The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• A Table of British Regnal Years
• Select Essays In Anglo - American Legal History: Volume Ii History of Particular Topics
• Part I.: Sources
• 22.: Heinrich Brunner, the Sources of English Law 1
• 23.: Frederick William Maitland, Materials For the History of English Law 1
• 24.: William Searle Holdsworth, the Year Books 1
• 25.: Van Vechten Veeder, the English Reports, 1537-1865 1
• Appendix A: Edward Jenks, List of Principal Sources of Mediaeval European Law 1
• Supplementary List of References 1
• Appendix B: Paul Samuel Reinsch, a Short Bibliography of American Colonial Law 1
• 26.: The Commissioners, an Historical Survey of Ancient English Statutes 1
• Part II.: The Courts, Their Organization and Jurisdiction
• 27.: Frederick Andrew Inderwick, the Common Law Courts As Established Under Edward I 1
• 28.: George Spence, the History of the Court of Chancery 1
• 29.: William Searle Holdsworth, the Ecclesiastical Courts and Their Jurisdiction 1
• 30.: Thomas Lambert Mears, the History of the Admiralty Jurisdiction 1
• Part III.: Procedure
• 31.: James Bradley Thayer, the Older Modes of Trial 1
• 32.: Sir Frederick Pollock, the King’s Peace In the Middle Ages 1
• 33.: Hubert Hall, the Methods of the Royal Courts of Justice In the Fifteenth Century 1
• 34.: Sir James Fitzjames Stephen, Criminal Procedure From the Thirteenth to the Eighteenth Century 1
• 35.: Edward Jenks, the Story of the Habeas Corpus 1
• 36.: Frederick William Maitland, the History of the Register of Original Writs 1
• 37.: Luke Owen Price, an Action At Law In the Reign of Edward III. 1
• 38.: William Searle Holdsworth, the Development of Written and Oral Pleading 1
• 39.: Charles Mcguffey Hepburn, the Historical Development of Code Pleading In America and England 1
• 40.: John Henry Wigmore, a General Survey of the History of the Rules of Evidence 1
• Part IV.: Equity
• 41.: Oliver Wendell Homes, Early English Equity 1
• 42.: Luke Owen Price, Common Law and Conscience In the Ancient Court of Chancery 1
• 43.: James Barr Ames, the Origin of Uses and Trusts 1
• 44.: Christopher Columbus Langdell, the Development of Equity Pleading From Canon Law Procedure 1
• 45.: Solon Dyke Wilson, Courts of Chancery In the American Colonies 1
• 46.: Sidney George Fisher, the Administration of Equity Through Common Law Forms In Pennsylvania. 1

46.

THE ADMINISTRATION OF EQUITY THROUGH COMMON LAW FORMS IN PENNSYLVANIA.1

By Sidney George Fisher2

EQUITY and its administration have been favourite topics with law reformers. Whether the distinction between equity and law is a sound and essential one, whether equity can be administered by the same court that administers law, and whether equity can be absorbed into the common law and be administered by common law forms have been the great questions. In the solution of the last question the American State of Pennsylvania has had a long practical experience. Her system, which is correctly described as the administration of equity through common law forms, has now been in existence for more than one hundred and fifty years. No other commonwealth in the world has tried the experiment in so thorough a manner or on such an extensive scale. It is therefore fair to say, that the exact value of the system, what it can and what it cannot do for the conduct of litigation, ought to be found in the experience of Pennsylvania.

The subject naturally divides itself into three parts. First, the various unsuccessful attempts, from the founding of the Colony in 1681 until the year 1836, to obtain courts with the usual Chancery powers. Second, as a consequence of these failures, the growth during the same period, of the administration of equity through common law forms. Third, the period from 1836 to the present time, during which the Courts have gradually obtained from the legislature nearly all the ordinary powers of Chancery.

