that in the 3 year of Rich. the 2. in a Parliament holden at London Dominus Richardus Scroope cessit officio Cancellariae c. Archiep. Cantuar. Magister Simon Sudbury contra gradum suae dignitat ut plurimi conclamabant illi Officio militaturus accessit sed si ipse illum procuraverit aut sponte susceperit novit Deus Sometimes were chosen to that place Archbishops and Cardinalls as John Thoresby Archbishop of York and Cardinall c. in the time of Edw. the 3. c. Sometimes Threasaurers of England were advanced to the honour of Chancellors as Henry de Burgh in the time of Edw. the 3. Sometimes to the Office of the Keeper of the Great Seale as John de Cheshall in the time of Henry the 3. and many other to either of the places Sometimes common Lawyers were called to be Chancellors as Robert â—erning Justice and Robert Thorpe Justice in the time of Edward the 3. Sir Thomas Moore in the time of Hen. the 8. and others Sometimes were trusted with the Keeping and exercise of the Seale as John Maunsell L. Chiefe Justice in the time of Edw. the 3. c. Sometimes the Lord Keeper of the Privie Seal was made Lord Chancellor as Edmund Stafford in the time of Henry the 4. and others Sometimes were made Keepers of the Seale men cunning in the Custome of the Chancery as was Sylvester de Eversden in the time of Hen. 3. Sometime men learned in the Civill and Common Lawes as William of Kilkenny in the time of the said King Sometimes the Master of the R oâ—â—s as Henry Cliffe in the time of Edw. 3. who was his Chancellor also and others Sometimes a Keeper of the Wardrobe hath been appointed to keep the Seale as John Drakensord to Edw. 1. Some have been twice Lo. Chancellors as John Hotham in the time of Rich. 2. Some thrice as John Stratford in the time of Edward 3. And sometimes there have been three Chancellors in one year as Rotheram Alcoch and Moreton in the 1. yeare of Htn. 7. and he that hath been the longest in office either of Chancellor or Keeper of the Seale is not remembred to have continued above 18. years Some with their Office of Chancellor have retained other places as William Velson after Bishop of Telâ—ard was at one time Chaplaine and Chancellour to William the Conquerour Rannlph Brittaine at one time Cancellarius Regis specialis as saith Matthew Paris and Treasurer of the Chamber But the mightiest of living by multiplicity of Offices that I may readily finde were John Maunsell in the time of Henry the 3. Simon Langham in the time of Edw. 3. John Stafford in the time of Hen. 6. Woolsey Cardinall in the time of Hen. the 8. And in honour and temporall Dignities the Lord Marquesse of Winchester who was Keeper of the Seal in the time of Edw. the 6. And thus much may suffice for the Originall Office Dignity and Election of the Lord Chancellor Now may something bee added of the Conrt of Chancery and Authority absolute of the Chancellor As the Chancellor is at this day Norma omnium jura Reddentium câ—â—â—mnes Magistrat honorun suorum fasces submittere not â—ndignentur And withall as Budeus calleth them Promus Condus clementiae benigniâ—atisque principalis and generally the mouth the eare the eye and the very heart of the Prince so is the Court whereof he hath the most particular administration the Oracle of equity the Store-house of the favor of Justice of the liberality Royall and of the right pretoriall which openeth the way to right giveth power and Commission to the Judges hath jurisdiction to correct the rigour of Law by the judgement and discretion of equity and grace It is the refuge of the poore and afflicted It is the Altar and sanctuary for such as against the might of rich men and the countenance of great men cannot maintaine the goodnesse of their cause and truth of their Title the entry and doore whereof ought Patere omni postulanti omnibus â—oris nulli tamen â—â—are which is meant not to gape after such men as bring rewards oâ— seek accesse to the help thereof by corruption and it is called Caria saith Valla a Cura for that care and heed is to be taken therein for the deciding of controversies but it seemeth rather to be called Curia an Assembly or the place of assembly c. like as the Kings Court was first called Curia for that the Court of Justice was there first holden For the originall of this speciall Court is to be considered that in the time of the Saxons and of the Danes the King by himselfe did hold a high Court of Justice wherein he sate in person and did judge not onely according to meer right and Law but also after equity and good conscience and this is confirmed by the Law of the Saxon King Edgar viz. Let no man seek to the King in matter of variance unlesse he cannot finde right at home but if the right be too heavy for him then let him seek to the King to have it lightned The like to this Law is also among the Lawes of Canutus the Dane and for the understanding of this right at home we may remember that in those days were certaine Jurisdictions over Leets Boroughs and Tythings c. and there by authority permitted to the Reeves or Judges of the lower roomes for the hearing of sutes of small importance and grant of greater power to the Sheriffes and Aldermen which had the charge of greater Assemblies all was retained and reserved to the King himselfe the decision of such matters as by just cause of appellation either for law or equity should be brought before him to be considered and resolved in the aforesaid high Court of the King out of which as were the former so were all the high Courts of Justice or Conscience at this day derived by the Ecclesiasticall Courts or Temporall And here I might take some fit occasion to touch by the way how in the Parliament Lawes not onely for civill and criminall causes but also for the matters of the Church are made abrogated or mitigated common wrongs not holden in other Courts are there amended and heard and difficult causes are there ended Attainders confirmed and annulled corruption of blood there restored errors committed in other Courts there corrected and all constitutions for the State are there confirmed c. How in the Kings Bench are properly all such causes onely to be handled which appertaine to the Crowne or wherein the King is a partie if they be not by Commission particularly assigned to some other Court How in the Court of Common Pleas are holden all Common Pleas between subject and subject of all matters of Common Law How in the Exchequer are the Queenes receipts and her yearly revenues recorded and kept how it is her common Treasury and a Court for Justice betweene
of Queen Mary when he went to Calice leave the Seale with the Marquesse of Winton the which lesson he might learne by the chastisement of Cardinall Woolsey who carried the same beyond the Seas to Calice where he left it with Doctor Taylor Mr. of the Rolls to keep untill his returne out of the French Dominions Yet may there be other occasions also for the which the Chancellour may commit the same to other mens custody as did Robert Thorpe Chancellor in the time of Edw. 3. at his going hom to his owne house hee left the great Seale with foure of the Guardians or Masters of the Chancery to keep and ufe as need required Further for the keeping of the Seale wee may remember that as the King himselfe doth deliver the same unto the Chancellor so may he not surrender it to any other but to the same King or to his Successor To this purpose saith Thomas Walsingham that Sir Richard Scroope having very solemne Messengers sent unto him from Rich. 2. and that in the Kings displeasure to demand the Great Seale to be committed unto them His Answer was The Seale I am ready to resigne not unto you but unto him which gave me the same in custody Nec erit medius portitor inter me illum sed ego restituam illud manibus suis qui mihi propriis non alicujus manibus commisit illud Et ita pergens ad Regem sigillum quidem retradidit se fidelem Regi sâ—cut hactenus repromisit â—fficiaturum tamen se futurum sub â—llo in posterum denegavit c. Yet seemeth it not so necessary that the Chancellor deliver it with his owne hands For it is written that R. Baldolke Chancellor upon the death of Edw. 1. did send the great Seale to Ed. 2. And Thomas Rotheram was shrewdly blamed for that he rendred the Seale to the Queen Widdow to whom it did not appertaine after the death of Edw. 1. and in the circumstance of the delivery thereof we may also note this difference that the Chancellour hath heretofore received an Oath with the receipt of the same although the Keeper of the sease doth receive it without oath for so it is Recorded that Rich. 2. Manibus suis propriis received the Seale Et ineontinenter praedictus Dom. nost dictum magnum Sigillum suum in Bago sic inclusum venerab. in Christ patri Edoard Episc. Exon. cujus sacrum de officio cancellarii bene fideliter faciend excereend ib. recepit in praesentia c. liberavit The forme or fashion of this Seale is usually altered upon every succession the print whereof is directed by the pleasure of the Prince the validity thereof I dare not to dispute for that on the one side it is said by the Justices in the reports of the 18. and 19. of this Queene that a Patent under the Great Seale is good though the Chancellour have not warranty to make it And on the other side the History is not forgotten of the Duke of Northumberland who alleged as is reported the Great Seale for his Warrant c. which was not accepted and moreover is recorded in the time of Hen. the 6. a confirmation of such Deeds c. as had past the Great Seale viz. Henry by the Grace of God c. To our Chancellor of England greeting All such Grants as that sith the tenth yeare of our Reigne untill this time you by force and vertue of Bills with our owne hand and by Letters under our Signet of the Eagle and Armes and also by Bills endorsed by our Chamberlains hand and Clerks of our Counâ—ell have made our Letters Patents under our Great Seale wee hold them firme and stable and of as great strenght c. as though you had for them our Letters of Privie Seale c. long before which time there was a Statute made in the 2. yeare of Edw. 3. viz. it shall not be commanded by the Great or Little Seale to delay or disturbe common right and though such commandment doe come the Justices therefore shall not cease to doe right in any point and by the Statute of Articles super Charia cap. 6. It is forbidden that from thenceforth should passe under the little Seale any Writ that concerneth common Law And long after this time also viz. 2. 3. Phil. and Mary cap. 20. It is ordained That the King under the Great Seale of England may unite Lands to the Duchy of Lancaster but for the manner of renewing the Seale the defacing and bestowing of the old with the Proclamation and notification of the ne we may observe the ancient manner out of these words remaining in the Tower of the time of Edward the First viz. Rex Vic. Ebor. saluâ—em Quia pro regimine Regni nostri quoddam magnum Sigillum de novo fecimus fabricari differenetam in circumferentia â—uam in diversiâ— sculpturis ex utraque parte sigilli sigillo a quo hucusque utebamur volumus quod eidem novo sigillo a quarto die praesenâ— mensis Octob fides prebeatur dictum antiquum sigilluÌ„â—umpaâ—uâ— deinde post pâ—aedictum qâ—arâ—um diem aliqua brevia seu litera nullaetenus consignentar impressionem dicti sigilli novi in cera alba tibi duximus transmittendam tibi praecipimus quod in pleno Comitatu tuâ— mercatis feriis locis aliis in balliva tu a ubi expedere videris dictam impressionem â—stondi pace fieri facias omnibus singulis ex parte nostra injungend quod bâ—ev brevis literis chartis dicto novo sigilo consignatis fidem praebeant aliqua brevia seu literas post praedictum quartum diem antiquo sigillo signat non recipiant nec eis utantur quoquomodo volumus tamen quod brevia literae chart praedicto antiquo sigillo ante praedictum quartum diem consignat in suo robore perseverent eis fides praebeat prout decet Teste Rege apud Nottingham tertio die Octobris c. Eodem modo mandatum est singulis Vicecom per Angliam and further Memorandum quod die Dominiea viz. quarto die Octob. Anno Regni Ed. primo Eliens Episcop cancellar. ipsius Regis in Camera sua in Priorat de Lenta juxta Nottingham in praesen clericor de canâ—elâ—ar aliorum tuuc ibidem existen protulit in quodam panno lineo sigillo suo consignat quoddam magnum sigillum ipsius Regis de novo fabricatuÌ„ asseruâ—t quod voluntas ipsius Regis fuit quod extunc omnia brev. lit et câ—artae ipso novo sigillo consignaâ—en quod antiâ— Sigil rumperat et diae Lunae prox sequen in praesentia ipsius Regis in Cam. sua in Castro de Not. dict. antiq. Sigil praecipiente ipso Rege ruptum fuit in mâ—ltas pecias idem Cancellarius pecias illas dedit Richar Spigurnello ipsius cancellar. dictum novum
Chancery is never adjourned for the Chancery is alwaies open 4. E. 4. 21. b. jurisdict. 6. In an audita querela sued to avoid a recognizance knowledged in the Chancery the Chancellor ought to judge according to the course of the common Law because the matter commeth before him by Originall Writ but upon matters depending before him upon Bill he may judge according to conscience 5. E. 6 Con. 72. casus Rosse Pope 7. The Ceancellor ought not to take precise knowledge of any surmizes nor ought not to take away the Jurisdiction of any Court nor the profit of any person by credit or suggestions 6. E. 6. Con. 74. casus Wymbish c. 8. By these authorities it appeareth that 〈◊〉 hath two powers th' one ordinary th' other absolute By the ordinary he holdeth plea in Latin and the Record after issue joyned is sent into the Kings Bench to be tryed by Jury And this is wholly according to common Law and in such it is a Court of Record but the absolute power holdeth plea upon Subpoena and by English Bill and by pleading and so it hath been used excepting in Anno 20. H. 6. there are some Bils in French as appeareth by the Records of that Year and he intermedleth only with matters of Conscience and therein it is no Court of Record and in both these powers he may hold plea out of the Terme CHAP. II. What matters he may hold plea of in the absolute power 1. THe Chancery in the absolute power holdeth sute by Subpoena only of such matters as are nor remediable by the Common Law per Prisot capit Justic. in Com. Banco 37. H. 6. 14. per Jenney Apprentic 39. E. 6. 2. 6. conscience 6. 4. E. 7. 4. Subp. 17. 2. It appeareth that in Anno 21. E. 4. Many Subpoena's were used to be sued and therefore Fairfax Justice said That if the Chancellors would be good Pleaders there would not be so many Subpoena's sued in the Chancery as there are for divers of those Chancery matters might be converted to actions upon the case and so the Jurisdiction of the Common Law Courts should â—e maintained as for example if one do obtain a Supersed of privilege upon a false surmise an action upon the case doth lye and there needeth no Subpoena 21. E. 4. 23. 3. The Chancellor must judge secundum conscientiam non secundum allegatum For if the Complaintiffe suppose in his Bill that the Defendant hath done some wrong and the Defendant answereth nothing yet if the Chancellor hath knowledge that he hath done no wrong to the Complaintiffe the Complaintiffe shall not recover at all per Cancel 9. E. 4. 14. subp. 11. b. consc. 26. 6. Jurisdictions 50. 4. One sued by Bill in the Chancery and he could not prove his Bill but the proofe of the Defendant was better than his Wherefore Grevill Serjeant said That the Defendant ought to have Judgment to be discharged and Complaintiffe to be barred to whom it was said for the Complaintiffe That the matter is determinable at the Common-Law and therefore such Judgements may not be given and Grevill said That the Complaintiffe shall be estopped to sue so because it is his own doing And when one sueth a Bill he must prove his Bill before he shall have Judgment although the Defendant never answered and the Chancellor was of the same opinion but yet Conesby Serjeant said to the Defendant That he should never have Judgment in the Chancery upon the matter but only a procedendo 21 H. 7. 34. H. 5. By these causes it appeareth That the Chancellor holdeth plea but of matter not remediable by the Common Law and that he must judge according to truth and not upon the default of the party as the Common Law uâ—â—â—h 6. Note that in ancient time where the matter was against reason and the party had no remedy by the Common Law it was used to sue for remedy in Parliament and the Parliaments were holden of course twice every year but now most of those sutes are in the Chancery and the Parliaments are not so often holden vide Rot. Parl. Brooke Parl. 33. 7. The Chancellor said Nullus recedat a Cur cancellar. sine remedio but Fineux said si nul lus recedat sine remedio ergo nullus indiget esse confessus but the common Law is ordained for many matters and some such as are not remediable by the Common Law are to be relieved in the Chancery but divers are remediable by neither and such are in Conscience between a man and his Confessor 4 H. 7. 4 8. In many cases where a man doth wrong yet he shall not be compelled by way of compulsion to reform it for many times it must be left to the Conscience of the party whether he will redresse it or not and in such case he is in Conscience as well bound to redresse it if he will save his soule as he were if he were compellable thereto by the Law As if the Defendant wage his Law in an action of debt brought upon a true debt the Plaintiffe hath no means to come by his debt by way of compulsion neither by Subpoena nor otherwise and yet the Defendant is bound in Conscience to pay him Also if the Grand Jury in Attaint affirm a false Verdict given by a petty Jury there is no other remedy but the Conscience of the party Also where there can be had no sufficient proof there can be no remedy in the Chancery no more than there may be in the spirituall Court as Doctor and Student Câ— 18. 9. Note by these two last Authorities that there are two sorts of â—â—ges conscientiae the one is lex conscientiae politicae by which the Chancellor ordereth matters In which Law of Conscience there is respect had unto the Lawes Customes and State of this Commonwealth and the other is lex conscientiae Divinae by which there is no compulsive relief in this world but the offendor standeth at the judgment of God only and this in times past was said to be examinable between the Offendor and the Confessor Note also that this rule Nullus recedat a cancellar. sine remedio is to be expounded that the Chancery giveth remedy for the common law matters by granting of the Originall Writs which are for the most part returnable into the common law Courts and for matter of Conscience by examining them in the Chancery it self neither doth this rule any way extend to the Law of Conscience divine The Statute made in the 4. H. 4. is this That whereas in Plea reall as well as personall after Judgment given in the Kings Courts the parties be made to come upon grievous paine sometimes before the King himself sometimes before the Kings Councell and sometimes into the Parliament to make new answer thereunto to the great
