the Lord Chancellor and Master of the Rolls as aforesaid and sit with them and to whom References are made and before whom Deeds and Recognizances are acknowledged and Affidavits made This formerly might have been done before any Master at his own bouse by the option of the party concerned but now by an Act of Parliament made in the thirteenth year of King Charls the second ' s Reign there is a general Office erected for the said Masters wherein there are at certain hours every day at least two Masters attending to dispatch the said business which may not be done otherwise or other-where but by special Order The Register of the Court who hath divers under him that sit in Court and take notice of all Orders and Decrees made in Court either before the Chancellor or Master of the Rolls and accordingly afterwards at the request of the party concerned or his Sollicitor draw up those Orders and Decrees which are afterwards to be entred in the said Office in a Book of Entryes to that purpose kept and being so entred they must be returned to the Register who having set his hand thereto the same thenceforth are authentick and may not be altered without especial order from the Court. In this Office also are filed all Reports from the Masters and all exceptions taken to any of the same Reports The six Clerks in whose Office all proceedings upon Bill and Answer unto the very Decree yea and after Decree are acted and from whom likewise issue some Patents as for pardon of a man for Chance-medly Pattents for Embassadors Commissions for Bankrupts and these are done by their sitting Clerks of which each Six-Clerk keeps a set number The Cursitors of the Court who were incorporated by Queen Elizabeth by the name of the Twenty four Cursitors amongst whom all the business that lyes in the several Shires is severally distributed These make all Original Writs in the Chancery which are returnable in the Common Pleas and all Writs of Entry and Covenants The Masters of the Subpoena-Office the Clerk of the Affidavits where all Affidavits are to be filed which you would use in Court Heretofore they used them in Court and after filed them but now they must be first filed and a Copy thereof taken to be read in Court or else they signify nothing The Clerks of the Petty-bag who have many Clerks under them and these Clerks have much variety of business that comes through their hands and requires very much knowledg and experience for the managing thereof for this Office hath the making out of all Writs of Summons to the Parliament To this Office are all Offices that are found post mortem brought to be filed In this Office are all Pleadings of the Chancery concerning the validity of any Patent or other thing whatsoever that passeth the Great Seal And these Pleadings are all in Latine although most of the rest of their Proceeds were in English If any question arise about the acknowledgment of any private Deed between Subjects which is acknowledged in Chancery before the Lord Chancellor or Master of the Rolls or any of the Masters in Chancery and all Statutes and Recognizances taken before any Officers to that purpose deputed are transmitted hither and here prosecuted Here also are all suits for or against any person priviledged in the Court. And lastly It is a hand whereby to transmit divers things from the riding Clerk and the Inrolment-Office to the Chappel of the Rolls The Examiners are Officers of this Court who take the Depositions of Witnesses and are to examine them and to make out Copies of the Depositions There are likewise Clerks of the Rolls who sit constantly in the Rolls to make searches for Deeds Offices c. and to make out Copies thereof The Ushers of the Court hath the receiving and custody of all monies ordered to be deposited in Court and maketh Certificates thereof and payeth the same back again by order of the Court and not otherwise The Serjeant at Arms who carrieth the Mace before the Lord Chancellor to him all persons standing in high contempt are brought up by his Substitutes as prisoners The Warden of the Fleet likewise is bound to attend this Court to receive such prisoners as stand committed by the Court to him The Court consists of a double power ordinary and extraordinary the ordinary power is as in the cases of Scire facias to repeal Patents in case of Traverse Endowment of a Woman and the like and herein the Court is limited and confined to the Rules used in Common Law The other is extraordinary and unlimited as in cases of Equity wherein relief is to be had by a Suit here by way of Bill and Answer By the power of this Court are issued forth Commissions for charitable Uses Bankrupts and Sewers In some cases Commissions have been here granted to examine Wastes to set out meet wayes for Passages to prove a Childe legitimate to prove Customes and to examine Witnesses in perpetuam rei memoriam It proceeds by way of Bill and Answer and gives relief in many cases besides and beyond