precedent before the Judgements and not matter of agreement aâ—â—â—â— 8. We find in the said cases not onely the Bill preferred but motions orders injunctions and decrees thereupon for the discharging and releasing of the Judgements or abiding the possession thereupon obtained and sometimes for the meane profits and the release of the costs c. 9. We find in some of the cases in this very point that Judgement hath been given hath been stood upon by the defendants and alleadged by them by way of demurrer and overruled 10. We find that the Judges themselves in their own Courts when there appeared unto them matter of equity because they by their oath and office could not stay the Judgements except it be for some small time have directed the parties to seeke reliefe in Chancery 11. We find that this hath not onely been in the times of the severall Chancellors but by the Judges themselves and that without difficulty when they sate in Chancery in the vacancy or absence of the Chancellor 12. We find the hands of sundry principall Councellors at Lawâ— whereof divers of them are now Judges â—â—d some in chieâ—e place in Bills of this kind 13. Lastly here were offered to have beene shewed unto us many other presidents whereof we heard some read and found them to be of like nature with those contained in the note Francis Bacon Randell Crew Henry Mountague Hen. Yelverton And whereas also our said Attorney received one other Letter from our said Chancellor with a case there inclosed written likewise by our expresse commandment dated the 27. of March 1616 directing requiring him and the rest of our learned Councell together with the Attorney of our deare sonne the Prince to confer together upon the said cause and to consider advisedly of al the parts thereof and thereupon to peruse all the the Statutes of Praemunire or Provisoes and all other Statutesâ— as they shall conceive to be necessary to be considered of for the resolving the question propounded in that case and thereupon to report unto us their opinions in writing concerning the same which Letter and Case there inclosed follow in these words MAster Attorney His Majesty hath perused this case inclosed and hath commanded me to send it to you and his will and pleasure is that you call unto you Mr. Sarjeant Mountague Mr. Sarjeant Crew Mr. Sollicitor and Mr. Walter the Princes Attorney and you confer together thereupon and conâ—ider advisedly and deliberately of all the parts thereof and thereupon to peruse all the Statutes of Praemunire or Provisors and all other such Statutes as you shall conceive to be necessary to be considered of for the resolving the question propounded in this case this his Majesty would have be done with mature deliberation and yet with as much speed as conveniently you can and when you have sufficiently informed your selves therein then to report to him your opinions in writing and so I committ you to God and rest Your very loving friend T. Ellesmore Canc. At York house the 27. of March 1616. A. hath Judgement and execution in the Kings Bench or common Pleas against B. in an action of debt of 1000 l. And in an ejectione Firmae of the Mannor of D. B. complaines in the Chancery to be relieved against those Judgements according to conscience and equity allowing the Judgements to be lawfull and good by the rigour and strict rules of the common Lawes and the matters in conscience and equity such as the Judges of the common Law being no Judges in equity but bound by their oathes to doe the Law cannot give any remedy or reliefe for the same either by error or attaint or by any other meanes Questio Whither the Chancery may relieve B. in this or such like cases or else leave him utterly remedilesse and undone and if the Chancery be restrained by any Statute of Praemunire c. Then by what Statute or by what words in any Statute is the Chancery so restrained and conscience and equity banished excluded and damned and whereas according to our said commandment our said learned councell and the Attorney of our deare Son the Prince returned unto us a Certificate of their opinions upon the said Statutes under all their severall hands concerning the same case which Certificate followeth in these words According to your Majesties Commandment we have deliveratly advised of the case sent unto us by the Lord Chancellor and of the Statutes as well those of Praemunire as others as far as we take it may concerne the case and for our better information therein wee have thought fit to send for and peruse the originall Records themselves remaining in the Tower of London of those Statutes not onely appearing upon the Roll of Parliament with the Kings answers which is the warrant to the Roll of Parliament We have also taken into consideration as well Booke Lawes as divers other Acts of Parliament which may give light unto the Statutes whereupon the question properly growes together with such ancient Records and presidents as we could find as well those which maintaine the authority of the Chancery as those which seeme to impeach the same and upon the whole matter we are al of opinion that the Chancery may give reliefe to the case in question and that no Statute of Praemunire c. or other Statute restraines the same And because we know not what use your Majesty will be pleased to make of this our opinion either for the time present or future we are willing to give some reasons of the same not thinking fit to trouble your Majesty with all those things whereupon we have grounded our selves selecting out some principall things which moved us to be of this opinion to the end this same may be a fuller object of your Majesties Princely Judgement whereunto we alwayes submit our selves And first we must lay for a sure foundation that which was contained in our former Certificate concerning the continuall practise by the space now of six score yeares in the times of King