annoyance of the parties and in subversion of the common Law It is ordained That after Judgment be given in the Kings Courts the parties and their heirs be thereof quiet untill the Judgment be admitted by attaint or by error if there be any error as it hath beene used by the Law in the time of the Kings Progenitors Stat. Anno 4. H 4. Ca. 22. And upon the said Statute is made by Doctor and Student an inference viz. There is a Statute made 4. H. 4. cap. 22. Whereby it is Enacted That Judgements given in the Kings Courts shall not be examined in the Chancery Parliament nor else where by which Statute it appeares that if any Judgement be given in the Kings Courts against Conscience that there can be had no remedy for the Judgement cannot be remedied without examination and the examination is by that Statute prohibited Yet this Statute is not against Conscience for if such Judgments should be examined in the Chancery before the Counsell or in any other place the Plaintiffes should seldome come to the effect of their sure nor the Law should never have end to eschew that inconvenience the Statute was made lib. Doct. Stud. cap. 18. Note by that Statute and by this explanation thereof that the Chancery may not examine nor intermeddle after judgement is given at the Common Law and yet the Statute speaketh not expresly of the Chancery CHAP. III. Whom he may call to be assistants to him 1 IN a Parliament holden in the 2 d. yeare of H. 4. The Commons exhibited a Petition conceiving that the Justices of both the Benches were called into the Chancery from both their places to help the discussing of matters traversed into the Chancery whereby the Common Law was hindred and the subjects damaged and therefore they prayed That it might be Enacted That when any traverse of any Office is tendred in any scir. fac awarded that the same may be sent and returned into one of the Benches there to be discussed and ended according to Common Law To which Petition the King answered the Chancellor may do so by his Office and let it be as it hath been heretofore by the discretion of the Chancellor for the time being Rot Parl. Anno. 2. H. 4. Artic. 95. 2. The Statute de Anno 4. H. 4. is Let the Chancellor have power by Authority of Parliament to call unto him such Justices as it shall please him and the chiefe Baron of the Exchequer it need be to provide remedy from time to time according to their diseretion Stat. Anno 4. H. 4. cap. 9. in most of the time of H. 6. the Decrees were entred in this forme Considerat fuit per cur de Assensu Johannis Fortescue Milit. capitalis Jusâ—ic Dom Regis ad placita tenend. diversor alior Justic. Servient ad legem in Cur. praesent existent quod c. And sometime it was De assensu omnium Justic. utriusque Banci And sometimes of one or two Justices petition in cancellar. de temps H. 6. In the Chancery upon a Subpoena sued the matter being doubtfull in Law the Chancellor adjourned the parties into the Exchequer Chamber and called the Justices of both Benches to assist him 27. H. 6. 13. b. consc. 4. 37. H. 6. b. consc. 7. E. 4. 14. 22. E. 4. b. The Lord Chancellor called Fiâ—z-harbert Justice into the Chancery to assist him in the argument of a Question in Law arising upon a sute of Conscience 27. H. 8. By these Authorities it is evident That the Chancellor may as well in matters conce ning the absolute as ordinary power call the Justices to assist him and that either into the Chancery or into the Exchequer Chamber CHAP. IV. How the absolute power increased and of the Statutes concerning the same 1 THe Statute of Magna Charta is That Nulâ—us liber homo caâ—iatur vel imprisoâ—etur aut dâ—â—ssâ—isâ—tur de libero tenemento suo vel libertat vel liberis consuetudinibus suis aut ut legetur aut â—xuletur aut aliquo modo disturbatur nec super eumibimus â—ec super eum mittemus nisâ— per legem terrae Magna Charta cap. 30. This Chapter is but a confirmation of the custom of the Realme lib. Doct. Student cap. 7. 2. The Statute of the 5. E. 3. is That none shall be attached by any accusation nor forejudged of life nor limb nor his Lands Tenements Goods nor Chatels seized into the Kings hands against the form of the Great charter and the Law of the Land Statute 5 E. 3. cap. 9. 3. The Statute of 15. E. 3. is That none shal bâ— taken by Petition or Suggestion made to the King or to his Councell unlesse it be by Indictment or Presentment of good and lawfull men where such deeds be done in due manner or by Proces made by writ or originall at the Common Law nor that none be put out of the Franchises nor of their Free holds unlesse he be duely brought in to answer and forejudged of the same by way of Law and if any thing be done against the same it shall be redresled and holden for non-Stature Anno 25. Edw. 3. cap. 4th 4. The Statute 28. E. 3. is that no man shall be put out of any Land or Tenement or taken or imprisoned or disherited or put to death without being brought in to answer by due proces of the Law Statute Anno 28. E. 3. cap. 3. 5. By these Statutes it seemeth that neither the King Counsell not Chancellor might not atach imprison banish or put to death any man nor seize his lands nor goods or cause him to answer but upon indictment presentment or originall as in the case ensuing A Commission was awarded out of the Chancery in 42. E. 3. to Commissioners authorising them to apprehend a man and his goods and to commit him to Prison and because this was done without Indictment or sute of any party or other due Proces it is contrary to the Law and the Commission was adjudged void per Knivet Thorpe Captal Justic. 42. Assi. 15 crompton 67. The Statute of 37. E 3. That though it be not conteined in the great Charter that no man be taken imprisoned or put out of his Freehold without proces of the law yet divers people make false suggestions to the King himself as well for malice as otherwise whereby the King is often grieved and divers of the Realm put to great damage and losse against the form of the same Charter Wherefore it is ordained that all they that make such suggestions be sent before the Chancellor Treasurer and his great Counsell and that they there finde surety to pursue their suggestions and to incurre the same pain that the other should have had if he were attached in case that this suggestion be found evill and then proces of the Law be made against them without being
taken or imprisoned against the forme of the Great charter Stat. 37. E. 3. cap. 18. But this punishment is qualified by another Statute By this Statute the abuse of suggestions was reserved and a form of proceeding appointed also it seemeth to allow that the party accused may have punishment if the suggestion be true by these words the same paine as the other should have had if he were attainted Also though the Statute make mention that the Petition be sent before the Chancellor Treasurer and Counsell yet this hath been expounded of the Chancellor in the Chancery alone as experience teacheth and so was the Law taken before the making of this Statute in Anno 12. E. 3. 47. b. Jurisdiction 102. notwithstanding that the Petitioners were by the indorsement directed to the Archbishop and Counsell calling to them the Chancellor The Sâ—â—tute of Anno 43. E. 3. is That some accused persons have been imprisoned and others compel'd â—o come before the Kings Counsell bâ— writ or otherwise upon a greivous paine against the Law It is therefore affented that no man be put to answer without presentments before Justices or thing upon record or by due processe or by writ originall according to the old Law of the land and If anâ— thing from henceforth be done to the contrary it shall be void in the law and holden for error Stat. Anno 42. E. 3 cap. 3. 11. By this Statute it appeareth That men had been compelled to come before the Counsell by Writ or otherwise upon grievous paine which imployeth the usage of the Subpoena but it was all restrained by this Act 12. The Statute of 17. R. â— VVhen people be compelled to come before the Kings Counsell or in the Chancery by writ grounded upon untrue suggestions the Chancellor for the time being by and by after such suggestions be duly found and proved untrue shall have power to ordaine and award damages according to his discretion to him which is so troubled untruly Stat. Anno 17. R. 2. cap. 6. 13. This Statute as it giveth damages against the accuser for it establisheth the authority of the Chancellor in trying of such sutes for the makers of the Statute would not ordain punishment for the abusers of such suggestions unlesse they had meant to allow of the sutes being orderly used and this Statute seemeth to give the first and greatest allowance to the Jurisdiction of the Chancery by Subpoena which appeareth by Petition made by the Commons in a Parliament holden 3. H. 8. where they complained that the VVrits called Subpoena et certis de causis were never granted before the time of R 2. the art of which complaint are as followeth In the third year of King H 5 the Commons exhibited a Petition unto the Parliament concerning the grievances that did arise by the Sutes of Subpoena in the Chancery and Exchequer viz. THat these Writs were sued of matters determinable by the Common Law That they were never granted nor used before the time of Richard the second wherein John Waltham late Bishop of Sarum and the Master of the Rolls by his subtilty caused them to be found out and to begin that they are contrary to the form of the Common Law That they are a losse and hindrance of the proffits which should arise to the King by the Fees Fines Issues and Amerciaments and other profits in other Courts if such matters were sued and determined by the common-Common-Law because no profit ariseth to the King by the Subpoena but only 6 d. for the Seal That the Justices of both Benches when they should intend their places about Pleas and taking of Inquests for the dispatch of the People be occupied with the Examinations upon Subpoenas to the great vexation losse and costage of the People Subjects That the Subjects are long time delayed from the sealing of their Originall Writs because of the great businesse of the Chancellor about such examinations That in such examinations there is great clamor and noise made by men unlearned in the laws without entring any record thereof That such sutes will not be ended but by examination and oath of the parties according to the form of the civil Law and spiritual Law in subversion of the Common Law That if the Defendant cannot be convicted by their examinations then they are forced to compound and agree with their adversaries or else to abide in Ward or upon Baile untill they have compounded or agreed That if the Defendants cannot be convicted by their examinations then they are forced to find Suerties for the Peace which they might have done in their Country without repaire to the Courts VVherefore they pray redresse after speciall form in the Bill limited but this Bill passeth not Rot. Parl. Anno 3. Hen. 5. Art 46. 14. The Statute made in the 15. H. 6. is That divers persons have been greatly grieved by writ of Subpoena purchased for matters determinable by the Common Law of this Land to the great damage of such persons so vexed in subversion and impediment of the common-Law the King will that the Statutes thereof made shall be kept after the form and effect of the same and that no writ of Subpoena be granted till surety be found to â—atisfie the party so grieved and vexed for his damages and expences if so be the matcer cannot be made good which is contained in the n Bill Statute Anno 15. Hen. 6. cap the 4th 15. This Statute explaineth that the making of the great Charter and the other old Statutes was to redresse suggestions to the Kings Counsell or Chancellor where the matters were determinable at the common law but exteâ—deth not to such as had no other remedy For this Statute willeth that the old Statutes shall stand and yet alloweth a Subpoena to be granted upon putting in of sureties It is proved also by this President Note also that there are no petitions of the Chancery remaining in the Office of Records of elder time then the making of the said Statute 16. One sued by Petition to the King who delivered the same to the Chancellor and upon a scire sac the Defendant appearing took exception alleging That his Sute is to recover his Freehold which ought to be at the common law non allocatur because this Sute cannot be in any Court but in the Chancery 21. E. 3. 47. jurisdict. 102. Note also that there are no Petitions of the Chancery remaining in the Office of Records of elder time then the making of the Statute of the 15. H 6. for the ancientest to oe found are in the 20th yeare So that by this may appear that the absolute power was feared and prevented in the time of K. John by whom the Magna Charta was granted and that it was frequented and usurped in the time of Edward 3. who so often restrained the same and it was allowed and established in the time of R 2. who in some part made Reformation thereof
CHAP. V. Of what force the Decrees and Injunctions Executions and Punishments of the Chancery be 1. IN an Assize the Parliament wrote to the Justices to surcease notwithstanding which they proceeded and awarded the Assize whereupon the Chancellor did reverse the judgment before the Councell this reversall was adjudged void for that was no place where a Judgment might be reversed 39. E 3. 14. b. Judges 13. It was decreed in the Chancery by the advice of all the Justices that the Defendant should bring in an Obligation wherein the Complaintiffe was bound to him to be cancelled and because he refused hee was committed to the Fleete there to remain untill he would fulfill the Decree and the Defendant having put his Obligation in sute at the common Law the Complaintiffe pleaded this Decree in Barre and it was ruled to be no good plea in Barre because the obligation had lost his force by the Decree per Pâ—isoâ— alios Justic. in com Banco And if it had been decreed by expresse words that the Obligation should lose his force these words in the Decree would have bin voyd at the common Law per Billing Serjeant and of the Councellors awâ—rd a supersed under the Great Seal reversing the Decree and commanding the Justices not to proceed at the common law the same is not to be obeyed otherwise it is a supers of Privilege per Billing Boef Sâ—rjâ—ants 37. Henry 6. 13. Barre 75. b consc. 4 2. If a Feoffee upon trust refuse to performe the trust and upon Subâ—oeâ—â— in Chancery it is decreed that he shall reinfeoffe the Feoffor and he refuse and is committed if the Feoffor enter into the Land and the Feoffee bring an Assize against him this Decree is no plea in Barre to the Assize per Laicon Serjeant 37. H. 6. 13. 3. Note that Judgment was glven in the Chancery in Pleas of Debt or of Patents may be pleaded in any other Court at the common law other wist it is of decrees made thereupon a Subdoena because it is no Court of Record in respect of such sutes per Prisott cap. Justic. Co. Ba. 37. H. 6. 14. 4. Note that if it be decreed that a Defendant shall bring in an Obligation to be cancelled the Chancellor can do no otherwise but command him to prison to remain there untill he will doe it and that is all which the Chancellor can doe for if the party will lye in prison rather than deliver the Obligation the Complaintiffe is without remedy per Prisot cap. Just Co. Ba. 37 H. 6. 14. 5. Note that Young Justice demanded this Question What if the Chancellor should command me upon a pain that I should not sue my Debtor Billing Justice answered that he were not bound to obey it for that commandement is contrary to Law 9. E. 4. 53. b. Judges 22. but this is meant of a commandement no Bill being exhibited 6. In an action of Trespasse the Plaintiffe recovered by verdâ—ct at nisi prius before Judgment the Chancellor granted an Injunction commanding the Plaintiffe that he should not proceed to Judgment upon pain of 100l Fairfax Justice said that although the Injunction were against the Plaintiffe yet his Attorney might pray Jument vel è contra Hussey chief Justice of England said that they had communed upon the matter and they could seâ—â—o hurt that could come to the Plaintiffe although he prayed Judgement contrary unto the Injunction for the Law doth not give any forfeiture of the summe conteined in the Subpoena and if he be committed to the Fleet wee will ptesently grant a habeas corpus ret before us and then we will dismisse him and the Justices said though the Chancellor would not disallow the Injunction yet they would give Judgment if the party would desire it quod notum Banco Regis 22. E. 4. 37. 6. Judgement 86. 7. King Richard the third called before him into the Inner Starchamber all his Justices and demanded of them this Question among others That whereas Tho. Staunton had Iudgement in the Chancery to recover against Tho. Gate certain Lands and Tenements and in execution thereupon yet Tho. Gate contrary to the judgment and execution entred into the Lands where unto the chief Justices answered That if Gate had notice of the Judgment then at al times after such notice the Chancellor might compell him by imprisonment 2. R. 3. 9. 8. A Feoffee upon trust was enjoyned to make estate to the Feoffee before a certain day Subpoena 100l and he did nor perform the Injunction and Hâ—ssey chief Justice of England and Vavisor Justices and divers Apprentices said cleerly that there could no scire fac or other proces be awarded for the King against the party to levy the 100l because it is but a pain and if the Defendant make default in a Supoena the pain is not forfeited for it is put in the writ but only interiorem but if the party make default the Chancellor may assesse a Fine upon him according to his discretion and that assessement is a Judgment and a scire fac shall be awarded uppon that in such sort as it may be upon Recognizance in cancellar. 10. H. 7. 4. b. Const. 29. 10. Note that a Decree in Chancery doth bind the right of the party but doth not only bind his person to obedience that if he will not obey the Chancellor may commit him to ward untill he do obey and that is all which the Chancellor may doe but Judgement given in the Kings Court Common-pleas and other Courts of the common law do bind the right of the party per Knightly Serjeant in Canc 27. H. 8. 15. Judges 1. b. Judgment 2. 11. If an Injunction in Chancery be made That I shall not sue S I. if I dye my Executors may sue him notwithstanding for they are not bound thereby For if I be bound by Obligation that I shall not sue S I. if I dye my Executors may sue him and it is no for feiture of the Obligation per Fitzharbert Justic. in Canc. 27. H. S. 16. consc 1. and Brook in abridging the case doth think it were hard that the Chancellor should enjoyn the Heirs or Executors although they were expressed in the Injunction 27. H. 8 15. But at this day the form of Injunctions doth by expresse words extend to bind the Heirs Executors Counsellors Attorneys and Solicitors of the party saving that the Serjeants of the law do take themselves to be exempted by Warrant of their Oath by which it seemeth also that they should not be of Counsell with any Complaintiffe in the Chancery 12. Note that in the Book called Fleta which was made in the time of King Edw the first by all the Justices either at such time as they were in the Fleet or else at such time as they inhabited in the street called
