused. If the judgment be opened, and the jury 
 find for the defendant, a judgment is then entered on 
 their verdict which is the equivalent of a perpetual in- 
 junction granted by a chancellor against the enforce- 
 ment of the original judgment. 
 
 This procedure is at the present time such a common 
 and familiar practice — being a matter of every day ex- 
 perience in our courts — that I have perhaps taken up too 
 much time in speaking of it. I have done so because it 
 seemed to be worth while to define its true nature, as be- 
 ing an instance of the administration of equity under com- 
 mon law forms, especially in view of the fact that for a 
 time there existed some confusion of the principles in- 
 volved, in the decisions of the supreme court, it having 
 
35 
 
 been held in Wistar v. McManes, 54 Pa. 318, and in Ash- 
 ton's Appeal, 73 Pa. 153, that after the court in which a 
 judgment is entered has discharged a rule to open, the de- 
 fendant may still, for the purpose of setting up an equita- 
 ble defense to it, file a bill in equity — a ruling which over- 
 looked the fact that his original petition to open was itself 
 an equitable proceeding, and its dismissal was an adjudi- 
 cation by a chancellor upon the equity set up. This error 
 was corrected by the overruling of these cases in Frauen- 
 thal's Appeal, 100 Pa. 290, following the doctrine of Gor- 
 dinier's Appeal, 89 Pa. 528. 
 
 I might go on and give other illustrations and in- 
 stances of the way in which the courts managed to admin- 
 ister equity without the machinery of a court of chancery; 
 but those that have been given are sufficient in number 
 and variety to illustrate their methods of dealing with the 
 problem and the measure of success they attained. 
 
 In the illustrative instances which I have given, and in 
 all cases in which equity is administered in a common law 
 trial, it must always be remembered that it is the judge, 
 and not the jury, who acts as the chancellor. Although in 
 the earlier cases, before the Revolution, there was some 
 confusion on this subject, and too much was sometimes 
 left to the jury, in time the courts arrived at, and settled 
 down and adhered to, the correct conception of the mat- 
 ter, which was thus stated in 1827 by Mr. Justice Duncan 
 in Hawthorn v. Bronson, 16 S. & R. 269, 278 : 
 
 "In Pennsylvania equity is law. Courts give the 
 equitable principle to the jury, as they lay down the legal 
 principles. The facts are for the decision of the jury, as 
 all contested facts must be; but whether, on any state of 
 facts found by the jury, the party is entitled to equity, and 
 the mode, manner and extent of relief, is for the court." 
 
36 
 
 And Mr. Justice Sharswood, in Church v. Ruland, 64 
 Pa. 432, says: 
 
 "The judge in reality is the chancellor with the assist- 
 ance of a jury. It is not like other ordinary trials at law, 
 where any evidence reasonably tending to prove a fact 
 must be submitted to be passed upon by that tribunal. 
 The conscience of the judge as chancellor must be satis- 
 fied, and what goes to the jury is to determine, the credibil- 
 ity of the witnesses, and to weigh and decide upon the 
 force and effect of conflicting testimony. What is this but 
 the trial of a feigned issue out of chancery ?" 
 
 The measure of proof required in such cases to sus- 
 tain the equity set up being determinable by the rules of 
 equity and not by those of the common law, it was accord- 
 ingly held that in certain cases, as where it is sought to 
 change a solemn written agreement into one of different 
 purport, this must be done by evidence that is "clear, pre- 
 cise and indubitable," and it is for the judge to refuse to 
 submit the case to the. jury if the proofs do not measure up 
 to this standard: Stine v. Sherk, 1 W. & S. 195. 9 The 
 meaning of the phrase "clear, precise and indubitable" is 
 explained in Spencer v. Colt, 89 Pa. 314; Ott v. Ctyer, 106 
 Pa. 6, and Boyertown Nat. Bank v. Hartman, 147 Pa. 558. 
 
 The system thai was reared by the ingenuity and good 
 sense of a long line of able judges, in their endeavors to 
 get as near as possible to the attainment of complete jus- 
 tice, was in truth a noble structure, and the degree of suc- 
 cess which they reached in its practical use was wonder- 
 ful. One result of the system was that Pennsylvania was 
 
 9 The act of May 28, 1913, P. L. 358, which aholishes the general rule 
 that in equity a responsive answer must be overcome by the testimony 
 of two witnesses, or by that of one witness and corroborating circum- 
 stances equivalent to another, contains a proviso that nothing in it 
 shall affect the required measure of proof in cases wherein it is at- 
 tempted to reform or overthrow » written instrument. 
 
37 
 
 a leader in the modern reform of bringing law and equity 
 together, and causing the former to be permeated by the 
 principles of the latter. Judge Simonton, in his presi- 
 dential address, delivered in 1895 before the Pennsylvania 
 Bar Association, on the subject of Pennsylvania Juris- 
 prudence, (1 Ann. Rep. of Pa. Bar Assoc. 3,) referring to 
 what Pomeroy says in sections 84 to 88 of his work on 
 Equity Jurisprudence respecting the results accomplished 
 in recent times by what the latter calls the "reformed pro- 
 cedure," states that a study of the development of the 
 jurisprudence of Pennsylvania will show that we antici- 
 pated and exceeded the advances in other states of which 
 Pomeroy makes so much. 
 
 We reached in Pennsylvania by gradual evolution the 
 situation which was brought about in England by the 
 Judicature Act of 1873, providing that law and equity 
 should be concurrently administered by the supreme court 
 of judicature thereby established, and that in all matters 
 not otherwise regulated in the statute, in which there is a 
 conflict or variance between the rules of equity and the 
 rules of the common law, the rules of equity should pre- 
 vail : 36 & 37 Vict. ch. 66, sees. 24, 25. This is exactly what 
 the courts of Pennsylvania had been doing for many years. 
 Indeed, we may say that equity in Pennsylvania came to 
 be practically very much the same thing as the Roman 
 notion of aequiias as described by Pomeroy. This, he 
 states, was composed of a body of moral principles 
 adopted from the law of nature, which "penetrated the en- 
 tire jurisprudence, displacing what of the ancient system 
 was arbitrary and unjust, and bringing the whole into an 
 accordance with the prevailing notions of morality:" 
 Pom. Eq. Jur. sec. 8. 
 
