England Overview of Chancery Court - International Institute

Chancery (Equity) Court
In early times it was the king in council who received the petitions from those subjects not satisfied by common law procedures, but by the end of the 15th century the chancellor, a leading member of the king's council had taken over this role. The Chancellor was often a bishop having no legal training but much common sense, and his chancery could sit anywhere and at any time; the procedures was a simple and informal thus quick and inexpensive. It was based on equity not common law and conducted entirely by English.

Equity
Equity is a system of justice based on conscience and fairness rather than on the strict rules of common law. A decision in equity was one given in accordance with natural justice where the law did not provide adequate remedy, or in which its operation would have been unfair. After the Reformation lawyers tended to be appointed as chancellors and they regarded decisions in equity as precedents and thus equity soon became an organized system of rules as rigid as those of law. Chancery business became more rigid, slow and expensive because chancery clerks were paid fees not salaries, so the more paperwork they could generate the higher their income. However this system had benefits for the future genealogist with the volume of documents generated! Chancery is the court with more surviving records than any other.

The system became so moribund during the early 19th century that reforms were made, culminating in the incorporation of chancery as simply a division in the new High Court of Justice in 1873-1875 and the empowering of judges to administer both law and equity.

Chancery Procedure
Chancery procedure is also known as English bill procedure, and was also used in the Court of Requests and Star Chamber. These equity courts required written submissions (pleadings) and written evidence and their decisions superseded common and statute law.

A case started with a petition or bill requesting the chancellor to give equitable justice to the plaintiff. It continued by answer, replication, rejoinder, interrogatories and depositions. This allowed both plaintiffs and defendants to lodge with the court colourful, anecdotal and often tendentious accounts of their mishaps, frequently at great length (Hey). Fitzhugh notes that any propertied family is almost sure to have been concerned at some time in a chancery suit.

Coldham evinces that it is probably a sufficient recommendation of the value of chancery records in a genealogical context to say that it is often possible to come across a five-generation pedigree not only compiled by contemporary litigants and witnesses but authenticated by a master in chancery. Primary information about migration, marriage, births, deaths and kinship are all here. So also is evidence of their social relationships and aspirations, land ownership, business transactions and wealth or lack thereof. The court of chancery did not deal with criminal cases but did handle disputes arising from criminal cases.

Coldham has some beautiful examples of the detail to be found—one case stretching from 1832-1851 has a family bible, sworn testimonies of an uncle and the vicar and sexton of a town in Ireland, as well as a tombstone inscription. Unett and Turner say some instances spring to mind where exact dates of birth and death are given for members of a family, where an unproved will was produced as evidence, details of acknowledgement of paternity of illegitimate children, information on members of a family scattered to the four corners of the earth, and often there are pedigrees of biblical proportions. They have some beautiful examples and an unusual approach to the records well worth reading.

Habgood-Everitt (Habgood versus Habgood in Chancery. Latton Publications, Kent. Reviewed in Genealogists’ Magazine Vol 25 #7, page 284) has written the story of a boy sent to London to be apprenticed and who found wealth, honour and great troubles caused by two men, one a writer, bankrupt and bigamist, the other an MP, all traced through chancery court records. Other interesting examples are given by Currer-Briggs (Genealogical Gleanings from Cases in Chancery and Admiralty. Family Tree Magazine Vol 13 #6, page 20-21), Hamilton-Edwards (Should Fanny Have Been Sent to France “ Revelations of a Chancery Proceeding. Genealogists’ Magazine Vol 16 #1, page 10-14), and Pinhorn (Chancery Proceedings. Genealogists’ Magazine Vol 21 #1, page 33, 1983).

Main Types of Records
There are three main types of records—proceedings, registers and exhibits (Fitzhugh):

Proceedings

 * Bill of Complaint by the plaintiff (also referred to as the complainant or orator) which states his name, quality or occupation and residence as well as the nature of the complaint. Alternatively the proceedings could start with a Bill of Information by the crown. Either would be addressed to the Lord Chancellor or the Lord Keeper of the Great Seal. These bills are very long and full of legal jargon but end with a citation of the names of those complained against. In over 20% of cases the filing of a bill resulted in an informal settlement perhaps by arbitration, and maybe with a financial settlement, and no more records for the case are found (Horwitz 1998). Of those which went further into the pleadings stages (below) some 70% did not result in a decree, but were abandoned for the same reasons but which are not recorded because they took place out of court.


 * Writ of Subpoena ordering the defendant to appear in court. Not a lot of these have survived.


 * Answer by the Defendant, which is the defendant’s version of the facts, or a Plea to Reject the Bill on legal grounds.


 * Replication, or Exception, by the plaintiff which further protracts the case.


 * Rejoinder by the defendant.


 * Rebuttal may be given by the plaintiff.


 * Surebuttal may be given by the defendant.


 * Interrogatories which are lists of questions to be put to the parties, drawn up by counsels for both parties.


 * Depositions by witnesses, which give their name, age, residence and occupation. Town depositions (1534-1867) are those taken in London from witnesses living there or visiting for the purpose; there may be two sets- one for the plaintiff and one for the defendant. Country depositions (1558-1714) are those taken outside London or abroad by a commission set up for that purpose.


 * A Bill of Revival, if one of the parties died before the case was heard.

Unfortunately for the researcher the above items are frequently filed separately so it is a lot of work to assemble all the pieces of the puzzle.

As an example, Bernau indexed the country depositions taken in Cheshire 1714-1758 (class C 11) and the following example is in pencil in a notebook.

Registers

 * Entry Books of Orders and Decrees. Orders were injunctions to do something, such as appear in court or produce witnesses or documents. Decrees were the decisions of the court, and were also issued as a separate document recording it in full. The Order and Decree books summarize the action and allow the researcher to track the progress of a case. They are also useful in locating a case that has changed its name perhaps because of a death, for example from A v. B to C v. D.br&gt;


 * Awards and Agreements, which were decisions reached by arbitration.


 * Masters’ Report and Affidavits. These were the reports to the chancellor from his ten court officials called masters, regarding the reliability of evidence and witnesses, as well as disputes requiring financial arbitration, division of property or rents, or establishing rightful inheritance.


 * The usefulness of the exceedingly thorough Masters’ records is reviewed by Coldham (Genealogical Resources in Chancery Records. Genealogists’ Magazine Part 1 in Vol 19 #10, page 345-347; Part 2 in Vol 20 #8, page 257-260, 1978) who gives a chronological list of all the Masters’ names. The pedigrees in the masters papers are indexed by the name of the earliest ancestor. TNA research guide L39 gives up-to-date information.

Exhibits
All documents (and some objects) that were lodged with the masters were known as exhibits; if they were not reclaimed they are to be found in chancery masters exhibits classes C 103-115. They can include account books, rent rolls, estate papers and deeds, indentures, diaries, personal and business correspondence, bonds, newspaper cuttings, prayer books and bibles, manorial court rolls, marriage settlements, wills, business ledgers, letters and other material which would probably never have survived otherwise. Consult TNA research guide L41 for more information.

There exist published and/or filmed abstracts of chancery proceedings for certain families or places, for example on film 0087050, which was the thinnest film I have ever seen—barely made it past the spindle! This is a typescript work by A. May Osler on the Baldwyn family done in 1923-1924. Examples follow

Chart: Abstracts of Chancery Proceedings Class 6 Collings Divisions

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