Feoffor is made good by the common Law release before it took effect but by conscience 1 R. 3. 54 One make a Feofment to the use of his last will and Testament and declareth by his Testament that the Land shall be to the use of his VVife for Life and afterwards to the use of Revoke his Son in tail in this case he may change his VVill and the uses at his pleasure because it is referred to his Testament per Bradwell capit Iust. communis banci Fetchlers Inglefield Iust. in communi Banco 19 H. 8. 11. 30 H. 86. Feofment 47. 55 If I do covenant with I. S. that when he shall infeof one of three Acres I and my Heirs and Assignes will stand seised of other Lands to his use If I make a Feofment unto me that hath no notice of this use yet it I. S. do infeof me of their Acres the Feoffee shall be seised to the use of I. S. because it is a Springing use and the land is charged with that use in whose hands soever it come but if I have feoffed and they sell the said land to me that hath no notice of the use there the second Feoffees shall be seised to their own use 30 H. 8. 6. Feofments al use 50. 56 If I do buy lands and the Seller executeth an Estate unto me habendum imperpetuum without saying to my Heir the meaning of the Bargain being that I shall have the Fee-simple if the Seller do refuse to make further assurance I may compell by sub poena per Audley Cancell temp. H. 8. liber qui dicitur fundamentum legum Angliae B. consc. 25. 57 The Feoffee upon trust sold away part of the Lands and received money for it and the rest he kept and took the profits and dyed the Feoffor per Bill in Cancell recovered against the Feoffees Executor the money received the value of the profits per decretum in Cancell ex assensu omnium Iustic. aliorum de Concilio Regis praesentium pet. in Cancell de Anno 34 H. 6. CHAP. III. Of Copy-holds TEnant at will by Copy of Court Roll shall have a sub poena against his Lord if he put him out of his Tenâ—menâ— per Kirkby Magistrum Rotulornm Pool Serjeant in Canc. 32 H. 6. 21. Stat. sub poena 2. Note Littleton Serjeant said that he saw once that Tenant by Copy Court Roll sued a sub poena against his Lord and it was holden by the Justices that he should recover nothing but Daaby chief Justice of the common Pleas said that the Judgement was so given because he sued to have recovered the Free-hold whereunto he being a Copy-holder could have no right 7 E. 4. 19. sub poena 6. Tenant per Copie 10. CHAP. IV. Of Chattels Real ONe being bound in a Statute Merchant paid the money without having a Release and notwithstanding the Conusee sued Execution the Question was whether the Chancellor might grant a sub poena against the Conusee Fairfax Iust. and Hussey chief Justice of England said that he might not for it were no reason that the Testimony of two VVitnesses should defeat a matter of Râ—cord Cameâ—a Scacc. 22 E. 4. 6. Richard Reade had Execution of certain Lands upon a statute Merchant and the Debtor sold the Land to Sir William Capell who recovered the same by Default with Voucher against the Debtor whereupon William Capell entered and the Termor sued a sub poena and it was holden that if Reade had no remedy to falsifie this recovery then he should be restored in the Chancery by sub poena because it was done by Covin per Cancell Hussey Brian cap. Iust. 7 H. 7. 11. 12. b. consc. 8. b. Faux Recovery 25 If a Recovery be had against the Lessor and the Lessor for years do not pray to be received if by that means he have no remedy at the common Law he shall have remedy in the Chancery so that he were in Prison or beyond Sea or had any reasonable cause of his Default per Conisby Keble Serjeants but quaere it he had no such cause 7 H. 7. 10. If one make a Lease for years or grant his Lease for years to a use this grant and use is good notwithstanding the statute of Ann. 3 H. 7. cap. 15 uses 7. because the statute maketh onely these Gifts of Chattels void which were made to defraud Creditors 3 M. 16. Feofments al use 60. CHAP. V. Of Chattels Personals IT was agreed upon between I. S. and I. D. that I. D. should have certain Debts due unto I. S. by divers persons and I. D. did enter into Obligation to I. S. for the Government of certain summs in consideration of the same Debts and because there were but things in Action and that I had no remedy to recover the Debts by the common Law therefore I. D. sued a sub poena against I S. to be discharged of the Obligation by conscience and for so much as it appeared that by his Contract no Duty could rest in I. D. therefore it was decreed that I. D. should bring in the Obligation by conscience for so much it appeared that by his Contract no Duty could rest in I. D. therefore it was decreed that I. S. should bring in the Obligation to be cancelled or else release to I. D. per Canc cum opinione omnium Justiciar 37 H. 6. 13. b. Barr. 75. 6. consc. 4. 2 Sir Thomas Brown being possessed of certain Goods was attainted of Treason which Goods came to the hands of Iohn Brown the King by Patent gave the Goods unto Walwine and Walwine sued a sub poena against Iohn Brown for the Goods who came into the Chancery by Jenney his Counsel and demanded Judgement of the sub poena for that a sub poena doth not lie but where the party hath no remedy by the common Law and in this case the Complaintiff may have an Action of Detinue for the King might have had the like Action to whom it was answered by Greefield being the Complaintiffs Counsel that the King himself can have no Action by the common Law for Goods forfeited untill the Goods have been seised to his use or else that the Goods be proved to be his by matter of Record and yet the King hath Election to sue for them in what Court he will and so may his Patentee also the Grantee can have no Action for the Goods at the common Law without having had possession seeing they were granted to him as things in Action and the Court held that the sub poena did lie very well and John Brown was commanded to bring in an Inventory of the Goods against the next day or else to be committed to the Fleet in Cancell 39 H. 6. 26. b. conse. 6. A Clerk
7. 12. sub poena 18. CHAP. VII Of Aliens THe statute of Anno 27 E 3. is that if any Merchant privy or stranger be robbed of his Goods upon the Sea and the Goods so robbed come into any parties hands within the Realm and he will sue to recover the said Goods he shall be received to prove the said Goods to be his own by his work or by his Chart or Caket or by good and lawfull Merchants privy or strangers and by such proofs the same Goods shall be delivered to the Merchant without making other â—ute at the common Law Stat. Anno 27 E. 3. cap. 13. Merchant 12. Note that by this statute the Chancellor alone without any of the Justices hath power to proceed to Judgement 2 R. 3. 2. 2 Also the statute of 27 E. 3. is that if Debate arise betwixt the Maiâ—r and Constables of the Staple and such Merchant stranger as shall be assigned to â—it with them upon discussing of any plea or quarrell touching Merchants Aliens the Tenor of the same Plea shall be sent before the Chancellor and other of the Kings Counsel to be determined there without delay Anno 27 E. 3. cap. 24. staple 17. 3 If any Subject attempt or offend upon the Sea or in any Port within the Realm against any person stranger being upon the Sea or in any Port aforesaid by way of Amity or League or truce or by force of the Kings safe conduct or safeguard in any matter and especially in attaching of any such strange person robbing oq spoiling him of his Ship or Goods or against any other person of his Lay-people the Chancellor as well for the deliverance of such person attached as to make Restitution of Ship or Goods or the value thereof shall have authority calling to him any of the Justices upon a Bill of Complaint to him made to make such processe of the Chancery as well against such Offenders to bring them into the Chancery to answer as against any other persous to whose hands any such person so attached Ship or Goods shall come for the Deliverance Restitution by them to be made as shall seem to the Chancellor most necessary and upon this Processe the Chancellor further to proceed in this matter if the case do so require by advice of any such Justice to make the person stranger so grieved to have full Deliverance and Restitution of his Goods c. and also of all the Costs Expences and Losses made and suffered by him in this behalf and thereupon to make all manner of execution upon the same out of the same in such sort as shall seem to him necessary for such Deliverance and Restitution to be had calling him to any such Justice as aforesaid statute 31 H 6. cap. 4. Aliens First note that by this statute the Alien that complaineth must sue in the Chancery before the Chancellor assisted with one of the Justices 2 R. 3. â— 4 A Merchant Aâ—ien bargained with one to carry certain Bales of Merchandizes to Hampton the party took the Bales and carried them to another place and brake them up and took out the Merchandizes and converâ—ed it to his own use and the Alien complained to the Counsel in the Star-chamber the Chancellor that although this Fact be Fâ—lony yet it shall be tried before the Counsel and not at the common Law because the Complaintiff is a Merchant alien and is come by safe Conduct and it shall be determined according to the Law of Nature of the Chancery and he may sue there from hour to hour and from day to day for the speed of Merchants also he said that strangers shall not be bound by our statutes which are introduct. jura legis by statâ—te that are Deliberativa antiqui juris viz. juris naturae And although that by their being in the Realm the King hath Jurisdiction to compell them to abide right yet that shall be secundum legem naturae which is called by some the Law Merchant which is an Universal Law through all the World in cameâ—a stellata 1. 3. 2 4. 9. Denison 2. b. Dâ—nisen 5. 5 The Chancellor said that whereas there is a statute that safe Conducts inâ—olled and the number of Mariners and the name of the Vessel yet if any Alien have a safe Conduct and have not those circumstances therein the safe Conduct notwithstanding shall be allowed and so hath been adjudged for the Aliens do say that they are not bound to know our statutes and they do come into the Land by Warrant of the Kings Seal and safe Conduct and if it shall not be sufficient they are defrauded but others saith the statute which ordaineth for the Forfeiture of Merchandize shall binde as well Aliens as others in camera stellata 13 E. 4 10. b. Denisen 5. 6 Note that it was said in the Star-chamber that a Denizen shall not sue an Alien before the Counsel but an Alien may sue a Denizen and it was said that it is by force of the statutes 13 E. 4. 10 Denisen 26. Denison 5. If any Alien having a safe Conduct be robbed and the Goods waved by the Felons yet the Alien shall not be compelled to sue the Law against the Felon neither may the King have the Goods as a Waive nor any other by the Kings Grant or by prescription because the King hath granted unto him salvum securum conductum tam in corpore quam in bonis which is a Covenant between the King and him and he may sue the King upon the same per omnes Justiciarios in Camera stellata 13 E. 4 10. Note that an Alien born under any Prince which is in League with the King may sue at the common Law all Actions of Debt and personal Actions but not real Actions but if he be born under the obedience of the Kings Enemy then the Alien hath no Action or Sute unlesse he come by safe conduct and note that if all England do make War with a forreign Prince which is in League with the King yet if the King do not assent thereunto it is not open War for the League must be broken by Ambassage or otherwise by the King 19 E. 4. b Denison 16. 20. A Merchant of Spain exhibited a Bill before the King and his Counsel in the Star chamber against certain English men and shewed that he was robbed upon the Sea by certain Britains and that his Goods were brought into England and are come to the hands of the Defendants and prayed Restitution according to the statute de Anno 27 E. 3. cap. 13. and it was said by all the Justices that the Complaintiff must prove that the King of Spain was in League with the King at that time and the taking of the Goods also he must prove that the first taker was under the
6. Decree Parlament Error Brook Petition Iudgement Record 27 H. 8 Decree tho same Court Parlament Order good cause absolute decree definitive appellation 2 R. 3. patent scirefacias error the same court reform Revocation 2 R. 3. patent scire facias error the same court reform 18 E. 3. Stat. Merchant Kings Bench 13 Eliz. common Law 6 E. 4. Coparceners Covin. Doct. Sâ—ud Iointenant all the profit Conscience Law Doct. Stnd. eldest son Gravel-kinde all children Law Custome Present in Sect. Tent curâ—efie claim fee-simple Charters Dismission 3 H. 9. Rem of use use for life Release 31 H. 6. Revocation of will Revocation of use quid pro quo fall into poverty Special cause Son born Felon after feofment Felon 15 Eliz. 3 H. 6 use after feofment Enfeoff a stranger second Feoffee Damages bona fide trust 33 H. 6 Enfeoff strangers bona fide second feofment refuse to infeoff 33 H. 6. pet. in law Outlawed Clerk attainted outlawed of treason next heir 37 H. 6. Refuse to infâ—off Imprisonment 37 H. 6. Will 2 Feoffees Notice commandment 37 H. 6. 37 H. 6. refuse to take Remainder Refusall by Tenant for life Testament Dissâ—izin in assize â— E. 4. Obligation refuse to take 5 E. 4. Youngest son 5 E. 4. Mothers side heir of the fathers side 5 E. 4. Remainder Tenant in tail declare Testament Common Law 5 E. 4. Husband and Wife no consiâ— use not expressed 4 E. 4. Half bloud Take profits Possessio fratris 4 E 6. estate for life for years 5 E. 4. Attainder Felony Escheat 5 E. 4. 7 E. 4. King use void 7 E. 4. Husband and Wife Receive money cui in vita Coverture Prison satisfact. Feoffee Notice 7 E. 4. Plead Actions câ—â—ts Dilatories 8 E. 4. Heâ—â— Parlament 9 E. 4. Payment Tender Refuse to re-infeoff 11 E. 4. 8. 13. consc. 17 14 E. 4. Heirs gavel kinde common voice Age Discent Next Cousin 14 E. 4. Heir Agree Lord Extinguishment Disclaimes 17 E. 4. Award Release Testament Coverture Fine 20 E. 4. Custome Infant Sale Custome Strict 21 E. 4. Burgh English youngest son Gavel-kinde 22 E. 4. Heir Discent President 7 H. 7 Notice Feoffee 5 H. 7. Infant Offices Account Fees Assâ—nt Defence Sutes Allowance 10 H. 7. Coverture Executrix Sale Fleet 10 H. 7. use for life Forfeiture Discontinuance Reformation 10 H. 7. Injunction Infeoff Refeoff Die seized 4 H. 7. â—Refâ—off 15 H. 7. Testament sell Specialtie named Debts Creditors Distributed Executors refuse Administration Ordinary Administrator Testamentory Executors Executors Heirs 14 H. 7. Testament Specialty named second Feoffees 14 H. 8. Pleas refuse Voucher Action de case without Heir within age attainted Eschete Lord 14 H. 8. Office without Heir within age Lord Dower Stat. Merchant Notice Particeps criminis consentientur fraus 27 H. 8. Burgh English Gavel-kinde 14 H. 8. Common Law Creation Relief Desire of Feoffer 14 H. 8. Sâ—igatory Escheats Recovery in value 19 H. 8. Executor Executor of Executor Refnse Administ Ch. Iustice Resignation Heir â—R 3. H. 8. H. 8. Testament Revoke use Expressed upon Livery 30 H. 8. Covenant Notice Springing use Sale Temps H. 8 Fundamentum legum imperpetuum 34 H. 6. Pet. in Canc. Sale Profits Executor 32 H. 6. Put out Lord 22 E. 4. Statute Merchant Payment Release Witnesses Record 7 H. 7. Statute Merchant Recovery Termor Falsifie Covin. 7 H. 7. Recovery Receipts Termor In Prison Beyond Sea 3 Mâ— Use Lease Stat. 3 H. 7. Fraud Creditors 37 H. 6. Debts Obligation Things in Action No remedy 39 H. 6 Treason Attainder King No remedy Detinue Forfeiture Seisure Record Court Possession Things in Action Inventory Fleet 8 E. 4. 3. Procurator Save harmless Notice Oath Court Christian Affiance Damage Promise Folly 8 E. 4. Executors Answer One Executor Abate Bill Notice Ignorance 9 E. 4. Obligation Forreign County Action Pleas 9 E. 4. Obligation Receive part Longer day Discharge Election Respite Sute Payment by one 16 E. 4 Defraud Gift Sanctuary Husband and Wife 16 E. 4. Surety Goods Double charged Injunction 22 E. 4. Statute Merchant Witnesses Record Obligation Acquittance Common course Presidents 22 E. 4. Recovery Payment Release Acquittance Record 4 H. 7. One Executor Release Testament Sine remedia Common Law Chancery Consoience Gods Law Restitution Willing Damned Joint power Pro salute animoe Mispend Argue 7 H. 7. Obligation Acquittance Bar 7 H. 7 Simple Contract Debt Executors 20 H. 6. Petic in Canc. Goods Trust Promise Sale Detinue Wager of Law Damages Doct. Stud. Obligation Payment Acquittance Stat. 27 E. 3. Stat. 31 H. 6. Robbery Spoil Sea-ports Subject 2 E. 4. Obligation Sue 4 E. 4. Money Obligation Administrators 7 E. 4. Goods Trespasse Appeal of Robbery Oath Combate 7 E. 4. Stat. Staple One releaseth Notice Covin. Fraud Deceit Discharge Goods Notice Sale Purchase Policy Payment to one Stat. 27 E. 3. Merchant Robbery Sea Proof 2 R. 3. Chancellor alone Stat. 27 E. 3. Staple Debate Stat. 31 H. 6. Sea-port Amity League Truce Safe Conduct Attachment Robbery Delivery Restitution Justice Possessioneâ— Costs Expences Execution 2 R. 3. Assistant 13 E. 4. Star-chamber Felony Safe Conduct Law of Nature De â—oram hora Statutes Juris Naturae Law Merchant Safe Conduct Enrolment E. 4. Statutes Notice Forfeiture 13 E. 4. Denisen Sutes Alien 13 E. 4. Safe Conduct Robbery Waive Pursue the Law King 〈◊〉 In corpore In bonis Covenant 19 E. 4. League Common Law Real Actions Enemy Safe Conduct Open War 2 R. 3. Star-chamber Robbery Sea Possessions 27 E. 3. League Kings obedience Enemy Restitution 1 H. 5. Additions Clerk Fine Stat. 2 H. 5. Murthers Fly Stat. 8 H. 6. Certificate 33 H. 6. This granted by Pet. in Canc. English Bill 33 H. 6. 1. part Stat. 4 H. 7. Justice of Peace Stat. 11 H. 7. Poor People Stat. 18 Eliz. Rochester Bridge St. 21 H. 8 St. 14 H 8 Merchant Strangers Search Stat. 33 H. 8. Faâ—se token or letter 37 H. 8. Tithes in London Stat. 31 E. 3. Fish Wines Stat. 19 H. 7. Corporations Ordinances Stat. 14. H. 8. Aliens Stat. 22 H. 8. Scavage or Chevage Stat. 25 H. 8. Prises of Books 28 H. 8. Prices of Wines Stat. 34 H. 8. Banckerupts