 Our Pennsylvania system seems to have been largely 
 the product of conscious, deliberate planning. You have 
 all read how Lord Mansfield built up and developed into a 
 
38 
 
 well-ordered, systematic code of rules the commercial law, 
 which before his day was a mass of confusion and inco- 
 herence. You have read how Lord Nottingham and Lord 
 Hardwicke, and others, systematized and reduced to an 
 orderly science, as fixed and certain as the common law 
 itself, the principles of equity, thereby removing all 
 ground for Selden's famous criticism — which at one time 
 had considerable foundation — that equity, unlike law, has 
 no measure or standard to go by, but is "according to the 
 conscience of him that is chancellor and according as that 
 is larger or narrower so is equity," to which Selden added 
 that this is just as if we were to take as the standard for 
 our foot measure the length of the foot of the chancellor 
 for the time being, so that our standard would be constant- 
 ly changing and shifting. The work of our Pennsylvania 
 judges in building up an orderly and coherent system for 
 the administration of equity by the methods at their com- 
 mand, was comparable with that done by the great Eng- 
 lish judges whom I have named, in his eulogy of Chief 
 Justice Tilghman, delivered in Philadelphia on October 
 13, 1827, and printed in an appendix to the 16th volume of 
 Sergeant & Rawle's Reports, Horace Binney gives to that 
 eminent man a large part of the credit for this work, par- 
 ticularly in the matter of reducing the system to a scien- 
 tific form by accurately drawing and establishing the lines 
 separating between the functions of the judge sitting as a 
 chancellor and those to be performed by the jury. Mr. 
 Binney says that, acting upon a suggestion made to him by 
 the distinguished predecessor to whom he owed his office 
 ■ — referring, as I understand the passage, to Governor 
 Thomas McKean, a former chief justice, who on February 
 25, 1806, appointed Mr. Tilghman as the head of the su- 
 preme court,— Tilghman took up, and with the aid of his 
 colleagues carried through, the work of establishing "the 
 principles of methodised and scientific equity, in their just 
 
39 
 
 sway, as a part of the common law of the land," and of 
 showing "how to clothe a large body of equity principles 
 in the drapery of the law." We must not, however, lose 
 sight of the part played by Tilghman's predecessors and 
 successors, as well as by his colleagues. This work was 
 going steadily on during the century that intervened be- 
 tween the abolition of Governor Keith's chancery court 
 and the passage of the act of 1836. Tilghman built on the 
 foundations laid by his predecessors, and his successors 
 carried forward and completed his work. 
 
 But, in spite of all that can be said in its praise, the 
 system as developed was imperfect as an instrument for 
 the administration of justice. In some instances it work- 
 ed conveniently and efficiently; to others it was not so well 
 adapted. Scattered through the Supreme Court Reports 
 are numerous expressions of the judges to the effect that, 
 as applied to certain cases, it was a clumsy method of en- 
 forcing equitable rights. It was utterly inadequate in 
 some cases. The legislature was therefore led from time 
 to time to pass laws conferring chancery powers upon the 
 courts, and finally to grant a broad equity jurisdiction. 
 
 Judge Simonton, in his address already referred to, 
 blames the judges for not going further than they did. 
 After referring to the Statute of Westminster 2, which 
 authorized the framing of new writs for the commence- 
 ment of actions in the common law courts in cases where 
 no precedent of a writ could be found, but which fell 
 under the same right as another case in which there was a 
 precedent of a writ and required the like remedy, which 
 statute was reported as being in force in Pennsylvania: 
 Roberts' Dig. 158; Report of Judges, 3 Binn. Appendix; 
 and quoting Blackstone's remark (3 Com. 51) that this 
 provision of the statute, "with a little accuracy in the 
 clerks of the chancery, [who framed the writs by which 
 suits were brought in the common law courts,] and a little 
 
40 
 
 liberality in the judges, by extending rather than narrow- 
 ing the remedial effects of the writ, might have effectually 
 answered all the purposes of a court of equity, except that 
 of obtaining a discovery by the oath of the defendant," 
 Judge Simonton says that "it does not seem entirely easy 
 to understand why the supreme court, instead of com- 
 plaining of the want of power, and being in fear of 'doing 
 violence to the forms of action,' did not act upon Black- 
 stone's opinion by devising new forms or adopting those 
 already in use in chancery under the power conferred 
 upon them by this statute;" that if the court had proceed- 
 ed uniformly on the principle of disregarding technical 
 forms when they stood in the way of perfect and exact 
 justice, "and especially if it had exercised the powers con- 
 ferred upon it by the Statute of Westm. 2, it could have 
 not only adopted entire equity principles, but could have 
 devised and adopted forms and administered all equitable 
 relief required; and there would have been no necessity 
 for the frequent complaints made by the judges that while 
 they recognized and applied equity principles, they did 
 not possess chancery powers." He adds : "That they did 
 not cast off entirely the shackles of form imposed by com- 
 mon law procedure, shows only the force of education and 
 custom; that they did so to such a great degree speaks well 
 for their sense of right, and shows the grasp they had ob- 
 tained upon the fundamental principles of equity." 
 
 It is with diffidence, in view of Judge Simonton's 
 eminence as a judge and his reputation, for learning and 
 accuracy, that I venture to make the following remark. It 
 seems to me that if we are to understand what he said 
 about the court's being authorized by the Statute of 
 Westm. 2 to adopt the forms "already in use in chancery" 
 and use them so as to administer "all equitable relief re- 
 quired," as intended to mean that the court could take 
 over bodily the peculiar chancery forms of remedies, and 
 
41 
 
 as intended to apply lo the courts alter the year 1776, then 
 he was hardly giving sufficient consideration to the pro- 
 visions of the fundamental law of Pennsylvania. 
 
 Section 24 of chapter II of the constitution of 1776 
 provided : 
 
 "'The supreme court and the several courts of common 
 pleas of this commonwealth shall, besides the powers 
 usually exercised by such courts, have the powers of a 
 court of chancery so far as relates to the perpetuating 
 testimony, obtaining evidence from places not within this 
 state, and the care of the persons and estates of those who 
 are non compotes mentis, 10 and such other powers as may 
 be found necessary by future general assemblies, not in- 
 consistent with this constitution." 
 
 The constitution of 1790 left this matter in substan- 
 tially the same situation, except that it added a grant to 
 the legislature of the power to set up separate equity 
 courts. Its language is : 
 
 "The supreme court and the several courts of com- 
 mon pleas shall, besides the powers heretofore usually 
 exercised by them, have the power of a court of chancery 
 so far as relates to the perpetuating of testimony, the ob- 
 taining of evidence from places not within the state, and 
 the care of the persons and estates of those who are non 
 compotes mentis: 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 en- 
 large or diminish those powers, or vest them in such other 
 
 10 In speaking of this provision, Mr. Lanssatt points out that it con- 
 tains a historical inaccuracy so far as concerns the custody of lunatics 
 as exercised in England, which is spoken of as being a part of the juris- 
 diction of a court of chancery; that this was not vested in the court of 
 chancery, but was usually delegated to the chancellor personally by 
 commission from the king. This question of historical accuracy, how- 
 ever, is now of little practical importance. 
 
42 
 
 courts, as they shall judge proper for the due administra- 
 tion of justice." 
 
 These provisions continued in the constitution as 
 amended in 1838. 
 
