Where there’s property, there’s a dispute!

One of the most under used resources for family history research are the records of the Chancery and other Equity Courts held at the National Archives (TNA). Why? Because they are often thought to be complex, legalese, difficult to read, large often very large rolls or boxes of documents, and dirty! But they can be full of family, property and local information which may not be found anywhere else or may only otherwise be found by searching numerous other records.

So why use them? Firstly, they are in ENGLISH even before 1733. Yes, there may be palaeography challenges reading the old handwriting but as with any old records, names and places can often be spotted quite easily. Whilst there is legalese in the records, the records are usually of a set format and once that format is known and understood they make for easier reading.

They are also some of the earliest records available and are particularly useful before the inception of parish registers, dating from the 14^th Century to 1875.

What are the Equity Courts?

Equity courts developed in the medieval period when the existing common law and civil courts which followed strict procedures and rules of evidence were slow and cumbersome.  Tenants and poorer people were often reluctant to bring claims against their more superior land holders and Lords of the Manors. Seeking better access to justice people started to petition the King directly, which he passed to the Lord Chancellor to deal with.

Equity is about fairness and what is just in all the circumstances, looking morally at what was right and wrong and taking personal responsibility. The court of equity could order an individual to do what they were obliged to do by conscience, such as perform a contract, restore property or even refrain from doing something. Failure to comply meant facing committal for contempt of court. They were able to impose injunctions and not just monetary compensation.

The Courts of Equity could hear cases where much of the paperwork had been lost or was unavailable to the plaintiff, where lowly tenants could challenge the great landowning families, where the dispute did not fit any of the set processes laid down in the common law.

There were several courts of equity:

• Court of Chancery
• Court of the Star Chamber
• Court of Requests
• Court of the Exchequer
• Palatinate of Durham
• Palatinate of Chester
• Palatinate of Lancaster
• Duchy of Lancaster

There were two courts of common law:

• The King’s Bench
• The Court of Common Pleas

What type of cases were heard in the equity courts?

There were four main categories of case:

• The case did not come under the jurisdiction of common law
• The case could be heard under common law but it was felt that no remedy could be obtained
• The common law was being used oppressively or fraudulently
• Cases brought on the grounds of forgery or duress

Expanding on these, the type of cases that did not come under the jurisdiction of common law included:

• largely family disputes!
• The case concerned a trust or a mortgage
• Cases where discovery was required. Discovery is used in the sense of ‘uncovering’ or revealing information. This might be in the form of supplying a copy of grant of land, or accounts, or copy of a will
• An injunction could be sought by the plaintiff to prevent the defendant from carrying out an action such as cutting down valuable trees on a property which the plaintiff believed should be his
• The plaintiff was not in possession of the relevant documents to establish his title to lands or property
• If a creditor died before a debt was repaid, the executors of the deceased creditor could not be sued under common law, but the plaintiff could bring a case against the creditor in the Chancery Court
• An agreement had been made verbally with no supporting documents
• Plaintiff might be too poor to afford common law courts
• Plaintiff might be a weak person compared with the defendant, such as a case where a tenant was bringing a case against a mighty landlord
• Plaintiff feared local corruption or a prejudiced jury
• Plaintiff was afraid of being harmed by the defendant
• Plaintiff could not recover money which the defendant had improperly deprived him of under the common law
• Where the plaintiff was owed money by the defendant, but the defendant might have obtained a release or receipt from the plaintiff by fraud

The Chancery court generally did not deal with dispute involving less than £10 or where a common law remedy was available.

The type of people involved in Chancery cases.

The questions to ask is, would or did they make a Will? Would they have been entitled to an inheritance under a Will? If yes, they are the sort of person you might find in a Chancery case:

• Landowners
• Yeoman farmers
• Merchants
• Skilled craftsmen
• Servants
• Manorial tenants
• Women
• Children

You may also find others who caught up in proceedings as witnesses. Women feature quite frequently in Chancery proceedings such as: 

• A widow claiming her rightful income from a marriage settlement, particularly if the children who inherited the land were from her husband’s earlier wife.
• A claim brought against a widow who took possession of all her husband’s property on his death, during the minority of her children, and then refused to release it to the eldest son (or other child(ren)) when he/they reached the age of 21.

Others may be associated with the dispute but not part of it:

• Close relations bringing cases on behalf of children.
• Agricultural labourers and husbandmen can be referred to as tenants of small pieces of land.
• Servants are often chosen as deponents with their evidence providing information as to how long they had been in the plaintiff/defendant’s service.

