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
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
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
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
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-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
Kings obedience or else in amity with the King and not the Kings Enemy for if the taker were the Kings Enemy and robbed the Complaintiff being the Kings Friend yet those Goods being come to English mens hands shall not be restored Quia non est depredatio sed legalis captio prout inimicus capit super immicum in camera stellata 2 R. 3. 2. 6. Denisen 8. CHAP. VIII Certain Statutes giving special Power to the Lord Chancellour 1. IN every original Writ of Action personal Appeals and Indictments in which the Exigent shall be awarded to the names of the Defendants addition shall be made to their Estate Degree or Mystery and the Town Hamlets or places and the Countries in which they were or be conversant and the Clerks under whose names such Writs shall go forth written shall not leave out the Additions upon pain to be punished and to make Fine to the King by discretion of the Chancellor stat de Anno 1 H. 5. cap. 5. Additions 2 If any person make Complaint duly in the Chancery that any Murthers Man-slaughters Assemblies of people in great number in manner of Insurrections and Rebellions Routs is or be fled and with-drawn in Woods secret or unknown places or elsewhere to the intent to avoid the execution of the Law upon such Complaint a Biâ—l shall be sufficiently made for the King and the Chancellor after such Bill to him delivered if he may be duly informed that such Bill containeth truth shall have power according to his discretion to make a Writ of Capias at the Kings sute to the Sheriff where the Offences are supposed to be done ret. in Chanc. then they shal be put in Award or Mainprise after the discretion of the Chancellor and moreover he shall send to inquire of such Offences and upon that shall be done as the Law requireth and if the parties stand out then a Proclamation shall be awarded ret. in the Kings Bench and upon Default they shall stand convict and attainted stat Anno 2 H. 5. cap. 9. Riots 5. This statute is made perpetual and it is enacted that the Capias shall not be awarded unlesse it be witnessed by two Witnesses of peace of the County where such Riots be supposed that the common voice and tame is of the same Riots stat Anno 8 H. 6. cap. 14. Riots 3 If any person be hurt or grieved in any thing that the Justices of peace may hear determine or execute in any wise he is commanded to make Complaint to the Justices that dwell next to him or to any of his fellows and desire a remedy and if he have then no remedy if it be nigh such times as the Justices of Assize come into that Shire that he then shew his Complaint to the same Justices and if he then have no remedy or if the Complaint be made long before the eoming of the Justices of Assize and then he so grieved come unto the King or to his Chancellor and shew his Grief and the King shall send for the said Justices to know the cause why his Subjects be not eased and his Laws executed and if he finde any of them in Default of executing of his Laws in the Premises he shall cause him so offending to be put out of the Commission and to be punished according to his demerits stat Anno 4 H. 7. cap. 12. Proclam 3. 4 Poor people having cause of Action against any person shall have by the discretion of the Chancellor Writs Original and Writs of sub poena therefore paying nothing to the Queen for the Seals nor to any person for the writing of them and the Chancellour shall assigne Clerks to write the same and also learned Counsel and Attouâ—nies for the same without any reward to the King thereof stat Anno 11 H. 7. cap. 12. Poor People 5 If any Farmer of any lands belonging to the reparation of Rochester Bridg do not like to give for a new Lease as another will then he shall have for his hettering or building such Recompence as shall be thought reasonable by Agreement between the Wardens and Assistants and him and in Default of their Grievances such as shall be thought meet by the Chancellor or Treasurer stat Anno 18 Eliz. cap. 17. Bridges 2. A statute was made concerning the exercise of Trades by strangers Deni sens in Anno 14 H. 8. cap. 2. and there was a Decree and an Act made that search should be made by all strangers being Artificers and Housâ—â—lders for Offences against that statute and if they refuse and the same proved before the Chancellor or before the chief persons of such Cities or Town the Refuser shall use no longer his Occupation stat Anno 21 H. 8. cap. 6. Aliens 4. 