Hen. the 7. King Hen. the 8. King Edward the sixt Queene Mary and Queene Elizabeth of this authority and that in the time when the same authority was mannaged not onely the Bishops which might be thought lesse skilfull or lesse affectionate towards the Lawes of the Land but also divers great Lawyers which could not but know and honour the Law as the meanes of their advancement Sir Thomas More and the Lord Audly the Lord Rich Sir Nicholas Bacon Sir Thomas Bromley and Sir Iohn Puckering and further that most of the late Judges of the Kingdome either as Judges when they sate in Chancery by Commission or as Councellors at Law when they set their hands to Bills have by their judgement and councell upheld the same authority and therefore for as much as it is a true ground That optimus legum interpres consuetudo especially when the practise or custome passeth not amongst vulgar persons but
at the returne thereof publication and in the meane time publication is stayed Mackworth plaintant Swayefield aliis defendants An. 21. Eliz. A frivolous Bill was exhibited against the defendant without a Councellors hand and therefore ordered the defendant should not answer untill a Councellors hand weâ—e put to the Bill and the contempt for not answering is suspended Farly plaintant Childe defendant An. 21. Eliz. The defendant made oath that the Lands complained of by the plaintants Bill is under 40 s. per annum therefore dismissed Pottinger plaintiffe Cogayne defendant Anno 21. Eliz. The plaintiffe sued here to be relieved for a least of one thousand yeares of certaine Lands and depending the suite the defendant by quo minus out of the Exchequer being Tenant of other Lands to the Queene brought an Ejectione firme against the under Tenants of the plaintant therefore an injunction to stay the said suit of Quo minus if cause be not shewed Ioanes aliis plaintants Whitney Miles aliis defendants Anno 21. Eliz. The plaintant made oath for the serving of a Subpoena on Mary Cavendish Iohn Gilgate William Pipe and Edmâ—nd Stiles to appeare before Commissioners to be examined on his behalfe therefore an Attachment is awarded against them Turnor plaintant Warren defendant Anno 21. Eliz. Iohn Quippe made oath the defendant confessed he was served with a Subpoena for costs and hath not paid it therefore an Attachment Suell plaintant Rogers defendant Anno 21. Eliz. The defendant since the Bill exhibited commenced severall suites at the common Law for the cause here complained of against the plainâ—ant and his under Tenants therefore an Injunction is awarded against him Thorough good plaintant May aliis defendants Anno 21. Eliz. The defendant demurred generally without shewing any cause of his demurrer therefore ordered if he shew not good cause of his demurrer upon Fâ—iday next a Subpoena is awarded against him to make a better answer Peachie plaintant Twyecrosse defendant Anno 21. Eliz. It is ordered that if the plaintants doe charge the defendants by their Bill for the issues and profits of Lands which do lye in the County of Lancaster meerely by way of account then the defendants shall not be compelled to answer if the defendants be charged in respect of their promise then they are to answer Wingfield Miles uxor plaintants Fleetwood aliis defendants Anno 21. Eliz. The suit was for certaine rents fines and Woodsales received by the defendants testator during the plaintants minority It appeared that if the plaintant had made good proofe hee was to be relieved therefore a Commission is awarded by consent Borrough plaintant A. B. defendant Anno 21. Eli. The Kings Order and Decree in Chancery for a Rule to be observed by the Chancellor in that Court exemplified and enrolled for a perpetuall Record there Anno 1616. IAmes by the grace of God c. Whereas our Right Trusty and Welbeloved Sir Francis Bacon Knight our Councellor and Attorney generall received a Letter from our Chancellor of England Dated the 19. of March An. Dom. 1615. Written by our expresse Commandment directing him and requiring him and the rest of our learned Councell to peruse such presidents as should be produced unto them from time of K. Henry the 7. and since of complaints made in the Chancery there to be relieved according to equity and conscience after Judgements in the Courts of the common Lawes in Cases wherein the Judges of the common Law could not relieve them And thereupon to certifie us of the truth of that they shall find and of their opinions concerning the same which Letter followeth in these words MAster Atturney His Majesty being informed That there be many presidents in the Court of Chancery in the time of King H. 7. and continually since that such as complained there to be relieved according to equity and conscience after Judgements in the Courts of the common Law in Cases where the Judges of the common Law could not relieve them being bound by their oath to observe the strict rules of the Law is willing to understand whether there be such presidents as he is informed of And therefore hath commanded me to let you know that his will and pleasure is that you call to assist you his Majesties Serjeants and Sollicitor and to peruse such presidents of this kind as shall be produced unto you and thereupon to certifie his Majesty of the truth of that you shall finde and of your opinions concerning the same and for your better directions therein I have sent you here inclosed a note in writing delivered unto me mentioning some such presidents in King H. the 7. time and since And I am told that there be the like in former times his Majesty expecteth your proceeding in this with as much speed as conveniently you may And so I rest Your very assured loving friend T. Ellesmere Canc. At York house 19. Martii 1615. ANd whereas our Attorney generall and the rest of our learned Councell did thereupon returne unto us their certificate subscribed withal their hands according