William Penn obtained his charter for Pennsylvania in 1681, and by its terms could have at once erected a Court of Equity.1 He did not do so. Apparently he was not an admirer of such courts; for he describes the Indians as not ‘perplexed by Chancery suits,’ and in accordance with his Quaker belief he made arrangements for having appointed by every County Court ‘three peacemakers,’ who acted as arbitrators to prevent law-suits.2

But the General Assembly, which was created by Penn as the legislative body of the Colony, was of a different mind. In 1684 it made two provisions for introducing equity. The first made the County Courts courts of equity as well as of law. The second created a Provincial Court, which was to be a court for appeals from the County Courts, and was also to try all cases, both in law and in equity, not triable in the County Courts.3 Both of these provisions were repealed by the English Government in 1793. The first was re-enacted by the General Assembly the same year that it was repealed. But it is believed that very little business was transacted under either of them. It is also probable that any equity that was administered at this time was not the technical and scientific equity of lawyers, but a sort of natural equity, consisting largely of the amendment of judgments at law which were considered too harsh. The judges had great discretionary powers, and were usually laymen. In fact there were very few trained lawyers in the Colony.4

After this there were four more futile attempts to establish equity. They are chiefly interesting as showing the relations of the Colony to the mother country in the matter of the repeal of laws.

The first of these attempts was in 1690. The General Assembly limited the jurisdiction of the County Courts by enacting that they should hear equity cases only when they were under the value of ten pounds. The English Government repealed this Act in 1693. It was re-enacted the same year and re-enacted again in 1700; but apparently it produced no results.1

In 1701 an Act remodelling the courts of the Colony, and apparently repealing all prior regulations in regard to equity, gave equity powers to the Courts of Common Pleas, and an appeal in equity cases to the Supreme Court. Nothing came of this Act and it was repealed by the home government in 1705.2

In 1710 the General Assembly made another attempt. A Court of Equity was to be held by the Common Pleas judges four times a year in every county. Appeals could be taken to the Supreme Court, and questions of fact were to be settled by a reference to Common Pleas. This was repealed in 1713.3

In 1715, a ‘Supreme or Provincial Court of Law and Equity’ was established. This was likewise repealed in 1719.4

These were all failures. But in 1720, at the suggestion of Governor Keith, a separate Court of Equity was provided. It lasted sixteen years, and was not interfered with by the home government. It is to be observed that the other attempts were all law courts with an equity side. But this court, founded in 1720, was the first and only separate Court of Equity Pennsylvania has ever had. Considerable business was transacted by it. But unfortunately for the court’s existence the Governor was its Chancellor, and the colonists were so jealous of any power exercised by the King of England, or his representative the Governor, that in 1736 they brought to an end the only real Court of Chancery they ever possessed.5

For the next hundred years—that is to say, until the final grant of equity powers in 1836,—the lovers of Chancery met with even less success. By the Constitution of 1776 they got for the law courts the powers of equity so far as related to perpetuation of testimony, obtaining evidence outside of the State, and the care of the persons and estates of the insane. The Legislature was at the same time allowed to grant such other Chancery powers as might be found necessary. But no other powers were granted, except a method of supplying lost deeds and writings, and a proceeding in the nature of a bill of discovery against garnishees in foreign attachment. The Constitution of 1790 mended matters by giving somewhat larger discretionary powers to the Legislature. But that conservative assembly exercised them only to the extent of letting the courts appoint and dismiss trustees, compel them to account, compel answers on oath in certain cases of execution, and when the vendor of lands had died, complete the contract of sale.1 The inconvenience of this meagre grant was a little alleviated by the Legislature’s appointing a ‘Committee of Grievances,’ which in cases of great hardship gave liberal relief.2

Throughout the whole early history of Pennsylvania, it appears that there was always a party which wanted Courts of Chancery, and sometimes succeeded in getting them. This party was hindered in the colonial times by the British Government continually repealing the Colony’s laws. They had an equally troublesome obstacle in the endless feuds between the colonists and their successive Governors.3 These quarrels were so bitter and hard-fought that law-making and the execution of the laws were often forgotten. ‘If we have lived free from open rapine,’ said one of the Governors, ‘ ’tis more owing to the honesty of the people than any public provision made against it!’4 Before and immediately after the Revolution the same party was thwarted by the jealousy which the people felt for any exercise of unusual power. And in later years they were opposed in the Legislature and throughout the State by another party. This new party took the ground that Chancery Courts were contrivances of the Devil to defeat justice, and that Pennsylvania had a system of equity of her own, which was complete in itself, and would in time reform the world.

