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Chancery or equity cases were tried by justices of the law courts, in Delaware’s early colonial period. Under the Duke of York, the town or county courts were responsible for equity cases. Some cases tried by common law were appealed and tried again in equity by the same court and justices. Under the Duke of York, the governor of New York also exercised equitable power by overturning excessively harsh judgements.¹
The judicial system established by William Penn made every court a court of equity. The Provincial Court took appeals and heard all cases in equity not determinable by the county courts.² In 1701 it was required in equity cases that “the proceedings shall be by bill and answer, with such other pleadings as are necessary in chancery courts, and proper in these parts; with power also to the same justices to force obedience to their decrees in equity by imprisonment or sequestration of lands, as the case may require.”³
“An act for the establishing courts of law and equity within this government” (1726-36) set up a Court of Equity which was held by the justices of the Court of Common Pleas. Court met four times a year at the same times and places as Common Pleas. The prothonotary acted as the register or clerk of the Court of Equity in each county. Any three justices had the power “to hear and decree all such matters and causes of equity as shall come before them.” Any matters determinable by common law or matters of fact were not to be tried by the Court of Equity.⁴
The court had the power to issue subpoenas and other processes needed to force defendants to answer suits; issue “commissions for taking answers and examining witnesses;” and “grant injunctions for staying suits in law, and stopping wastes. . . observing as near as may be, the rules and practice of the High Court of Chancery in Great Britain.” The Court of Equity also had the power to serve defendants who had moved out of the county with subpoenas or other processes to bring them back for trial. It could also grant commissions for taking defendants’ answers and for examinations of witnesses. Appeals of the Court of Equity decisions were made to the Supreme Court.⁵
Although the terms Court of Equity and Court of Chancery were used interchangeably in court documents as early as 1702, it was not until 1752-53 that the court was referred to as the Court of Chancery in the Delaware
Laws.⁶ By the law appearing at this time (1752-53), landowners could petition the court to appoint three commissioners to examine witnesses who could verify land boundaries. Depositions that resulted from the examination were returned to the court to be recorded.⁷ Registers in chancery, the clerks of the Court of Equity, were first mentioned in 1770 in “An Act for regulating and establishing fees.”⁸
Under the 1776 constitution, the justices of the Courts of Common Pleas were given the same power of holding “Inferior Courts of Chancery” as they had previously exercised. The President and Privy Council appointed the registers in chancery. The register could not be a justice of the court but was given the authority to sign all writs issued by the judges and to take recognizances of bail.⁹
The 1792 constitution introduced major changes in the state’s judicial system. The equity jurisdiction that had previously been exercised by the common pleas judges was “separated from the common law jurisdiction and vested in a chancellor” who presided over the new Court of Chancery.¹⁰ The Courts of Equity that had been previously exercising chancery jurisdiction remained in operation until October 1793 when the new Court of Chancery began functioning.¹¹

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