6 If any person falsly or deceitfully obtain into his hands or possession any Money Goods Chattels Jewels or other things of any other person by colour or means of any false token or counterfeit Letter made in any other mans name the Offender being convict by Witnesse taken before the Lord Chancellor or by Examination of Witnesses or by Confession taken in the Star-chamber before the Counsel or before the Justices of Assize in their Circuits or before the Justices of P. in their General Sessions or by Action in any Court of Record shal have such correction punishment by Imprisonment of his Body setting upon the Pillory or otherwise by corporal pain except pains of Death as shall be appointed by the person before whom he shall be convict stat 33 H. 8. cap. 1. If any variance arise in London about the payment of Tithes and upon a Complaint made to the Maior he not end the same within two moneths or if any of the parties themselves grieved then the Chancellor upon a Complaint to him made within three moneths next following shall make an end of the same with such Costs to be awarded as shall be thought convenient stat Anno 37 H. 8. cap. 12. Tithes 9. CHAP. IX Certain Statutes giving special Power absolute to the Lord Chancellour jointly to others THe Chancellor and Treasurer taking to them Justices and other of the Kings Counsell such as to them shall seem meet shall have power to ordain remedy for the buying of Stockfish and Botulph and Salmon of Barwick and 〈◊〉 Bristrâ—â—â— and elsewhere to the intent that the King and the people may the better be served and have better markets than they have had before this time and that the ordinances by them made in this party be sirmly holden Stat. de Callice 31 E. 3. cap. 5. Fishers 4. 2. No Master Wardens and Fellowships of Crafts or Mysteries nor any rulers of Guilds or Fraternities take upon them to make any ordinances or to execute any acts by them heretofore made in disheritance or diminution of the Prerogative of the King nor of any other nor against the common
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
Patent by them signed and also with the Masters of Requests which have the oversight and admitment of all such Writs and Patents as are to be sealed and moreover in every Parliament of France there is by the King of France established a Chancery wherein is placed a Keeper of the Seale a certaine number of Secretaryes as in the former which are said subscripti in sublevamen Cancellarij propter multitudinem negotiorum in Cancellaria Curia Regis affluentium and likewise as are in the Great Chancery there is one Audiencer one Comptroler and one Referendary or Recorder The Chancellor if he doe exercise his Office hath for wages by the yeare eighteen thousand French livers and having a Keeper of the Seale substituted he received twelve thousand Livers and six thousand Livers are assigned unto him principally for the entertainment of the Masters of Requests which do ordinarily dyne at the Lord Chancelors Table in their turne of quarters he hath also besides his wages many other rights and duties as at the entry of Kings into Cityes he hath a garment of cloth of Gold and yearly he hath certain Elles of Velvet a certain number of lights and an allowance of Wax the Chancellor ought not nor may not passe any writing under Seale contrary to the deliberation and determination of the Privy Councell neither whereof any doubt is moved by any Master of Requests of the household but he ought to send the same to the Councell for a resolution Of those which have accesse to the Seal we may place in order next to the Chancellor the Master of Requests which are appointed him for surveyors and examiners of such writings as passe the Seale especially of Patents and Commissions and all other persons whatsoever are forbidden to enter at Sealing time saving the Kings Secretaries the Audiencers the Comptroller the Procurator Generall which is ordained in the said Chancery and the Câ—afewax By this appeareth the name and some part of the Office of the Chancellor of France to be given by Chaâ—lemain more than one hundred years before the time of Edward the Confessor in whose dayes began the name of our English Chancellors according to the assertion of Florentius Wigornensis for that the aforesaid Edward having spent a great part of his Age in Normandy was the first that brought the use of the Seale from thence and with it the name of him that had the charge thereof and that is the Chancellor in whom Leafricies the Britain is named the first Chancellor But saving correction I must be of that opinion of the Normans we did not learn our manner of sealing not onely for that I have seen the Copies of our Kings Patents before those dayes with Ego Iâ—a Ego Aluredus c. subsignavi which indeed may be al one with subscripsi according to 40th Law in the Digests lib 50. But surely I have either seen the very points of the Saxony Danish Seale or else they were counterfeit to no profitable purpose Let other men give what credit they will to the collection of Chancellors by Mr. Thinne in the new addition to Mr. Hollinsteeds Chronicle lately Published For my owne part I am neither of experience nor judgment to impugne it But under the authority of allowable writers I shall set downe and that shortly what I have gathered in so few daies as I have therein bestowed of the present estate of our Modern Chancellor and herein some particulars of the Court of Chancery and first in mine opinion he is the same