So, with the exception of the sixteen years from 1620 to 1636, the Courts of Pennsylvania were, for over a hundred and fifty years, left in this predicament—that, in an enlightened community whose trade and commerce were growing every day, they were obliged to administer justice without the aid of a Court of Equity. It is not surprising that they struck out into a new path and did something unheard of in the annals of Anglo-Saxon jurisprudence. If their action was a piece of judicial audacity, it was authorized and justified by the circumstances.1

The precise time at which the courts began to administer equity through common law forms is not known. Some say it was done from the beginning.2 The first reported case3 on the subject was decided in 1768. It was an action of debt on a bond, and the defendant offered to prove failure4 of consideration. The court admitted the evidence, saying, ‘there being no Court of Chancery in this province, there is a necessity, in order to prevent a failure of justice, to let the defendants in, under the plea of payment, to prove mistake, &c.’ The Chief Justice added, that he had known this as the constant practice of the province for thirty-nine years. In 1783 the case of Kennedy v. Fury5 decided that a cestui qui trust of land could bring ejectment in his own name, the court observing that otherwise ‘he would be without remedy against an obstinate trustee.’ These decisions show very clearly how in certain plain cases, and to prevent intolerable hardship, the courts deliberately usurped the necessary powers.

The case of Wharton v. Morris (1785) displays a further development.1 After reciting the lack of Chancery and the resulting grievous inconvenience, Chief Justice McKean says, ‘This defect of jurisdiction has necessarily obliged the court, upon such occasions, to refer the question to the jury under an equitable and conscientious interpretation of the agreement of the parties.’ He then goes on to inform the jury of the equities of the case. In the colonial times the equity thus charged to the jury was not technical. It was the so-called natural justice, named by Austin the ‘arbitrium of the judge.’ It is still almost the only rule of legal decision among the Turks and Arabs. Haroun-al-Raschid excelled in it. But in an advanced stage of civilization it is impossible. Its existence in Pennsylvania is very apparent in the leading case of Pollard v. Shafer (1787).2 The Chief Justice there says, ‘A Court of Chancery judges of every case according to the peculiar circumstances attending it, and is bound not to suffer an act of injustice to prevail.’ Equity, as a system in itself, with settled and unchanging rules, was apparently neither studied nor appreciated.3

The dangers of charging equity to the jury were often felt. ‘Before the Revolution,’ said Mr. William Rawle, ‘when the bench was rarely graced by professional characters, juries were almost the same as Chancellors.’4 Chief Justice Gibson said in Lighty v. Short,5 ‘The greatest practical evil of the doctrine is, that it subjects the contract to the control of a jury, prone to forget that to cut a man loose from his contract from motives of humanity is the rankest injustice.’ In his eulogium on Chief Justice Tilghman, Binney calls it, ‘a spurious equity compounded of the temper of the judge and of the feelings of the jury, with nothing but a strong infusion of integrity to prevent it becoming as much the bane of personal security as it was the bane of science.’6 After the Revolution efforts were continually made—notably by Chief Justice Tilghman—to get rid of some of the evils of having the science of equity change with every new jury. The technical doctrines of the English Chancery were studied, and natural equity disappeared. In its reformed condition charging equity to the jury is still the law of Pennsylvania. The judge is the Chancellor, and the jury assist him by deciding on the weight of evidence and finding the facts. The judge may withdraw the case from the jury if satisfied that the testimony, even if believed, is not sufficient to establish the equity. If the jury disregard the equity laid down by the judge, the same remedy exists as when they disregard the law.1

The next characteristic to be observed in the Pennsylvania system, is the rule which allows the defendant, in an action-at-law, to plead an equitable defence. This he may do by offering it in evidence (with notice) under the pleas of payment, non-assumpsit, or performance, which have become equitable pleas in Pennsylvania. If his defence does not properly come under one of these pleas he can set it up specially.2 This method of working equity through common law forms was probably adopted at a very early date. The case of Swift v. Hawkins cited above, and decided in 1768, is an instance of an equitable defence admitted under the plea of payment. The court speaks of the custom as one of long existence. It is probable that this method and that of charging the equity to the jury, were the first contrivances for obviating the lack of Chancery powers. Allowing the defendant to set up an equitable defence was soon extended by allowing the plaintiff to rebut it.3 By such means many opportunities were given in actions-at-law for the consideration of the principles of equity.