 At the time of the adoption of the constitution of 1776 
 it was a settled doctrine that the principles of equity were 
 a part of the law of Pennsylvania, and it was universally 
 understood and agreed that neither that constitution nor 
 the one adopted in 1790 was intended to affect this doc- 
 trine. Assuming this, what reasonable construction can 
 be put upon the language of the constitutional provisions 
 with reference to the "powers of a court of chancery" ex- 
 cept that the constitutions were intended to distinguish 
 between the principles or doctrines of equity upon the one 
 hand, and the powers of chancery (that is to say, the 
 remedial forms and remedies devised and adopted by the 
 English chancellors) upon the other; and to deny to the 
 courts the right to adopt those chancery forms (save in the 
 instances expressly mentioned in the constitutions them- 
 selves) without the sanction of the legislature. If the 
 courts were to be at liberty, acting under the Statute of 
 Westm. 2, to adopt the chancery remedies, or even to 
 devise, in place of them, new and equivalent forms of 
 their own, instead of confining themselves to the use of 
 common law forms for the purpose of working out and 
 enforcing the equitable rights of parties., what would be- 
 come of the constitutional provisions that future general 
 assemblies shall determine with what chancery powers 
 the courts shall be clothed? Suppose we assume that the 
 Statute of Westm. 2 is broad enough in its provisions to 
 have authorized the courts, anterior to the constitution of 
 1776, to adopt, out and out, the chancery remedies; would 
 not the constitution circumscribe and limit their power in 
 ihis respect? This is the view taken of it by the supreme 
 ■court. 
 
43 
 
 In Davis v. Gerhard, 5 Whart. 466, Huston, J., refer- 
 ring to this constitutional provision, says : 
 
 "This would seem to limit the powers of this and the 
 other courts, in matters of chancery jurisdiction, to the 
 cases which have been or may be specified by the legisla- 
 ture. So this has been understood; and we do not believe 
 that the consent of parties or counsel can justify us in go- 
 ing out of the legislative provision. On any other con- 
 struction of the constitution we might by consent assume 
 the whole power of a court of chancery." 
 
 The courts did make use of the Statute of Westm. 2 : 
 it is mentioned by Mr. Justice Rogers in Martzell v. Stauf- 
 f er, 3 P. & W. 398, as one of the sources of their power to 
 mold and adapt the common law forms for the adminis- 
 tration of equity; but they regarded the powers which it 
 conferred as being so restrained and controlled by the 
 constitution as to be confined to such molding and adapta- 
 tion. 
 
 In support of his views, Judge Simonton quotes from 
 Loan Co. v. Elliott, 15 Pa. 224, in which Mr. Justice Gib- 
 son makes the following remarks : 
 
 "When this court first declared equity to be part of 
 the law of Pennsylvania, it had one of two things to do in 
 order to carry its declaration out — either to assume the 
 powers of a court of chancery, or to strain relief through 
 common law forms, disregarding technical congruity 
 when found to stand in the way of justice. Unfortunate- 
 ly, it attempted a middle course. By the help of fiction, 
 the common law form of the record was measurably pre- 
 served, though often at the expense of right. The relief 
 sometimes stopped short of complete justice, while the 
 record did not indicate that there had been any relief at 
 all. It was impossible to tell from the verdict in an action 
 of covenant by a vendor whether the jury had executed 
 the contract or given damages for a breach of it. 
 
44 
 
 "Equitable jurisdiction was gradually assumed, but 
 not always in subordination to technical forms. A plain- 
 tiff has been allowed to declare on a lost bond without a 
 profert; a defendant has been allowed to plead matter of 
 equitable defense specially; and many other departures 
 from common law rule have been sanctioned. We have 
 not yet gone so far as to disregard the form of the writ, 
 count or judgment; but why should we not do so when 
 justice cries out for it, and there is no other way to ap- 
 pease her clamor? or why should we choose to give relief 
 in handcuffs? From the moment the court departed in 
 the least from technical form, there could be no stopping 
 place short of perfect and entire justice." 
 
 I agree entirely with the logic of what Judge Gibson 
 says, but there are two remarks to be made respecting it. 
 In the first place, the time at which it was settled that 
 equity principles are a part of the law of Pennsylvania, 
 and at which the courts had first to mark out the way in 
 which they would deal with them, was while Pennsylvania 
 was still a colony, long before the first state constitution 
 was adopted. (It is true, the first reported decision in 
 which the opinion states in so many words that equity is a 
 part of the law, appears to be Pollard v. Shaffer, 1 Dall. 
 210, decided in 1787; but the case of Swift v. Hawkins, 
 which I have already cited, and which was before the su- 
 preme court at April term, 1768, while the court is not re- 
 ported as using these precise words, decided in substance 
 and effect this very proposition, and what is reported to 
 have been said shows that this rule had been recognized 
 and acted on for many years preA'iously.) If, at any time 
 between the abolition of Keith's court and the Revolution, 
 the courts had chosen to "assume the powers of a court of 
 chancery," perhaps there would have been nothing in the 
 way of their doing so; but it seems clear enough that they 
 could not have done this after the constitution of 1776 
 
45 
 
 without legislative authority (i. e., of course, beyond the 
 powers which the constitution itself gave them.) And, 
 secondly, what Judge Gibson was really complaining of 
 was. that, having adopted the plan of using the common 
 law forms to administer equity, the judges were too slow 
 in getting away from regard for "technical congruity" 
 when it stood in the way of justice. The decision which 
 he actually made in the case, characterized by him as a 
 step in advance, and to which he was leading up by these 
 remarks, was the sustaining of an action against a surviv- 
 ing promisor and the executors of a deceased co-promisor, 
 jointly — a thing altogether incongruous at common law 
 but imperatively required in this case for the purpose of 
 giving equitable relief. It is very doubtful whether he 
 had in mind, at least for the period subsequent to 1776, 
 anything more, when he was finding fault with the judges, 
 than their timidity and slowness in breaking away from 
 the technicalities of mere form in the common law 
 actions; and it may be that Judge Simonton means no 
 more than this. So far we must all agree with both of 
 them. But if we are to understand what they said as 
 meaning that the courts, after 1776, could have taken over 
 bodily, without legislative sanction, the equitable reme- 
 dies, e. g. injunction, decrees directly ordering the doing 
 of some specific act by the defendant and the enforcement 
 thereof by imprisonment for contempt, decrees for the 
 reformation of deeds, etc., before any litigation regarding 
 their subject-matter has arisen, or other relief quia timet, 
 and the like, then I must say that I cannot help thinking 
 that for the courts to assume these powers, in the face of 
 the constitutional provision that they should have certain 
 chancery powers and such others as future general assem- 
 blies might determine, would be a usurpation of the same 
 kind as the successive usurpations by which some of these 
 powers were originally acquired by the English chan- 
 
46 
 
 cellors. If Hie early constitutions had been entirely silent 
 regarding chancery powers, I think it very probable that 
 the history of equity in Pennsylvania would have been 
 very different from what it has been. 
 