the Rules of the Common Law whereof practice will shew many experiments And to this purpose it is necessary for our Sollicitor to read Tothills and Caryes Reports CHAP. IV. Of the whole duty of our Sollicitor in his Practice HAving in the former Chapter gone through the most necessary things which our Sollicitor ought to know barely it remains now we should come to the practick part of it wherein we shall set down plain and easy Directions for the greatest part of their manner of proceedings wherein for methods sake we will begin with their first Process called a Subpoena This Writ of Subpoena is the leading Process of this Court as to the procedure by Bill and Answer and is a close Writ and doth require the Defendants appearance in Court at a certain day and under a certain pain therein limited to make answer to the complaint of the Plaintiff which is indeed the Bill which in former times was wont to be put in before the Subpoena sued forth but now of long time hath been otherwise used This first Subpoena is called Subpoena ad respondendum and is distinguished by that name because there are several other Subpoena's in order to further proceeding as a Subpoena for Costs a Subpoena to make a better answer a Subpoena to rejoyn a Subpoena for Wiâ—nesses to testifie a Subpoena to hear Judgment and a Subpoena ducens tecum for Writings Evidences c. Touching the Subpoena to answer you must be very careful that there be no mistake in the body of the Writ for that may prejudice the Plaintiff and the Defendant may take advantage thereof if he find it but if there be a mistake only in the Label no advantage can be taken by it In none of these Writs may there at any time be put more then three names This Writ may be returnable two wayes
perversness is not with difficulty accomplished whose folly a man may compare to the unskilfulness of some Chirurgions who in stead of healing fester a wound and in stead of mitigation make the torments more grievously dangerous whereas expert ones do with gentle Lenitives redress the malady before the Patient have any thorow sense or feeling of pain So our Sollicitor being thus guided by discretion and having his spirit awaked to all circumstances doth manage matters with a more delicate deportment and by certain premised Preparatives so disposeth the mind of the other Agent as it may be apt to receive any form which shall be imposed using the same Consideration which good Players at Tennis have who not to suffer a rest do not only stand attentive to send it to their Companion but with like heed provide to retake it by accommodating their person and expecting it in the likelyest place so he to avoid all hinderances doth not only suit his own words but also gives favourable Constructions to the speeches of the other Agent by dissembling the discontentments which might arise In brief some few other Rules for our Sollicitor's discretion may be these He must avoid sudden changes for that doth hold of violence and Nullum violentum est diuturnum Again he must settle more assurance in him that doth expect than in him who hath received a benefit for by speeding in suits men become slack waiters when hope of gaining will certainly keep them in due devotion He must also be wisely diffident and put on a judicial distrust put on I say because there is nothing less familiar and easy to honest men then to suspect warily Having thus far trained him up in the way to perfection and laid him down some few Rules to walk by come we now in the last place to shew how 5. He shall manifest the same and comment on his actions To which purpose it is necessary that he have a free and voluble tongue to utter and declare his conceits in the use whereof it is necessary that he avoid affectation and that his speech be honest comly significant expressive proper and void of all fear and effeminate terms without any dissimulation for doubtfull and ambiguous words with particular ceserves cafgues a base mind and imbecillity of spirit He must not alwayes shew himself a Scholer but sparingly and when sit occasion requires it for sometimes to use conceits of Learning as Embroideries is requisite but then it should be in an hidden manner like as Apparel doth represent the proportion but not the barrenness of our members but generally it is the greatest wisdome rather to attend others then to be an eloquent Merchant of self conceits for men expert and practised can out of another mans words deduce great consequences and take light of matters of great importance With these five Qualities so rectified as aforesaid our Sollicitor being rightly adorned he shall he able with credit to run through all the hazards and difficult nies which in his practice he shall or may meet with Object But here I meet with an Objection viz. What need is there of all this coyle and ado about a Sollicitor Do not all men know there are many Sollicitors who have much practice and great dealing that have never been