654 Common Law-Jurisdiction of Court of Chancery. that of another person became by any means confused, might by legal action, called actio finium regundorum, have the boundaries defined (a). The common law of England provided for partition being made between co-heirs, and joint owners in certain cases, and the right was extended by various statutes. The partition was effected by means of a writ directed to the sheriff, who in obedience to it, ascertained the shares by the verdict of a jury, and then assigned to each his share. The court by its judgment confirmed the partition (b). In former times, it seems to have been considered, that the party could only obtain actual possession by action; but it was held by C. J. Gibbs, that it was the duty of the sheriff to deliver actual possession of each undivided share. But the forms of the common law were not well suited to the exercise of this jurisdiction; therefore, sometime in or about the reign of Elizabeth, the Court of Chancery also assumed the jurisdiction of making partition through commissioners of its own; making the parties convey to each other in severalty their respective portions. The superior facilities afforded by the Court of Chancery, occasioned numerous applications to be made to that court for commissions for the partition of estates, even after a partition had been effected at law, where the partition was unequal or had to be corrected. It was also usual to apply here in all cases where infants were concerned (c). It was soon established [*655] in all cases of co-ownership as a matter of right (d). The proceeding by writ of partition at law, which had gone into desuetude, was wholly abolished by the statute before referred to (e). The jurisdiction of adjusting controverted boundaries, in some cases, was incorporated in the common law. Thus, where two men had lands in different townships, and it was necessary to know the boundaries of the townships, in order to ascertain the extent of their respective lands, either party might obtain a writ, de rationalibus divisis, directed to the sheriff, to ascertain the boundaries (f). So where there were any doubts as to the bounds of distinct lordships or manors belonging to different parties, they might by consent obtain a writ, de perambulatione facienda, to ascertain the boundaries (g). In the reign of Elizabeth, the ascertaining of boundaries appears to have been considered as a proper subject for the jurisdiction of the Court of Chancery. Bills were filed for the purpose of having commons distinguished and set out by metes and bounds between the different proprietors, and commissions were awarded for the purpose, the legal right, where it was in dispute, being first sent to law (h). So commis (a) Dig. x. Tit. 1. (b) Booth's Real Act. p. 245. (c) Cal. vol. i. p. 147, temp. Eliz.; Toth. 220; et v. ib. 221. There are many decrees for partition in the Reg. Books in this reign. (d) Mr. Hargrave, Co. Litt. 169 b, note 2, considered that this jurisdiction was first usurped about the time of Elizabeth; but see 1 Fonbl. 18. 20. In Parker v. Gerrard, Amb. 226, it is stated by the M. R. to be a matter of right; so in 2 Freeman, 25. (e) 3 & 4 Wm. IV. c. 27, § 36. (f) Reg. Brev. 157 b, Fitz. Nat. Brev. 300, Speer v. Crawter, 2 Meriv. 417. (g) Fitz. Nat. Brev. 309, Speer v. Crawter, ubi sup. (h) Toth. p. 97. Question whether plaintiff entitled to right of common sent to law, reserving equity, to the end a commission might issue to set it out, 14 Car. I. Tothill, 98. Direction and Control of Legal Proceedings. 655 sions were awarded to set out copyhold land lying intermixed with freehold (a), and to set out the boundaries of manors which had become intermixed (b), and to set out the boundaries of lands belonging to a charity (c). CASES IN WHICH THE COURT ORIGINATED OR TOOK THE CONTROL OF LEGAL PROCEEDINGS SO AS TO HAVE THE LEGAL QUESTION IN CONTROVERSY PROPERLY AND FINALLY DECIDED BETWEEN THE PROPER PARTIES. Introduction. SECTION I-Suits to establish a General Right. SECTION III-Interpleader. Introduction. I Now proceed to another class of cases, namely, those in which the Court has interfered on the application of some of the parties interested in a purely legal question, either by originating legal (d) proceedings, or taking to itself the control or direction of the legal proceedings already instituted, so as to have the legal right properly determined between the proper parties. This it has done, where, if the parties were left to proceed according to the ordinary course of law, and only under such regulations as the courts of law can impose, the result might be a multiplicity of suits, or a course of uncertain and vexatious litigation. This interference was more especially exercised where a final settlement of all disputes on the subject, as regards all parties interested, would not be the result of the proceedings at law, if left solely to their own course, and in such cases the court has proceeded further, by establishing the (a) Toth. 101, Car. I.; 127 Jac. 1; "The point whether parcel or no parcel was decreed here," ib. 126, et v. ib. 210. In a case, p. 86, a commission was awarded to set so much land as the commissioners should think fit in respect of "a yard land," the quantity being unknown. (b) Lord Keeper Coventry, in Harding v. Countess of Suffolk, 1 Rep. Ch. 33, 8 Car. I., said, "Where there is a confounding of two manors, so that one manor is not known from the other, that is usually