 I have referred to the fact that from time to time 
 equity powers, additional to those mentioned in the con- 
 stitution, were granted by the legislature to the courts. 
 Prior to 1836 such legislation was limited in extent. 
 "Equity jurisdiction," says Mr. Justice Sergeant in Gilder 
 v. Merwin, 6 Whart. 522, "has been dealt out to us at dis- 
 tant intervals and in limited portions." But in 1836 a new 
 departure was made. Even then the legislature proceed- 
 ed rather tentatively and gradually. It first conferred on 
 the courts throughout the state the jurisdiction and powers 
 of a court of chancery as to certain specifically enumer- 
 ated subjects, and granted to the courts in Philadelphia 
 county such powers as to certain additional subjects, and 
 by subsequent acts the jurisdiction in that county was en- 
 larged. Then from time to time the courts of certain 
 other counties were given the same jurisdiction that had 
 been conferred in Philadelphia county. And finally in 
 1857 the legislation as to Philadelphia county was extend- 
 ed to all the other counties of the state. Some additions 
 to the equity jurisdiction were made by later acts. Mr. 
 Rawle in his lecture on Equity, which was written in 
 1868, thus sums up the results of all this legislation : 
 
 "The acts which have given to our present courts 
 equitable jurisdiction, have confined it to certain specifi- 
 cally enumerated heads, and to these alone. These, how- 
 ever, 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 municipal character), trust, dis- 
 
47 
 
 covery, interpleader, injunction, specific performance, 
 fraud, accident, mistake, account, dower, partition, 
 boundary, mortgages of corporations, obtaining evidence 
 beyond the state, and the perpetuation of testimony. 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." 
 
 A few additional powers have been granted since 
 1868. 
 
 When the legislature started out to confer this equity 
 jurisdiction in 1836 and following years, it would have had 
 the right, as we have seen, under the constitution as it then 
 was, to set up a separate chancery court. But the course 
 it followed was that marked out by the constitution of 
 1776; i. e. it simply extended the chancery jurisdiction 
 which that constitution had given to the existing courts. 
 The result is that these courts, being courts of both law 
 and equity, are organized on the general model of the 
 English court of exchequer, in that they have a law side 
 and an equity side. 
 
 For some purposes the two sides of the court have, we 
 may say, been treated practically as if they were different 
 courts. Thus if a man filed a bill in equity to enforce a 
 demand which ought to have been sued at law, an objec- 
 tion to the bill on this ground has generally been classed 
 as an objection to jurisdiction and therefore has been 
 allowed to be raised at any stage of the case. In some in- 
 stances bills in equity have been dismissed, after a long 
 and expensive hearing on the merits, on the ground that 
 there was an adequate remedy at law, and so far has this 
 practice been carried that the supreme court has even dis- 
 missed bills of its own motion for this reason : see Weaver 
 v. Shenk, 154 Pa. 206; though this has been done only in 
 cases where the want of jurisdiction in equity was regard- 
 ed as very plain : Edgett v. Douglass, 144 Pa. 95; and where 
 
48 
 
 there was room for doubt about it, an objection to the jur- 
 isdiction, not made in the preliminary stages of the case 
 but interposed for the first time after the parties had vol- 
 untarily proceeded to a hearing on the merits, has not 
 been allowed to prevail: Adams's Appeal, 113 Pa. 449; 
 Fidelity Co. v. Weitzel, 152 Pa. 498; cases cited in Penna. 
 R. R. Co. v. Bogert, 209 Pa. 589, at page 602. Where the 
 jurisdiction over actions at law, and the jurisdiction in 
 equity, are vested in separate courts, there is a solid and 
 substantial reason for treating the point as raising a 
 jurisdictional question; but the suggestion has often been 
 made that where the same court would have jurisdiction, 
 upon its law side, of the same demand, there is no reason, 
 in justice and common sense, why, when such a question 
 is raised, the suit should not be allowed to be turned into 
 an action at law by amendment, and proceeded with as 
 such, or why a failure to make this objection before going 
 into the merits of the case should not be treated as a 
 waiver oi it; and indeed some cases have laid down such 
 a doctrine: Adams v. Beach, 1 Phila. 99; Sunbury, etc., 
 R. R. Co. v. Cooper, 33 Pa. 278; Penna. R. R. Co. v. Bogert, 
 supra. In line with this idea is a recent reform effected 
 by the act of June 7, 1907, P. L. 440. This act requires 
 that the question of jurisdiction in equity shall be raised, 
 if at all, by the pleadings, and if this is not done the 
 right of jury trial, is to be treated as waived, and the 
 case shall be disposed of with the same effect (where it 
 is of such a nature that the suit should have been at law) 
 as a case tried without a jury under the act of 1874; and it 
 requires also that, if this objection is made, the question 
 shall be determined in limine, and makes provision, in 
 case the objection is sustained, for the certification of the 
 cause to the law side of the court: Miles Land Co. v. 
 Coal Co., 231 Pa. 155; Musselman v. Myers, 240 Pa. 5; 
 Nissley v. Drace, 242 Pa. 105. 
 
49 
 
 After the legislation of 1836, a question arose as to 
 what its effect was upon the equitable jurisdiction which 
 had previously been exercised under common law forms, 
 and it was held that the conferring of direct chancery 
 powers upon the courts did not take away their power to, 
 administer equity in the manner formerly in use: 
 Aycinena v. Peries, 6 W. & S. 243; Biddle v. Moore, 3 Pa. 
 161. The consequence of this ruling has been that some 
 of the methods pursued under common law forms as sub- 
 stitutes for a bill in equity, which had been found extreme- 
 ly convenient, such as the setting up of equitable defenses, 
 the reformation of writings in the course of a trial, the 
 opening of confessed judgments, etc., have been retained 
 in common use; while those that had been found to be 
 clumsy methods of attaining what can be more efficiently 
 accomplished when done directly by a bill in equity, have 
 generally fallen into disuse. We have, therefore, at the 
 present time, a mixed system in Pennsylvania : part of our 
 equity administration is under chancery forms, and part 
 of it is, and doubtless will continue to be, under common 
 law forms.. 
 
 Mention should be made of a strange anomaly in this 
 connection. Under our system of government we have in 
 operation here, side by side, both state courts and courts 
 of the United States. The latter have jurisdiction of suits 
 between citizens of different states. If the plaintiff re- 
 sides out of Pennsylvania, he may commence his suit in 
 the federal court. If a citizen of this state should bring, in 
 a state court, a suit against a citizen of another state, the 
 defendant may of right demand that the action be re- 
 moved to the United States court for trial. The contro- 
 versy, in a case that gets into a court of the United States 
 by reason of diversity of citizenship, may be entirely over 
 rights arising, or alleged to arise, under the laws of the 
 state, and in determining it the federal court may be ad- 
 
50 
 
 ministering the state law. For example, in an ejectment 
 the federal court may have to determine whether under 
 the laws of Pennsylvania the plaintiff or the defendant has 
 the better title. Partly in view of this situation, congress 
 has provided for the adoption by the federal courts, in 
 suits at law, of the procedure and practice of the states in 
 which they sit. And yet these courts decline to follow our 
 state courts in importing the principles of equity into 
 common law actions. It has been said in numerous cases 
 that the provision of the federal constitution which vests 
 in the national courts jurisdiction in (1) cases at law, (2) 
 cases in equity, and (3) admiralty and maritime cases, 
 so distinguishes between law and equity as to require that 
 legaJ and equitable remedies shall be separately pursued, 
 and not amalgamated or blended into one system of 
 remedies: Bates on Fed. Procedure, (Law,) sec. 831 
 et. seq. The federal courts are, like the courts of common 
 pleas, courts of both law and equity, having their law side 
 and their equity side, but equitable relief will not be 
 granted in a case heard upon the law side, and the party 
 seeking such relief must resort to a bill in equity to get it. 
 Equitable defenses cannot be interposed in suits at law: 
 Bates, Fed. Proc. sec. 847. If an action be brought 
 upon a written contract, the defendant is not allowed, 
 on the trial of it, to show that by accident or mistake 
 the writing was made to say something different from 
 what it was intended to say; he must proceed by bill 
 in equity to have it reformed, and if he does not do 
 so, and the case at law comes up for trial without a 
 reformation having thus been procured, the contract will 
 be, for the purposes of the trial, exactly what the writ- 
 ing says. So, an equitable title cannot be interposed in 
 the United States courts as a defense to an ejectment: Id. 
 sec. 876, (though it is held that an equitable estoppel may 
 be proved at law as a defense: Id. 881;) nor can eject- 
 