The next advance was to allow the plaintiff to begin proceedings by setting out in his declaration a purely equitable right, making the declaration somewhat resemble a bill in equity.1 This practice was apparently not introduced until a rather late period, when the advancing civilization of the State had made the position of plaintiffs unbearable; for they could make no use of an equity except to rebut one used by the defendant. The first case was in 1791.2 The plaintiff sued in debt on a bond, but at the trial was unable to make profert because the bond had been lost. A juror was withdrawn by consent and the case went over. The plaintiff then took a rule on the defendant to show cause why the declaration should not be amended by striking out the profert and averring the loss of the instrument. The rule was made absolute, and the plaintiff allowed to amend. The court gave the old reason, that there was no Chancery, and there would be a failure of justice unless some such arrangement were made. This decision was followed by similar ones, until it became a settled rule, that when the common law forms were inadequate, a declaration might be framed setting out the equity of the plaintiff and suited to the circumstances of the case.3 It is very curious that, in 1789, only two years before this Pennsylvania case, Lord Kenyon made the same decision in England. It was the case of Read v. Brookman.4 Austin cites it as a rare instance of liberal-mindedness in a common-law judge, and also as showing the absurdity of the distinction between law and equity.5 Unlike the Pennsylvania case it remained solitary and did not become one of the starting points of a new system in England; but was cited in Commonwealth v. Coates and helped to develop the Pennsylvania system.

The equitable rights of the plaintiff received a further extension by the turning of certain well-known common law actions into equitable ones. Thus ejectment became an equitable action, and the plaintiff without a special declaration could recover on a purely equitable title. The exact date of this innovation is unknown; but in the first reported case (1811) it is spoken of as an old custom.1 The action of replevin was changed in the same way, and made to apply to every case of disputed title to goods.2 The writ of estrepment with the aid of a little tinkering supplied the place of an injunction to restrain waste on land.3 The foreclosing of mortgages was provided for by statute.4 When a judgment-at-law was obtained unfairly, instead of resorting to a bill in equity, a rule was taken to show cause why the judgment should not be opened and the party complaining let into a defence on the merits.5 The assignee of a right of action was always treated as the real plaintiff.6 To complete the system, equitable rights in land were made subject to the lien of a judgment.7 And finally, the Orphans Court, which may be described in a general way as a court having control of everything relating to decedents’ estates, has always been, so far as its jurisdiction extends, a court with full equity powers.8

Such were the methods by which the Courts of Pennsylvania tried to solve the problem that was forced upon them. They dug channels in the barriers of the common law, and through them they attempted to make the waters of equity flow. They succeeded to this extent, that in most law trials, equitable doctrines applicable to the case could be considered. But when it came to remedies, and the practical execution of the doctrines so considered, they signally failed. It is easy enough for a law court to say that it will hear equitable arguments and frame its judgments accordingly. But for carrying out those judgments, the common law method of execution offers no adequate substitute for the equitable proceedings of injunction, specific performance, quia timet, and discovery. It is in methods of administration that equity excels the common law, as much as, if not more than, in doctrine. The Pennsylvania law courts were daring enough to usurp the doctrine, but all their ingenuity could not obtain for them the practical remedies. Of course in many cases where equitable principles were applied, the common law method of damages and execution was enough; and if the defendant set up an equity which defeated the plaintiff, that ended the matter. But whenever specific performance was necessary, the only way of enforcing the equity (except in the cases of ejectment and replevin already mentioned) was by conditional damages. Thus in Clyde v. Clyde (1791), the plaintiff’s right to a watercourse was disturbed by the defendant. The judge charged the jury to award large damages, and the plaintiff’s attorney agreed to release them when the defendant should give a secure grant of the watercourse.1

The sum of the whole matter is, that the courts contrived, by special declarations, pleas, &c., to bring up for consideration in law trials, the doctrines of equity; and they succeeded in partly administering those doctrines, in some cases by the ordinary common law methods, in others by conditional damages, and in others by such actions as ejectment, replevin, estrepment, rule to open judgment, &c., which they themselves invented or the Legislature invented for them. Here they stopped. They squeezed equity part way into the common law; but it would not go all the way. The whole subject of preventive justice was left outside. They never found a common law substitute for injunctions, bills quia timet, or discovery. Without these the administration of justice would in modern times be at a standstill.

