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
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
47 80 81. Tothil 189. The Interrogatories to examine Witnesses must be succinct and apt and when Witnesses upon such Interrogatories are examined in Court you cannot examine the same Witnesses upon putting in new Interrogatories Witnesses ought to be examined by Examiners in Court if they live in or near the Town and not by Commissioners for no Commission whatsoever ought to be issued out into any place within ten miles of London Either party as well Plaintiff as Defendant after Answer put until Publication be past may examine what Witnesses they please in Court before one of the Examiners but before Answer and after Publication no Examination will be allowed but by special order some special cause being shewed Notice must be given both of the names and dwelling-places of the persons examined in all cases of examination After an Order for Publication and that delivered to the Examiner no Witness may be examined in Court though he were sworn before and if any such be his Depositions may be suppressed Caryes Rep. 27 58 93. Tothil 189 190 192. No Abstract or Copy of the Depositions of any Witnesses is to be delivered till Publication be past Neither may any Depositions be suppressed upon a bare Petition only with References and Certificates upon it Where there are several Causes which are meerly cross Causes between the same parties and touching the same matter there the Depositions of Witnesses in the several Causes may be used at the hearing of both Causes being heard together without any motion Where Depositions are regularly taken they may not be suppressed by motion but if any Depositions appear to the Court to be gotten by practice they may by order of the Court be suppressed Depositions taken in Chancery may by order of the Court be made use of in any other Court. Caryes Rep. 35.56 He that will examine Witnesses in perpetuam rei memoriam to preserve a testimony he must first exhibit his Bill and shew his Title to the thing and that the Witnesses to prove it are old and not like to live long whereby he is in danger to lose it and then pray a Commission to some Gentlemen of credit in the Country to examine them and a Subpoena to the parties interested to shew cause if they can to the contrary and if the party interested being duly served within fourteen dayes shew cause the Plaintiff must desist and if no cause be shewn he may go on alone if the other will not joyn with him as he may if he will and then fourteen dayes warning is to be given of the execution thereof In this case the Court will appoint Commissioners and give Articles to examine upon or they may be examined in Court by an Examiner But here observe That none but aged and impotent persons may be examined upon this Commission Where the Defendant takes Exceptions to the proceedings in speeding the Commission as whether he did appear or not and whether Oath were made before them of notice given to him of the time and place of execution thereof in such case the Commissioners must certify up with the Commission the Exceptions the Defendant so took This testimony taken upon this Commission is not to be published while the Witnesses live but in some cases as either by consent of the parties or upon Oath made that either the Plaintiff hath some tryal at Law wherein he shall need it and that the Witnesses are not able to come to the place or otherwise by order of Court and then the Commission is to be opened by a Master and to be considered of and afterwards it may if the party will exemplify it by order of this Court be given in evidence in any other Court These Depositions thus taken shall not be made use of to be given in Evidence against any other but the Defendant who was warned to defend it his Heirs or Assignes or some other claiming by or under him by some interest which accrued to him after the Bill preferred Tothil 189 190 191 192. Where both Plaintiff and Defendant have examined what Witnesses they please and are ready to go to hearing there neither of them must first give the other a Rule for Publication which Rule being expired and no cause shewn to the contrary then Publication passeth After which neither party can examine Witnesses unless it be by special order of the Court which will not be granted without an Oath made that the party which requireth the same nor any of his Council or Sollicitor have seen read or been made privy to any Examinations of any the Witnesses formerly examined in that cause by either of the parties and thereupon some good cause be shewn either by Oath or Certificate of Commissioners why the party could not get his said Witnesses examined within the time limited for their Examination in which case sometimes the Court giveth liberty to examine Witnesses by a time prefixed with this Proviso That the party shall not in the mean time see any of the said former Examinations After Publication is had the Plaintiff or if he neglect the Defendant may procure a day of hearing of course to be set down by his Clerk at the end of the Term when either the Lord Chancellor or Master of the Rolls do set down Causes to be heard The days must be set down according to the priority of Publication neither must any Cause be presented for hearing the same Term that Publication passeth All Process to hear Judgment must be returnable six or seven days before the day of hearing except it be in the beginning of the Term when the time will not bear it and the Writ must have on the back of it the very day of hearing at which day if the Plaintiff do not appear the Defendant is to be dimissed with costs Caryes Rep. 45. SECT 6. OUr Sollicitor having thus far with diligence managed his Clyents businesse and brought his Cause to a hearing the next point of his care will be to get the Decree drawn up which should be done as short as with conveniency it may and not râ—cite the Pleadings at large but the sum thereof briefly And if it be made before the Master of the Rolls or any of the Judges it ought being drawn to be first signed by them and afterwards by the Lord high Chancellor and then it must be inrolled which Signing and Inrolment ought to be done before the first day after the next Michaelmas or Easter-Term after the making of iâ— Where the Decree concerns Lands or Leases it must be entred into the Registers Docker-Book within six Months after the making of it otherwise it shall not prejudice the Purchaser of the Land neither indeed shall any Decree be binding to any but those who are served with Process ad audiendum Judicium or that did appear Gratis The Purchaser that comes in by Conveyance bona fide from the Defendant before the Bill exhibited and that is no party by Bill or Order
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 〈◊〉