bred to any of those things simple follows who had not wit or honesty enough to learn a mean Trade and in truth cannot write their own names and yet are accounted brave fellows in that business Answ To this I answe True it is and to the shame both of the Law and the Professors thereof be it spoken that will suffer such fellows by their ignorance and deceits to abuse so many as they daily do 'T is by the means of these cheating devouring Caterpillers that the honourable Professors of the Law are so often cryed out upon for bribing and taking excessive Fees and it will be no wonder hereafter if Ignoramus be revived when such a company of simple 〈◊〉 shall be admitted or suffered to usurp and therein abuse and make vile the worthy name of a Lawyer It is an abuse well worthy to be inspected by the discerning eyes of the learned Judges of the Land and some severe course to be taken for the remedy thereof whereof under favour and permission I shall make bold only of one small hint as follow Whereas now every idle fellow whose prodigality and ill husbandry hath forced him out of nis trade or employment takes upon him to be a Sollicitor and thereby not only by their multitudes and swarming in every corner they who have been at great labour expence and study either can have no practice at all or at best so little that it is not worthy their looking after and not only so but the Clyent also receives a double damage first in the tedious delay and sometimes the loss of his cause and then in the vast expence of his money whereof he can have no account for remedy whereof it would be well that it should be declared That no man should dare to undertake to be a Sollicitor either at Common Law or in Equity unless he had for five years before at least been of some of the Inns of Court or Inns of Chancery and shall be legally admitted and entred in a Roll for that purpose to be kept in the Pettybag-Office in Chancery under a certain pain and punishment and that no Clyent do entertain any other than one so qualified by which means if any abuse be offered the Court may take a Cognizance thereof and punish the same This shall suffice to have spoken in answer to that Objection I shall now proceed and shew the dury of our Sollicitor both in what he ought to do and what he ought to know But for that I shall refer you to the next and following Chapters CHAP. III. What our Sollicitor ought to know the better to enable him in his practice AS we suppose our-Sollicitor to be chiefly if not wholly concerned in matters of Equity so we shall to that purpose inform him that he must of necessity be knowing in Courts of Equity whereof the Chancery in this Kingdome being indeed the chief and only lawfull Court if so be that he be truly instructed therein it will be sufficient to guide him in all the rest Therefore In this Court the Lord Chancellor of England is the chief Judg who in case of sickness infirmity or other extraordinary business may depute one of the Judges to sit in his place at any time but in the Terms the Master of the Rolls is equall with him and sitteth at Westminster-Hall in the mornings and three dayes in every week during the continuance of the Terms sitteth alone assisted by two Masters of the Chancery in the Chappel of the Rolls and these in their several places in manner aforesaid do make Orders and Decrees The subordinate Officers of this Court are many The twelve Masters in ordinary which are Assistants both to
all Attachments in Process are to be discharged upon the Defendants payments of the ordinary costs of the Court to the Plaintiffs Clerk or his tender thereof to the same and his refusal to take it and filing of the Plea Answer or Demurrer as the case merits without any motion and if the Plaintiff do prosecute the Contempt afterwards the Defendant will be discharged with costs Where an Attachment is had if the Sheriff do not make his Return a day will be given and if he do not by that time the Court will set an Amerciament upon him Where any party is attached and afterward proclaimed and he comes not in but stands further out in contempt in such case a Commission of Rebellion may be issued forth against him for the apprehending of him and bringing him into the Fleet the proper Prison of this Court and this Commission of Rebellion is sometimes directed to the Sheriff and sometimes to private persons as in the Case of Gage and Etrington Trin. 38. Jacob. Tethil 37. This course is likewise taken against those that perform not obedience to Orders or Decrees to pay costs or the like Where private persons are made Commissioners and to take the person in contempt if they suffer him to escape the Sollicitor may by motion get them committed till they bring him in as in the Case of Sâ—chevorel against Sachevorel Hill Term 18. Jacob. Tothil 38. If any person rescue one taken by a Commission of Rebellion the Rescuer may be gotten to be committed And if the Commissioners upon such a