Pennsylvania was not the first place where equity was administered through common law forms. The idea is said to be as old as the Year Books; and here and there in the common law isolated instances of it can be found. The law of bailments is in great part equitable; so is the action of assumpsit for money had and received; and the doctrines of relief from the penalty of a bond, of contribution among sureties, of discharge of the surety, by giving time to the principal, are all instances of equity administered at common law. There are also certain old and almost obsolete actions, which accomplish very much the same result as a bill in equity. The writ of audita querela prevents the improper enforcement of a judgment, the writ of estrepment prevents waste, warrantia chartae prevents a suit for land by any action in which the defendant cannot call on his warrantor, curia claudenda compels the owner of land to enclose it, ne injusti vexes prevents unfair distraint.1

These and many other examples were often cited by Pennsylvania lawyers to show that the good old common law was equal to every emergency and all the principles of equity could be administered in it.2 Laussat in his famous essay developed this point ingeniously. He proposed to revive the ancient writs, and if the courts were not bold enough to strip them of their technical absurdities, to persuade the Legislature to do it. In all cases which could not be covered by these writs or by the methods already in vogue, he suggested that the writ of scire facias be used.3 He argued, that as there was no act, from the performance of which a party could not be called upon to show cause why he should not be enjoined, and as the writ allowed of the joining of all parties interested, there was no reason why writs of scire facias should not become complete substitutes for bills in equity. As a substitute for bills of account he offered to reform the old common law action of account render.

But neither the Legislature nor the courts followed these suggestions. The Pennsylvania system remained as it was, partly successful, yet unable to supply the needs of an active commercial state. Still there were those who loved it, and, when it was called a ‘bungling substitute’ or an ‘hybridous monster without the virtues of either parent,’ their wrath was kindled. Said Chief Justice Black in Finley v. Aitken,4 ‘I think it not an ignorant prejudice, but high political wisdom, which caused our ancestors to refuse a Court of Chancery any place among their judicial institutions. . . . The administration of law blended and mixed with equity principles was a happy conception. It was no “bungling substitute,” but a most admirable improvement of both legal and Chancery practice. . . . It is to be fervently hoped that we will not now extinguish the light by which the world has been walking.’

To this day there are good lawyers in the State who maintain that the Act of 1836, giving equity power to the courts, was unnecessary. It could have been dispensed with, they say, if the judges had only been a little more pliant and ingenious. Certainly it must be admitted, that, if we could have done without it, our State would stand alone in the juridical honour of having demonstrated that the distinction between law and equity is an absurdity. But the fact is otherwise. The people tried to do without equity, and after many attempts and more than a hundred years of consideration found that they could not. There is of course always the chance that the majority may be wrong. But the majority in this case agreed with all the other majorities which have had to decide the same question.

Writers on jurisprudence tell us that our distinction between law and equity is illogical and unnecessary; judged by scientific principles it should not exist; that wherever equity appears, whether in Rome or in England, it is merely an historical accident; it is unknown in France, and would be unknown to us, if it were not for certain peculiar circumstances attending the infancy of our system. But on the other hand, it must be admitted that law, though in part composed of logical reasoning, is also a thing of growth, influenced by custom and individual opinions. If it has taken for itself a certain method of formation, it is in vain that you ignore or try to eradicate that method. The experience of Pennsylvania is a proof that equity, though unscientific, is in our law necessary and vital. It may make an unreasonable distinction; but still it is a form which the law has assumed, and to try to cut it out or join it to something else, is very much like attempting similar improvements on the human body. The modern codes, which turn all forms of action into one, have not been able to abolish the distinction. No code has ever enacted an abridgment of equity’s principles; but, on the contrary, they are always adopted entire. It baffled the astuteness of the Pennsylvania judges to find a substitute for the preventive remedies of equity. The codes have met with no better success, and have taken injunctions, quia timet and the rest, with changed names perhaps, but without diminishing or adding aught in substance.1 The great Mansfield thought he could amalgamate law and equity; and men not so great as he have had the same dream. But they are all alike in failure. Pennsylvania’s attempt shows how far the distinction is meaningless and how far it is to be respected. The doctrines can be combined with legal forms, but not the remedies.

