London and Middlesex Exchequer Equity Pleadings, 1685-6 and 1784-5. Originally published by London Record Society, London, 2000.
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Of the many only partially-listed 'series' of early modern documents in the Public Record Office [hereafter PRO], those of the central courts of equity (Chancery, Exchequer, and the shorter-lived Requests) have been notorious for their inaccessibility. (fn. 1) While it is difficult enough to identify and to trace suits brought by specific individuals using the extant listings and finding aids, subject-matter searches are even more problematic since listings providing such information are very much the exception. (fn. 2) At the same time, however, scholars have long been aware of the potential rewards to be found in these judicial archives — not only in the detailed bills of complaint (sometimes with attached schedules) by which suits were initiated, but also in the exhibits and other proofs submitted by the litigants, the depositions taken from their witnesses, the reports commissioned by the courts, and the decrees they handed down. Examples of successful searches carried out in recent years include Milhous's and Hume's collaborative work in opera and theatre history exploiting both Chancery and Exchequer records, Erickson's investigation of married women's property rights drawing upon an array of marriage settlements litigated in Chancery, and Stretton's study of women litigants in the Elizabethan Court of Requests. (fn. 3)
In the case of the Court of Exchequer's proceedings in equity, searchers proceeding along topical lines have had the benefit of one set of listings that does provide brief summaries of subject for certain suits — those for which witnesses' depositions were taken by commission in the provinces. These are the listings for E 134 (country depositions). (fn. 4) However, the suits so summarized constitute only a small fraction of the approximately 90,000 begun in Exchequer between the mid-seventeenth century, when the Court assumed a general jurisdiction in equity, and 1841, when this jurisdiction was merged into Chancery. (fn. 5) To begin with, relatively few Exchequer equity cases, certainly fewer than 10 per cent, ever reached the stage of having depositions taken (nor was it always necessary to depose witnesses in suits that did reach advanced stages). Moreover, these listings for E 134 do not cover the depositions taken by the four Barons of the Court (and their subordinates, the Examiners) chiefly in cases emanating from the metropolis (London and Middlesex) — that is, the depositions filed in E 133. This is no mean omission since, as will be discussed below, cases originating in the metropolis constituted a significant and growing proportion of all Exchequer suits filed, with a distinctive distribution of subject-matter. Rather, the only finding aid to the main portion of E 133 simply lists these cases by the surnames of the first plaintiff and first defendant (e.g. Smith v Jones) without providing the date either of the deposition in question or of the suit which occasioned it. (fn. 6) Thus, while researchers in the history of the city and the metropolis (e.g. the Survey of London, the Victoria County History) have, with a degree of success, been able to exploit Chancery records, little attempt has been made to make use of Exchequer equity materials, even though the two courts handled, with one major exception, much the same range of civil litigation and utilized very similar procedures.
It is the aim of this volume to illustrate the potential rewards of searches in Exchequer equity records for students of the history of London and the metropolis by way of calendaring a limited selection of the pleadings in equity (bills, answers, and related documents) consisting of every London and Middlesex suit filed for two years of the Court's operation as a general court of equity — the first year of James II's reign (6 Feb. 1685–5 Feb. 1686) and the twenty-fifth year of George III's (25 Oct. 1784–24 Oct. 1785). (fn. 7) All told, there are 151 suits for the former year, 194 for the latter.