to our commandment and direction given them by the said Letter which Certificate followeth in these words According to your Majesties commandment we have advisedly considered of the note delivered unto us of presidents of complaining and proceeding in Chancery after Judgements in common Law and also have seene and perused the originals out of which the same note was abstracted upon all which we do find and observe the points following 1. We find that the same note is fully verified and maintained by the originals 2. We find that there hath beene a strong current of practise of proceeding in Chancery after Judgement and many times after execution continued from the beginning of H. 7. Raign unto the time of the Lord Chancellor that now is both in the Raignes separatim of the severall Kings and in the times of the severall Chancellors whereof divers were great learned men in the Law It being in cases where there is no remedy for the Subject by the strict course of the common Law unto which the Judges are sworne 3. We find that these proceedings in Chancery hath been after Judgements in actions of severall natures as well reall as personall 4. We find it hath beene after Judgements in your Majesties severall Courts the Kings Bench common Pleas Justice in Oyre c. 5. We find it hath been after Judgements obtained upon verdict demurres and where Writs of error have beene brought 6. We find in many of the Cases That the Judgements are expresjudgementsly mentioned in the Bills in the Chancery themselves to have been given and reliefe prayed thereupon sometimes for stay of execution sometimes after execution of which kind wee find a great number in King H. the 7. his time 7. We find the matters in equity layed in such Bills in most of the Cases to have been matter
the Subpoena therefore he is committed to the Prison of the Fleet Bernard Richers plaintant Tho. Stilman defendant An. 1. Eliz. fo. 249. The defendant was served with a Subpoena the day of the return and for his not appearance an Attachment was awarded against him and upon oath that he was served sixscore miles of so as hee could by no possibility appeare therefore a Commission is awarded to take their Answers in the Countrey paying the plaintant 6 s. 8 p for his costs Henry George plaintant Henry Bolington and Ioane Deane defendants fol. 255. An Injunction is granted to discharge an execution by Elegit taken by the defendant out of this Court for that he being served with a Subpoena did not appear William Hobby plaintant Francis Kemp defendant Anno 1. Eliz. 274. The plaintant served one Rolfe with a Subpoena ad testificandum and after he was served before he could be examined Rolfe was pressed for a Souldier upon oath made hereof Attachment was stayed Richard Humble and Anne his wife plaintants William Malbe defendant Anno Eliz. fol. 3. The plaintant sets forth by his Bill that where there was a suit depending in the Dutchie court between the defendant and Christopher Aschugh his brother for certaine Lands It was agreed and the plaintant was bound to the defendat in 100 l. that the said Christopher should become bound by Obligation in the sum of 100 l. the tenth day of Iune following and should then also make unto him a release and the defendant was also bound by Obligation in 50 l. to pay the said Christopher a sum of money the 9. of Iune in the Parish Church of Daâ—e And because both the dayes of performance of the conditions of the said severall Obligations were so neer together therefore it was agreed that when the defendant paid his money the said Christopher should make his Bond and release and sheweth that the 9. day of Iune the defendant came not himselfe but sent his servant to pay the money and Christopher was there ready to make the bond release to the defendant and offered to deliver the same to the defendants servants but they refused to accept thereof and afterward the said Christopher offered the same to the defendant but he likewise refused to receive the same and yet puts the plaintants bond of 100 l. in suite in the Kings Bench hereupon an Injunction is granted with a clause si ita sit to stay all further prosecution of any action in any the Queenes Courts at the common law or else where upon the bond of 100 l. against the plaintant and also the taking of any Nisi prius or Judgement or execution upon Judgement if Judgement be already given upon the same Bond untill the defendant have made a perfect Answer and the Court take other order Aschughe plaintant Skelton defendant Anno 2. Eliz. fol. 9. and 12. A Commission is awarded to Thomas Ward one of the examinors of this court of Chanceâ—y for the examining of witnesses in perpetuall memory in which Commission the defendants may examine if they thinke good Barentine plaintant Harbert and Alice defendants Anno 2. Eliz. fol. 46. The defendant was bound by Recognizance to the Chamberlaine of London for payment of divers sums of money for Orphanâ— portions and departed out of the City and dwelt in Oxford shire leaving no Estate behinde him in the City so as the processe of the City cannot take hold therefore a subpoena is granted against him upon pain of 100 l. to appeare before the Major and Aldermen and to stand to their Order Major and Aldermen of London plaintants Iohn Dormer defendant Anno 2. Eliz. fol. 5. Afterwards fol. 67. ordered if he doe not appeare an Attachment is granted Sr Humphrey Brown Knight one of the Judges of the common Pleas is plaintant against the defendant and an order is made for bringing in and delivery into the court of certaine evidences Sir Humphrey Browne Knight plaintant Thomas Smith defendant Anno 2. Eliz. fol. 53. Nota that dismissions were entred at large Anno. 2. Eliz. fol. 55. and fol. 56. A decree was entred at large in the Registers Booke which be the first I finde entred at large in that kind and so after divers others The defendant appeared