51 
 
 ment be maintained in those courts on an equitable title in 
 the plaintiff — he must have a legal title: Fenn v. Holme, 
 21 Howard 481. (They hold, however, that under the land 
 system of Pennsylvania a warrant and survey, and the 
 payment of the purchase money to the commonwealth, 
 vest in the warrantee a legal estate and therefore they will 
 sustain an ejectment notwithstanding a patent may not 
 have been issued: Bates, Fed. Proc. sec 872.) 
 
 One of the objects aimed at in this paper has been to 
 impress upon the younger members of this association the 
 importance and practical value of their familiarizing 
 themselves with the origin and historical development of 
 equity as a branch of our law. I have sought to do this, 
 not by citing the abstract and general remarks of our legal 
 writers as to the impossibility of perfectly or adequately 
 comprehending the law as it is, without some knowledge 
 of the historical process by which it came to be the law, 
 and not merely by calling attention to the fact — which is 
 shown by some of the cases I have referred to — that the 
 courts, when seeking for the true ratio decidendi in de- 
 termining questions brought before them, are constantly 
 recurring to legal history, but mainly by giving some con- 
 crete illustrations of the actual practical use and applica- 
 tion of historical knowledge. 
 
 It will be obvious that much of the history to which I 
 have referred — e. g. the story of the struggle between the 
 courts in England over their conflicting claims of jurisdic- 
 tion — is of practical value as assisting the student or the 
 lawyer to gain a clearer comprehension of the respective 
 limits and functions of law and equity. And I think it 
 will be equally plain that our mixed Pennsylvania system 
 cannot be readily and adequately understood without a 
 pretty good knowledge of the causes and course of its de- 
 
52 
 
 velopment. But I want to go a little further, and refer to 
 two or three matters which seem to me to have some im- 
 portance in a practical aspect. 
 
 In consequence of the particular course which Penn- 
 sylvania's legal history has taken with respect to the ac- 
 quisition by her courts of equity jurisdiction, there are 
 certain proceedings in the courts which are essentially 
 exercises of some branch of equity jurisdiction, but whose 
 equitable character is obscured, or likely to be forgotten", 
 by reason of the form and manner in which the jurisdic- 
 tion has been granted by statute. Consider, for example, 
 the subject of voluntary assignments for the benefit of 
 creditors. 
 
 In the uncertainty and confusion which followed in 
 the wake of the decision, in Potts v. Smith Mfg. Co., 25 
 Super. Ct. 206, that the federal bankrupt law had the ef- 
 fect of suspending the operation of our Insolvency and 
 Assignment Act of 1901, lawyers were considerably at sea 
 regarding the status of voluntary assignments. The act 
 of 1901 undertook to combine in one enactment, and weld 
 together, two things: (1) an insolvency law amounting to 
 a state bankruptcy system, and (2) a system for the regu- 
 lation of voluntary assignments; and it specifically repeal- 
 ed all prior statutes on the subject of such assignments. 
 A number of questions arose, some of which, it is to be re- 
 gretted, have not yet been cleared up by a square decision 
 of the supreme court. Did the federal bankrupt law 
 cause the suspension of all the regulations contained in 
 the act of 1901— not only the bankruptcy features thereof, 
 but also the provisions which merely regulated the ad- 
 ministration of assigned estates, because the two were so 
 interwoven as to be inseparable? If so, what was the 
 effect of the repealing clause? Was that to be regarded 
 as suspended also in its operation, on the ground that the 
 legislature did not intend to wipe out our existing system 
 
53 
 
 of voluntary assignments without putting something else 
 in its place; or, was the absolute declaration that all those 
 acts "be and the same are hereby repealed" to be given 
 effect to, on the ground that there is nothing in the federal 
 constitution and laws to prevent a state from repealing 
 any of its existing laws if it should see fit, and in this case 
 an intent to effect a present repeal was expressly de- 
 clared? 
 
 Some lawyers, not fully acquainted with or having 
 forgotten the history of assignments, observing that the 
 procedure with reference to them had been regulated by 
 statute, and perhaps misled to some extent by the opening 
 words of the third section of the act of 1901, jumped to the 
 conclusion that assignments themselves were the creatures 
 of statute, and therefore, if all of our prior statute law on 
 the subject were wiped out by the repealing section of the 
 act of 1901, and all regulations on the subject made by that 
 act itself were suspended and therefore presently inopera- 
 tive, no valid deed of assignment could be made at all. 
 This position was actually taken, and was insisted upon at 
 the argument before the superior court, in the case of Mil- 
 ler v. Jackson, 34 Super. Ct. 31. But assignments for the 
 benefit of creditors were not introduced by statute, and 
 when sec. 3 of the act of 1901 says that "any person . . . 
 may make an assignment," etc., this is merely declaratory 
 of the unwritten law. An assignment is an exercise of the 
 owner's jus disponendi over his property. As its owner 
 he has full power to devote it to the discharge of the debts 
 due his creditors, and it is by virtue of his general do- 
 minion over it that he has power to convey it to a trustee 
 for their benefit. The trustee takes title independently of 
 any statute, and (if there were no statute on the subject) 
 a court of chancery, by virtue of its general jurisdiction 
 over trusts, could take charge of and supervise the execu- 
 tion of the trust created by such a deed, doing whatever 
 
54 
 
 might be necessary to cause the trustee to fulfil and per- 
 form the trusts therein specified. In 1818, although at 
 that time unwilling to grant chancery powers generally, 
 the legislature of Pennsylvania deemed it necessary, in 
 view of the inadequacy of common law forms for deal- 
 ing with such trusts for the benefit of creditors, to confer 
 upon the courts powers required for this purpose, and 
 did so by the act of March 24, 1818, 7 Sm. & R. 131, and 
 other statutes which followed this. It also, in order to 
 give to the procedure in relation to these trusts the simple 
 form which it desired, prescribed, in the acts which it 
 passed, just what this form should be. Hence it has come 
 about that we have had in this state a statutory code of 
 procedure in relation to assigned estates, instead of a 
 form of procedure borrowed from the English court of 
 chancery as doubtless would have been the case if our 
 courts had all along been invested with jurisdiction to 
 make use of all the chancery powers and remedies. But 
 what the court of common pleas does in the way of en- 
 forcing and controlling the execution of the trust created 
 by a deed of assignment is essentially an exercise of a 
 part of the equity jurisdiction over trusts, notwithstanding 
 the fact that the form of procedure has been prescribed 
 by statute. If every act of assembly specifically referring 
 to assignments were wiped out of existence to-day, assign- 
 ments would still be valid, and by virtue of its general 
 equity jurisdiction over trusts and trustees the court of 
 common pleas could oversee and control the administra- 
 tion of the trusts created by such instruments. 
 