What are legal and Chancery Records?

The records are known as the pleadings and include:

Bill of Complaint

Answers

Many cases do not progress beyond this stage, indeed many do not get beyond the initial Bill of Complaint which would often act to frighten the defendant into acquiescing. It should also be borne in mind that the dispute could settled out of court, in which case no further records will be found after this point.

Some cases however do continue.

Replication

Occasionally these would be followed by a Replication where the plaintiff reiterates his case, adding some new information in response to the defendant’s answer. The defendant then had the opportunity to reply to this in a Rejoinder.

The above Chancery Pleadings can be found at TNA in series C 1 – 16 which are searchable at the TNA’s discovery website https://discovery.nationalarchives.gov.uk/.

Interrogatories

The next stage was for both the plaintiff and the defendant to draw up a written list of questions, or Interrogatories, for their chosen witnesses to respond to. Each witness would answer only those questions that were relevant to them, such as ‘were you present when the document you are being shown was written and were you a witness’ or ‘have you always paid rent to the lord of the manor’ for the piece of land in question.

These can be found in series C 25 at the TNA.

Depositions

Witnesses (deponents) gave evidence before the commencement of a trial to bolster the allegations of the plaintiff or support the defence of the defendant. Along with the pleadings, they are the most useful and accessible Chancery records for the genealogist. They can provide information about the case not included in the pleadings and contain useful biographical information such as a deponent’s name, age, residence, occupation, how long they had lived in the area, who they worked for etc. The first question was usually how long they had known the plaintiff/defendant. Some of the answers would invite a yes/no response or “I don’t know” so in order to interpret the depositions correctly, the interrogatories need to be read.

The witnesses were interviewed near their home, usually in an inn, and the answers to their questions were written down by the clerk as Depositions. They are arranged by Country depositions (taken outside London) and Town depositions (taken in London).

They can be found at TNA in series C 21 – 22 (E134) for Country depositions searchable by the parties names and C 24 (E133) for town depositions searchable online. There is also a register of Affidavits in C 41.

Depositions can also be searched in Bernau’s Index available at SOG (see further below).

Evidence  

Documents could then be submitted to the court as Evidence to help the case of either the plaintiff or the defendant, such as a will or a marriage settlement.

Masters Papers

Masters’ Documents contain the affidavits, examinations of witnesses, estate accounts, wills, birth, marriage and death certificates, abstracts from parish registers, summaries of deeds of title, notices of auction, draft Masters’ Reports and written objections by parties. Few cover dates much earlier than the 18th century but from then onwards, they seem to have been regularly preserved. They can be found at TNA in series C117 to C126 covering the 17th to 19th centuries.

Order/Decree

During the case the judge might issue Orders or Decrees. These might be to command the defendant to submit his answer, or they might be to admit a new plaintiff or defendant to the case, or they might be to give the final judgement. Sadly, from our point of view, the final judgements are quite rare.

Decrees and orders prior to 1733 may be in Latin. If the case did not proceed after the bills and answers had been filed, no orders will be found.

They are usually found in large volumes and calendars would need to be consulted to help locate the correct records. Many entries are purely administrative however some can provide a summary of the case, with details of other orders, petitions, affidavits and masters’ reports.

They can be found at TNA in series C 33 from 1544 to 1875 along with Decree Rolls in C 78 and 79.

Other finding aids

Bernau’s Index

The Bernau Index is a card index naming over four million parties and witnesses who appeared in Chancery and other courts, although it covers only a minority of Chancery cases. It can be difficult to read and there can be variations in spelling of the same surname. The lack of additional information makes it difficult to distinguish between individuals with common surnames without recourse to the original documents. They are however indexed in alphabetical order by surname and then first name.

It can be consulted at the Society of Genealogists (SOG) and LDS Family History Centres on microfilm. How to use the Bernau Index by H. Sharpe (SOG, 1996) is an essential guide to using this aid and articles in Family Tree Magazine are also helpful for this purpose.

Coldham’s Index

Where a case involves an inheritance dispute, Coldham’s Index is a good finding aid to search first. Otherwise known as the Inheritance Disputes Index, it is available to search online at Find My Past  and can be searched by name (including variants), year, county and country. The index (a transcript of the original) provides: the names of the testator, the plaintiff and the defendant; the year of case, place and TNA reference covering the period 1543 to 1714.