upon a Subpaena and answered the plaintants Bill and after attended upon the Lord Keeper for a matter in controversie between him and one Ellin Wâ—yne and in the meane time being arrested in London at the suite of one Anthony Brisket contrary to the order and priviledge of this court it is therefore ordered that a Subpoena of priviledge be granted to the Major and Sheriffes of London for the discharge of the said arrest Rich. Dutton plaint Will. Alersey defend An. 2. Eliz. f. 58. Forasmuch as Thomas Harbert Sheriffe of Monmouthshire hath returned non est inventus upon an Attachment awarded against Roger Williams who is a Justice of Peace and as is informed was at the last quarter Sessions holden for the same County therefore the Sheriffe is amercyed five pound Sir Thomas Stradling Knight plaintant William Earl of Pembrooke defendant An. 2. Eliz. fol. 84. The Defendants Attorney at Law was enjoyned to stay his proceedings at Law against the plaintant in an action of trespasse And notwithstanding this the defendant himselfe proceeded and got Judgement and took out alevari facias against the plaintant and an Injunction was granted against the defendant himselfe to stay the execution of the same Writ of levari facias or if he had executed it and levyed the dammage and costs that then he should bring all the money thereupon received into the Court of Chancery in Crastina Ascensionis Domini to be disposed of as the Court shall think fit and yet notwithstanding himselfe should be then present in Court to answer the contempt Iohn Segewick plaintant William Redman defend An. 2. Eliz. fol. 92. The Defendant was in possession at the time of the Bill exhibited and the plaintant entred upon him after the Bill therefore an Injunction for the defendant against the plaintant William Dowche plaintant Iohn Perrot defendant An. 2. Eliz. fol. 99. An Injunction was granted against the defend upon paine of 100 l. that he should not prosecute an Action of debt of 5 l. or any writ of Nisi prius Jury Judgement or execution of Judgement if Judgement be given before the Justices of either Bench untill speciall licence be given by this Court Thomas Stanebridge plaintant Thomas Hales defendant An. 1. Eliz. fol. 103. Forasmuch as it is informed the tryall of the truth of the matter resteth altogether in the Declaration of the defendant it is therefore ordered that the defendant shall be examined upon interrogatories to be ministred by the plaintant upon whose examination if the matter fall not out for the plaintant then the plaintaint to pay the defendant costs and
amongst the most high and scient Magistrates of the Kingdome And when also the practising of the same should lye under so heavy a paine as the Praemunire This is to us a principall and implicit satisfaction and those Statutes ought not to be construed to extend to this case and this of it selfe we know is of far more force to move your Majesty then any opinion of ours because Kings are fittest to informe Kings and Chancellors to teach Chancellors and Judges to teach Judges but further out of out own science and profession we have thought fit to adde those further reasons and proofes very briefely because in case of so ancient a possession of jurisdiction we hold it not fit to amplifie The Statutes upon which the question grows are principally two whereof one is a Statute of Praemunire and the other is a Statute of simple prohibition that of Praemunire is the Statute of 27. E. 3. cap. 1. And the Statute of the simple prohibition is the Statute of 4. H. 4. cap. 23. There are divers other Statutes of both kinds but the question will rest principally upon those two as we conceive it For the Statute of 27. E. 3. it cannot in our opinions extend unto the Chancery for these reasons 1. First out of the mischiefe which the Statute provides and recites viz. That such suites and pleas against which the Statute is provided were in prejudice and disinherison of the King and his Crowne which cannot be applyed to the Chancery for the King cannot be disinherited of jurisdiction but either by a forreigner or by his Subject but never by his own Court 2. Out of the remedy which the Statute points viz. That the offendors shall be warned within two moneths to be before the King and his Councell or in his Chancery or before the Kings Justices of the one Bench or of the other c. By which words it is opposite in it selfe that the Chancery should give both the offence and the remedy 3. Out of penalty which is not only severe but hastily namely that the offenders shall be put out of the Kings protection which penalty altogether savors of adhering to fâ—rreine Jurisdictions and would never have been inflicted upon an excesse onely of jurisdiction in any of the Kings Courts as the Court of Chancery is 4. Out of the Statutes precedent and subsequent 25. E. 3. cap. 1. and 16. R. 2. cap. 5. which are of the same nature and cannot be applyed but to forraigne Courts for the word alibi or elsewhere is never used but where Rome is named specially before 5. The disjunctive in this Statute which onely gives the colour viz. That they which draw any out of the Realme in plea whereof the Cognizance pertaineth to the Kings Court or of things whereof Judgements be given in the Kings Court or which doe sue in any other Court to defeat or impeach the Judgements given to the Kings Court this last disjunction wee said which must go farther then Courts out of the Realme which are fully provided for by the former branch hath sufficient matter and effect to work upon in respect of such Courts which though they were totally within the Realme yet in jurisdiction were subordinate to the foâ—reigner such as were the Legates court the delegates court and in generall all the Ecclesiasticall courts within the Realme at that time as it is expressely construed in the Judges 50. E. 4. fol. 6. 