In 1830 the Legislature appointed a commission of three to revise the whole civil law of the State. These three men deserved well of the Commonwealth, and the eight reports they submitted to the Legislature remain as an everlasting monument to their skill. In no respect did they show themselves to better advantage than when they came to the vexed question of courts of equity. They were able lawyers and knew exactly what the Pennsylvania system was worth; and they had made up their minds that it was not equal to supplying the wants of the people. But being wise in their generation, they were careful to heap on it lavish praises, to call it a combination of all that was good; at the same time they thoroughly analyzed it, and quietly suggested that full Chancery powers be given the law courts in the following cases:—

(1) trustees, (2) trusts, (3) control of private corporations, unincorporated societies and partnerships, (4) discovery of facts material to any case, (5) interpleader, (6) injunction, (7) specific performance.

This included nearly the whole jurisdiction of Chancery, and was a severe commentary on the Pennsylvania system. The Legislature could swallow only part of it. In 1836 they gave to the Courts of Philadelphia alone all the equity jurisdiction suggested by the commissioners. To the rest of the State they gave jurisdiction only in the first three cases above mentioned.

But the ice was broken. In 1840 Philadelphia got Chancery power in cases of fraud, accident, mistake and account; and the rest of the State in cases of account. In 1844 Allegheny county got the same jurisdiction as Philadelphia. In 1845 Philadelphia was given equity power in dower and partition. And so it went on from one point to another until in 1857 the equity jurisdiction was made the same throughout the State. Since then and up to the present time there have been other, but less important, grants. In one or two of them Philadelphia has shown that she still possesses her ancient and superior influence with the Legislature.1

This legislative grant does not interfere with the administration of equity through common law forms.2 That system continues to exist, and is used whenever the occasion requires it. It has served and still serves a useful purpose. It was the result of hard necessity, and under the circumstances that attended the early days of the State no better arrangement could have been made. If it has failed of complete success it is a failure in attempting great things.

[1 ]This essay was first published in the Law Quarterly Review, vol. I, pp. 455-465 (1895).

[2 ]Member of the Philadelphia Bar since 1883. University of Western Pennsylvania, L. H. D. 1897; Trinity College (Hartford), LL. D. 1903; trustee of Trinity College.

Other Publications: The Evolution of the Constitution of the United States, 1897; Pennsylvania, Colony and Commonwealth, 1897; Men, Women, and Manners in Colonial Times, 1897; The True Benjamin Franklin, 1898; The True William Penn, 1899; The True History of the American Revolution, 1902; and various articles in legal periodicals.

[1 ]1 Proud’s Hist. Pa. 175.

[2 ]Ibid. 255, 262.

[3 ]Duke of Yorke’s Laws, &c. 167, 168; Rawle, Essay Eq. in Penna. 9.

[4 ]McCall, Judicial Hist. of Pa. 21, 27; Lewis, Courts of Pa. in Seventeenth Cent. 6; Brightly, Eq. in Pa. 29.

[1 ]Duke of Yorke’s Laws, &c. 184, 225.

[2 ]Rawle, Essay Eq. in Pa. 11, 12; 1 Carey and Bioren, Laws of Pa. 33.

[3 ]1 Carey and Bioren, Laws of Pa. 79.

[4 ]1 Carey and Bioren, Laws of Pa. 110.

[5 ]Rawle, Essay Eq. in Pa. 19-53.

[1 ]Rawle, Essay Eq. in Pa. 59-61.