relieved in this court." (c) Case of School of Bury, Reg. Lib. A. 1576, fo. 66. Sir W. Grant, in the case of Speer v. Crawter, considered that the jurisdiction originated with one or other of the common law writs mentioned above, and that a commission to ascertain boundaries could only be obtained on consent, and the bill in Hunt v. White, Cal. i. 147, temp. Eliz., favors this supposition. The decrees in the time of Elizabeth and Charles I. were not referred to. It seems much more probable and consistent with the ordinary habits of the court, that the jurisdiction was assumed by reason of the insufficiency and imperfections of the common law mode of procedure: however, that case has established that confusion of boundaries is not per se a sufficient ground for the interference of the Court of Chancery, 2 Mer. 418; and there is a late case on the subject before Lord C. Lyndhurst to the same effect. (d) Whether, according to the more modern doctrine, a person who claims to establish a general right, must not, where it is practicable, first proceed at law (see Mitford, 146), will be considered hereafter. 656 Bills to settle Manorial Customs-and Fines. right as found at law, taking care that a due regard should be had to the interests of all parties. SECTION I.-Suits to establish a General Right. In the time of Elizabeth and her immediate successors, suits to establish a general right were of frequent occurrence (a). *Thus suits were entertained to ascertain and settle the cus[*657] toms of a manor where they were the subject of dispute (b); to determine questions as to right of common and inclosure, liberty of foldage and pasturage, and common of turbary, and apportionment of commons (c). In some cases the bills were filed expressly, as most of them were in effect, on behalf of the body of tenants or copyholders, or others interested in the question (d), a proceeding unknown to the common law, where the forms of proceeding only permitted an action against each individual, which therefore could only determine the right as between him and the plaintiff in the action. It was generally referred to a trial at law to ascertain the customs insisted upon (e), but in some instances the court appointed commissioners of its own to ascertain the customs (f); frequently some of the judges were called in to assist at the hearing of these causes (g). At this time suits were entertained to settle uncertain fines and services, with a view to avoid repeated litigation, and also to prevent the exaction of unreasonable or excessive fines or services by lords of manors (h). But the question whether the fine demanded were unreasonable, appears to have been sent to be determined by the judges (i); afterwards the court declined to interfere simply on the ground of a fine being excessive, and confined itself to affording the means of ascertaining customary fines and services, by directing trials for that purpose, and then declaring the right so as to bind all parties interested (k). Bills of this kind might be filed to establish the customs at the instance of the lord, as well as of the copyholder. Such bills, which were afterwards called bills of peace, are thus described by Lord Hardwicke.-It is certain that where a man sets up a general and exclusive right, and where the persons who controvert it are very numerous, and he cannot by one or two actions at law quiet that right, he may come to this court first, which is called a bill of peace: and the court will direct an issue to determine the right, as in disputes between lords of manors and their tenants, and between tenants of one manor and another; for in these cases there would be no end of bringing actions of trespass, since each action would [*658] *determine only the particular right in question between the plaintiff and the defendant (1). (a) 8th & 9th Eliz., fo. 104, &c. (b) Reg. Lib. A, 1588, fo. 291. (c) Toth. p. 98. 108. 118. 139; Mitf. 147. 170. (d) Toth. p. 98. 108. 118. (e) See Toth. p. 110. (f) Reg. Lib. 8 & 9 Eliz. fo. 152. (g) Tenants &c. of Hundred of Wisbeach v. Tenants & Inhabitants of Doddington, Reg. Lib. B. 1569, fo. 26, &c. (h) Toth. p. 111. 164, 165. 167; Rep. in Ch. p. 18 and 52, Ed. 1736; Cary, p. 77, consent. (i) Co. Litt. 59 b. Case from Court of C. 39 Eliz. (k) See 1 Cha. Ca. 187, in the argument, and Cowper v. Clark, 3 P. Wms. 157. (1) Lord Hardwicke, Lord Tenham v. Herbert, 2 Atk. 483; approved by Lord Eldon; Hanson v. Gardner, 7 Ves. 309, 310. Bills to quiet Possession on Established Titles—Interpleader. 658 Where two persons claimed adverse rights in respect of the same subject, which could not be finally settled at law, so as to prevent repeated litigation, the court also interfered to settle the right (a). Another instance of the interference of the court to prevent vexatious litigation, is found in the jurisdiction it assumed over actions of a possessory nature, the decision of which did not settle the right. The exercise of the jurisdiction in these cases is to be traced at least to the time of Elizabeth (b), and the grounds of its exercise cannot be better stated than in the language of Lord Redesdale :-" Actions of ejectment, which as now used are not part of the old law (c), have become the usual mode of trying titles at the common law, and judgments in those actions not being conclusive, the Court of Chancery has interfered, and after repeated trials and satisfactory determinations of the question, has granted Perpetual Injunctions to restrain further litigation, and thus has in some degree put that restraint upon litigation, which was the policy of the ancient law (d) in real actions" (e). The quieting of possession under clear and ascertained titles has always been a main object with the Court of Chancery (f). The Court also on general principles of equity somewhat analogous, entertained jurisdiction to compel a person having a prima facie right of action, to put it in suit within a reasonable time, and in default, to protect the party liable from being molested at law. It is usual, said the Lord Chancellor (1664), when an apprentice is out of his time, to prefer his bill to force his master to sue his covenants within *a year, or be foreclosed, and to have the bond and articles delivered up (g). SECTION III.