6. In this the sight of the Record of the Petition doth cleare the doubt where the Subjects supplicate to the King to ordaine remedy against those which pursue in other courts then his own against Judgements given in his court which explaines the word other to be other then the Kings courts 7. With this agreeth notably the book of entries which translates the word in other court not in alia Curia but in aliena Curia 8. This Statute of vicesimo septimo E. 3. being in corroboration of the common Law as it selfe recites we doe not find in the Register any presidents of the Writs of adjura regia which are framed upon chiefe cases that were afterwards made penall by the Praemunire but onely against the Ecclesiasticall courts 9. Lastly we have not found any president at all of any conviction upon the Satutes of Praemunire of this nature for suits in Chancery but onely two or three Bills of Indictment preferred sed nihilinde venit for ought appears to us For the Statute of H. 4. that we doubt was made against proceeding within the Realme and not against forraigne and therefore hath no penalty annexed neverthelesse we conceive that it extends not to the Chancery in the case delivered for these reasons 1. First this Statute recites where the parties are made to come upon grievous paine sometimes before the King himselfe sometimes before the Kings Councell and sometimes in the Parliament to answer thereof anew c. Where it appeareth that the Chancery is not named which could not have been forgotten but was left out upon great reason because the Chancery is a court of ordinary Justice for matter of equity and the Statute meant onely to restraine extraordinary Commissions and such like proceedings 2. This appeares fully by view and comparing the two Petitions which were made the same Parliament of 4. H. 4. placed immediately the one before the other The first which was rejected by the King and the second whereupon this Statute was made whereof the first was to restraine the ordinary proceedings of Justice that is to say in the Chancery by name in the Exchequer and before the Kings Councell by processe of privy Seal unto which the King makes a Royall and prudent answer in these words The King will charge his Officers to be more sparing to send for his Subjects by such processe then heretofore they have beene but notwithstanding it is not his mind that the Officers shall so far obtaine but that they may call his Subjects before them in matters and causes necessary as it hath beene done in the time of his good Progenitors and then immediatly followes the Petition whereupon the Act now in question was made unto which the King gave his assent and wherein no mention is made at all of the Chancery or Exchequer 3. If the Chancery should be understood to be within the Statute yet the Statute extends not to this case for the words are that the Kings Subjects are driven to answer thereof anew which must be understood when the same matter formerly judged is put in issue or question againe but when the cause is called into the Chancery only upon point of equity there as the point of equity was never in question in the common Law Court so the point of Law or of fact as it concernes the Law is never in question in the Chancery so the same thing is not twice in question or as answered anew for the Chancery doth supply the Law and not crosse it 4. It appeareth
except the Court Baron Fraud or covyn in goods Grand Lease forfeited by covin. Laesione fideâ— Canonica Iâ—â—uria Conuâ—ee To avoid future perjury Payment for the principall by the surety Deeds brought into the Court Waste hol pen in Chancery Tulier and Bastard Ioneâ—n suing â—heir livery Action of the case seeketh dammages subpoena rem â—psam Fines fraudulent Executors how upon trust No reliefe against a voluntary act Joint Tenants one taking the profits Defendant examined as a witnesse Generall customes reduced to certainty by agreement in a mannor Statute acknowledged in my name by a stranger Power to make leasses Coppyhold tayled surrender Abating a Bill Leases devised to his wife on confidence to come to his Son not relieved Possession bound by decree and the partie prohibited to sue at common law Grantee distrains one who prayeth reliefe ordered he sue the rest and the Grantee the one to contribute and the other to accept of equality Contents of â— Mannor as it was 60. years past Executrix huâ—band â—rdered to pay debts Plaintant mistaking his Title in his Bill Lâ—easses convâ—yed in trust to pay debts Heire of purchasor charged with payment of money behinde for the land Proceedings in a cause where there is no full proofe Coppy good by devise without mention of surrender Turning of water courses from Mills holpen Waste forbidden in Chancery where not punishable at Law Archbishops Certificate against Bloomer for not paying a maides portion Witnesses ad informand conscientiam Five pound costs given in a demurrer and the Councellor prohibited to deale any more in Chancery Fines of Coppyholds how ordered in Chanry Lease paroll Promises Witnesses Proceeding on the Staâ—tute for charitable uses Lands intended to be given to a Schoole after otherwise disposed by will Cuttings case No help in Chancery touching power to make Leases Decree against infants Amending of Answers Misdemeanor in Commissioners how to be reformed Deeds how to be proved Leases of Corporations wheâ—ein their names are mistaken by themselves Leassee to be holpen in Chancery against Pattentees Chancellor calling the Judges into the Exchequer Chamber upon remainders of a Lease Costs against the defendant and Clerk thaâ— made processe before a Bill in Court Publication of witnesses in perpetuam rei memoriam a yeare past Consil. Consil. The manner of entring decrees in times past Dismissions and the manner of entriâ—g them Oath made for serving a Subpoena before witnesses examined in perpetuall memory Consilio Commission to examine in