Commission let the party in contempt go where he list whereby he make an escape they may be procured to be committed to the Fleet till they pay the Debt See Nelsons Case against Yelverton in Trin. 18 Jacob. Tothil 39. If a party appears not but stands further out in contempt a Sergeant at Arms may be sent out to take him and if he cannot either by reason of his hiding or resistance or having taken him he escape and so persist higher in his contempt in such case a Sequestration may be obtained upon a motion and Affidavit thereof of his Land and if the Suit be for Land a Sequestration and Injunction for the profits of the Land to be delivered to the Plaintiff by the Sheriff or other Commissioners for that purpose as in the Case of Boles against Walleg and his wife Caryes Rep. 38 58 105 109. In all these Cases it behooves a good Sollicitor to be careful watchful and diligent that he may not slip any opportunity that may work for the advantage benefit and behoof of his Clyent and his Cause SECT 2. THe next part of our Sollicitor's practice is to be skilled in Bills and Answers and the several proceedings thereupon wherein he must observe That the Plaintiffs Bill is in effect the same that the Declaration after an Appearance had is either in the Kings Bench or Common Pleas and layes down the cause of his Complaint in Chancery being usually such as is exempt from remedy at Common Law and therefore they commonly insert in the Bill these words That the Plaintiff hath no remedy at Law And this Bill by continuance of such practice may be put in after the Subpoena is both taken out and served so as it come in within the time before limited in the former Section to prevent costs This Bill in Chancery and all subsequent Pleadings and Proceedings upon it must be succinct and short and not stuft with repetitions of Deeds Writings or Records in haec verba but the effects and substance of so much of them onely as it is pertinent and material to set down and that in brief terms without long and needless traverses of things not traversable and without tautologies and impertinencies Neither must it contain any matter either criminal or scandalous against the Defendant or any other and if it do the Defendant may refuse to answer it and the Plaintiff and his Counsel whose hand is to it may be punished for it and any other party grieved may recover costs against such Counsel Where any Bill contains matter not proper for the Court to give relief in the Bill may be gotten dismissed and so likewise will it be if there want Counsel's hand to the Bill or if the Counsel's hand be counterfeited or disallowed To such a Bill rightly fitted and filed the Defendant is to make Answer wherein many times he makes much delay but in all cases of delay he must upon Oath satisfy the Court of the cause of such his delay which may be in several respects as First Where the matter contained in the Bill is such as to which he cannot give an answer direct without conference had with some other person in the Bill named or to whom the Bill refers Secondly Where the Bill chargeth the Defendant with the having of Evidences or Writings or Goods or Chattels of the Complainants to make discovery what they are in such case the Evidences or Writings and Goods being in the Country and he in London he may make Oath he cannot answer perfectly to the Plaintiff's Bill without sight and perusal of the Goods Evidences or Writings which he hath in the Country Upon which Oath so made the Answer will be suspended till the first day of the next Term but in these cases the place in the Country where the parties live Goods Evidences or Writings lie must be above twenty miles from London for if it be nearer he must answer in eight dayes after appearance unless further time be given by order There may also be Oath made by another person either the Sollicitor his Servant or Neighbour to the Defendant that he is sick and cannot travel without danger of life and upon such an Oath a Dedimus Potestatem if the Plaintiff will not consent to it upon a motion or Petition will be allowed to the Defendant But heed must be taken that the Oâ—der whereby it was granted must be carefully entred in the Registers Office and the Affidavit upon which the Order is grounded must be filed in the Affidavit-Office Where the Defendant doth not appear or that after he hath made his appearance he doth not answer within the time limited him nor sheweth any cause for the same in such case an Attachment is awarded against him which must be entred in the House-book of the Six Clerks Office and likewise in the Register-book expressing the cause of issuing the Attachment Where there is no day given by Rule to the Defendant to answer in such case the Defendant is at liberty to answer at any time during the Term and where the Defendant makes default within that time to answer then an Attachment may be sued forth against him of Course and the same with the cause thereof must be entred as before is mentioned in the last Paragraph Where the Subpoena is made returnable so near the end of the Term that there cannot be a day given to the Defendant to