Difficult matters was reserved to Moyses wherein he might demeane his decrees according to the Information of his good conscience for so it may be understood if I be not deceived that in those cases he asked Counsell of God who gave him Warrant of his Authority and therefore some have not feared to call him Cancellariu Dei So was Joseph said to be Pharaohs Chancellor and therefore his Successors the Chancellors in our dayes are called Patres Patriae as he was Patriarcha and as the King only was in seate superiour unto him so is the Chancellor with us at this day Primus post Regem secundus in ordine of any temporall Magistrate And surely if in Greece I should look for a meet pattern and president to this purpose I would hope to finde him in the Common-wealth of the Athenians where from the time of the first King Cecrops unto the Athentes Anno I dare be bold â—o affirme that little light would be given unto â—ny man much better conversant in the Greekish Histories than my selfe and from the same time into the Tyranny of â—isistratus from thence to â—e renewed Domecticy after the Domination of Antigonus I cannot single out any one Justicer of â—ike quality unlesse I might allow that Solon was therefore Chancellor for that he did moderate and temper the positive Laws of Draco by his discretion as well in decreeing as in execution the which â—berty and power was after attributed to the Nemothâ—tae not those which did make lawes but those that did allow or reforme the lawes already famed But mee seemeth the chiefest part of our â—han cellors Office may be applyed to the Senate â—o whom the power was given of making decrees in the causes of private persons and the holding of dayly accidents but so as that they did not oppugne or contrary the lawes positive And further we may say of him that he hath Jus consultandâ— with their Demarches Jus judicandi between Citizen and Citizen with Action between Citizen and Alieâ— with their Polymarchus whom the Masters of the Rolls and the Masters of the Chancery are Paredri to informe him of the law as shall more easily be gathered in the processe of this Treaty and that he hath jus imperandi and Principatio judicior with the Aâ—opagitae and further that he may multum irrâ—gaâ—e with the aforesaid The smothetae whereof it followeth that he is undoubtedly a most absolute Magistrate and for that he hath closed in his office a credit for conservation of the peace over all the Realm with shall not be amisie to call him Nomophilax with this remembrance that Plutarch writeth Eumenes Cardiqnus to be ArchigraÌ„matea Alexandri magni Valgo Cancellarium ac principem Scribarum qui lâ—gothetâ— in regno petitiones deâ—retabat quos signabit in eis se suseridebat In the policy of the Roman Empire I meet not with one example saving that by report of Dyonisius the best and worthiest of the hundreth Senators was chosen by Romulus to whom oversight of Justice the appeasing of Tumults and the conservatioÌ„ of peace in the City was appointed at such times as the K. was otherwise busied in the expedition of warfare not unlike to the Ordinance of Edâ— the 3. who in the twentieth yeare of his raigne addressing himselfe to his warres upon the French did then authorize the Chancellor and the Treasurer of England to hear and determine of all complaints against extortion of Officers maintenance imbracery and such like offences by which authority he procured to be confirmed unto them by Act of Parliament and so it is at this day The Chancellor of France Vâ—carius Regis and as will appear hereafter and that there was no other Magistrates in the time of the Roman Kings is expressed by the same Dyonisius excepting onely Tribunus Celerum which was Militaris and as some hold opinion certain Quaesteres for oversight o the Treasury sent but otherwise in Rome omnia Regum Arbitrio administrata sunt in imitation whereof the two great Officers of France which are preferred before all other Et semper adsunt ad latu principis are the Constable of the Kingdom and the Chancellor which is called Quaestor by some writers Now in the permanent and ordinary offices of their popular government what Magistrate might be so mighty or generall in his Jurisdiction as is the present preheminence of the Chancellor I speake not of the Consuls of Dictators which did want nothing at all but the title and the denomination onely of Kings and chief Rulers Herbert Budaeus doth not sticke to call him Praefectum praetorio and further qui loco Dictatoris sit that our Chancellor hath Jus â—dicendi appeares by his rules and orders for matters of Consclence in the Chancery which doe especially concerne his absolute Authority Jus judicandi upon Audita quâ—relaes Petitions de droit c. where he judgeth according to form of Common Law jus cogendi by his service of the Mace and jus coercendi for over all the Realm he hath authority to command a man to Prison How he might be termed Censor in that he sendeth for the Commissioners for survey of Armour c. Aediâ—es in the prizing of Wines and Fish c. in the appointing of Sewers c. And so to compare him with the severall Officers of that Common-wealth by reason of his severall qualityes it were both tedious and impertinent only I have thought convenient to term him Pretor for these congruities First quoad cognitionem then quead curationem The Cognizance of the Pretor was either Domesticall or Popular Domesticall whereby he might hear the Complaints of every private man which his Palace and in his owne Chamber Ministrante at que admittente Cubiculario and order them by the Law of his Reason the which orders were ingrossed by any one of his Clarks and sealed with his owne signet Popular when he sate in Basilieâ— or in Foro where he was Circumdatus Cancellâ—s and had attendant upon him Scribes Cryers of the Court and Serjeants and this was called Locus staâ—uendi in whose constitutions there were two kinds one of decreeing another of giving judgement He was said to decree when without the Counsell or advise of the Judge he would manumiss emancipate award possessions of lands and goods commit wardship of pupills grant injunctions and generally when without assistance of a Judge he did hold cognizance of causes and determine thereof as he thought convenient and in this manner of Cognizance sometimes he would statuere sine Judice sometime he would Rem iudicibus Statuendum permittere as we may fitly translate to dismisse them to the Common law It was said the Judgment of the Pretor either when he proceeded to Judgment according to leges Regis duodecim tabulas Jus Civile leges plebiscita or Senatus Consulta and herein his authority was not absolute as in the other or where himselfe did heare and define
remitting the sentence of judgment to be pronounc't by the Judges in this kinde our Chancellor and their Pretorâ—oe differ especially for that the Pretor would at his entry into that Office publish and propound certain Edicts which were principles and fountaines out of the which he would derive his decrees But what names or generall notions the Lord Chancellor doth assigne unto himselfe for limitation of equity and direction of his Conscience that lyeth hidden and concealed in his owne breast for as saith Lindwood Conscientia est Cognitione sui ipsuis Cordis Conscientiae alicujus quando quid relinquitur ipsemet erit judex c. Whereby the man of Law is not able to informe his Clyent what is like to become of his action or whether it be determinable in the Court of Chancery or to be tryed at Common Law But to give some understanding of such matters as are proper to this Court so farre forth as the absolute power of the Chancellor extendeth there shal be set here under a competent store of cases whereupon reasonable conjecture may be grounded what is like to fall out in matters of many natures But of his ordinary power of Judge and of his Office as he is the Princes Minister they shall not in this discourse be largely handled in particular but onely touched obiter in a word or two And thus much of Rome calling to mind by the way that Tribonianus to Justinian Seneca to Nero ulpian to Alexander the Pope are reported to have bin Chancellor And now in the meane time let us in short have regard to the Chancellor of France and to the great Chancery of that Kingdome which cometh nearest to our selves and would be much resemblance of the form force of our English Chancery had not the Court of Requests bin enacted by Commission from K. H. the 8. before which time the Masters of Requests had no warrant of ordinary Jurisdiction We are to give credit unto the Historyes of France which do report the first Chancellor of that Kingdome to be ordeined by Charles the Great and that his authority was inlarged by Charls the wise the fist of that name It may be gathered out of these words of Divus Lucius which I doe therefore report in Latine as he writ them for that they be significant Constitutionum Caâ—oli quinti Supremus oâ—niâ—m ordinum honorum Cancellarius quique subinde Regi a Consiâ—â—s intimis statent exhibit is tactisque sanctis Evangelijs in manu Regia in â—oec verba jâ—rabunt quod sciâ—cet et nullum faedus nec ullum conspirationem iniâ—â—ut inter â—os si quia a quoquam contra fieret a statu suâ— dejectus exauthorazetur Per insignem dignamque Majestatis regiae huc referre libuit modum quem Carolus ille qâ—â—ntus cognomine sapiens in â—ligendâ— designando supremo 〈◊〉 Nomâ—â—hylice Cancelâ—arie non minus cite quam sancte observavit cum ad câ—ntum trigint adeâ—sent pâ—tres conscripti octo juri a libellis Proceres caeterisque ratiâ—â—ales cos a conclavi Rex abâ—re exire jussit postea sigillatim omnes ad unum accersunt Jure jurando adegit ut bona fide quem e Republica huno Nomophylacie putarent esse â—erficiendum utrius liâ—et status sacrae aut Secularis hominem profiterentur latis suffragiis Petrus Orgs Montius Latinacensis Episcopus Centum quïnque puncta tabulas tulit Tumille ut ingenius erat semoribus minimeque ambitiosus tanto huic munere ne dicam onâ—ri sese longe imparem excusare Ac vero Rex tot tantisque caâ—culis aâ—probatum sibi jam valde probari testatus est signaque Codi cillaria ei in manus dando ab co Iusjurandum Sacrosancto per Evangelia excepit sub ijs concept is verbis Tuo Juramento firmas Orge menti Regi te obsequentissimum sore That you shall give unto him faithfull advice and Counsell and such as shall be for his commodity and convenient for his Majesty as also for the profit of him and the Common-wealth That you shall never put your self under the obedience of other than of Him that you shall preserve to the uttermost of your power the revenue of the King and of the Crowne that you shall never receive nor accept without his consent any gowne Cloake Fee or wages present or profit whatsoever of any other than of him that for favour affection or hatred you shall do nothing and if at this present you are bound by Oath to any Lord or Lady or have bin so heretofore that you forsake and renounce it wholly Hereout may be collected the preheminence election and duty of the Chancellor if we adde hereunto the Words of Budenes That bodie ejus parâ—es primoe sunt videre ut nulla principis constitutio nulla Sanctio nullum diploma nullum Resâ—ripâ—um nulli Cudicilli Regij none Republica atque etiam e dignitate Reipublicae principaliquâ— exeant cujus censurae aut stilo principum Majestas acts sua eximi volunt denique qui principis prâ—sentis viarius peraâ—ere agente Interrex quod a morbo esse censetur Jare proprie Nomophilax legum presidium Juris Assylum id quod E Papiniano quondam dictum est morum institurorum quae ara â—qui bonique Columen appellari potest atque etiam debet id quae creder eme cogit consensus fere hominum institutuÌ„ quae quod eam quasi per manus traditum caput eum per verticem Justic. appellantum And namely it is to be noted that he might be of either State Ecclesiasticall or temporall religious or secular for the order of all the Chancery Courts in France may be seen one Aâ—reâ— in the time of Charls the 7th another of Charls the 8th and that the High Court of Chancery which followeth the King at this day was ordeined by Lewes the 12th may appeare by the Ordinance of the same King Anno 1498. as also by the acts of Francis the First Anno 1540. and of Charles the 9th Anno 1560. There are two Seals belonging to the Chancery one is the great Seal wherewith are sealed letters of grace the other called the Common Seal lesser than the former wherewith are sealed the writs of simple Justice and so have I heard a motion to be made for a like little Seale proper and peculiar for the sealing of Writs originall in our Chancery all Letters Patents of the King arrests and ordinances made and agreed in the Privy Counsell are sealed with the Seale of the King either by the Chancellor or Keeper of the Seale in the great Chancery which followeth the Court For in France they have a chief or principall Chancery attendant upon the King in the which the Chancellor of France doth exercise the office of Sealing or else his Commissarie assisted with the Kings Secretaries which of right have a certaine Fee out of every
her Majesty and her Subjects c. How the Court of Wards and Liveries is the Court wherein the Queenes prerogative for Wards is maintained out of which are sued Liveries and therein their ages are proved which are in Ward to the King by reason of Tenure c. How the Court of Starre-Chamber is ordained to redresse certaine great offences provided by Statute and appointed to this Court How the Duchie Court of Lancaster is also the Queenes Court and of Record wherein are holden all Pleas reall and personall which concerne any the Tenants of the Duchy lands now in the hands of her Majesty and parcell of her Crowne but severed in Court and Jurisdiction How in the Court of Requests are holden by vertue of their Commission none other but sutes that are made to her Majesty by way of supplication which is called the poore mans Court because he should have right there without paying any money How the Admirall hath disseisin of Marine How the Constable and Marshall of England determineth the Contract touching Deeds of Armes out of the Realme and handleth matters concerning warres within the Realme and Combats Blazon and Armory c. may be tryed by the Lawes of the Land How the Marshall of the Kings House before the Stat. of Articuli super chartas had Authority to heare and determine the pleas of the Crowne within the verge and now hath the hearing of Trespasses Contracts and Covenants made within the verge c. How the Court of Presidents and Councels in the Marches of Wales and in the North parts are Courts of equity in their principall Jurisdiction although they doe withall exercise other powers by vertue of other severall Commissions that doe accompany the same c. I might further busie my selfe with the County Courts Leets Courts of Barons and Courts of Pyepowders c. the Assizes Quarter-Sessions Commissions of Oyer and Determiner and Justices in Eyre to search and set downe when by whom and upon what occasion all the aforesaid Courts were erected wherein they doe containe within their appointed limits and wherein they doe usurp Jurisdiction which was appropriated to some others c. but for that the matters to be moved therein would require a severall Treatise of every severall Court for the which I feele my selfe very insufficient I will forbeare at this time to mingle Jurisdictions and onely continue in the course of the Court of Chancery the which Court I cannot finde in the time of the Conquerour to be served from the Court of the King and appointed to be holden by the Chancellor although I read in that time and the time of his sonne Rufus the ordinary course of Justice was altered in forme but not in substance and whether the Collegium sâ—ribarum founded by the Conqueror whereof he appointed the Chancellour to be President might beare the name and title of a Chancery in very truth I have much doubted for I cannot gather thereout any jurisdiction to determine causes and moreover I read expresly that during the Reignes of both the Williams Hen. 1. Stephen and Hen. the 2. there continued still a Court belonging to the King which was the place of Soveraigne justice both for matters of Law and Conscience called Curia Domini Regis and Aula Regia for that the Prince himselfe did many times sit there in person and had Justices a latere suo sedente as saith Bracton namely his chief Justice Chancelor Constable Marshall and others and howbeit in the 9. year of Hen. 3. by the erection of the Common Pleas the Common Pleas were withdrawn from the Court which followed the King to a place and Jurisdiction certaine it seemeth that by the division of Jurisdiction made by Bracton in his Book which he compiled by the commandement of K. Edw. 1. in the beginning of his reigne and of the particular authorities delivered out by the King to his Justices Commâ—ssioners and Delegates that the Jurisdiction oâ— determining the causes now belonging to this Court did remaine to the exercise of himselfe and yet was not the Jurisdiction of the other Courts out of the King for Jurisdiction as saith Bracton Non potest a Rege delegare but the causes proper to this Court were managed and determined either by himself in person or in his absence by his Chancellour Councellours of State and Iustices of Law that continually attend upon him for that service namely the Justices to informe him of the Law and the Chancellor which was most usually a spirituall person to give advice according to equity and good conscience in which respect also he was visitor for the King and passed the presentations of Benefices so that such as sought for reliefe by equity were sutors to the King himselfe who being assisted with the Chancellor and his Councell did mitigate the severity of the Law in his owne person when it pleased him to be present and did in absence either referre it to the Chancellor alone or to him or some other of the Councell yet have I some good causes of conjecture that the Chancellor in those dayes was a Judge ordinary in the same Court to hold plea by Latin Bil In monstrance de Droit Pleas and Enterpleas of Livery and Ouster ie Maâ—nes of portions and such like as a Minister to make processe c. And therefore I cannot agree with the opinion of some men that this Court of Chancery was erected and first assigned to the Lord Chancellor in the 36. year of Edw. 3. as well for the Patentees afore set downe doe grant and confirme unto the said Nevill officium Cancellariae of the Chancery and not Caucâ—llarii which was in Hen. 3. time as also for that in divers Statutes long before this time and in Yeare Books there is mention made of the ordinary authority of the Chancellor the Register and the Clerks of the Chancery viz. in the Statute of Glouc. in Anno 6. Quo warranto c. of Acton Burnell in Anno 11. Processe upon Recognizance in Westm 2. cap. 24. concordand Cleris de novo brevi c. Ad cap. 49. Champertie c. and Statut. Marchante Brev. al. Viscount c. in Anno 13. Slat de consultat procedendo c. in Anno 24. Articuli super chartas cap. 5. follow the King c. 6. Seale c. in Anno 28. of Ed. 1. and in Ed. 3. his time Anno t. Stat. 2. cap. 15. writing by Dures c. Anno 14. cap. 8. chuse Escheators c. Anno 5. Stat. Carhal adymytt Attorneyes c. Anno 19. Sacrum Clericorum cancellar. c. Anno 20. cap. 3 Oath of Justices Chancery c. ad cap. 6. Chancellor and Treasurer c. Anno 25. cap. 2. Sley Chancellor Treason c. and ibid. cap. 4. writ to Mayors c. Anno 31. ca. 3 Fifty wives c. in the 29. of the Booke of Assizes wee may see partition before this