perpeâ—uall memory Consilia Costs for a witnesse served to testifie before the Major of London Publication of witnesses to be used at a Court Baron Injunction to stay proceedings in Judgement or execution Femâ—sole takes out a Subpoena and then marryeth and serveth it she and her husband pay costs Commission to take the defendants answer upon a languidus returned Injunction to put the defendant in such possession as he had at the time of the Bill exhibited Jurisdiction of Wales rejected Consil. Injunction to stay suite of execution of land which he agreed not to doe Injunction with a clause si ita sit A gardian admitted to the defendant infant A Commission to put the plaintant in possession Injunction being dissolved or disobeyed The defendant enjoyned in open Court not to proceed in his action Attachment against the defeâ—dant and a subpoena against one supposed to beat the server The plaintant was in execution at the suite of the King and being no just cause therefore he was delivered by supersedeas The Husband and wife defendants he onely appears and demurs Attachment against both A demurrer put in and the defendant appeared not in person a Subpoena to make direct auswer Attorney at Law enjoyned not to proceed or call for Judgement An Injunction granted for not appearing and to stay proceedings at the common Law A Commission to examine witnesses upon oath of impotency A defendant appearing gratis an Attachment being out was committed The defendant served with a Subpoena the day of the returne An Injunction to discharge an execution for that the defendant being served did not appear A witnesse served to testifie pressed for a Souldier Attachment is stayed Injunction si ita sit to stay Judgement and Execution Injunction to stay proceedings before action brought A Commission to the examinor of the Court to examine wâ—tnesses A Subpoena to appeare before the Major and Aldermen of London for an Orphans Portion An Order for bringing Evidences into Court Decrees and dismissions entred at large A Writ of priviledge granted to a suter The Sheriffe amersed 5 l. for returne non est inventus upon an Attachment having bin in presence of the party The Attorney ordered to stay proceedings the defendant proceedeth Injunction to bring in the money levyed and to answer the contempt Injunction for the defendants possession Injunction to stay all proceeâ—ings at common Law The defen. examined upon Interrogatories and if the matter appeare not for the plaintant then he to pay costs and the cause dismissed Defendant dismissed with costs the plaintant not appearing at the hearing Decreed that the defendant shall acknowledge satisfaction of a Judgement A decâ—ce for a fould-couâ—se or common of pasture Two defendants contend for a Tenement the Tenant paying his Reâ—t into the Chaâ—cery iâ— discharged Setting down depoâ—itions in a wrong â—enâ—e suppressed and the witnesses examined againe Iâ—junction for the plaintants possession as at the time of the Bill and three yeaâ—es before An Award made by Justices of Assize ordered to be performed Injunction to stay suits Iâ— the plaintant bring 223 l â—â—to court execution to stâ—y for the rest Witnesses examined by commission before answer in regard they were old The plaintant after Bill answer and replication distraineth for which an Injunction is granted Certiorare to remove the suite from the Chancery of Durham into this Court Injunction to stay judgement upon certificate of the Justices of Assizes Injunction dissolved if cause be not shewed Injunction to stay the defendants suit at Law because he began in Chancery The plaintant being in execution upon a Statute was delivered upon Recognizance The plaintant had execution for 300 l. and ordered to take execution for 100 l. onely A de vilaica removenda for part of a personage and an Injunction for the house Injunction for the corn sowed upon a lease paroll Decree for 3 s. 4 d. rent service and suite of Court The plaintant marrieâ— before answer and no advantage taken therefore no Bill of revivor Advowson passeth not by livery within view of the Church without deed there being incumbent A ducens tecum to bring in deeds but ordered to be delivered to the usher of the Court not to the plaintant The defendant took a Commission and returned a demurrer ordered to answer Attachment for not performing a decree The defendants executors to their Father being Gardian in Socage to the plaintant are ordered to answer for profits taken by him Subpoena delivered to the
made by the Feoffees of them for founding a Chauntry and this in the 20. of H. 6. and held no superstitious use nor by the Lord Chancellor if it had been absolutely given ad divina Celebranda and for saying of Obites for most part of the Churches of England are so founded if it be granted to a Priest contra if it be granted to a particular Priest ad divina Celebranda and saying Obites c. The Case was that those Lands were after given to found a Chappell of Ease by the Feoffees and then new come in upon the first grant would have had it a concealement and got a Pattent thereof and Commissioners upon the Statute 39. Eliz. took it from the Pattentee And note that the Commissioners make the decree the Lord Chancellor heareth the exceptions against the said decree and decreed the possession according to the Commissioners decree leaving the Pattentee to exhibite his Bill against the parishioners and to shew what cause he could for reversing thereof 18. Iunii 1. Iacob George Littleton of the Inner Temple lent money upon bonds taken in other mens names and had not any in his own name among the rest he purchased five markes per annum in two other mens names with this trust that he might injoy it during his life and after it should be to the erecting of a Schoole in the Towne where the said George was born and buryed as the Feoffees declared in their answer and in his life time after