-Interpleader. [*659] The jurisdiction exercised by the Court of Chancery in Interpleading Suits, which is also founded on general equity, affords another instance (a) Thus in Hanbye v. Bertie, and the Duchess of Suffolk, Reg. Lib. 7 & 8 Eliz., fo. 435, the plaintiff was declared to be entitled to a court leet in the manor of Alford, with assize of bread, &c. &c., and the rights of the defendants in the same manor were declared, and each party was enjoined from disturbing the other in his enjoyment. In the 8th & 9th Eliz. fo. 191, is a decree of a similar nature. 4th and 5th Eliz. fo. 492, there is a decree to settle the rights of adverse parties, as to dues payable at the harbor of Lynn. Corporation of London v. Bishop of Ely, Reg. Lib. B. 1569, fo. 513, was a suit to settle mutual rights as regards Ely Rents; this was referred to the Chief Justices and others, as arbitrators. (b) Toth. 126, temp. Eliz. and Jac. 1; Spyer v. Spyer, 7 Car. 1, Nelson, C. R. 14. The decree was in favor of the plaintiff, the (d) See Ferrers, Ca. 6 Co. Rep. 9. (f) V. int. al. Choice Ca. 149; Mitf. 172. (g) Baker v. Shelbury, 2 Freem. 183; 1 Ch. Ca. 70. It is added in Freeman's report, "semble in autres cases, for witnesses may die." On a similar principle, an heir at law is brought before the court in suits for carrying into effect trusts of real estate created by will, on which the will is established, unless the heir chooses to take an issue as to its validity; we shall find this principle acted upon in many other cases. of the Court of Chancery taking upon itself the control of legal proceedings, in order to the question being properly decided. We first meet with interpleader in the records of the Court of Chancery, where there were several persons having conflicting equitable rights; in which case they were directed to interplead (a). This very useful branch of the jurisdiction is still exercised, in effect, in the case of bills filed by executors and trustees, against the persons beneficially interested to have their rights declared. But the kind of interpleader which we have now to consider has reference to strictly legal claims. When two or more persons claimed the same thing by separate titles, and the person against whom the demand was made had not the means of knowing to which of the parties he ought of right to render the debt or duty, all that he could do at law was to put each to prove his title, and he might possibly have a judgment against him in both. In order that complete justice should be done, it was obviously necessary that the claimants should be brought to litigate the question between themselves, so that each might be bound by the result; and that there should be one payment only, namely, to the person who made out his title against his competitor. This could be effected in the Court of Chancery alone, and the court accordingly assumed this jurisdiction; the principle indeed was admitted and acted upon in the courts of common law, in cases of bailment (b). A case in the 2d of Eliz. illustrates the nature of the proceeding. The plaintiff, by his bill, stated that there was a controversy between two defendants, for the reversion of the manor of Aldwell, which he held for years by lease made thereof to him by one Anthony Marmyon, and that he did not know which of the defendants was entitled to the reversion and the rent; and therefore he desired, that upon payment of his rent according to the covenants and articles of his lease, *into [*660] this court, he might be discharged and saved harmless from molestation, suit, and trouble for the same rents by the defendants, or either · of them; whereupon it was ordered that an injunction be awarded against the defendants, not to molest the plaintiff for his said rent during the said contention, so as the plaintant pay his rent into this court (c). This relief, it may be observed, is afforded not only where both the alleged claims are legal, but also where one is legal, the other equitable (d). This very beneficial jurisdiction has been lately conferred upon the Courts of Common Law (e). (a) V. sup. p. 390, n. (ƒ) .Flecke v. Banyard, temp. Rich. III. Cal. i. p. 115. (b) See Mitford, 141; ib. p. 48, 49; sup. p. 576. (c) Cary, p. 65. Case of same nature, Reg. Lib. 8 & 9 Eliz. fo. 184. (d) Mitf. 48, n. (ƒ). son's Dig. p. 3508, vol.2. By some accident the act was omitted in the summary of the acts of Will. IV., supra, p. 297. The cases to which the act does and those to which it does not apply may be found in Harrison's Digest, vol. ii. p. 3509, et seq. The form of Pleading may be seen 2 Chitty on Pleading, (e) 1 & 2 Will. IV. c. 58, § 1 to 8 Harri- 7th ed. by Greenway, p. 175. |