 From the fact that trusts created by voluntary assign- 
 ments are essentially subjects of equity jurisdiction, I 
 would venture to draw a practical conclusion. You know 
 that in almost every branch of the law you occasionally, in 
 the course of your practice, will encounter a set of circum- 
 stances in which you are unable to discover a prescribed 
 
55 
 
 remedy exactly meeting the needs of the case. Some day, 
 in connection with the administration of the estate of a 
 voluntary assignor, you may find a situation for which no 
 provision has been made in the statutes on the subject. 
 In such a case I would advise that you turn to the books of 
 equity jurisprudence and see if you cannot find authority 
 for a chancellor's extending relief in an analogous case 
 by virtue of his inherent equity jurisdiction; for while the 
 courts, in the control and administration of these trusts, 
 cannot, where a particular course of procedure is pre- 
 scribed by statute, disregard it and act as if the statute 
 had never been passed, I do not see why they may not, as 
 courts of equity, draw from the fountain of chancery 
 jurisprudence a fitting remedy to meet a case for which 
 the statutory code of procedure may have made no pro- 
 vision at all, in a matter which historically has always 
 been within the scope of a chancellor's jurisdiction. 
 
 A similar remark may be made with reference to the 
 administration of the estates of lunatics. 
 
 When, in a common law suit that involves no ques- 
 tion of equitable right, it becomes necessary to procure 
 the testimony of witnesses outside the state, the court in 
 issuing a commission for the taking of their depositions is 
 exercising a chancery power. The original method of ob- 
 taining testimony for use in such cases was to apply to the 
 chancellor for his aid. The right to act as a chancellor 
 would have done in this matter was, as we have seen, one 
 of the chancery powers which the constitution of 1776 
 vested in the courts. This being the source of the power, 
 it is held that the court, whenever it issues such a commis- 
 sion, is acting as a court of chancery, and therefore the 
 testimony is to be taken in accordance with the chancery 
 practice and the Equity Rules must be complied with: 
 Hollister v. Hollister, 6 Pa. 449, 451; Patterson v. Green- 
 land, 37 Pa. 510; Smith v. Cokefair, 1 Co. Ct. 48; though it 
 
56 
 
 has also been held that an objection to a deposition, on 
 the ground that the interrogatories do not comply with 
 the Equity Rules, may be waived by failure to except 
 formally thereto : Davis v. Shoe Co., 138 Pa. 73, 80-1. 
 
 Reference has already been made to the fact that 
 when an equitable, right is advanced, whether by way of 
 claim or defense, the judge sits as a chancellor, and the 
 equity must be established by the same kind and measure 
 of proof as in a regular chancery suit. It is therefore im- 
 portant that the lawyer should be prepared and able to 
 recognize equity cases that are concealed under common 
 law forms; and the way to become able to do this readily 
 is to familiarize oneself with legal history of the kind that 
 this address has been devoted to. For this purpose I 
 would particularly recommend a study of the essay of Mr. 
 Laussatt, and the later lecture by Mr. Rawle, to both of 
 which I have previously referred, and which are mines of 
 information on the subject of equity in Pennsylvania. 
 
 In 1830 Stephen Girard, a merchant of Philadelphia, 
 made his will, by which he devised and bequeathed a 
 large estate to the city in trust for certain charitable pur- 
 poses. In a suit in equity, brought in the United States 
 circuit court for the eastern district of Pennsylvania, and 
 appealed from it to the supreme court of the United 
 States, the heirs of Mr. Girard attacked the validity of this 
 trust, on the ground inter alia that the objects of the char- 
 ity were too vague and indefinite. It was argued that the 
 Statute of 43 Eliz. relating to charitable uses had been de- 
 clared not to be in force in Pennsylvania, and hence there 
 was no basis for sustaining and executing a trust for 
 charitable uses so vague as those specified in this will. 
 The plaintiffs' position was that as such a trust could not 
 be carried out, therefore the property must go to the heirs 
 at law. But, shortly before, the English Record Commis- 
 sioners had gathered up, arranged and published certain 
 
57 
 
 musty records, slored away in the tower of London, which 
 showed that for a long period anterior to the Statute of 
 43 Eliz. the court of chancery had recognized, sustained 
 and carried out trusts for charitable uses altogether as 
 vague and indefinite as those of the Girard will. Mr. Bin- 
 ney and Mr, Sergeant, for the defendants, made a power- 
 ful use of these old records, and in deciding the case in 
 their favor Mr. Justice Story said that these records had 
 thrown a strong light upon the ma Iter, clearing up all the 
 doubts as to the course and nature of the jurisdiction of 
 equity over charitable trusts which had arisen out of the 
 conflicting opinions of various eminent judges upon the 
 question, and establishing in a most satisfactory and con- 
 clusive manner a jurisdiction over such charities entirely 
 independent of the Statute of Elizabeth, in the exercise of 
 which it had been settled that trusts such as these should 
 be sustained, and that chancery would do what was neces- 
 sary to render their administration effectual; and hence, 
 as the established equity principles were in force in Penn- 
 sylvania, the Girard trust was valid: Vidal v. Girard's 
 Executors, 2 How. 127 (1844). 
 
 The practical results which followed in this case from 
 delving into the ancient history of chancery need no com- 
 ment. 
 
 Some reference should be made to the orphans court 
 as a court of equity. Among the statutes defining its jur- 
 isdiction are some which make express mention of equity. 
 The acts of February 24, 1834, P. L. 73, sections 15 and 16, 
 and April 28, 1899, P. L. 157, in authorizing decrees for the 
 specific enforcement of decedents' contracts of sale, pro- 
 vide that such decrees may be made if the facts of the case 
 "be sufficient in equity," and also contain legislative 
 recognitions of the doctrine of equitable exceptions to the 
 
58 
 
 Statute of Frauds; 31 the act of October 13, 1840, P. L. 
 (1841) 1, authorizes the entertaining of petitions for the 
 review of final decrees confirming accounts of executors, 
 etc., and the granting thereon of "such relief as equity and 
 justice may require;" the act of April 1, 1863, P. L. 205, 
 confers on this court the "jurisdiction and powers of a 
 court of chancery" as to the perpetuation of testimony in 
 cases of lost or destroyed records of the court; and the act 
 of May 19, 1874, P. L. 206, sec. 7, empowers it to prevent, 
 by order in the nature of injunction, acts contrary to law 
 or equity, prejudicial to property over which it has juris- 
 diction. But many of the enactments by which its juris- 
 diction is defined do not make any express reference to 
 equity, and they prescribe the course of procedure to be 
 pursued. Historically, however, a very large part of the 
 jurisdiction thereby conferred on this court is a branch 
 of that which belonged to the ancient chancellors, and ac- 
 cordingly such enactments, even though not stating on 
 their face an intent to give equity jurisdiction, and al- 
 though prescribing a statutory code of procedure, are in 
 their essence and effect a grant of a part of the jurisdic- 
 tion of a chancellor. Our supreme court has often said 
 that the orphans court, within the limits of its jurisdiction, 
 is a court of equity : Com. v. Judges, 4 Pa. 301 ; Lewis v. 
 Lewis, 13 Pa. 79; Shollenberger's Appeal, 21 Pa. 337, 341; 
 Culbertson's Appeal 76 Pa. 145, 148; though, as its equity 
 jurisdiction is circumscribed by and limited to the par- 
 ticular sphere which has been assigned to it, it cannot fol- 
 low the practice observed by general courts of equity un- 
 der which, to make an end of the whole controversy, they 
 will after obtaining jurisdiction of a cause on some equit- 
 