the purchase he repealed his intent of converting the same to the use of the Schoole to divers others but by his will he gave certaine Acres of Land to I. C. and I. H. and then devised all the rest of his lands to his Brothers Sonne who sues Ceux que trust for converting unto him the five marke land which Justice Warberton presently decreed for him saying his will was his Declaration But in his words there was but a meaning onely exprest me contradicente for if I. C. make a Feoffement to the Use over according to Articles annexed he cannot alter the same by a later will contra if it be to the use of his Will 19 Iunii 1. Iacobi Cutting Cleark of the Outlawries bought lands of Bedwell whereof he was seized as Tenant by curtesie promising the Heire should assure at full age and by morgage assured other lands for performance thereof Cutting before full age dyeth without issue his Heire not known for some claimeth as Hâ—ire on the Fathers side some as Heire on the Mothers side others as assignees by devise and another as Executor sued a Statute for performance of Covenants Bedwell being willing to assure brought all into the Chancery that he might incurre no prejudice till he should know to whom he should assure and ordered that he should assure to two of the six Clarks they to reassure to the Heire when he should be found 10. Octob. 1. Iacobi Nota that the Lord Chancellor Egerton in the Case of Pigot that if a power be reserved to make Leases by a Covenant without transmutation of possession the Chancery shall not help because the first is void in Law if upon transmutation of possession and the power be not precisely followed that doubtfull and rather most strong against help for then the Estate workes and the power gone and upon Wills no help causa patet antea fol. 1. and difference inter will and testament testament requires Executors will of lands 11. Octob. 1. Iacobi Young purchased lands in the name of one Mason to the use of him and his Heires dying without declaring any setled determination of this trust or confidence Dethicke a kinsman procures Mason to convey the lands to him and he conveyes it over to infants Mericke a nearer kinsman sues in Chancery as next Heire if the benefit of the trust appear to appertain to Mericke notwithstanding the conveyance to infants being decreed for them they shall hold by the decree during the minority And a proviso for the infants to assure at full age per Cook Attorney veniendo de Westm and there appearing no certain disposing thereof it was ordered that Mason should repay the money he had for making the conveyance to Dethicke and Merick to have the lands ordered for him 11. Octob. 1. Iacobi Those who are curious to have the defendants to amend their answers ordered first by the Lord Chancellor to put in sureties in Court for proof of the contents of their Bills according to the Statute 15. H. 6. or Iuramentum Calumniae were better perchance 13. Novemb. 1. Iacobi Commission to examine witnesses went out to Sir Aâ—exander Brett and others who made certificate against Sir Alexander of partiall proceedings Philipps Serjeant moved at the Rolls for a Commission to others to examine in whom the misdemeanor was in Sir Alexander or in the certifyers fuit negatum for such collaterall certificates are not required of the Commissioners but let them certifie the matters committed to their charge and if there be misdemeanor let the party wronged thereby make affidavit thereof and then take out his Attachment 13. Novemb. 1. Iacobi A release was offered to be deposed that it had been seene by some at the Barre it being affirmed that by casuall meanes it was lost but the Lord Chancellor said the oath should be that he saw it sealed and delivered and not that he saw it after it was a deed For in Munson the Justice his Case a Deed was brought into the Chancery and a Vidimus upon it being but a counterfeit copy and after the fraud discovered and the true Deed produced therefore none allowance to be given of a Deed without producing the Deed or proving the execution thereof and here appeareth what want we have of Notaries and their Deputies 16. Novemb. 1. Iacobi The Deane and Chapter of Bristoll made sundry Leases misreciting the name of their Corporation and an intricate Case of sundry such Leases made of one thing to divers men wherein the Lord Chancellor said that it was fit to help such Leases in Chancery being for reasonable time and upon good consideration contra of long Leases without consideration of fine or good rent and that Judges might have done well at the first to have expounded the Law so with averment that they were the same parties and so was the old law till now of late especially where the mistaking rose on their part who had the keeping of the evidences the which the Leases could not see but must take a Lease by the Colledge Clark in a writ where you may have a new no harme to abate it for a misnomer and yet in that case sometimes in old times an Averment of Comer per lieu nosme â— auter where they were sued by others and not named so by themselves 23. Novemb. 1. Iacobi Haule had a Dutchy Lease gotten upon untrue surmises and the King