time made in the Chancery and execution thereof by Scire fac out of the com pleas in the 20 Ed. 3. Sute in the Chancery by Petition to repeale a patent c. So may wee remember 15. 18 and 2. Edw. 3. for Petitions c. before this time and divers other cases In 20. of Edw. 3. an absolute power was by Statute given to the Chancellor joyntly with the Treasurer to punish divers offences therein mentioned according as Law and Reason required c. but whether this may be said to give them authority of extraordinary and absolute proceeding against theÌ„ I stand in some doubt how be it I do not think that the jurisdiction of the Chancery was thereby inlarged but it seemeth very probable that the Statute of 36. of the same King though it were not the foundation and erection of the Chancery did notwithstanding adde a great measure of jurisdiction unto the same for there it was agreed by Parliament that if any man were grieved contrary to the Articles in that Statute mentioned which were many and generall or others contained in divers Statutes he might come into the Chancery or any for him and thereof make his complaint where he should be relieved by force of the said Articles and Statutes without elsewhere pursuing to have remedy By which Law the Chancellouâ— was not onely made sole Judge in this Court but was inabled also to proceed in judgement there after his owne discretion for otherwise the wordâ— without other Sute were not beneficiall but saving correction I take the Statute of 17 Edw. 2 to be the especiall ground-work of the Chancellor his absolute power where authority is given him upon untrue suggestions to ordaine and award damages according to his discretion by expresse word c. after which time his power from time to time Vires accrevit eundo be enlarged by sundry Parliaments as by one to senâ— forth Proclamations of Rebellions c. against such as would not appeare and by others both to grant Commissions of divers kinds and to doâ— many other things whereof mention shall bee made in the cases set downe hereafter concerning his power absolute the which is intended the speciall but an object of this Treatise Now therefore in the meane time may we confidently cali the Chancery the Kings High Court of Conscience made especially to redresse private causes such as by extremity of Law cannot have agreeable end to equity by reason of circumstances hindering wherein it is to be noted that conscience is so regarded in this Court that the Lawes are not neglected but they must both meet and joyne in a third that is in a moderation of extremity It holdeth plea also of common or civill matters between the Prince and his Subjects so farre forth as the same hath to do with Petitions Traverses Monstrance de Droit and such like out of this Court as from the person of the Prince came all manner of originall Writs whereof some are Commissional or Commissary giving Authority to certaine Judges or Officers to heare and determine causes some are certificatory or Remotaries of Records Pleas or other Acts some doe command to proceed as Writs De Procedendo c. some inhibit or excuse as Prohibitions Protections or Graunties de jours and of Essoynes c. Some are deductory to summon and bring the party impleated into the Court to answer to the Plaintiffe Out of this Court come most commonly Commissions Patents Licenses Inquisitions c. of this Court is said Arâ—iculâ— super narrationes novas that it is Curia ordinaria pro brevibus originalibus emendis concedendis sed non pro placitis Communibus habuendis meant as it seemeth according to the course of the common Law and in the Treatise of Diversities of Courts It is noted that the Court of Chancery is a Court of high nature out of the which doth proceed Writs Originall as is aforesaid and there a man may traverse Offices and in the same Court the Kings Widdowes shall be sworne that they will not marry without the Kings leave before they be endowed and it is there said that the errour upon a Patent or Traverse there cannot be reversed anywhere else then in Parliament c. And in this Court a man shall have remedy for such things for therewith he shall not have remedy at the common Law c. ibid. In this Court of Chancery a man shall not bee prejudiced for his mispleading or for default of forme but according to the truth of the matter for that awards there are to be made according unto conscience and not Ex rigore Juris And further in Fleta are these words Fiant autem brevia inde audicialia in Cancellaria ea recognitionibus contractis habitis inde Rotulis Cancellariae irrotulatis Et ex Recordo Consellario Cloricis sibi assasiatus per hanc constitut concessae quia de hâ—s quae Recordata sunt coram Cancellario Dom. Regis ejus Justitiar qui recordum habent in rotulis eorum irrotulantur non debent fieri processus placiti per summonationem vel Attachiamenta Essonia visus terrae alios Solempnitaâ—is Curiae sicut fieri consuevit in contractibus commencionibus factis extra Curiam c. This Court is also by some called Oâ—ffic Juris Civilis Anglorum because out of this Court issue all manner of Proces which give the party his cause of action in other Courts The Proces in the Chancery is a Subpoena which is to call the party before the Chancellour upon paine of one hundred pounds c. and this is the way used to bring in the partie or else by the Serjeant as shall be said afterwards and how the paine is but in terrorem for thereof shall be no forfeiture but if the party come not in or comming in will not obey the order of the Court hee shall be imprisoned during the pleasure of the Lord Chancellour as will appeare in the severall handling of his absolute power where also will be remembred the Stat of 15. H. 6. that no Subpoena may be granted without Suerty to satisfie the Defend. for his damages and expences â—f the matter cannot be made good which is contained in the Bill c. The order of proceeding in the Chancery is by Injunctions Decrees and Orders the which how farre they binde the party and how hee is punished by imprisonment for resisting them shall be also shewed in the cases of the power absolute hereafter plaeed The Judge in this Court is the Lord Chancellour onely and he is Keeper also of the Great Seale the which is usually carryed with him wheresoever he goeth so he goe not beyond the Seas for then he is to leave it behinde him to such for whose fidelity he will answer As did John Stratford Chancellour and Embassadour in the time of Edw. 3. And so did Stephen Gardiner in the time
within the Shires and Places to them allotted And that no other person shall make these Writs but they by which Ordinance also the nomination and allowance of these Cursitors doth appertain to the Chancellor or Keeper of the Great Seale for the time being as in the said Ordinances is declared together with all other Orders c. concerning the said company whereof is to be observed that although by the late Lord Keeper the writing of the aforesaid VVrits was particularly assigned to such particular Officers yet were there Cursitors before that time of the same name and of the same exercise The Serjeant of the Mace who carrieth the Mace before the Lord Chancellor and is to call any man before him at his commandement There is also mentioned in Record of Edw. 3â—Officium de portandi votulis ubi Curia se divertabat priusquam in loco certo tenebatur vocat Porâ—j concessum Adamo Marlyn c. The which is the same Office of Keeper of the Rolls at this day And this place in the 13th year of Edw. 3. was granted by the chancellor and Master of the Rolls the which Grant remaineth upon Record Other Officers there are for particular Functions in the Chancery granted by Patent from the Prince as of making the VVrit of Diem clausit extremum making of Subpoena's writing the Liecnse of Alienation of Protections and a great number of others of the like nature so are there also the Sealer the Chafe-wax c. Some are constituted by Parliament to be Ordained by the Kings Letters patents as the writer and inroller of confirmations of all such Licenses Dispensations c. as shall be brought into the Chancery under the Archbishop of Canterbury his Seal c. For the Oath to be taken by the Clerks of the Chancery may be seen the Statute of 18. Ed. 3. which is to be taken not by the six Clerks only but by all other Officers in the Chancery of the like quality and their servants also Moreover for the privilege of the Officers in the Chancery there is a record of Rich. the 2. Quod Clerici ibidem nec eorum servientes non câ—gantur respondere coram aliquibus Justiciarijs Judicibus secularibus praeter quam coram Cancellario Regis seu custoae magni sigilli Regis super aliquibus placitis seu demandis quae Dom. Regem non tanguut except placitis de libero tent felon Apellis Bâ—ev Regis Anno secundo R. 2 parte secunda Article 18. The forme of their privilege is set down in the Register of Writs and in the new Natura brevium The Masters of the Chancery have privilege to be exempted from beâ—ng Procurators of the Clergy But leave we the Officers to speak something more largely of the power of the aforesaid Judg which is the Chancellor c. wherin will fall out some further matter concerning the Chancery The absolute power of the Lord Chancellor THe power of the Lord Chancellor is divided into two parts the one Judiciall and the other Ministeriall the Judiciall is likewise of two distinct sorts viz. either absolute or else ordinary whereof intending to proceed to their particular discourse I have chosen the absolute power to be the first as well for that it proceedeth in Dignity being absolute without comptrollment other than in Parliament as also it spreadeth it self most largely being most infinite without any prescribed limitation intending to leave the rest to be hereafter severally handled with better opportunity In this present Treatise I have plainely and faithfully set down the Cases Opinions and Decrees in such sort as they may by the Reports of the Year-Books and by the ancientest sort of Records in the Chancery be best warranted and have thought fitter to set down the makers of the Statutes and the pronouncers of the Law to be heard as it were speaking in their own phrases and proper terms than that I should presumptuously wrest the same into any other curious method only I had regard unto two things the manner of proceeding and the matter of the subject unto the first I referred these Titles following viz. CHAP. 1. Of the Authority Judiciall of the Lord Chancellor and Court of Chancery in generall for praesenti Chap. 2. What matters he may absolutely hold Plea of in his absolute power Chap. 3. Whom he may call to be assistants Chap. 4. How the absolute power increased and of the Statutes concerning the same Chap. 5. Of what force the Decrees Injunctions Executions and Punishments of the Chancery be Chap. 6. Whether the Chancellor may intermixe his power absolute with the ordinary Chap. 7. The forme of pleadings Chap. 8. What costs and damages shall be awarded in the Chancery And under the second I have contrived these Titles CHAP. 1. Of Lands Chap. 2. Of Lands in use or in trust Chap. 3. Of Coppy-holds Chap. 4. Of Chatells reall Chap. 5. Of Chatells personall Chap. 6. Of Chatells intrust Chap. 7. Of Aliens and Strangers Chap. 8. Certaine speciall powers absolute given to the Lord Chancellor by severall Statutes Chap. 9. Certaine speciall powers absolute given to the Lord Chancellor joyntly with others by severall Statutes CHAP. I. Of the Authority Iudiciall of the Lord Chancellor and Court of Chancery in generall 1 THe Chancellor hath two manner of powers viz. Potentiam ordinatam and Potentiam absolutaÌ„ Ordinata potentia is where a certain order is observed and so it is used in positive Law But Potentia absoluta is lex naturae quae non habet certam ordinem but useth all meanes to know the verity Et ideo dicitur processus absolutus also in lege naturae requiritur that the parties be praesentes or that they be absentes per contumaciam which is when they are warned and make default and in both these there must be Excommunicatio veritatis per cancellar. 9. E. 4. 14. Subpoena 11. b. Conscientiae 26. b. jurisdict. 10. 2. The Chancery is no Court of Record in respect that it is a Court of Conscience and holdeth Plea upon Subpoena but as it tryeth matter upon Scir. fac and Debt and such like it is a Court of Record Per Prisc. Cap. Justic. in Com. Banco 37. H. 6. 14. 3. If a Statute do ordain processe at the Common Law the Chancery doth not follow the Form prescribed by the Statute but if a Statute doth give a title of right to any man then the Chancery doth obey the Statute per cancellar. 8. E. 4. 5. This is to be understood of generall Statutes in which the Court of Chancery is not expresly named 4. The Chancery may hold plea upon Scir. fac and other such Writs as appertain to that Court as well out of the Term as in the Term per Fitz Harbert in Natura Brevium b. jurisdict. 116. 5. When the Term is adjourned by reason of sicknesse or of any other cause yet the
Fleet-lane it is thus written Tot erant formulae Brev. quot sunt genera actionum quia non poterit quid sine bre agere praecipue de libero tento suo quia non tenetur quis respondere sine brevi nisi gratis voluerit cum hoc secerit quis ex hoc ei non injurabitur volenti enim scienti non fit injuria 13. By this it is to be collected that the right and possession of land may be decreed in the Chancery in a sute commenced by the parties consent as appeareth also by a President following 14. Agnis Lumbard being expulsed without proces out of Tenements in Beverley by Thomas Lumbard they submitted themselves to the Decree Order and Award of Michael De la Polle Earle of Suffolk Lord Chancellor who by writing under his Seal decreed that she should have the Tenements rents and arrerages thereof during her life and an Injunction Subpoena was awarded to the tenants to pay the rents and arrerages accordingly and to certain tenants unto whom Tho. Lumbard had leased against the will of Agnis that they should not meddle any more therewith or else they to shew cause to the contrary in decimaquinta pascha also it was then decreed by the advice of Robert Belknap chief Iustice of the Common-pleas and of John de Waltham Master of the Rolls and others that she should be put it full and peaceable seiz in thereof whereof a Writ Patent by warrant of the Counsell was directed to the Bailiffes Aldermen and Burgesses of Beverly to put her in seizin and possession and to defend her therein claus. Anno 9. R. 2. pro Agnet Lumbard CHAP VI Whether the Chancellor may intermixe his power absolute with the ordinary 1 IF an attachment of Privilege be sued against an Attorney in the Chancery this attachment is in the nature of an action at the common law and the Chancellor said that in that sute he had two powers one as a Iudg temporall another as a Iudge of Conscience for if it appear unto him upon the matter shewed in the sute that there is conscience he may judge thereof according to Conscience but all the Iudges said that he might not ludge aecording to Conscience because it is to be ruled according to common law and if there be Conscience in the matter then the party grieved may exhibite a bill thereof and in that the Chancellor may judg according to conscience 8. E. 4. 66. consc. 15. jurisd. 112. 2. One was bound unto I S. and I D. in a star staple and I S. released afterwards I S. not knowing thereof sued execution the Debtor sued an Audita querela and upon the scir. fac I S. and I D being demanded in the Chancery I D. made default and that was ruled to be a default in them both Yet this being the Court of Conscience we as well judge according to conscience as to law and it were against conscience that he which had no knowledge of the release should pay damages But Chock Iustice said that in this case they are and must be Iudges only according to Law and the Master of the Rolls said he would be advised 11. E. 4. 9. b. dammages 3. One traversed an office in the Chancery and being at issue was sent into the Kings Bench to be tryed the party came and shewed that the King had granted the Land before so he should have had a scir. â—ac against the Grantee wherefore he pursued not his Traverse and it was demanded of the Justices if he might have a scirâ— fac out of he Chancery upon the first Traverse and they all answered that he might because that in pleading a default of form should not in any case be prejudiciall in the Chancery for it cannot be called a Court of conscience if the act of a Clerke in pleading should cause the party to lose his sute and his expences 4. In Camera Scaccarij 14. E. 4. 76. traverse d' Office 39. 6. jurisdict. 76. Upon Petition made to the King and by him delivered over to the Chancellor to do right appeared that the Kings Tenant being Tenant in Taile had granted with warranty Lands and an advowson to a College and that the King had Presented by colour of the Wardship of the Heir contrary to the grant and the Incumbent pleaded for the King That the Heir had no Lands discended from his Father and that the Wardship was no Barre but because it appeared by divers Offices returnd into the Court that Lands to the value of 1000. markes were discended to the Heir Therefore the Court awarded in Conscience That the College should be restored to the Presentation without tryall by Jury that the same assetz did discend 43. ass p. 21. Agr. 75. Hereby it appeareth That although the Chancellor may not mix his absolute power with the ordinary concerning the right of the cause yet he may somewhat use the same in matters of expedition of proceedings CHAP. VII The form of the Pleadings ONe sold certain Wool to I S. and I D. for 3. l. and I S. had all the profit thereof and they were bound in severall Obligations Afterwards the Creditor sued I D. the surety upon one of the Obligations being 300l who sued a Subpoena and shewed in his Bill that the Creditor was satisfied of a great part and had given long day for the rest and exception was taken to the bill by Catesby Aâ—prentice because that the Complalntiffe alleged that a great part of the whole summe was paid and shewed not how much was paid and it may be that the money paid was for other obligations and not for this also he hath not shewen what day was given to I S. The Chancellor said that it did not lye in the notice of I. D what summe was paid or what day was appointed and therefore he cannot declare it but it must appear upon the examination of the Defendants confidence but he shall shew certainly such matter as lyeth in his knowledge Also in this Court it is not requisite that the Bill be all certaine according to the solempnity of the Common law for it is but a Petition 9. E. 4. 41. Subp. 12. et b. Conse. 3. 2. Note that the Chancellor said that a man shall not be prejudiced by mispleading or for default of form but according to the verity of his matter and the Chancellor must judge secundum conscientiam non secundum allegat For if the Complaintiffe suppose by his Bill that the Defendant hath done him wrong a d the Defendant answereth nothing yet if the Chancellor have knowledge that the Defendant did no wrong to the Complaintiffe the Complaintiffe shall not recover any thing 9. E. 4. 14 Snbp. 1â— jurisd. 51. Consc. 26. 3. Mispleading nor default of form shall not be prejudiciall to the Chancery omnes Justice in Camera Scacc. 14. E. 4.