Chancellor that was Rembaldus to holy Edward and Mauritius to William the Conquerour whose office was to make and seale the instruments that passed from the Prince as writeth Lupanus and as for the former mentioned Chancellors before this time they seem more kindly cheif Secretaries than to exercize the present Office of Chancellors For howsoever I am induced probably to conjecture that before Edward the Confessor there was use of Sealing as I have said so have I no warrant to allege for a great Seale of the King to passe the Instruments whereof the charge was committed to the Chancellors the which as I take it may be reputed the originall of his office and this his originall office was not altered by the aforesaid Conqueror in the erection of the College of Scribes or notaries neither his name changed as I conceive the words of Pollydore where he saith that Ejus Collegij Magistrum vocavit Cancel larium qui paulatim supremus effectuâ— magistratus of qualis hodie habetur But I suppose that authority was also given him by sealing and making certain Writs originalls the forme whereof was for the most part produced out of Normandy but not the granting of all originalls because that by Glanvill it is affirmed that many of them did beare Teste of himself viz. Ranulpho Ganvilla who was chief Justice many yeares after and this by the way is to be remembred that in the name of Chancellor our ancient Histories may easily deceive us for some were called Cancellarij Regis and others Cancellarij Regni and of those which had this great Seaâ— of the K. in their charge and custody Some were termed Chancellors and Seale bearers also that had no partakers of their office such a one was the same Rembaldo to the aforesaid Edward and many others some were Keepers of the Great Seale and that solely Qâ—i Custodiam sigilli Regli acciperent Cancellarii vices acturi officium c. as saith Mathew Paris of John Maunsell although there may be perceived some small difference betweene a Keeper of the grev Seale and a Vice Chancellor for of Vice-Chancellors also I finde two sorts the one as I take it exercising the Office of a Chancellor in matters of Justice and such a one was Malus Catulus in the time of Richard the First another which was chiefe Secretary as it seemed unto the Chancellor to write the Patent of the Prince and such a one was Sywardus whose name I have seen subscribed to a Charter of Edward the Consessor Ego Sywardus Notorius ad vicem Rambaldi Regis Dignitatis Concellarij subscripsi The first sole Keeper of the Great Seale I take to be Symon the Noâ—man who had the Seal delivered unto him in the 23d year of the Raigne of King Hen. 3d. and shortly after also taken from him againe when he was also banished the Court for that he would not seale the Patent whereby Thomas Earl of Flanders might aske 4d for every sack of Wool that went out of England into Flanders But that the Authority of the Lord Keeper was beforetime some way inferiour to the Authority of the Chanceller that may seem by the Act of Parliament which was made Anno 5 Eltz that did equall the power of the one with the other sometimes also the Chancellor of England had a Keeper of the seale subscribed to him and so was Ranulphus the Chancellor and Richard the Chaplaine keeper
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
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
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
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
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
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
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.
proffits of the people but if the same acts or ordinances be examined and approved by the Chancellor Treasurer or chiefe Justice or three of them or before both the Justices of Assize in their circuit in the Shire where such acts and ordinanees be made upon paine of forfeiture of 40 l. for every time that they do the contrary Stat. de Anno 19 H. 7. cap. 7. Corp. 2 3. If the Wardâ—ns and Masters of Fellowships of handicrafts within any City or Borough or Town Corporate where such Wardens be and in such where no Wardens of handicrafts are then if the Bayliffs or Governors of the Boroughs or Towns will wrongfully intreat any stranger in executing of the Stat. de Anno 14. H. 8. then the stranger so grieved may by bâ—ll or information complain to the Chancellor or Treasurer of England or to the Justices of Assize in the County for the time being which by their examination shall have authority to hear and determine the same Complaint and to award to the Complainant such amends as by their discretions shall be thought reasonable Stat. Anno 14. H. 8. cap. 2. Aliens 3. 