the costs The first Answer being returned insufficient the Defendant must pay forty shillings for single costs if it be an Answer that came in by Commission and insufficient he must pay fifty shillings costs The second insufficient Answer pays three pounds the third five pounds and you may have a Subpoena both for cost and for a better Answer In all cases of Exceptions the insufficiency appearing in the same Exceptions are the point to be insisted on and no new Exceptions may be moved But if the Master upon reference finds the Answer to be sufficient and accordingly certifies it there the Plaintiff must pay forty shillings cost If the Exceptions to an Answer be put in after the Term there shall be time given to answer them untill the fourth day of the next Term unless the Court hasten it If an Answer come in by Commission and be not good no new Commission will be admitted but upon Oath of inability of the person and his payment of fifty shillings costs as before Where a Cause goes to hearing upon Bill and Answer the sam must be admitted to be true in all points and no other Evidence is to be admitted but what is matter of Record to which is provable by the Record it self Caryes Rep. 78 30. SECT 3. THe third thing necessary for a perfect Sollicitor is to understand clearly the matter of Pleas and Demurrers wherein he must observe First That a Demurrer is alwayes where there is matter defective contained in the Bill or where is forraign matter The Plea of forraign matter may be of two sorts either where it is to the Jurisdiction of th Court or to the disability of the person as where the Plaintiff is Out-lawed or Excommunicate or where there is in this or any other Court a Bill or Suit depending for the same cause or it may be that the Cause hath been formerly dismissed in this Court or the like or if the matter of it appear pear upon Record it may be put in without Oath otherwise not In case it be a Demurrer it must express the cause of the Demurrer yet other causes may be insisted on at the time of arguing thereof in Court When if the Demurrer be over-ruled the Defendant shall pay five Marks costs and where it is allowed the Defendant shall have no costs If one plead a Plea that is insufficient and in over-ruled to be as where it is an Out-lawry pleaded and it is not a good Plea he must pay five Marks costs An Out-lawry is not to be pleaded unless you plead the Record Sub pede Sigilli Also A Plea of Out-lawry if it be in a Suit for the same thing for which a man sueth to be relieved in Chancery is not to be allowed but otherwise it is allowed and will be in force to hinder all the Plaintiffs proceedings till it be reversed But when it is reversed the Plaintiff may upon payment of twenty shillings costs upon a new Subpoena served put the Defendant to answer the same Bill Where the Plaintiff conceives the Plea for matter or manner naught he may put it to the Judgment of the Court. Where a man pleads a former Suit he need not set it down with the Register but it shall be referred to a Master to certify which must be done within a Month upon the Plaintiffs procurement and if the Master certify against the Plaintiff he must pay five shillings costs if there be no Report within a Moneth of filing the Plea the Bill will be dismissed of course with seven Nobles costs If the Demurrer to any Bill be put in upon any slip or mistake in the Bill the Plaintiff of course laying down to the Defendants Clerk twenty shillings for costs may amend his Bill within eight dayes after the Demurrer put in but not after that time If the Demurrer be admitted by the Plaintiff to be good within eight dayes after the filing of it and he doth pay the Defendants Clerk in Court forty shillings costs then the Defendant shall not need to attend his Demurrer but the Bill shall stand dismissed of course without motion unless both sides agree to the amendment of the same yet such dismission is to be no bar to a new Bill to be exhibited by the Plaintiff Where the Plaintiff finds sufficient cause for an Order upon the Answer he may go to hearing thereupon without further proof of which there oughe to be very good advice taken in which case he must get his Clerk to present the same in course to be set down to be heard upon Bill and Answer But in case the Court shall not find grounds to make a Decree or final Order the Bill shall be dismissed with costs or the Plaintiff admitted to reply if he deserve it first paying down five pounds costs within four dayes after such hearing else the dismission to stand and the conclusion of the Order upon hearing is to be penned by the Register accordingly and then such dismission shall be a good Plea in bar of any new Bill for the same matter Where a Plaintiff proceeds so far as to proof and upon the hearing