7. b. traverse d' Office 39. b. jurisd. 76. 4. A Subpoena was sued against T. Tate and before answer Tate exhibited a Bill against the Complaintiff to have an estate in the same land and because his Bill came in last he was forced to put in his answer to the first Bill and so they were at issue And afterwards it was shewed to the Court that Tates Bil did vary from his own answer in two points which were the ground of the matter And it was holden by the Chancellor by the advice of the Kings Serjeants that the answer should stand and it was notwithstanding the Bill and it was objected that if the matter were fond for Tate then he should recover upon his Bill but now he cannot doe so because his answer is directly contrary Whereunto the Kings Serjeants answered That Tate might be suffered to amend his Bill according to his answer because he was sworne upon his answer but not upon his Bill quod nota 14. E. 4. subp. 15. 5. A Bill was abâ—â—red for insufficiency of matter and the Complaintiffe shewed new matter and the Defendant was awarded to answer to it per Cur. cancellar. 16. E 4. 6. If a sub poena be sued against 4. Executors and one of them doth onely appear he shall not be forced to answer without his Companions but Markeham Capit. Iustic. Angl. But Rogers Apprentice said that he might answer alone if he would without his Companions but shall not be compelled thereunto 8. E. 4. 5. Brooke Conâ—c 15. CHAP. VIII What Costs and Damages shall be awarded in the Chancery 1 NOte that where a Woman is onely endowed by reason that her first Dower was recovered from her she shall recover no damages for damages are not awarded in the Chancery per Cur. cancellar. in praesen Iust. 43. Asss. p. 32. 43 E. 3. 2. Damages 195. B. sc. sa. 161 W. Fishlack exhibited a Petition to the King against the Prior of Windham that his ship sailing to Lon. was assaulted by Enemies of France that he his Mariners for fear fled to the land by boae by Hapsburgh in Norsolk and the ship being spoiled by them was cast up at Hapsburgh in the Priors land who seised the same as wreck The King delivered the Peâ—it by writ to the Admiral willing him to do justice who proceeding therein upon sute of the Prior made to the King was commanded to certifie his proceedings before the King and his Councel and to warn the parties to appear at a day certain in the Chancery where upon hearing it seemed to the Justices and Kings Serjeants and other Lawyers being there that the ship goods and chattels ought not to be accounted wreck and Judgement was given that William Fishlack should be restored thereunto and to his damages costs and expences which he had sustained by the Priors default in the prosecuting and that he should satisfie the Prior and his servants for their reasonable costs imployed in saving the shâ—p and goods Clauss An. 5 R. 2. R. 6. pro W. Fishlack de Bacton It was enacted Anno 17 R. 2. that where people be compelled to come before the Kings Councel or in the Chancery by writs granted upon untrue suggestions the Chancellor after that such suggestions be found and proved untrue shall have power to ordain and award damages after his discretion to him which shall so unduly be troubled Stat. Anno 17 R. 2. c 6 accusation 8. It was enacted Anno 15 H. 6. that no writ of sub poena shall be granted till Surety be found to satisfie the party grieved for his damages and expences if the matter cannot be made good which is conteined in the bill Stat. Anno 15 H. 6 c 4. accusac 9 5. It was used since these Statutes to enter the Sureties upon the bill in this form Plegii de prosequend T. W. de H. in Com. Midd. Ar. J. K. de B. in Com. Midd. Ar. or else in this form Memorand qd 23 die Januar. An. R. R. H. 6 34. E F. de paroch de S London Fulles T. J. de London Yeâ—man coram ipso Domino Rege in Cancellaria sua personaliter constituit manuceperunt â—ropraed querent quod si ipse materiam in hac supplicatione content verum probare non poterit tunc ipsi omnia damna expenss quae sub poena dâ—ct dâ—f in hac parte sustinebit per considerationem Curtae satisfaciet juxta formam statuti inde editi but this is now neglected Peâ—ic in Canc. de An. H. 6. 6. Note if a Bill be exhibited and the Deft demur upon the insufficiency thereof and by the Court the bill is awarded insufficient in that case the Def. shall have no costs or damages by the statute because the statute giveth the damages â—here the bill is found true or untrue but in this case the truth is not tried 7 E. 4 14. Dam. 44. b. Costs 19. b. Damages 163 per Cancellartam Jnstic utriusque Banci in Camera Scaccar 7. Note that the grantee of Lands or Goods upon trust is not compellable in conscience to sue or â—efend but onely at the costs and charges of the grantor 7 E. 4 29. 8. It seemoth that if one sue execution upon a statute staple where he hath released the duty before and the debtor sueth an Audit quer against him to avoid the Execution and the creditor maketh default he shall pay damages vid. 11 E 4. he fo. 46. a casu secundo In an action of Tresp the Plaint recovered by verdict and the Plaint shewed in the Kings bench that the Chancellor had awarded an Injunction against him whereby the sure had not long delayed and now depending the Injunction he prayed his Judgement in the Kings Bench and it was given but the Court would not afford any damages for the Plaint vexation in the Chancery by the Injunction in Banco Regis 22 E 4. 37. b. Damages 138. b. Iudgement 86. 10. In an Action of Trespas the Defendant was found guilty by verdict and the Plaintiff shewed in the Common place that the Defend had sued a sub poena in the Chancery and had obtained an Injunction that he should not proceed at the common Law till the matter in the Chancery were tried and how by means of the sute in the Chancery the Plaintiff had spent ten Marks and now the Injunction is dissolved the Plaintiff dismissed to the common Law and therefore he prayed the Justice to increase the costs because of this vexation And Brian the ch. Just awarded that the Plaintiff should recover three pounds for his costs besides his damages in com banco 21 E. 4. 78 b. consc. 22. b. costs CHAP. IX Reformation and Reversal of Iudgements and Decrees made in the Chancery 1. NOte that upon a
Decree made in the Chancery by sub Poena the party may have a writ of error in the Parliament to recover the same if it be erroneous in such sort as he may have to reverse Judgements erroneously given in the Kings Bench per Chock Serjeant 37 H. 6. 3. Iurisd. 53. error 95. But note that Brook abridgeth the case that Prisot the chief Justice was of the contrary opinion which is not to be so collected by the book but by implication yet may it seem that no writ of error doth lie but a petition to the Parlament in the nature of a writ of error but Prisot said that Judgements in the Chancery upon scire facias to repeal Parents and pleas or persons priviledged are reversable by Parlament because they are Judgements but the decrees are not 2. Cholmly Serjeant said if a decree be made in the Chancery that the Chancellor hath not power to reverse that decree in the same Court but it must be redressed in the Parlament for Judgement given in the Kings Bench Common-place or Exchequer are not reversable in the same Court but in a higher Court But Knightley Serjeant said that a decree was but an Order taken by the Court for the time the which upon good causes shewed may be redressed in the same Court hut Devistall Serjeant said that if it might be so there would be an incessant confusion of all causes wherefore the Chancellor cannot reverse an absolute Decree but he may reverse a Decree which is made with a quousque for an absolute decree is much like a definitive sentence given in the spiritual Court which cannot be redressed in the same Court but by application into a higher Court and the Kings Secretary interrupted him to speak any further of the authority of the Chancery In Cancell 27 H. 8. 6. In a writ of error to reverse a Judgement of petition in Chancery the Defendant took exception that the Judgement given in the Chancery might not be reve sed in the Chancery being all one Court but in the Parlament Et non allocatur exception per Cur Cancell 42. asss. p. 22. b error 131. It seemeth that this was not properly a reversall of the petition but rather and is like to the case ensuing I the Lord Chancellor grant a patent of land and after make a patent to another of the same land the second patent is revocable in the Chancery by scire facias but not by writ of error for a Court may reform but not reverse their own Judgements 2 R 3. A statute Merchant was acknowledged in the Chancery the money payable Anno 16. and the party sued execution and his writ supposed the same to be payable Anno 14. and by this sute the Feoffee was put out of power and he sued a writ of error in the Kings Bench and it was awarded that he should be received to the sute 18 E. 3. 25. error p. 17. asss. p. 24. And Plowden reciting the case saith that if upon sutes in the Chancery according to the order of the common Law there be error that shall be reformed by a writ of error in the Kings Bench which is a higher Court 13 El. Com. 393. The Second Part of the Absolute Power CHAP. I. Of Lands IF two Copartners bring a Formidon and one of them by Covin between the Tenant and him will not joyn with the other in a true Declaration the other may compell her by such poeâ—a to joyn in the true Declaration for else the Action would abate per Mâ—â—le Iustice Ienâ—ey Serjeant in Co. Ba 6 E. 4. 10. b. consâ— 12. 2. If two men have a wood jointly and one of them felleth the wood and keepeth all the money to himself his fâ—llow hath â—o remedy by the Law for as when they took the wood joyntly they put each other in trust and were contented to occupy together so the Laâ— suffereth them to order the profitâ— thereof according to the trust that each did put in other and yet if one took all the profits he is bound in conscience to restore the half to his fellow for as the Law giveth him right onely to half the land so it giveth him right onely in conscience to the half profits and yet it cannot be said that the law is against conscience for the Law willeth not that one shall take all the profits but leaveth it to their conscience Lib. Doct Stud. cap. 19. 3. In many cases conscience shall be ruled after the Law as the eldest son shall have his fathers land by conscience as he shall in law and so he shall in law and so in Burgh English the youngest son shall enjoy the land both in law and conscience and in Gravel-kinde all the sons and daughters shall inherit together and there can be no other reason gives why it should be so in conscience but because law or custome is so lib. Doct. Stud. 2. c. 15. for divers good causes upon that ground 4. Tho. Parrick and Agnes his wife exhibited a bill conteining that one Beatrice whose heir Agnes is was seized and took to husband Thomas Bradley present in the Court and dyed Bradley continued as Tenant by the curtesie of England untill now of late he claimeth and publisheth that he hath fee-simple and withheld the Charters wherefore they prayed that he might he examined what estate he claimeth and to be recorded and to knowledge what Charters he hath to deliver them to the complainants defendant Dâ—smissum est à curia quietus sine die per consi cur co qd materia in hac supplicatione contenta non est sufficiens ad pâ—nendum ipsâ—m defend ad examinat super â—undem petition Pet. in Canc. 20 H. 6. the defendant hath authority by law to keep the Charters and although in words he claimeth fee-simple yet because it is not alleadged that he did not any act to the dis-inheritance of the complainants therefore it seemeth he was dismissed CHAP. II. Of Lands in use or trust LAnds in Lond. were devised to the devisors son and three others in fee and that one of them should have the profits during his life the devisor dyed the son and heir sued a sub p against the two others to compell them to release unto him because the use of the land ought to be in him after the death of the per â—or and it was thought reasonable per omnes Justic. in camera Scac. 3 H. 6. devise 22. 8 feofment al uses 49. So it is if the same had been done by Feofment 2. Onâ—â—made a Feofment upon confidence and afterwards declared his will to the Feoffee that one of the daughters should have the land after his decease and after that he came to the Feoffee and told him that his said daughter would not be
If any Feoffee upon trust infeoff a stranger and do sâ—ll the lâ—nd to him for money yet if he give knowledge unto the stranger that he himself 〈◊〉 iâ—â—â—ely upon trust I may compell the stronger by suâ—â—oena to perform my VVill 5 E. 4. 76. Feofments aâ— use 32. sub poena 2. 16 If Tenant in Burgh English infeoff one to the use of the Feoffor and his heirs the youngest son shall have a sub poen to recover the land but not the eldest 5 E. 4. 7. 6. Feofments al use 32. sub poena 2. 17 If one seized of land which is descended unto him from his mother do make a Feofment upon trust and then die without issue the heir by the mothers side shall have a sub p. to recover the land not the heir by the fathers side 5 E. 4. 7. b. Feofments al use 32. sub poena 2. 18 If a Tenant in tail the remainder being a stranger do make a Feofment to his use and die without issue having declared his Will the sub poena belongeth to such person as is limited by his VVill and not to him that hath the remainder but if he have declared no VVill then he in the remainder should have had the sub poena quaere E. 5. 47 sub poena 26. Feofm al use 32. But Brook thinketh that he in the remainder shall have no sub poena in neither case because he may have his remedy at the common Law 19 If the Husband and the VVife be seized in the right of the VVife and the Husband make a Feofment although he declare no VVill yet the VVife shall not have the sub poena because as Brook thinketh 20 VVhen a Feofment is made without any consideration and no use expressed the Feofment shall be intended to be to the use of the Feoffor and his heirs and also the VVife may have her cui in vita by the common Law 5 E. 4. 76. Feofments al uses 32. sub poena 21 If a man have issue a Son and a Daughter by one Wife and a Daughter by another Wife and maketh a Feofmeut to his use and dieth if the Son do take the profits and die his Sister by the whole Bloud shall have the land by sub poena and the other suffer nothing because the rule that Possessio fratris de feod simplici fecit sororem esse haeredem doth extend to uses as well as to lands 5 E. 4. 7. sub poena 3. b. Feofment al uses 33. b. discent 36. Com. 4 E. 6. 58. per Mountague capit Justic. de communi banco and if the Father had devised his land to a stranger this would have been no possessio fratris because the freehold of the use was in the stranger but if he had devised it only for years it would have been a good possessio fratris 5. E. 4. 7. sub poena 36. Consc. 12. by descent 22 If I. S. make a Feofment in trust and be afterwards attainted of Felony the lord of whom the land is holden shall not have the sub poena by Escheat 5 E. 4. 7. B. Feofment al use 34. 23 Note that the King cannot be infeoffed to any other mans use although it be so expressed neither doth any sub poena lie against him but the Feofment is good and the limitation of the use void per Markham Brian capit Iustic. 5 E. 4. 7. 7 E. 4. 17. Office 2. 24 One being infeoffed to the use of a Woman she took a Husband and the Husband sold the land to a stranger and the Woman received the money and the Feoffee at their request infeoffed the stranger the Husband died and the Wife brought a sub poena against the Feoffee who shewed the matter and the Wife demurred Starkie Apprentice if the Husband make a Feofment of the Wives land she shall avoid it by a cui in viâ—a and so if the Husband do sell the VVives use in the land this Sale shall in conscience be said the Sale of her Husband alone and not of them both and therefore the sub poena doth lie which saying was affirmed of all the Justices of both the Benches and the Chancellor said that all which a VVoman Covert doth shall be esteemed to be done for fear of her Husband and the receipt of the money by her is not material because she cannot have the free disposition thereof and the Complaintiff prayed that the Defendant might be committed unto Prison untill he made satisfaction and the Chancellor said that the Complaintiff might have a sub poena against the stranger which bought the land but Yelverton said that she might have a sub poena if the stranger had knowledge of the wrong and deceit done to her but otherwise not The Chancellor answered that the stranger knew well that she was a VVoman Covert in cam Scacc. 7 E 4. 14. Sub poena 3. B. consc. 13. b. Feofm al use 4. 25 Note that a Feoffee of trust is bound by conscience to plead all Pleas and to maintain such actions for the land as the Feoffor will have him but it shall be at the Feoffees charge per omnes Justic. but it is doubtfull whether the Feoffees be compellable to plead dilatory Pleas 7 E. 4. 29. sub poena 9. br Feofments al uses 38. 6. consc. 27. 26 Note that Coke Justice said that he sued once a sub poena against the heirs of a Feoffee upon trust and the matter was long debated and the opinion of the Chancellor and of the Justices was that the sub poena did not lie against the Heiâ— whereby he was put to exhibit his Bill in the Parlament 8 E. 4. 6. sub poena 8. B. consc. 16. Note that it must be intended that the Heir had not the land but that the land was sold before by the Feoffee to a stranger for if the Heir had the Land he is liable to the trust as well as the Feoffee 27 If I do lend money to I. S. and he infeoffeth me of his Lands and it is agreed that I shall take the profits thereof untill he have payed me if I. S. do pay the money or tender it unto me and I refuse to re-infeoff him he may compell me by the sub poena per Pigoâ— Ser jeant 9 E. 4. 25. Bar. 100. 28 It was holden in the Chancery that if any Feoffee upon trust do infeoff any other which knoweth of the trust I may have a sub poena against them both but if a stranger knowing the trust had done a Treâ—passe upon any Feoffee I might compell my Feoffee by sub poena to sue him and to recover Damages I shall have no sub poena against the Trespassor but onely against my Feoffer because he might lawfully procure his own discharge but the Reporter thinketh that the Trespassor