Identification of London and Middlesex pleadings in the class E 112 is greatly facilitated by the practice of the Exchequer clerks of filing suits by county (a practice not paralleled in Chancery). (fn. 8) Together, these 345 sets of pleadings comprise all the surviving materials in E 112 filed as London and Middlesex bills and answers for these two years and so recorded in the Sworn Clerks' bill books (IND 1/16820–53). The bill books, in turn, list by suit name (including first names) the materials in E 112. Like the pleadings themselves, the bill book listings are subdivided by county. In turn, each set of pleadings is entered in the appropriate bill book under the legal term and regnal year in which it was filed in court, while the bill books themselves are divided by reign. For example, IND 1/6839 is vol. 2 of the set of bill books for George I's reign and within it a set of pleadings for a suit emanating from London/ Middlesex which was filed in Hilary term, 12 George I, is listed under that county designation and term designation. (fn. 9)
'Pleadings' constitute the initial stage of an equity or 'English bill' suit. They consist of the litigant's complaint and, in many but by no means all instances, the defendant's answer or other response (disclaimer, demurrer or plea), along with any subsequent pleadings (principally, the plaintiff's replication to the answer and the defendant's rejoinder to the replication). (fn. 10) In addition, the plaintiff might submit exceptions to an 'insufficient' answer (i.e. one not fully responding to the claims of the bill), contending that the defendant should submit a further, more responsive answer. Also included, as attachments to a plaintiff's bill of complaint (and, occasionally, to a defendant's answer), may be schedules itemizing goods or transactions in question (e.g. post-mortem inventories in an estate case or a cargo schedule in a marine insurance case). On occasion, one also encounters amended bills (usually to include or to delete defendants), supplementary bills, and bills of revivor (when an original party to a suit has died). The great majority of Exchequer equity suits (as in Chancery) never proceeded beyond the pleadings stage, being either abandoned or compromised, and for a substantial minority the only document that appears to have been filed is the bill of complaint. Subsequent stages of a contested suit usually, but not invariably, consisted of the taking of witnesses' depositions and the submission of documentary proofs (e.g. deeds), (fn. 11) the hearing of the case before the four Barons of the Exchequer, (fn. 12) the referral of factual question(s) either to the Court's own official, the Deputy to the King's Remembrancer (the equivalent of a Master in Chancery, hereafter referred to as the Deputy Remembrancer) or to a common law jury on an issue agreed upon by the parties, and the promulgation of the Court's decree in the light of the evidence, counsel's arguments, and (if any) the jury's verdict.
On the whole, Exchequer equity records have been less intensively exploited than those of Chancery, in part because the archive is considerably smaller and has been less well known, and in part perhaps because of Exchequer's reputation as the pre-eminent forum for tithe disputes. (fn. 13) However, it should be noted that Exchequer's preoccupation with tithe cases was by no means constant: while over one-third of 'English bill' cases in 1685 concerned tithes, by 1785 that proportion had fallen to under one-sixth. (fn. 14) Moreover, in both years the number of tithe disputes arising in the metropolis was minimal. Rather, with respect to suits originating in the metropolis, Exchequer's equity business exhibits much the same array of subjects as those litigated in Chancery, with the principal categories of disputes concerning land, deceased's estates, debts and bonds, and commercial arrangements, initiated by a broadly similar profile of litigants. (fn. 15) Furthermore, a growing proportion of Exchequer cases emanated from the London metropolis — roughly one-fifth to one-quarter in the later seventeenth century, rising to a little over one-third by the later eighteenth and early nineteenth centuries. (fn. 16) Then, too, in both periods London and Middlesex generated disproportionately more suits than the prevailing metropolitan fraction of the total population of the kingdom.
Table I. Geographical origins of Exchequer equity cases
|Total bills||London and Middlesex||Rest of England and Wales|
Source: Bill books. Note the eighteenth-century fall-off in litigation (evident in the central royal courts, as well as in local jurisdictions) and the partial revival in the early nineteenth century to the end of George III's reign.
The pleadings calendared here have been gathered as part of a broader enquiry conducted in the course of the preparation of a PRO handbook on Exchequer equity records and proceedings, a project carried out by the editors of the present volume and funded by the Leverhulme Trust. For purposes of the handbook, the pleadings for 150 suits (selected from those filed for all of England and Wales) for each of four sample years (1685–86, 1734–35, 1784–85 and 1818–19) were read and analysed. (fn. 17) In addition, one-half of these 600 suits (those from the 1685–86 and the 1818–19 samples) were traced through the other relevant series of Exchequer equity records (especially the depositions and exhibits, Deputy Remembrancer's reports, and the Court's orders and decrees) as a way of gauging the behaviour of litigants and the modes of operation of the Court. (fn. 18) In turn, the suits calendared here include both those London and Middlesex cases which are part of the samples for 1685–86 and 1784–85 and all other surviving London and Middlesex pleadings for those two years.