it clearly appears that the Plain iff might have had full relief upon Bill and Answer albeit he be relieved in the same cause yet he shall pay costs See more fully these things in the Collection of Orders and Caryes Reports 39 87. SECT 4. OTher things in practice necessary to be understood by our Sollicitor are Replications Rejoynders and Sur-rejoynders Now a Replication is the Plaintiff speech in way of a Reply to the Defendant Answer the Rejoynder is the Defendants Answer to the Plaintiffs Replication and the Sur-rejoynder is the second defence to the Plaintiffs Action opposite to the Defendants Rejoynder 1. The Replication must be short relating to the substance of the Bill and it must avoid superfluous and crimâ—nous matter 2. The Replication must affirm and pursue the Bill and confess and avoid traverse or dâ—ny the Answer 3. The Rejoynder that must pursue and confirm the Answer and must sufficiently confess or avoid traverse or deny any material part of the Replication 4. No new matter must be put into the Replication and so much matter only is necessary to be there as will avoid the matter of the Answer 5. If upon the Answer there be so much confessed that the Plaintiff need not to draw into pleading and prove all the points he must see to it and reply and go to proof onely in those particulars in question and necessary to be proved 6. When the Defendant doth demur or disclaim to any Bill exhibited against him the Plaintiff cannot reply and if the Defendant in those cases be served with a Subpoena ad rejungendum having before made no other Answer but a Demurrer or Disclaimer as aforesaid he shall have costs for unjust vexation Where the case is such that the parties cannot come to issue by reason of some new matter disclosed in the Defendant's
shall not be bound up by any Decree But where a man becomes a Purchaser pendente lite and without any colour of privity or allowance of this Court there it shall regularly bind him yet in such case if there have been any intermission of the Suit or the Court be acquainted with the Conveyance then the Court is to give order and direction in it No Decree made by the Court can be crossed altered or explained upon a bare petition only and yet thereby it for some speciall Reasons may be stayed for a while till it can be moved in Court A Decree once inrolled cannot be reversed or altered but by a Bill of Review unless it be in case of mis-casting where the Case is demonstrative and then it may be done by Order A Decree will bind the person of a man for where any do refuse to obey it the Court will imprison them till they conform It binds also the Rights and Titles to Lands and Goods for the Court by Order of Sequestration and Injunction will dispose of the possession thereof for ever to him to whom the Court judgeth the right to belong in conscience Where a Decree is to be made upon a pretence of Equity against the Judgment of another Court that Judgment is first read and then the Decree is not to vacate the Judgment but to order the unreasonable party The Decree being this obtained our Sollicitor may sometimes meet with stubborn and perverse people it is most requisite therefore that he be instructed how the Court doth use to enforce Obedience to their Decrees and to punish the breach of them that so he may the better know which way to take to procure the Court to do the same in his Clyents behalf And that is to be obtained thus First he must serve the party with the Decree it self under the Seal of the Court and if he yield not obedience thereunto but stands obstinate then proceed to take out all the Processes of contempt against him one after another and the party being taken will be straightly imprisoned and not set at liberty till he yield obedience to it that is that he perform that part of the Decree which is presently to be done and give security to perform the other part which is to be done in the future Also the Lord Chancellor may for his contempt fine him what he please and afterwards the same may be estreated Where the Decree is for Land and the party remains obstinate or wilful after his imprisonment the Court upon motion will grant an Injunction for the possession and this being disobeyed after it is served and Oath made thereof the Court in that case will grant a Commission to some Justices and if need be a Writ of Assistance to the Sheriff to put him in possession Caryes Reports 23 34 36.37 Tothil 56 57. Where this Injunction is granted for possession of the Land and the party sits out all Process of contempt and cannot be found by the Sergeant at Arms or make a Rescue there the Court being by Oath upon motion informed thereof will grant a Sequestration of the Land Tothil 107. And this Sequestration is granted sometimes as well of the Goods as of the Profits of a mans Land and that for his wilfulness in standing out in contempt and disobedience to the Court as well where it is for discharge and payment of Debts