 11 Under these acts of 1834 and 1899, it has been held that the juris- 
 diction for the specific enforcement of contracts of decedents for the 
 sale of real estate is in the orphans court exclusively: Gable v. White- 
 .side, 242 Pa. 188. 
 
59 
 
 able ground go on and give relief as to a matter which by 
 itself would not bring the case, within the jurisdiction nor 
 be a subject for equitable remedy: Ake's Appeal, 74 Pa. 
 116; nor can it entertain a bill of discovery: Brinker v. 
 Brinker, 7 Pa. 53; nor a bill praying for a declaratory de- 
 cree 12 to settle all the rights of parties under a will : 
 Willard's Appeal, 65 Pa. 265; nor has it power to appoint 
 a trustee for a weak-minded person to represent him in a 
 partition: Richards v. Rote, 68 Pa. 248. See further 
 Snyder's Appeal, 36 Pa. 166; Weyand v. Weller, 39 Pa. 
 443; Dundas's Estate, 8 Phila. 598; Neill's Estate, 18 Phila. 
 163. Mr. Justice Sharswood's remark in Willard's Ap- 
 peal, supra, that "when it is said, as it has often been said, 
 that the orphans' court is a court of equity, all that is 
 meant is that in the exercise of its limited jurisdiction, 
 conferred entirely by statute, it applies the rules and prin- 
 ciples of equity," seems to amount to no more than what 
 has been stated above, viz. : that this court is not a general 
 equity court, but is such only within a limited sphere; for 
 a court whose function is to apply "the rules and prin- 
 ciples of equity," is so far essentially a court of equity. 
 
 02 In Morton's Estate, 201 Pa. 269, which holds that the orphans 
 court has no jurisdiction of a petition by a trustee asking for advice 
 and instructions as to whether he shall recognize and treat certain per- 
 sons as interested in the income of the trust estate, (there being no 
 fund before the court at the time for distribution, nor any lis mota 
 raised by a proceeding properly instituted by any party interested,) 
 Justice Mitchell says that the advisory jurisdiction of chancery has 
 never been adopted or conferred in Pennsylvania, even in the case of 
 the general equity courts. 
 
 See in this connection the recent case of Hess's Estate, 22 Dist. 1028, 
 in which the orphans court of Philadelphia county held that, while not 
 having jurisdiction to advise executors and trustees in the discharge of 
 their duties, the court could, in exceptional cases, relieve them from the 
 situation created by testamentary instructions which it was impossible 
 to comply with, and accordingly, the will having directed that certain 
 shares of stock should not be sold for less than a specified isum, which 
 it proved impossible to obtain, an order was made permitting a sale to 
 he made for a less price. 
 
60 
 
 And we may characterize in the same way Justice Trun- 
 key's statement in Miskimins' Appeal, 114 Pa. 530, that 
 this court "is often, though not properly, named a court 
 of equity," for he adds that it, "upon the principles of 
 equity, may dispose of every question that arises in the 
 determination of matters within its jurisdiction." In 
 fact, the judges who have said that the orphans court is 
 a court of equity, and those who have said that it is not 
 properly so termed, seem to mean the same thing; they 
 are using the phrase "court of equity" in somewhat differ- 
 ent senses, the latter employing it in the sense of a court 
 created, like the English chancery, for the purpose of ad- 
 ministering equity as a system, while the former mean by 
 it simply a court which is authorized to make use of and 
 enforce the principles and rules of equity so far as appli- 
 cable to the subject-matters within its jurisdiction, but 
 acts in other respects as a court of law. Both mean that 
 within the sphere of its jurisdiction this court (as Judge 
 Arnold expresses it in Fidelity Ins. Co. v. Gazzam, 2 Dist. 
 569) "has the powers of a court of equity." 
 
 "Our orphans court, a creature of the constitution," 
 says Mr. Justice Woodward in Shollenberger's Appeal, 21 
 Pa. 337, at page 340, "is essentially a court of chancery. 
 Its powers, originally small, have by gradual accretion 
 grown into great magnitude and importance, and, that 
 they may be clearly understood, they should be conform- 
 ed to some model, and regulated by known and establish- 
 ed principles. The chancery jurisdiction is the model, 
 and contains the principles most congenial to this institu- 
 tion, and the legislature have in very many instances sanc- 
 tioned and enjoined the application of these principles to 
 proceedings in the orphans court. The judicial mind in- 
 clines in the same direction, and for my own part I think 
 it would be well if the practice in this most important 
 ibranch of our judiciary were, in all possible points, uni- 
 
61 - \ 
 
 formly fashioned after precedents in chancery, batin^i. 
 only their unnecessary circumlocution and verboseness." 
 From the doctrine that the orphans court is a court of 
 equity practical conclusions have been drawn in some 
 cases as to what it may do in certain circumstances; see, 
 for example, Lewis v. Lewis, 13 Pa. 79; Briggs's Appeal, 5 
 Watts 91; Woodward's Appeal, 38 Pa. 322; Barklay's 
 Estate, 10 Pa. 387, 390; Shollenberger's Appeal, 21 Pa. 337. 
 
 1 must close. In this sketch I have very imperfectly 
 outlined the history of equity in England and Pennsyl- 
 vania. I hope I have said enough lo suggest that a sys- 
 tematic study of the historical sources and development 
 of tne law, including equity, has more in it for the student 
 and the lawyer than the mere gratification of antiquarian 
 curiosity, and will yield a return of real and substantial 
 practical benefits, And I hope also that I have incidental- 
 ly shown that the courts of Pennsylvania, in the exercise 
 of their functions, have ever been guided by the maxim to 
 which Mr. Justice Sharswood gave expression in Diese v. 
 Fackler, 58 Pa. 109, 112, that "the reason of the law is the 
 life of the law, ,s and have been accustomed to keep in 
 view the real end and aim of law and courts, which is the 
 attainment of as perfect justice between man and man as 
 it is possible for imperfect and erring human instrumen- 
 talities to administer. 
 
INDEX 
 
 Advisory jurisdiction of equity; not conferred in Pennsylvania, 59 n. 
 
 Amalgamation of law and equity, 9, 36, 37. 
 
 Assignments for benefit of creditors; statutory jurisdiction, 52; relation 
 of to equity, 53-55. 
 