Table II: London and Middlesex suits calendared in this volume
|From samples (see text)||34||51||85|
|From the rest of E 112||117||143||260|
All told, the 345 sets of pleadings from London and Middlesex calendared here can be divided into six main subject-groupings: landholding and land transactions; tithes; estate (testamentary and intestacy) issues; debts and bonds; business transactions; and inter-vivos trusts. These are 'artificial' categories in the sense that Exchequer, as other courts of equity, knew no 'forms of action' (unlike the common law) and had no need to classify its business as we have chosen to. (fn. 19) Rather, the Court's focus was always on the conduct of the defendant, and from this perspective the gravamen of many bills of complaint was an allegation of fraud or of failure to honour an agreement.
In broad terms, suits categorized as related to landholding and other property questions include mortgage disputes, rental and leasehold claims, demands for specific performance of agreements to convey, as well as suits involving manorial rights, waste, and boundaries. Tithes have been reserved for a separate category given the prevalence of such disputes in Exchequer; complainants might be either parish incumbents or lay impropriators (or their agents or lessees). Suits classed as estate matters concern chiefly claims for payment of legacies and for performance of other provisions of wills, including testamentary trusts. Under this rubric, too, have been placed suits by representatives of the deceased trying to bring in the deceased's property or to collect his/her debts. Suits classed as matters of debt include disputes concerning bonds and their enforcement and demands for sums owing (apart from mortgages and suits to recover the assets of a deceased). They also include the suits of creditors of deceased individuals against their representatives. However, when such credit relationships derive from a sale of goods or other business transaction, including an employment arrangement, they have been classified as matters of business. (From this perspective, then, the category of debts and bonds is a residual one.) Business transactions include, besides sales of goods and employment arrangements, matters of account between partners, as well as insurance and copyright cases. Finally, trusts refer exclusively to inter vivos trusts, principally the obligations of trustees under marriage settlements.
Using these six categories, and two supplementary ones — (1) cases involving royal revenue rights with the Attorney General as plaintiff (so-called 'English informations', to distinguish them from the usual Latin information) and (2) 'miscellaneous' matters — the 345 suits calendared in this volume have been grouped as indicated in Table III. The distinctive distribution of subject matter in the metropolitan cases in Exchequer is evident from a comparison of Table III with Table IV. Most striking is the very much higher proportion of tithe suits among non-metropolitan cases: tithe disputes constitute no more than 2 per cent of the London and metropolitan pleadings in the two years studied, but they generated 45 per cent and 23 per cent of the provincial cases respectively — a disparity reflecting the fact that by the terms of the act of 37 Henry VIII tithe disputes in the City were to be heard by the Lord Mayor's Court. Moreover, even leaving aside tithe suits, as in Table V, comparison of the profile of provincial litigation to that of the metropolitan suits in Table III underlines the fact that cases involving debts and bonds and business transactions were considerably less common among the former than among the latter.
Table III: Subject-matter of London and Middlesex suits in Exchequer equity cases
* Five suits have been counted in more than one category, with each classification counting as 0.5
Table IV: Subject-matter of Exchequer equity suits emanating from the provinces
The provincial suits categorized here, and in following tables, are part of the samples taken for the Exchequer equity handbook, and will be calendared in the forthcoming List and Index Society volume. Two 1784–5 suits have been counted in two categories, each as 0.5.