is punishable by sub poena as well as the Feoffee 11 E. 4. 8. sub poena 13. consc. 17. 28 A sub poena was sued against two sons and heirs of gavel land to compell them to make an Estate of the land of which the Complaintiff had infecffed their father and others to his use of whom their father was the Survivor the Defendant said that the common voice of the Country is that the Feofment was to the use of the Complaintiff and of his VVife and of the Heirs of their two Bodies begotten who have Issue therefore they prayed a VVrit to warn the Issue and upon the VVrit the issued appeared and shewed that he was under age and prayed that the matter might stay untill he came to age and the Chancellour by the advice of Laicon and Littleton Iustices awarded that the matter should not stay because he was not seized of the Land by a Discent wherefore the Issue by his next Cousin declared his Title 14 E. 4. Age 20. 30 Note that a sub poena doth lie against the Heir of the surviving Feoffees 14 E. 4. Sub. 14. 31 A sub poena was brought against three Feoffees upon trust to compell them to execute an Estate to the Complaintiff one of them said that the Complaintiff made a Feofment to the other two in his absence to the behoof of all three and he died never agreed to the Feofment and the Land is holden of him so that he cannot execute an Estate but that he shall extinguish his own Seigniority and therefore he disclaimed in the Land and it was allowed to be a good answer per curiam Cancellarii 16 E. 44. sub poena 18. 32 If I and another do submit our selves to an award and it is awarded that I shall cause my Feoffees in trust to release to the other being in possession I may compell my Feoffees by sub poena to fulfill the award per omner Iustic. in communi banco 17 E. 4. 4. 33 A VVoman made a Feofment upon confidence and afterwards took a Husband and in her Death-bed she made Testament that her Feoffees should make an Estate to her Husband and to his Heirs the VVoman died and the Husband sued a sub poena to compell the Feoffees to perform her Testament and it was ruled that the Testament was void and that the Feoffees were not compellable to perform the same for Law and Conscience do allow nothing to be good which is done by VVoman Covert concerning her Inheritance except it be by Fine leavied where she is openly examined in the Court for this Testament would be a Disinheritance inheritance to her Heir but she may make her Testamet of Goods and make Executions by consent of her Husband per Cancell omnes Justic. uno tantum excepto And Vavasor shewed to the Court that Anno 7 E. 4. a VVoman Covert having Feoffees upon trust she and her Husâ—and sold the Land and she received the money and afterwards the Husband died and she sued a sub poena and it was adjudged to be a good sute 18 E. 4. 118. consc. 28. b. Testament 13. 34 The custome of Kent is that an Infant of fifteen years may sell his Land and the case was that an Infant made Feoffees upon trust and afterwards being above fifteen years old he willed the Feoffeâ—s to make an Estate thereof to him and his VVife in tail and the question was whether they were compellable by sub poena to do it or no and it was holden that the Feoffees were not compellable because the Infant cannot will his Land by the custome for the custome is onely of Sale and is always to be construed strictly according to the very words also at the Common Law such a VVill made by the Infant of Lands is void and so it is in conscience per Littleton Jenney omnes socios Justic. 21 E. 4. b. Testament 17. 35 Note in Burgh English land where the youngest shall inherit if the Father make a Feofment upon trust the youngest son shall have the use and the sub poena and so it is of Gavel-kinde land where all the Brothers do inherit per Dig. App. 21 E. 4. 24. b. Testament 17. 36 Hussey chief Justice of England said that when he came first to the Court which was about thirty years past it was holden by all the Court that if one infeoffed another of trust which died seized so that his Heir were in by Discent no sub poena should lie against the Heir for the same reason a sub poena might be against the Heir after two Discents which were inconvenient but the Chancellor said that there are Presidents in the Chancery that a sub poena doth lie against the Heir in Cam. Scacc. 22 E. 4. 6. b. consc. 23. 37 If a ftoffee upon confidence make a feofment to one that hath knowledge of the confidence the feoffer shall be restored again in the Chancery otherwise it is if the purchasor had no knowledge of the confidence per Cancel 7 H. 7. 12. sub poena 18. 38 The Feoffees upon trust of an Infant may grant all ordinary Offices for term of life as Steward Bailiff and Receiver and they shall have allowance thereof in their Accounts when they are called to account in the Chancery but they cannot grant any fees for term of life without the assent of the Heir when he is of full age per Hussey Brian cap. Just Ang. But Keble Serjeant said that if the Feoffor were able and willing to be Bailiff or Receiver himself or if that there were need of any Steward Bailiff or Receiver then he might repeal the Grants by sub poena also it was agreed that the feoffees might defend the Land in all sutes with the profits thereof and should have allowance thereof in Counsel 8 H. 7. b. Ftofments al uses 12. 39 Note it was adjudged that a VVoman Covert Executrix might make sale of her lands to her Husband and that it is a good Bargain and the feoffees upon trust are bound to make a feofment accordingly and in this case because three feoffees did the contrary they were committed to the Fleet 10 H. 7. 20. This is to be understood where the Land was devised to the Woman being Executrix to the intent to be sold for the performance of the VVill of the Testator 40 Certain feoffees were seized to the case of Sir Richard Rooe for life and afterwards to the use of others and the feoffees made a feofment in fee to Sir Richard Rooe the question was whether Sir Richard Rooe had forfeited his Estate or no and Hussey and Brian chief Justices agreed that it was no forfeiture by the common Law for no mans Reversion is discontinued continued thereby otherwise it is if Tenant for life of land had made a feofment to a
stranger for that were a forfeiture and the Chancellour said that in the first case it was no forfeiture in conscience but he would reform so much as was amisse done and no more and so it had oftentimes been ordered before the Chancellour 10 H. 7. 2. 41 A feoffee upon trust was seized by a sub poena by the Feoffor and the feoffee was injoyned that he should make an Estate to the feoffor before a day certain sub poena 100. lib. in Cauâ— 10 H. 7. 4. 42 The Heir of Co. qu. use shall have after the death of his father the issues and profits of the Lands as if his father had died seized thereof and he may compell the Feoffees upon trust by sub poena to infeoff him and shall have all advantages as if his father had died seised in Camera Scacc. per Wood Serjeant 13 H. 7. 7. 43 If the Feoffees upon trust will not infeoff the Feoffor he may compell them by sub poena in communi banco per Brian cap. Justic. de communi banco Danvers Justic. 14 H. 7. 19. 44 One having feoffees in trust devised by his Testament that his Feoffees should sell the Land the Feoffor died the Feoffees infeoffed others to the first use the second Feoffees may not perform the Will but the first Feoffees may and the second Feoffees may do it because there is a kinde of use in I. S. seeing he is specially named and he may compell them to sell unto him and if the Will were that the Feoffees should sell his Lands to pay his Debts the Creditors may compell the feoffees to selâ— it but if he had willed that the feoffees should sell the Land for money to be distributed there no man can compell them to make the Sale per Fineux cap. Justic. Read Tremaine Iust. If the Will were that his Executors should sell it though his Executors refuse to administer yet the ordinary Administrator may not sell it but the Executors themselves may notwithstanding the refusall cause the uses not testamentory per Finenx cap. Iusiic Angl. Read Termail Iustic. And if he will that his Land shall be sold and shew not by whom his Executors shall sell it and not the feoffees for the Executors have the greatest confidence put in them for they have the disposition of the money for which it is sold per Fineux cap. Iust. Angl. Read Tremaine Frowick Serjeant And if the Will be that the Land shall be sold the Heir shall take the profits untill it be sold per eosdem in Banco Regis 15 H. 7. 1â— b. Feofm al use 12. 45 If one having feoffees upon trust do make his Testment that they shall have an Estate to I. S. and dieth if the feoffees infeoff others to the first use the second feoffees may make the Estate by Kingsmell Serjeant 14 H. 7. 33. 23. Feofments al use 12. 46 In a Formedon against two feoffees upon trust if the feoffees refuse such Pleas as the feoffor doth minister to them or if they or one of them do refuse to vouch where the feoffor sheweth to them good cause of voucher the feoffor hath no remedy against the feoffees to compell them buy by sub poena or else by Action upon the case per toâ—am Curiam And Bradnell chief Justice of the Common-place said that if a feoffee upon trust die without Heir or die his Heir being within age or is attainted of felony so that the Land cometh to the Lord the Lord shall have it to his own use and the feoffor hath no remedy in communi Banco 14 H 8. 24. 47 The feoffees upon trust may grant the Offices of Steward and Receiver per Newdibank Serjeant if the feoffor die without Issue within age the Lord shall hold the land to his own use and if the feoffees acknowledge a Stat. Merchant and the Conusee do extend the Land he shall hold it to his own use because the said persons do come unto the Land by the operation of Law and not by their own Act nor by the Act of the Feoffees but if the feoffees infeof a stranger which hath notice of the first use there the second feoffee shall be seised to the first use though he paid a consideration Quia participes criminis consentientes agentes paci plena plectentur dolus fraus nemini patrocinetur and if the second feofment be to one that hath notice and he pay consideration then he shall be seised to the first use but if he pay no consideration nor have no notice yet it shall be to the first use per Justic. Servients If the feoffees grant a Rent for Life out of the Land without any consideration If it be to one that hath notice of the first use this Rent shall be to the use of the feoffor of the Land per Pollard Brook Fitzherbert Iust. in communi Banco 14 H. 8. 4. 48 A use shall ensue the nature of the Land for if it be use of the Burgh English Land the youngest shall have it and if of Gavel-kinde then all the Children por Pilman Serjeant 14 H. 8. 6. in banco 27 H. 8. per Pollard apprentic 49 If the feoffee upon trust die his Heir shall be subject to the trust per Bradwell cap. Just Fitzherbert Brook Justic. in communi banco â—4 H. 8. 7. 50 Note by Brook Justice that uses are created by the common Law and are relieved by conscience and all medling with the Land by the Feoffees ought to be at the desire of the Feoffor and if the Feoffee do otherwise he is chargeable in conscience 14 H. 8. 8. in communi Banco 51 If one have Feoffees in trust of Seigniory if the Tenancy do escheat unto them they shall be feised to the use of the Feoffor and so it is of Land recovered in value per 〈◊〉 Iust in communi Banco 14 H. 8 9 52 One having feoffees upon trust wills that his Executors should sell his Lard 〈◊〉 died if that Executor make another Executor in that case the Executor of the Executor cannot sell the Land because the first Executor had that power as in authority severall from his Executor ship and though the first Executor had refused the Aministration yet he might have sold the Land per curiam in cancellaâ—â—a Scacc. And if he had willed that the chief Justice should sell his Land although that the chief Justice had resigned his Office and another been placed yea the first should sell his Land per Bradwell Justic. communis Banci and if the will were that John S. should sell his Land if I. S. die his Heir cannot sell it because the trust is determined per Shelley Ingelfield Justic. Willoughby Spilman Serjeants 19 Hen. 8. 9. 53 Note by a Statute in Ann. 1 R. 3. the Will of the
made I. S. his Procurator of his Benefice and promised him by Oath that he would save him harmlesse for the Occupation the Clerk resigned unknown to be the Procurator and he was sued for the Occupation and therefore sued a sub poena Jenney Apprentice said that he ought to sue in the Court Christian for the breach of his faith as if one be affianced to a Woman and then forsake her he is to be sued there and not here the Chancellor said that it was true that he ought to sue there for breach of Oath Si petit ipsum canonice inimicitia but he shall have remedy here for the Damages he sustained by the not performance of the promise Jenney said also that it was his folly to trust his word and therefore he had no remedy Quia Deus est Procurator fatuorum S E. 4. b. consc. 14. sub poena 7. A sub poena was sued against three Executors and one of them appeared and the Complaintiff prayed that he might be compelled to answer Fairfax said that he ought not to answer untill his fellows appeared also for in the Action of the common Law one Executor shall not be forced to answer without his Companions by the statute of 9 E. 3. cap. 3. Also it may be that the others can shew matter to abate the Bill of which this Executor hath no knowledge the Chancellor said that the three Executors are instead but of one person viz. the Testator and therefore one of them being but a Member shall not be forced to answer untill they have all appeared Also if he should answer it might be that through his ignorance the other should be concluded which were not conscience also that statutes that ordain Proces do not extend to this Court but if it give a little right this Court must obey it 8 E. 4. 5. because 15. Responder 6. A sub poena was sued because the Defendant had recovered upon an Obligation by sute one Court whereas in truth the Obligation was made in another Court by means whereof the Complaintiff could not be suffered to plead divers Pleas which he might have pleaded if the sute had been pleaded in the right Court and the Counsellor said that the sub poena did well lie because the Defendant did against conscience for he would not have the truth known and therefore be sued in a forreign County and the truth cannot be so well known and tried in any place as it may be in the County where it was done 9 E. 4. 2. sub poena 10. b. consc. 6 Worsley and Middleton bought certain Wools price three pounds of Sir Henry Wich and were bound by severall Obligations whereof one was of three hundred pounds and Miadleton had all the profit of the Woolls Sir Henry died and made his Executrix against whom Worlsey sued a sub poena shewing in his Bill that whereas she had received a part of the money of Middleton and had given him longer day yet notwithstanding she had put in sute against Woolsey Catesby for the Defendant said that though â—he had respited the sute against Middleton yet Worsley is not to have advantage by it for by Law and Conscience she might have sued which of them she would and if she had granted to Middleton that she would never sue him yet that is no Discharge to Worsley the Chancellor said that at first she might have chosen to sue the one or the other but seeing that she had made a covenant in the law of nature between her and Middleton to respit the sute against him that shall give advantage to Worsley for she hath chosen to be paid by Middleton and if he had either paid her or else that it were agreed between them that she should take it up of a stranger which is indebted to Middleton Worsley should have advantage of that 9 E. 4. 41. sub poena 12. b. consc. 7 A Debtor made a Gift of all his Goods to another to the intent to defraud his Creditors and keep still the Goods in his own possession and took Sanctuary at Westminster and died the Goods coming to the hands of his Wife who took another Husband against whom being possessed of the Goods the Creditors sued a sub poena and the Husband was compelled to answer to it per curiam cancell 16 E. 4 9 consc. 19. it seemeth the Gift waâ— void in Law One was Surety for another and the Debtor with two others were bound by Obligation to the Surety to save him harm lesse afterwards the Surety paid the money and sued his Obligation against the principall and the two others which sute depending the principall sued a sub poena against the Surety to have certain Goods out of his hands which he had delivered unto the Surety for his security before the making of the Obligation and so prayed that he might not be double charged wherefore he prayed re-delivery of his Goods the Defendant answered that his Goods were delivered for another cause and shewed the cause and thereupon they were at issue and the Complaîntiff prayed an Injunction that the Defendant should not proceed in sute upon the Obligation but the Court denied it because the Defendant had intituled himself by severall means as well to the Goods as to the Obligation and therefore it were against reason to delay his sute qd nota 16 E. 4. 9. b. consc. 20. One was Surety in a statute Merchant payed the money without having a Release and notwithstanding that the Conusee sued Execution the Question was whether the Chancellor might grant a sub poena against the Conusee Fairfax Justice and Hussey chief Justice of England said that he might not for it were not reason by the Testimony of two Witnesses to defeat a matter of Record and so it is of an Obligation for the Debtor may refuse to pay the Debt without any Acquittance it is his folly to pay the Debt twice then to avoid Accord or Specialty by two Witnesses and the Chancellor said that it was the common course of the Chancery to grant sub poena upon an Obligation so satisfied and that thereof there are divers Presidents in the Chancery but he agreed that no sub poena doth lie upon statute because it is matter of Record in Cam. Scacc. 22 E. 4. 6. b. consc. 23. 10 A Bill exhibited conteining that whereas the Defendant had recovered Debt and Damage against the Plaintiff and was paid without any Release or Acquittance yet the Defendant had sued Execution notwithstanding and because the Complaintiff had no remedy by the common Law he prayed a sub poena but the Chancellor would not grant it without advice of the Justices for by that means every Record might come to be examined before him and so the common place should be destroyed 22 E. 4. sub poena 16.