 Assignments of choses in action, equitable, 27; rights of assignee, 27, 28. 
 
 Assignability of chose in action, 26, 27. 
 
 Assumpsit; enforcement of trust by means of, 25. 
 
 Bacon, Sir Francis; head of commission on chancery jurisdiction, 14. 
 
 Binney, Horace; eulogy by of C. J. Tilghman, 38. 
 
 Chancellors; in England, 10, 41 n. ; in Pennsylvania, 32, 35, 36, 56. 
 
 Chancery courts in England, 7 n., 10, 11 ; conflicts of with courts of 
 law, 11-15; separate chancery court in Pennsylvania, 18-20. 
 
 Chancery powers; limited by Pennsylvania constitutions, 41-43; legis- 
 lation conferring, 31, 39, 46, 47. 
 
 Charitable trusts; statute of Elizabeth concerning, 56; equity jurisdic- 
 tion over, 56, 57. 
 
 Chose in action; assignability of, 26, 27. 
 
 Clear, precise and indubitable proof; when required, 36, 56. 
 
 Coke, Sir Edward; controversy of with chancery courts, 12-15. 
 
 Commissions to take testimony an exercise of chancery jurisdiction, 55. 
 
 Common law forms; use of to administer equity, 21 et seq., 52. 
 
 Constitutional provisions regarding equity jurisdiction, 41-43, 45, 46. 
 
 Conditional damages as means of enforcing an equity, 29, 30. 
 
 Conditional verdicts, 28-30. 
 
 Courts of equity; in England, 7 n., 10, 11; in Pennsylvania, 17, 18. 
 
 Courts of law and equity; conflicts between, 11-15. 
 
 Cy-pres doctrine in Pennsylvania, 16 n. 
 
 Damages, conditional; used to enforce equities, 29, 30. 
 
 Depositions; obtaining of is a chancery power, 55. 
 
 Ejectment; use of to enforce equities, 28, 29. 
 
 Elizabeth, Queen; interference of with courts, 12-14; statute of on 
 charitable uses, 56. 
 
 Ellesmere, Lord Chancellor; controversies with law courts, 13-15. 
 
63 
 
 Opening judgments, 32-35. 
 
 Orphans court as a court of equity, 57-61; jurisdiction over trustees, 
 26 n. 
 
 Penn, William; grant of Pennsylvania to, 16;. charter of privileges 
 granted by, 19. 
 
 English chancery court, 7 n., 10, 11; conflicts with courts of law, 11-15. 
 
 Equitable assignments, 26, 27; suits by assignees, 27, 28. 
 
 Equitable claims as basis of common-law actions, 24, 51. 
 
 Equitable defenses in actions at law, 22, 50. 
 
 Equity; different senses of the term, 5-8; origin of, 7, 9-11; scope of the 
 system, 7, 8, 11; separation of from law, 7, 9-11; final amalga- 
 mation with law in England and Pennsylvania, 9, 36, 37; part of 
 the law in Pennsylvania, 35, 36, 42-44; history in England, 9-15; 
 history in Pennsylvania, 16 et seq. ; how dealt with by Pennsyl- 
 vania courts, 21 et seq., 35, 36, 39-46, 49, 52. 
 
 Equity jurisdiction; legislation concerning, 31, 39, 46, 47, 54; jurisdic- 
 tion as between law and equity sides of same court, 47, 48. 
 
 Equity principles; distinguished from chancery powers, 42; in force in 
 Pennsylvania, 16, 20, 21, 44; exceptions, 16 n.; administration of 
 in Pennsylvania, 21 et seq. 
 
 Failure of consideration an equitable defense, 23 ; distinguished from 
 want of consideration, id. 
 
 Federal courts; separation of law and equity in, 49-51. 
 
 Girard, Stephen; trusts created by the will of, 56, 57. 
 
 Gordon, Patrick; controversy with assembly over chancery court, 19, 20. 
 
 Grotius; his definition of equity, 5. 
 
 Heal, John; indictment of under statute of Praemunire, 12. 
 
 History; legal value of, 51. 
 
 Insolvency and Assignment Act of 1901, 52. 
 
 Judge and jury; respective functions, 32, 35, 38, 56. 
 
 Judgments; opening of in Pennsylvania, 32-35; relief against in equity, 
 12-15. 
 
 Jurisdiction in equity; constitutional provisions, 41-43, 45, 46; legisla- 
 tion granting, 31, 39, 46, 47, 54; jurisdiction as between law and 
 equity sides of court, 47, 48. 
 
 Keith's chancery court; history of, 18-20; records of, 20. 
 
 Laussatt, Anthony, Jr.; essay of on Equity, 30, 41 n., 56. 
 
 Lunatics; custody of by the chancellor, 41 n.; equitable administration 
 of their estates, 41, 55. 
 
 Measure of proof requisite to establish equitable rights, 36, 56. 
 
64 
 
 Pennsylvania; charter of, 16; source of its law, 15, 16, provincial courts, 
 16, 17; provincial court laws, 17, 18; attempts to establish chan- 
 cery jurisdiction, 17-20; equity a part of the law, 20, 21; equity 
 principles in force in, 16, 20, 21, 42; exceptions to this, 16 n.; 
 doctrine of tacking not recognized, id. ; cy-pres doctrine in, id. ; 
 use of common-law forms to administer equity, 21 ; molding of 
 equity system, 21, 37 et seq. ; imperfections of system as molded 
 by the courts, 39; a leader in the amalgamation of law and 
 equity, 36-39; mixed system of equity administration in use, 
 49, 52. 
 
 Praemunire, statute of, 12, 14. 
 
 Principles of equity in force in Pennsylvania, 16, 20, 21, 42; exceptions, 
 16 n.; equity principles and chancery powers distinguished, 42. 
 
 Powers of chancery; limited by constitutions of Pennsylvania, 41-43. 
 
 Rawle, William Henry; lecture on Equity, 17, 20, 56. 
 
 Reformation of writings, 31, 36 n., 50. 
 
 Remedies, chancery; constitutional provisions concerning, 41-43; 45, 46; 
 administration under common-law forms, 21 et seq., 49, 52. 
 
 Replevin; specific performance by means of, 30. 
 
 Roman law, 9, 11. 
 
 Seal supplies want of consideration, 22, 23. 
 
 Simonton, John W. ; address on Pennsylvania Jurisprudence, 37, 39. 
 
 Specific performance, 28-30, 57, 58 n. 
 
 Tacking not recognized in Pennsylvania, 16 n. 
 
 Throckmorton v. Finch, case of, 13, 14. 
 
 Tilghman, William; work of in developing Pennsylvania equity juris- 
 prudence, 38, 39. 
 
 Trusts; administration of under common-law forms, 24-26, 30, 31; 
 grants of chancery jurisdiction over, 26 n., 31 n., 46. 
 
 United States courts; separation of law and equity in, 49-51. 
 
 Voluntary assignments; statutory jurisdiction, 52; relation of to equity, 
 
 53-55. 
 Westminster 2, statute of, 39, 40, 42, 43. 
 
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