Table V: Subject-matter of Exchequer equity suits from the provinces excluding tithe cases
|Estates (of deceased)||12||19.0||17.5||23.0|
|Debts and bonds||14||22.2||16.5||21.7|
Just as London and Middlesex suits have a different subject profile than that of provincial suits, so the parties involved also differed in character, as evidenced in Tables VI and VII. One would indeed anticipate both from the distinctive socio-economic configuration of the capital and from the higher (and rising) proportion of credit and business cases among the London and Middlesex suits that the proportion of metropolitan plaintiffs in both years giving commercial or artisanal identifications would be substantially higher than those for the two provincial groups of plaintiffs. More surprising is the rise in the proportion of those styling themselves as gentlemen (or above) among metropolitan plaintiffs. While the commercial-artisanal group of London in 1685 was more than two-and-a-half times as large as that of the gentleman group, the situation is very different in 1785 when plaintiffs styling themselves gentlemen (or of higher ranks) constitute over one quarter (27.3 per cent) of the entire metropolitan group while plaintiffs styling themselves as gentlemen (or of higher ranks) constitute only 18.4 per cent of the provincial group of that year. (fn. 20) It is possible that this seeming anomaly reflects the freer adoption of the style 'gent.' by those of non-gentle birth among the better-off among the 'middling sort' by the later eighteenth century. And this speculation is reinforced by the simultaneous upward movement of debt and business suits in the metropolis (combined, from 52 per cent to 77 per cent: Table III) and the much smaller increase in commercial and artisanal first plaintiffs (from 43 per cent to 47 per cent: Table VI).
Table VI: Status and/or occupation of first-named plaintiffs in london and Middlesex suits
Table VII: Status and/or occupation of first-named plaintiffs in provincial suits (excluding tithes)
To be sure, a minority of first-plaintiffs in London and Middlesex suits lived outside the metropolis while a smaller proportion of plaintiffs in provincial suits hailed from the metropolis. (fn. 21) But if the correlation between the first-named plaintiff's place of residence and the county of the origin of the suit was not one-to-one, most suits filed by the clerks as London and Middlesex featured first-named plaintiffs whose place of residence was London or the urban portions of Middlesex, and similarly most suits filed under the other English and Welsh counties featured first-named plaintiffs resident outside the metropolis.
As the subject of suits and, at least in 1685, the socio-economic profile of suitors in metropolitan cases diverged significantly from the suits and suitors from elsewhere in England and Wales, so the course of metropolitan suits and of those from the provinces also differed. Above all, metropolitan suitors were often seeking injunctions from the Exchequer to inhibit proceedings against them in other courts, primarily the common law courts and, in particular, King's Bench. As Table VIII indicates, close to three-tenths of the metropolitan bills from 1685 sought injunctions to inhibit proceedings in other courts and this proportion doubled in 1785. By contrast, provincial suitors were much less often in search of injunctions, even if we exclude tithe cases in which relief of this type was rarely requested.
Table VIII: Injunctions sought in Exchequer equity to halt proceedings in other courts
In their pursuit of injunctions, metropolitan suitors in Exchequer also can be distinguished from suitors in Chancery, whether from the provinces or the metropolis. Only 10 per cent of Chancery complainants in 1685 sought injunctions, and only 8 per cent in 1785. This, then, is to confirm the observation of the barrister James Wigram, testifying before the House of Lords inquiry of 1840 on the future of the Exchequer equity jurisdiction: 'when I used to draw more bills in the Court of Exchequer, a large proportion ... were bills for the mere purpose of obtaining injunctions to restrain proceedings at law. If a party wished to use a Court of Equity as the means of defeating a Plaintiff at Law, he generally had recourse to the Court of Exchequer'. (fn. 22)
As metropolitan plaintiffs, by comparison both with their provincial counterparts in the Exchequer and with Chancery complainants generally, were considerably more likely to be responding to legal actions elsewhere, so metropolitan defendants in Exchequer (often plaintiffs in other proceedings) were rather more likely to submit an answer (or other response) to the bill of complaint than were their provincial counterparts. As Table IX indicates, less than a quarter of metropolitan complaints in 1685 and less than three-tenths in 1785 went unanswered, whereas almost double the proportion of provincial suits never went further than the filing of the bill of complaint (over two-fifths in 1685 and over five-eighths in 1785).