The index includes over 26,000 cases concerning wills, bequests, grants of administration, descent of property, identity claims and other testamentary disputes tried in the Chancery Court, with cases typically involving several members of the same family. This is based on the pleadings found in series C 6, 7, 8, and 10

Local record repositories

Very occasionally Chancery records have survived in local record repositories as part of a private family archive. If you cannot easily get to London to look at the main collection, it is always worth looking locally. The means of getting at these will depend on the quality of the local catalogue.

Chancery court records are one of my favourite resources for researching family and house history, particularly prior to the 19^th century. They are not the easiest records to manage due to their size but can be well worth it. One tip, they are also very dirty so wear dark clothes when examining them!

Below are the details of a set of proceedings, amongt several, I recently examined for a client research project, which illustrates the family relationships which can be uncovered from these records.

C 8/143/2 Atfield v Atfield (James Atfield, Robert Atfield, George Rempant, Rice Justice, John Roake and Richard Roake (infants) are all co-defendants) (Pleadings) (1659)

These records comprise of five documents (all about A2 in size) all of which have damaged and have much missing text. It appears to be a complaint brought by Elizabeth Atfield through her guardians (she being under the age of twenty one years, against John Roake, Richard Roake the younger and Ryce Justice, in respect of property in Bagshot.

First document

This document, which is undated, concerns is an appointment of guardians for John Roake and Richard Roake who were also both infants, being under the age of twenty years and thus unable to answer the complaint themselves. Five people are named John Kensington, John Wise the elder, John Wise the younger, Edward Willis and Anthony Thomas who are given the authority to appoint a guardian for them as they see fit and such guardian is given authority to answer on behalf of John and Richard Roake and to examine Elizabeth Atfield, through her guardians.

Second document

This is dated 12 June 1659 and appears to be the Bill of Complaint brought by Elizabeth Atfield through her guardian, however a combination of the damage to the document and the handwriting make it difficult to determine its specific contents.

Third document

This document being dated (missing day) April 1660 is the answer of Rice Justice and provides some background into the Atfield family, confirm that John Atfield was the great grandfather of Elizabeth Atfield and a younger John Atfield was her grandfather who conveyed to Rice Justice a messuage, tenement, barns, garden and outhouses in which Rice Justice was living. Unfortunately, the date of the conveyance is missing from the damaged section of the document.

Fourth document

This document, dated 2nd May 1660, is the “several answers of Henry Edwards” did not know of any deeds or settlement between John Atfield (Snr), John Martin and Edward Rempant that John Atfield (Snr) did leave premises to his son John Atfield (Jnr) who occupied the premises without any interruption. It appears there were marriage settlement made by John Atfield (Snr) and Henry Edwards on the marriage of John Atfield (Snr’s) daughter, but not having the money to pay he sell to Henry Edwards and his wife Lydia, a messuage in Bagshott, Surrey which was occupied by John Kensington and a piece of parcel of land called Jackmans Meade and land in the Common Field called Hull Fields in Windlesham, subject to payment of £215 by James Atfield, upon payment of which the said properties would be transferred to James Atfield.

He did not know of any other deeds or conveyances that John Atfield (Snr) had made to John Roake, Richard Roake and Rice Justice but does know that James Atfield did enter the premises in question following his grandfather’s death and still remained there at the time of the answer being made.

Fifth document

This answer dated 20^th April 1660, is the “several answers of Richard Roake the younger and John Roake infants” by their father Richard Roake, in which it is confirmed that Richard Roake the younger and John Roake were the grandchildren of John Atfield (Jnr) and great grandchildren of John Atfield (Snr). John Atfield, the grandfather, who held the premises detailed in the Bill of Complaint, did on a date in 1655, convey property in Bagshott, Windlesham and Wellingcroft (leased to Humphrey Street) to himself for his life (subject to the lease to Humphrey Street) and then to Richard Roake the younger. Further he settled and conveyed a property called Quart Pott by deed also dated in the year 1655 to John Roake (whilst this part of the answer is missing, it is assumed this is the meaning given it says “not settled on the other Defendant Richard Roake). They have no knowledge of any other conveyances, deeds, settlements etc which John Atfield made.

My next blog will demonstrate the resources available and how they may be used to research an ancestor in the Chancery Courts.

Chancery Courts are of course, not the only equity court records available. I will provide an overview of the other central law courts in which you may find records of your ancestors which may be found at the TNA in my next but one blog.

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