bestowed the land upon the Earl of Devon for his service done in Ireland This Lease the Earl sought to avoid by the law Haule prayes to have the matter examined in Chancery and to have the suit stayed by Injunction which was denyed for that the Lease was granted by fraud and the Fee simple to the Earl in possession and not in reversion nota that the Lord Chancellor said that where lands are granted in reversion if the Grantee will avoid the lease for a rent paid but not at the day in that case he will releeve but not where the Lease is granted upon a false suggestion for that were to relieve fraud in the Chancery it was further objected that this grant was made to the Earl upon consideration of service done and the Lord Chancellor said that the service done to the Realme was as valuable as if the Earl had given 500 l. for the Land but the Earl offered to give the Leassee 1000 l. recompence in honour 23. Ian. 1. Iacobi In a Case moved by Mr. Chamberlaine where the Lord Chancellor had referred the matter to be tryed at the common Law touching remainders upon a Lease whether good in law or no and the Judges had given Judgement upon the case in another point in the Kings Bench so as the Lord Chancellor remained still uncertaine of that point called the Judges into the Exchequer Chamber 1. Iacobi For as much as the plaintant hath served processe upon the defendant to appear in this court return 15. Micha and exhibited no sufficient Bill against him and further for meere examination sued out a Writ of Attachment against the defendant before the returne of the subpoena it is ordered that the plaintant shall pay unto the defendant 10 s. costs and also that Hugh Tildesley who made the processe against the defendant without a sufficient Bill shall pay unto the defendant other 10 s. for his costs William Garneston plaintant Thomas Bradwell defendant Anno 5. Hen. 6. Philip and Mary fol. 11. For as much as a Commission to examine witnesses in perpetuam rei memoriam issued out of this Court and the witnesses examined by vertue thereof have remained in court by the space of a year It is ordered that publication shall be granted Richard Gravenor and Iohn Gravenor plaintants Bryan Brearton defendant An. 5. and 6. Phil. and M. fol. 12. Episcopu Cicestrens publication of witnesses in perpetuam rei memoriam An. 5. and 6. Phil. and Mar. fol. 30. Willington plaintant Agar defendant publication of witnesses remaining since 33. H. 8. fol. 42. Anno 5 and 6. Phil. and Mary An Injunction is granted against the defendants to deliver to the plaintant certaine Plate contained in their Petition or else to appeare and shew cause in crur. anim prox Anno 5. and 6. P. and M. fol. 13. David Geoffry and Iohn Geoffry plaintants and Thomas Davis defendant A decree is made for the plaintant as by the Record thereof signed with the Lord Chancellors hand plainly appeareth and the said Record is delivered to Iohn Millisent Attorney for the plaintant to be inrolled the Deane and Chapter of Lincolne plaintant Bevore and Alice defendants Anno 5. and 6. Phil. and Mary fol. 15. Glanffell plaintant Strickley defendant a decree is made for the defendant for dismission of the cause as by the Record thereof signed with the Lord Chancellors hand and the same put to the inrolment Anno 5. and 6. Phil. and Mary fol. 22. Iames Iervis hath made oath for the delivery of a subpoena to the defendant whereby he hath knowledge that witnesses are to be examined in perpetuall memory so that he may if he will examine the same witnesses in this court therefore the examinors in this court may proceed to the examination of the said witnesses accordingly Hatcham plaintiffe Winchcombe defendant 5. and 6. P. and M. fol. 19. Porter plaintant Baker defendant the examinor may proceed to examination of witnesses in perpetuall memory if the plaintant have served a Subpoena upon the defendant to give him notice to examine likewise An. 5. and 6. P. and M. fol. 32. Forasmuch as the plaint hath taken oath in this court that there are sundry witnesses contained in a Schedule exhibited in this court which he desireth to have examined â—n perpetuall memory so impotent and sick that they are not able to travell up to be examined in court without danger of their lives therefore a Commission is awarded to Sir Humfrey Bâ—adburne Knight to examine the same witnesses in perpetuall memory Bagshawe plaintant defendant An 5. and 6. P. and M. fol. 22. Robins plaintant Foster defendant a Commission is granted to examine witnesses in the Countrey being impotent in perpetuall memory Anno 5. and 6. P. and M. fol. 26. The plaintant is adjudged to pay to the defendant costs three pound for that he was served to appear before the Lord Mayor of London to testifie in a matter depending before the said Lord Mayor between the plaintant and one Iohn Gresham and others without any precept directed from the Lord Mayor unto the said defendant to appeare Rowe and Alice plaintants Thomas Guybone defendant Anno 5. and 6. P. and M. fol. 24. Iohn Manlye hath taken oath the deposition of witnesses examined on the behalfe of the plaintant and remaining in this Court are to be given in evidence at a Court Baron holden at Potton in the County of Bedford on Mâ—nday next therefore publication is granted William Manlye Clerke plaintant Thomas Simcote defendant Anno 5. and 6. Phil. and Mary fol. 24. An injunction is awarded against the defendant to stay his proceedings in the Sheriffes Court of London or elsewhere upon debt of 100 l. not to proceed to triall judgement or to execution if judgement be given Iohn Ayland plaintiffe Francis Bacon defendant Anno 5. and 6. P. and M. fol. 29. Forasmuch as the plaintant served processe upon the defendent by the name of Magaret Hastings and at that instant was marryed to William Brown and also for want of a Bill therefore the said William Brown and Margaret are adjudged to pay to the defendant 20 s. costs Margaret Hastings plaintant Nicholas Iugges defendant Anno 5. and 6. P. and M. fol. 30. Forasmuch as the Sheriffe of Denâ—igb hath returned a Languidus in prison therefore a Commission is awarded to Richard Griffeths and others to take the answer of the defendant Iohn ap Thomas plaintant Engharard Hoell widow defendant An. 5. and 6. P. and M. fol. 33. Forasmuch as the defendant was in possession of the lands at the time of the Bill exhibited and the plaintant hath sithence entered therefore an injunction is granted to the defendant against the plaintiffe to avoid the possession William Hawkes and Ieâ—nit his wife plaintants Iohn Champion and others defendants An. 5. and 6. P. and M. fol. 35. It