and Duties as where the Decree is for payment of a sum of money Tothil 175 176. SECT 7. IN case of contempts upon force or ill words used upon any that serveth Process or other words of scandal to the Court if they be proved by Affidavit the party forthwith upon motion will be committed if the words spoken deserve it For other contempts against the Orders of the Court take in short as followeth First An Attachment goes forth upon Affidavit made of the contempt then the party being taken is to be examined upon Interrogatories which is many times upon motion referred to one of the Masters of the Chancery The Contempter coming in Gratis of upon Process should give notice to the Clerk of the other side of his appearance and if there be not Interrogatories put in within eight days or being examined if no reference be of the Examination nor Commission taken out of the other side or Witnesses examined to prove the contempt in a Month the Contempter shall be discharged and shall recover costs to be taxed by a Master without any motion But if after he have appeared upon the contempt he depart unexamined he must stand committed till he be examined and cleared and if it be sound he must clear it and pay costs ere he be discharged Such as stand comitted for contempts upon Attachments or Commissions of Rebellion must enter into Bond to attend from lay to day and not to depart without leave of he Court Caryes Rep. 9 44 70 71 82. Imprisonments upon contempts for matters past may be discharged ox gratia after sufficient imprisonment or it may be otherwise dispensed withall But where the imprisonment is for non-performance of any Order of the Court in force then the person so in contempt ought not to be discharged except he first obey only the Court may dispense with the contempt for a time After all this and a Decree performed or else the party in prison for non-performance as aforesaid yet ought our Sollicitor to understand that his Clyent for all this may be a great way off from an end for upon performance and obedience to the Decree a Bill of Review may be brought At the putting in of which the party that prefers it must enter into a Renognizance with Sureties for the satisfying of Costs and Damages for the delay if it be found against him Where a Cause is dismissed upon full hearing and the dismission signed and enrolled it cannot be retained again but by a Bill of Review and that in some special cases too for No Bill of Review is grantable but upon Errour in Law appearing in the body of the Decree it self without averment or further examination of any matter or fact which might have been had at the time of the Decree unless he shew some new matter which hath risen in time after the Decree whereof the Plaintiff could not have advantage before and then upon Oath made that there is a discovery of such new matter this Bill by the leave of the Court may be exhibited giving security as before Where the Decree is to yield the possession of Land deliver Writings or to pay money he must first perform that before a Review but if the Decree be to extinguish a Right convey Land release a Debt acknowledge satisfaction or to cancel Records or Evidences or the like it may be stayed by the Cour's order till the Bill of Review be determined No witnesses which either were or migh have been exâ—mined upon the former Bill shall upon this Bill of Review be examined 〈◊〉
Masters of the Court and their Reports thereon Which happen upon several Occasions As Where there is a Demurrer to the Jurisdiction of the Court there no Reference may be had to a Master upon it but it must be heard before the Lord Chancellor himself After examination of Witnesses is past there can be no Reference had to a Master to end and determine unless it be in case of near kin poverty or consent of parties A Reference of the state of the case is sparingly granted unless where there is the consent of parties The examination of Court-Rolls is to be by Reference but there it must be by two Masters at the least No Reference shall be made of the insufficiency of an Answer without Allegation of special causes The Reports of the Masters upon References must not exceed the order of Reference whereby the same is referred And after the Master hath seen the order he usually grants our a Warrant which is shewn unto the other side whereby he gives notice of the time of his hearing the Cause where the other side with their Counsel or Sollicitor or both may as they see cause attend The Report it self is usually brief of what only they find wherein the Master ought not to certify his own opinion but leave the same wholly to the Judgment of the Court and if the Cause be very doubtful then must he set forth the special case No Order can be had to confirm the Report till it be first filed with the Register under the Master's hand and a day given to the other side for seven days at least to speak to it in Court But where it doth not ground a Decree