[2 ]McCall, Judic. Hist. Pa. 25.

[3 ]There was also from the very first a small party which disapproved on principle of Chancery powers. Lewis, Courts of Pa. in Seventeenth Cent. 7.

[4 ]2 Col. Rec. 312.

[1 ]Chief Justice Gibson, in Torr’s Estate (2 Rawle, 253), said, ‘As we cannot hope to see a separate administration of equity, we are bound to introduce it into our system as copiously as our limited powers will admit.’

[2 ]Brightly, Eq. in Pa. 5.

[3 ]Swift v. Hawkins, 1 Dallas, 17.

[4 ]In the report of this case it is stated that the defendant offered to prove want of consideration, but it has always been considered as a misprint for ‘failure.’ Rawle, Essay Eq. in Pa. 57.

[5 ]1 Dallas, 72.

[1 ]Ibid. 125.

[2 ]1 Dallas, 212.

[3 ]Laussat, Essay Eq. in Pa. 89.

[4 ]Address to the Philadelphia Bar.

[5 ]3 Pa. 451.

[6 ]16 Serg. and R. 448.

[1 ]Wharton’s note to 1 Dallas, 126; Peebles v. Reading, 8 S. & R. 484; Kuhn v. Nixon, 15 S. & R. 118; Hawthorn v. Bronson, 16 S. & R. 269; De France v. De France, 34 Pa. 385; Church v. Ruland, 64 Pa. 432; Robinson v. Buck, 71 Pa. 386; McGinity v. McGinity, 63 Pa. 38; Todd v. Campbell, 8 Casey, 252; Faust v. Haas, 73 Pa. 295; Ballentine v. White, 77 Pa. 20.

[2 ]Laussat, Essay Eq. in Pa. 66. Allowing the defendant at law to set up an equitable defence was adopted in England by the Common Law Procedure Act long after it had become the custom in Pennsylvania. 17 & 18 Vic. sec. 125; Royal Society v. Magnay, 10 Exch. 489.

[3 ]McCutchen v. Nigh, 10 S. & R. 344.

[1 ]Laussat, Essay Eq. in Pa. 43.

[2 ]Commonwealth v. Coates, 1 Yeates, 2.

[3 ]Lang v. Keppelé, 1 Binney, 125; Jordan v. Cooper, 3 S. & R. 564.

[4 ]3 Term Rep. 151.

[5 ]Austin, Jurisprudence, 636.

[1 ]Hawn v. Norris, 4 Binney, 78; Peebles v. Reading, 8 S. & R. 484.

[2 ]Weaver v. Lawrence, 1 Dallas, 157; Mead v. Kilday, 2 Watts, 110.

[3 ]Purdon’s Digest. 1465; Byrne v. Boyle, 37 Pa. 260.

[4 ]Purdon’s Digest, 482.

[5 ]Mitchell, Motions and Rules, 76.

[6 ]Steele v. Phoenix Ins. Co., 3 Binney, 312.

[7 ]Anwerter v. Mathiot, 9 S. & R. 402.

[8 ]Laussat, Essay Eq. in Pa. 105; Purdon’s Digest, 1103.

[1 ]1 Yeates, 92; Anon., 4 Dallas, 147; Walker v. Butz, 1 Yeates, 575; Moody v. Vandyke, 4 Binney, 43; Kauffelt v. Bower, 7 S. & R. 81.

[1 ]Co. Litt. 100, a.

[2 ]An Assize of Nuisance as a substitute for an injunction was brought in Pennsylvania in 1809. Livezey v. Gorgas, 2 Binney, 194.

[3 ]Laussat, Essay Eq. in Pa. 126, 139.

[4 ]3 Pittsburgh Leg. Journal, 2.

[1 ]Bispham, Equity, sec. 14.

[1 ]Rawle, Essay Eq. in Pa. 70; Purdon’s Digest, 589; Sixth Rep. of Com. to Rev. Civil Code.

[2 ]Aycinena v. Peries, 6 W. & S. 243; Biddle v. Moore, 3 Pa. 161; Church v. Ruland, 64 Pa. 432; Corson v. Mulvany, 49 Pa. 88.