Table IX: Exchequer equity suits in which there are bills only (no responses)
(Comparable figures for Chancery 'bill only' pleadings are 34 of 146 suits in 1685 and 33 of 140 in 1785)
The greater readiness of defendants in Exchequer suits emanating from the metropolis to respond, in turn, means that metropolitan suits tend to contain more information about the issue in question than do suits coming from the provinces. To be sure, complainant and defendant tend to tell very different stories, but at the least the researcher is reminded that a bill of complaint may be a very partial presentation of the facts in question. Indeed, since the bill was not supported by oath whereas the defendant was bound to answer under oath, the balance of credibility may well incline to the latter's side.
One further type of document, not infrequently found in these pleading files, may also contribute to the researcher's information and understanding — the schedules attached by some parties to their pleadings, spelling out in detail the state of matters in litigation. Among the more interesting schedules found among the 1685 sets of pleading are a list of debts allegedly owed by Middlesex water customers (23); a schedule of clay sold by a Dorset merchant to a London tobacco-pipe maker (37); both sides' lists of goods and effects left by a sea captain who died on a voyage from Guinea to Barbados (44); a schedule of logwood and other items in transactions involving one of the farmers of the Customs (61); accounts between a Cambridgeshire gentleman and a merchant tailor of Hatton Garden (90) with respect to dealings in malt; accounts of Anthony Row, purveyor to Charles II's stables (103–04); financial dealings of a onetime Master of the Mint with the moniers of the Mint (113); and an inventory of goods seized from a brewhouse by commissioners of the excise (141). Similarly, among the 1785 pleadings, we encounter a set of accounts of a friendly society of London porters (169); accounts of a vessel shipping rice from South Carolina to London which was lost at sea (221); the captain's narrative of a cargo ship, the Success, which sank in the Delaware on a voyage from Dublin to Philadelphia (230); a list of buildings erected by the architects James and Samuel Wyatt using a newly-invented method of slating roofs (296); lists of musical compositions, including works by Bach (probably Johann Christian) in two copyright disputes (288, 299). All told, roughly one in four of the 345 sets of pleadings calendared in this volume incorporate such schedules or listings, but such schedules are more commonly associated with metropolitan suits than provincial ones, as illustrated by Table X.
Table X: Schedules by origin of suit
|Metropolitan||34 of 151 = 22.5%||49 of 194 = 25.3%|
|Provincial||9 of 116 = 7.8%||11 of 99 = 11.1%|
What of the subsequent course of the suits whose pleadings are calendared here? One way to answer is to describe the documentation that such litigation, if continued through later stages, would generate. Three main types of documents were usually, though not invariably produced, in the course of subsequent litigation. One type would be motions and resultant orders as minuted in E 161, with the orders written out and filed in E 131 and then entered in E 127. (fn. 23) A second type would be the questions (interrogatories) put to witnesses and their sworn depositions (in E 133 and occasionally in E 134). (fn. 24) Finally, there are the reports of inquiries or accounts in references prepared by the Deputy Remembrancer (E 194, E 195), and the summaries of hearings (including counsel's arguments as well as relevant portions of the evidence) and the Court's decrees in cases that reached a conclusion (accounts of hearings and statements of decrees survive in E 162, and also in E 126 and E 130).
Of these various records, perhaps the richest for the majority of searchers will be the depositions. Additional ancillary material can be found in E 193 (strayed replications and rejoinders); in E 103, E 207, and E 218 (affidavits, usually relating to matters of process); E 140 and E 219 and related series (documentary exhibits submitted by the parties and not removed from Court).
As depositions will constitute the most interesting source beyond the pleadings for most inquirers, it is worth saying something about the frequency with which witnesses were called on by one or both parties. To begin with, we may consider the course of the thirty-four London and Middlesex suits that are part of our 1685–6 sample and, as such, have been traced through the records. Of this total, only three were carried on beyond the pleadings stage, and two of these have extant depositions. A somewhat similar result is produced by analysis of the traced 1818–19 sample. This contains 53 London and Middlesex suits of which twelve went beyond the pleadings stage, with depositions taken in only three. (fn. 25) These data suggest that the taking of depositions was quite uncommon, at least in metropolitan suits. However, too much stress should not be put on these small samples, especially in light of the course of proceedings in some 258 suits which reached the hearing stage between 1695 and 1697. Of these 258 suits, 57 emanated from London and Middlesex, and for these depositions survive in 42 instances mainly in E 133, but also in four instances in E 134 as well). (fn. 26) On the one hand, then, the researcher in Exchequer equity materials can hardly expect to find depositions as a matter of course; yet it would appear that subject to the limitations of the existing finding aid for E 133, depositions would prove a useful supplement to investigation of the pleadings in E 112.