11 One Executor released unto a Debtor without the consent of his Companion by means where of the Will could not be performed and the other Executor sued a sub poena against the Executor which released and against the Debtor Fineux Serjeant said that it was not remediable for every Executor hath an absolute power by himself the Chancellor said Nullus recedat à cancellor sine remedio and it is against reason that one Executor should have all and release alone Fineux Si nullus recedat sine remedio nullus indiget esse confessus but the common Law is ordained for many matters and some such as are remediable by the common Law are to be relieved in the Chancery and divers are remediable by neither and such are in conscience between a man and his Confessor of which sort this is one the Chancellor said that every Law is or ought to be according to Gods Laws and Gods Law is that one Executor being of evil disposition should not spend all the Goods and if such an Executor being able do not make restitution or being unable be not willing to make restitution he shall be damned in Hell and the Testament is Constituo tales esse executores meos ut ipsi disponant So that their power in conscience is joint and not severall and also it is pro salute animae meae wherefore they must not mispend if they do they do contrary then it is without Warrant and to be remedied in conscience and the Chancellor that he would have the matter argued 4 H. 7. 4. sub poena 17. b. consc. If the Debtor payeth Debt wherein he was bound by Obligation and receive Acquittance this is no Bar at the common Law and yet to be relieved in conscience per canc 7 H. 7. 11. If one be indebted to me without Writing and he dye I have no remedy against the Executors by the common Law but in the Chancery by Conscience per canc 7 H. 7. 12. Thomas Baby exhibited a Bill that whereas he delivered certain Goods of trust to the Defendant and thereon borrowed twenty sh. to be paid at a day certain at which day he paid the same and the Defendant then promised to deliver the Goods on the next morrow yet the Defendant before the morning sold the Goods to a stranger to the end that if the Complaintiff should sue an Action of Detinue he must wage his Law and it was decreed in curiam cancell that the Complaintiff shoul recover his Goods and fourteen sh. for six Spoons parcell thereof Pet. in Canc. 20 H. 6. If one be bound in a single Obligation pay the Money and take no Acquittance or if he take one and happen to lose it he shall be compelled by the Law to pay it again but yet he may be holpen by sub poena Lib. Doct Stud. cap. 12. Note that the statute of 27 E. 3. cap. 13. and Anno 31 H. 6. cap. 4. do give authority to the Chancellor to hear and determine Robberies and Spoilings upon the Sea or in the Ports as well in the Cases of Subjects as Strangers v. hic fo. 58. casu pro 3. CHAP. VI Of Chattels in trust IF I be bound unto I. S. to the use of I. D. there I. D. may sue a sub poena against I. S. and compell him to sue an Action of Debt against me upon the Obligation per Moil Danvers Junsticiarii in communi Banco 26. consc. 6. 2 I. S. delivered two hundred Marks to the Chamberlain of London to be kept and appointed the same to be delivered to his Executors or Administrators after his Decease to be imployed for his Soul the Chamberlain delivered the Money to I. D. to keep and I. D. entred into Bond unto the Chamberlain to the use of I. S. that he would re-deliver it to the Chamberlain when he should be required I. D. died and the Administrators sued a sub poena against the Chamberlain to compell him to sue I. D. upon the Obligation because I. D. had refused to deliver the money for the Chamberlain 4 E. 4. 34. b. consc. 10. b. prohibicon 11. b. Oblig 40. 3 Note that if I give Goods to another to my use and they be taken from him he is bound in conscience to sue an Action of Trespasse against him at my charge and to my use but not to sue an Appeal of Robbery because the Appellant must swear that his Appeal is true and I cannot compell him to take that Oath per Chock Just â—ittleton Serj. and Brook thinketh the reason to be because the Defendant in the Appeal may challenge the Combate and bring the others life in adventure 7 E. 4. 29. sub poena 6. b. Feofments al use 38. b. consc. 27. 4 One was bound in a statute staple unto I. S. and I. D. to the use of I. S. and afterwards I. D. released to the Debtor whereupon I. S. sued a suh poena against I. D. and the Debtor and rehearsed his Bill that the Debtor had knowledge that the Obligation was to the Complaintiffs onely use that the Release was made by Covin between them to defraud him of his Debt and it was ordered in the Chancery that the sub poena should stand good against I. D. because of his Deceit but the Debtor was discharged of the sute because it is lawfull for every man to help himself and to procure the Discharge of his Debt especially seeing that I. D. might have molested him for the same also it might be that the Debtor had paid I. D. and it were no reason that he should pay it again to I. S. and it was alleadged for the Complaintiff that if I deliver Goods to another to keep to my use if he sell them to one that knoweth the use of the Goods to belong unto me I may have a sub poeâ—a against the Seller and Buyer both and so in this case whereunto the Court answered that it was so in that case because the Buyer did purchase Goods which in conscience are mine but in this case by the Release the Debtor purchaâ—eth nothing but onely dischargeth himself but the Reporter thought that the difference made between a Purchase and a Discharge was not good for the Debtor is not cleared in conscience and before God unlesse he to whom the Debt in conscience appertaineth do discharge him or if he exclude him of his Debt by policy it is not good conscience but if the Creditor had paid the money unto I. D. it would have discharged him against I. S. 11 E. 4. sub poena 13. 6. b. consc. 17. 5 If one be bound to another to any use and the Obligee knowing the use do release to the Obligor I may have a sub poena against the Obligee per cancellariam 7 H.
The punishment of Scandala magnatum to be inflicted upon them that misreport of him by the Statutes of W. 1. cap. 33. and of Anno 2 R. 2. ca. 5. He may weare in his apparel Velvet Satten and other Silks of any colour except purpuâ—â— and any manner of Furs except black Genets of what estate or degree soever he be by the stat of 24. of H. the 8. He must follow the Court and at all times be neer the King by the Statute called Articuli super Chartas Anno 28. E. pr. cap. 5. He may have three Chaplaines qualified whereof everâ— one may purchase dispensation to have two Benefices by the Statute de 21. H. 8. cap. 13. To sâ—ay him it is Treason declared by the Statute of 20 of Edw. the 3d. cap. 11. If he be a Baron or above hâ— shall sit in the Parlament on the left side of the Chamber on the higher part of the form on the same side above all Dukes except such as are soone Uncle Brother Nephew or Brothers or Sisters Sonne to the King and also above all Officers except the Vice-gerent And if he be no Baron he shall sit at the uppermost part of the Sacks in the midst of the Chamber and in such degree he shall siâ— in the Star-Chamber and in all other Assemblies and Conferences of Counsell by the Statute Anno 31 H. 3. cap. 10. He is a Conservor and Iustice of the peace throughout England by prescription He is the only Visitor of all Hospitalls and Free-Chappels which be of the foundation of the King or his Progenitors by prescription He is Prolocutor in the higher house of Parlament by prescription c. V. Places of his Judiciall Session viz. CHANCERY where he is the only Judge assisted by the Master of the Roâ—s and the Masters of the Chancery and heareth and determineth causes of Law and Conscience as Chancellor COUNSELL chamber where he is associated with others of the Privy Counsell and heareth and determineth causes of Estate as a Privy Counsellor STARRE Chamber where he is associated with the Lord Treasurer President of the Counsell and Privie Seale and associated with one Bishop one Temporall Lord of the counsell and two Justices and heareth and determineth perjuries causes penall and of Common peace by the Statutes of Anno 3 H. 7. cap. 1. and 21 H. 8. cap. 20. as a speciall Judge EXCHEQUER chamber where he is associated with the Treasurer and associated by the Justices and other Sage persons and examineth and reverseth or affirmeth judgments given in that Court by the Statute of 31 E. 3. cap. 12. as a special Judge VI HIS Authority and power which is of two sorts viz. As a Judge and that is either ORDINARY as in these Scire fac or execution upon a Statute Merchant taking acknowledgement of Recognizances Scire fac or execution upon a Recognizance knowledged in the Chancery Scire fac to repeale Patents which are void or faulty Monstrance de droit Petition de droit Traverse of Offices and Inquisitions Pleas and Enterpleas upon assignment of Dower Pleas and Enterpleas upon livery and ouster le maine Pleas and Enterpleas upon partition Attachments upon contempts in not executing of Writs and Proces by Officers or upon signification of untrue or insufficient causes thereof writs de Corodioâ— or Pencor habendo unto Abbots Priors and Bishops Andita querela sued upon sutes in the Chancery Prohibition to stay proceedings in the Court Christian or Admiralty and consulation to be granted thereupon Originalls or Bils by persons priviledged in the Chancery Originals or Bils against persons privileged there Writs of Privilege sued by persons privileged to remove sutes in other Courts into the Chancery AND DIVERS other of like soâ—t ABSOLUTE and by this power he ordereth and decreeth matters of Conscience and the pleadings are in English whereas in his ordinary power he holdeth plea of matters according to the form of Common Law and the pleadings are in Latine AS a MINISTER GRANTING of pardons of Common Grace GRANTING and sealing of Commissions OF patents and preservations c. MAKING of Originall Writs of Processe upon the Statute Staple c. CONSTITUTING of certaine Officers belonging to his Office GIVING of Oathes to Officers And such like FINIS 2 Sam. 8. 16. Pretor The Chancellor of France The Election of the Chancellor Hen Beakford 〈◊〉 The nature originall of the Chancery Parliam Kings Bench Common Pleas Exchequer Court of Wards Star-chamber Dutby Court Court of Requests Admiralls court Constable of England Marshalls court President of Wales the North parts Proces Cancella riae The Judge The Assistants The Master of the Rolls The Officers of the Chancery 9. E. 4. Potentia ordinatam Potentia absoluta Default Excom. veritatis 37. H. 6. Court of Record 8. E. 4. Statute proces Right Filz Natura brevium Term 4. E. 4. Adjournment 5. E 6. Common Law Originall Conscience 6. E. 6. Surmise English Bill Pleadings in French 39. H. 6. No remedy Good pleaders Privilege surmise false Secundum Conscientiam Secundum allegatum Default 9. E. 4. 21. H. 7. Estoppell Default Rot. Parliam br Parliam Remedy without Remedy Conscience Doctor Student without Remedy Conscience Wager of the Law False verdict Proofe Stat. 4. H. 4. Judgment Sta 4 H 4 Justices Chief Baron Temp. H. 6 Decrees Justices Serjeants 27 H. 6 37. H. 6. 7. E. 4. 22. E. 4. Exchequer Chamber Justices 27. H. 8. Chancery Magna Charta Doctor Stud. Stat. 5. E. 3 1â— E. 3. 5. Stat. 42. E. 3. Stat. 37. E. 3. 12. E. 3. Câ—â—â—â—â—n Puâ—sell Stat. 43. E. 3. Rot. Parl. 3. H. 6. Stat. 15. H. 6. 21. E. 3. Petition 39. E. 3. Judgment Reversall Counsell 33. H. 6. Obligation supersed Privilege 37. H. 6. Assise Decree Plea 37. H 6. Judgment Plea Decree Court of Record 37. H. 6. 9. E. 4. Commandement 22. E. 4. Injunction Judgment Forfeiture Subpoena Habeas Corpus 2. R. 3 Judgment Notice Imprisonment 2. R. 3. 9. 10. H. 7. Injunction Subpoena Forfeiture 27. H. 8. Decree Right Person Imprisonment 27. H. 8. Injunction Execution Obligation Brooke Heire Executor Fleta Consent 8. E. 4. Privilege Judge Temporall Conscience And the Debtor was discharged of the execution and prayed his damage against them both and the Master of the Rolls said although by the CommoÌ„ law damages shold be adjudged against them both Audita querela Damages Conscience Common Law 14. E. 4. Traverse of Office Mispleading 9. E. 4. Obligation longer day Incertainty the sum Notice the day certainty Mispleading 14. E. 4. Bill Answer Variance Amend 16 E. 4. Answer 16 E. 4. Answer 8 E. 4. Executors Answer 43 E. 31 Damages Wreck Damages Costs 17 R. 2 Damages Stat. 15. H. 6. Surety Damna Expenss 7 E 4. Bill â—nsuffic Costs Damages Bill untrue 7 E. 4. Grant to use costs 11 E. 4. Audit que Damages 2â—E 4. Injunction Kings Bench Iudgement Damages 21 E. 4. Common place Injunction Dismission 37. H.