and it be positive it doth usually stand and process may be taken out for the performance thereof unless the adverse party upon notice thereof do within eight days after if it be in Term time or if at the General Seals for motions or if after them within four days of the beginning of the next Term file exceptions to the same And in such case the party that so filed exceptions must deposite forty shillings with the Register and a day will be set for the Judgment of the Court and if the Court do not allow the exceptions the other shall have the forty shillings and what more the Court shall think fit if otherwise the mony is to be restored The matters chiefly under Reference are either insufficient Answer matters of Account contempt or abuse of the Court. Where a Master upon a Reference to him Reports an Answer insufficient the Complainant may take out two Subpoena's against the Defendant the one for twenty shillings costs and the other to make a better Answer SECT 4. THere are many Occasions intervening in a cause which do require a Motion to set them right now every motion procures an Order now it behooves our Sollicitor not to lead his Clyent into unnecessary and chargeable motions and eveâ— Order must be drawn by the Register who saâ—e then in Court and took Notes thereof when the same was pronounced into his Book by which to draw up some more full remembrance of that which passed in Court Which that it may the better he done our Sollicitor after the rising of the Court ought to repair to the Registers Office and there finding the Notes and shewing them to the Register or his Clerk to have instruction for the drawing up of the said Order for his Clyents better advantage Where any Order shall be made and the Court not informed of the last material Order formerly made no benefit shall be taken by such Orders as being surreptitiously procured and therefore the Register doth alwayes mention the last former Order in the Order that he draws up at present An Order made out of the general Rule must set down the special Reasons of it No Order shall be explained by petition but by publick motion both parties being heard No Order but final Orders and Decrees may be received to be entred after eight days after the pronouncing thereof that day being included The Register is to keep Copies of the Orders he doth deliver and he is to mark the same which done it is to be entred by the entring-Clerk and so brought back again to the Register for his hand to be put to it and then it is authentick The Register after a hearing and reference to a Master is to set down in the Order of Reference what was the Opinion of the Court unless the Court do direct it to be drawn otherwise All Orders drawn up by the Registers are to be entred under the Registers hand in due time and after they are once so entred they may not be in any manner upon any occasion whatsoever altered without a special Order and direction of the Court to that purpose It was an ancient piece of practice but I think now almost super annuated that the Register within ten dayes after the end of every Term shâ—uld certify the Lord Chancellor or Lord Keeper for the time being what References depend in the hand of any Master and how long they have depended that so if any of them have depended over-long the Court may require an account thereof from the Master and quicken him to a speedy dispatch SECT V. IT doth often fall out that some persons may have right to an Estate yet not wherewith to prosecute the same or else may be made parties to a suit as knowing much therein yet have not wherewith to make either a defence or discovery in such Cases the party making Oath before a Master of his poverty and exhibiting the same either to the Lord Chancellor or Master of the Rolls together with a Petition they or one of them will admit him to sue in forma pauperis and assign him such Counsel Six Clerk c. as he shall desire But here it is necessary for our Sollicitor to know that there are many Paupers who bring only vexatious suits which if he can discover and inform the Court thereof they shall not only be dismist but punished however such thing be made appear the Counsel and Clerk assigned as aforesaid may not refuse but must attend their business unless they shew cause to the Court why they cannot so do They must alwayes have their Order of Admission with them and first move that before any other motion and indeed it is no hinderance at all to them for if they have any other motion they may make it afterward Where the Register finds he is not in Pauper he shall not draw up any Order upon the second motion but the Pauper pretended shall lose the fruit of it No Counsellor Attorney Sollicitor or Officer of the Court appointed to be for a Pauper by the Court is to take any thing of or contract for any thing with him and the Pauper that can be proved so to have given or contracted is to be dis-paupered for ever If a Pauper fell or contract for his