It remains to describe the form of an Exchequer bill and also of an answer. (fn. 27) For our purposes, there are five leading characteristics of a bill of complaint in Exchequer equity. First, it is in English. Second, it spells out in detail and in layman's language the nature of the litigant's grievance or complaint (though this may entail technical descriptions of the matter in question — e.g. practice in transferring bills of exchange). Third, the plaintiff asks the Court's assistance (via subpoena) to compel the defendant to answer, and might also ask for relief by way of injunction from defendant's proceedings in the matter at hand that either were under way in other courts or being conducted to the plaintiff's irreparable harm (e.g. the cutting of timber on a contested parcel of land or a breach of copyright). (fn. 28) Fourth, plaintiffs were required to state their place of residence, and usually also provided some indication of occupation and/or status. (fn. 29) Fifth, the bill was to bear the signature of the complainant's counsel to indicate that he vouched for the seriousness of the complaint.
Similarly, answers were also in English (as, indeed, were most Exchequer equity documents); they differ from the bills chiefly in the requirement that defendants swear to the truth of their assertions, with the date of their oath recorded on the document. In this fashion, then, defendants in equity may be regarded, for some purposes at least, as testifying under oath, a privilege not given to defendants at common law.
Both bills and answers, as found in E 112, are on parchments of varying sizes, with lengthy bills sometimes sewn together to make single sheets as long as eight feet. Bills, answers, and other pleadings were supposed to be kept together (and the clerks normally tied them together, thus sometimes making them difficult to handle) but with the passage of time (and the lengthening of the pleading process) some replications and rejoinders were never filed in E 112; some of these strays survive in E 193.
Note on editorial method
In calendaring the pleadings from E 112 for London and Middlesex for these two years, our particular concerns have been threefold: (1) to indicate the archival locations of all pleadings relating to the suit in question; (2) to summarize the substance of the dispute, relying chiefly on the complainant's allegations; and (3) to list all the parties to the suit (along with their places of residence and status or occupation), as well as other individuals of significance.
In turn, the calendar includes all London and Middlesex pleading recorded in the bill books for the two years in question, save in those few instances in which the pleadings themselves are not to be found in E 112 and for a small number of stray replications and rejoinders that have ended up in E 193.
Proper names are spelled as in the documents. In some instances this has meant spelling a given surname differently in one pleading than in another. Such inconsistencies are reconciled in the indexes. There are individual indexes for persons and subjects for each of the two years calendared.
New style dating has been employed throughout. Documents relating to individual pleadings are listed in chronological order by year and by legal term. If two documents are extant for a given term, one of which is dated to day and month and the other only by term, the latter will be listed first (e.g. a document dated simply Michaelmas 1685 will precede one dated 18 November 1685).
Cross-references to related suits have been inserted in the calendar where the suits in question appear to be directly related.
This calendar was made possible by the generosity of the Leverhulme Trust in supporting the work of Dr. Jessica Cooke in connection with the preparation of Professor Henry Horwitz's Exchequer Equity Records and Proceedings 1649–1841, forthcoming as a Public Record Office Handbook. The editors would like to express their gratitude to Dr. Trevor Chalmers, formerly of the Public Record Office, who provided invaluable and patient technical support for this project. We would also like to thank for assistance and support Mr. Guy Holborn, Librarian, Lincolns Inn, and Mr. Aidan Lawes, Dr. Elizabeth Hallam-Smith, and Dr. David Thomas, all of the Public Record Office, and Miss Margaret Condon, formerly of the Public Record Office. Finally, we are most grateful for the scrupulous care with which Dr. Vanessa Harding has proceeded in readying our text for the press.