4. The Tables to be set up in the City of London touching Scavage within the same shall be first viewed examined and approved by the Chancellor and Treasurer the President of the Counsell and the Lord Privy seal the Lord Steward and the two chief Justices or by 4. of them at the least and by them subscribed Stat. Anno 22 H. 8. cap. 8. Aliens 5. If any Printers or Sellers of Printed Books doe inhance their prises in sale of binding at too high and unreasonable prises in such wise as complaint be made thereof unto the King or to the Chancellor or Treasurer or either of the chief Justices then they or two of them shall have authority to enquire thereof as well as by oathes of 1â— persons as otherwise by due examination by their discretions and after the same so found then they or two of them from time to time shall have authority to redress such inhaunsing of prises by their â—retions and to limit prises as well of the books as for binding them and moreover â—hat the offendor being convicted forfeit for every book by them sould and inhaunsed 3. s. 4 d. the one half to the King the other to the party grieved that will complaine Stat. Anno 25 H. 8. cap. 15. books 6. The Chancellor Treasurer President of the Counsell Privy Seal and the two chief Justiees or three of them shall have authority by their discretion to set prices of all kind of Wines that is to say of the prices of the But Tun Pipe Hogshead Ponchen Teirce Barrel or Rundlet when it shall be sold in gross so that they or any of them cause the prices by them set to be written and open Proclamation thereof to be made in Chancery in Term time or eise in the City Borough or Town where any such Wines shall be sold in gross 28. H. 8. cap. 14 Wines 20. 7. The L. Chancellor Keeper of the Great Seal Treasurer President Privy Seale and other of the Privy Couusell the chief Justices or three of them at the least whereof the Lord Chaneellor Keeper Treasurer President or Privy Seal to be one upon complaint made in writing shall have Authority to take order with the bodies lands and goods of Banckerupts for the payment of their debts Vide Stat. Anno 34 H. 8. cap. 4. Banckerupts And thus much of the Absolute power of the Lord Chancellor his Judiciall power the which poor barren Treatise I have not presumed to collect either for instruction of hi Honor from whose wisdome I have alwayes thought nothing can be hidden or for ostentation of my reading and experience who do freely acknowledg my selfe the most ignorant man of my profession but to this end and with this intention have I done it partly to provoke some good matter from those learned Lawyers and skilfull Antiquaries that are Attendants ûupon his Lordship and especially for satisfaction to his desire that did demand it and may command me Sic litabant Mola qui non habcbant Thuca FINIS An ANALYSIS IN the Office of the Chancellor of England are six things to be considered I. HIS ANTIQUITY in Office and not in name which hath been from the time of the first Creation of Kings and Rulers And he was called AMONG the Hebrewes Mazcre AMONG the Grecians Nomophilax AMONG the Romans Praetor In OFFICE and name which hath bin from the time of Charls the Great King of France IN OFF CE and name in England which hath bin from about the time of King Edward the Confessor II. The ETYMOLOGY of his name Either à Cancellando Iniqua Concessa Regis viz. by cancelling or disallowing the unjust Grants of the King by withholding them from the Seale untill the King may be better informed according to the verse Et mandata pii principis aequa fuit Iniquas leges viz. by cancelling the rigor of extreme laws in tempring them with Conscience according to the verse Hic est qui leges Regni cancellat iniquas RECORDS viz. Of Cancelling such Records as ought to be made void which may be either by drawing of crosse lines over such Records and by entring of a vacat in the Margent declaring the cause of the Cancelling Which may also be either by Judgment given in the Court for admitting such Record or else by personall agreement of such partie or parties as it only concerneth Or by plucking the Records from the File And this ought not to be done but by authority of Act oâ— Parliament Or â—Cancellis for that he fitteth in Judgement within certain limits or bounds c. III. His constitution which hath bin and may be in two sorts viz. By Letters Patents which hath been but rarely used and I find only three of them of Record Walieâ— Grey Bishop of Chester and Chancellor by Patent dated Anno 7 Regis Johannis Ralph Nevill Bishop of Chichester and Chancellor by severall Patents one bearing date Anno 11 H. 3. the other Anno E7 ejusd. Regis One other in the time of H. 6. BY DELIVERY of the Great Seal unto his hand and custody which delivery is to be entred of Record wherein is to be noted that the Keeper of the Great Seal had the Seal delivered in diverse manners It was delivered to the Chancellor by the King and immediately he took an Oath for the faithfull exercising of the Office of Chancellor and then he sealed Writs therewith alone It was delivered to the Keeper of the Great Sease without any Oath and therefore he did not commonly Seale therewith but in presence of some of the Masters of the Chancery IIII. Hâ—S preheminences viz. Unto him are substituted all the Chancellors in England Ireland Wales and Scotland and aâ—l they that have charge of any the Kings Seales wheresoever beside the Lord Privy seal By prescription
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.