whatsoever For that the varietie and multiplicitie of Suits and long continuance and proceedings thereupon may possibly have some influence in relation to the benefit of those that shall be appointed if a certain sallary be not provided and the Judges restrained from taking any Fees 8. That all sorts of Injunctions and other special Writs be signed onely by the Attorney and chief Officer other signitures being meerly matters of formality occasioning onely unnecessary delay and expence 9. To avoyd fraud that there shall be no relief in equity for any Trust or Condition other then what is expressed in the Deed which conveys the Interest and that the Statute for transferring of uses into possession may work aswel for estates for years as freehold And that whatsoever shall own a Trust or fraudulent conveyance to deceive a Creditor or Purchaser shall on lawful conviction forfeit treble the value to the party aggrieved 10. That if there be an Estate Morgaged for less then the value the Creditors of the Morgagor may be admitted to repay the Morgagee his money and dammages and so have the Estate for satisfaction provided they redeem it within the time of redemption allowed to the Morgager 11. Whereas it is now provided for that Injunctions be awarded of course for stay of all proceedings at Law for the matter complained of in Chancery on a Dedimus Potestatem It is likewise humbly proposed That the like Injunctions be hereafter issued forth of course on an Attachment being never denied on motion until perfect answer made clearing contempts and other Order to the contrary 12. That whereas Plantiffs and Defendants are exposed to many difficulties apparent delays and prejudices and unnecessary wastful expence by reason of the Lawyers engaging their Attendance to several persons in several Courts at one and the self same time to move and defend motions viz. The Chancery Exchequer Upper-Bench Common-Pleas Guild-Hall c. it being impossible for one individual body to be at several places at one instant of time So that oftentimes the Clients suffer in their absence and are forced to retain divers Councellors to supply the absence of one another Whereas one or two would suffice who being throughly engaged in a cause could the better understand it and would prove more useful then 20. that are now retained in a cause which is frequent now adays for the reasons aforesaid and perhaps not one of them doth fully know the merits of the cause to the dishonour of their Calling and the great damage of their Clients It is therefore proposed that all Councellors may be confined to practice at one certain Bar and not elswhere as formerly The Table The Six Clerks Office worth 2000. l. per annum a piece and upwards demanded by vertue of a Pattent from the late King  The Six Clarks Fees What wil content the Laborer What wil be saved to the Common-Wealth FOr all Copies of Bils Answers and other Pleadings for every Lease containing fifteen lines _____ per fol. 0l 0s 8d 0s 4d 0s 4d For every Attachment with Proclamation and the Seal 0. 2. 10. 1. 8. 1. 2. For every Commission of Rebellion besides the Hamper Signiture Entry Inrollment and other Fees 0. 8. 0. 4. 8. 3. 4. For every Dedimus Potestat 0. 7. 10. 4. 6. 3. 4. For every ingros'd Bill formerly there was paid to the Clerk 6. d. per fol. being the main and onely subsistence he had to live upon which if taken away as indeed it should being needless and chargeable then no Clerk can subsist without a confirmation of this Table 0. 0. 0. 0. 0. This will save very much trouble Labour and needless expence For every Commission to examine Witnesses 0. 7. 10. 4. 6. 3. 4. For every Writ of Execution of an Order of Court 0. 7. 10. 4. 6. 3. 4. For drawing and inrolling every Decree and every Dismission formerly 1. l. 13. s 4 d. but far better if 8. d. per fol. drawing and inrolling which is the most certain and indifferent way for the Clerk and Client and not ingross as formerly 1. 13. 4. 8. d. per. f. This will save much and prove a certainty For every Writ of Execution of a Decree per skin 1. 6. 8. 13. 4. 13. 4. For every Exemplification of a Record which comes but seldom per skin 1. 6. 8. 13. 4. 13. 4. For drawing and ingrossing every Injunction besides Signiture Inrolling and other Fees which may be spared 0. 13. 4. 6. 6. 6. 8. For every Supersedeas Certiorar Procend Habeas Corpus and such other special Writs which happen but seldom besides Signiture 0l 6 s 8. 3s 4d 3s 4d For the writing of every Patent which is great confirmation Innotessimus Executorie Special License Special Commission Pardon de infortun Se defendendo Duplicat Constat or other special Grants and Patents seldom used per skin 1. 6. 8. 13. 4 13. 4. For the filing of every Bill every Appearance 0. 3. 4.     For every Certificate of any Proceedings of the Court 0. 3. 4.     Out of every Cause while it is Depending in Court though nothing done by him for it every Term. 0. 3. 4.     The several Labours Troubles and Expences of the Clerks in the Six-Clerks Office for which by the present Table of Fees or from the Six-Clerks they have no certain Fee or allowance at all though they were formerly rewarded by their Predecessors with Chamber-rent and Diet. 1. THe bespeaking of all Subpoenaes of what nature or qualitie soever they be 2. The Filing of all Bills and Bundling of all Records and entring of them 3. The wayting on the Register for drawing up Copies of Orders and to assist the Client therein 4. The attending upon the Masters to see the Defendants sworn and all other Oaths taken by them 5. The answering and directing of all Clients as to the merits of the Cause and all other Proceedings 6. The making of all Bills of Costs and seeing them entred with the Register the Taxing them with the Master and seeing them Entred in the House-book 7. The entring of all Attachments in the House-book the Six Clerks-book and the Register 8. The wayring on the Examiner to see and direct Witnesses to be regularly Examined and to give notice to the Clients when Witnesses are Examined against them 9. The Wayting and Attending on Councel as occasion doth require in the absence of the Sollicitors 10. The Attending the Hearing of the Clients Cause before the Six Clerks the Masters the Master of the Rolls and at Westminster 11. The drawing of all Decrees Dismissions special Commissions Injunctions and other special Writs The greatest part of the Fees being taken by the Six Clerks and the Clerks allowances taken away by the late Lord Coventries Table which Table was procured by the Six Clerks 12. The Examining of all Copies of Pleadings Decrees Dismissions and all other special Writs Inrollments of all Patents
at such time as the Plaintiff shall desire which Process shall not be executed or being executed shall be discharged if the Defendant pay the aforesaid forfeitures and charge of the Process and under his hand on the backside of the said Process Declare that he will appear within the Return thereof and within eight days after make his Defence or otherwise make Oath before the Sheriff or Coroner that he had no notice of the said Summons with such Declaration to appear and Answer as aforesaid and such Process either executed or thus endorsed or where it cannot be executed shall at the return day be returned whence it issued and be there filed And in case the body cannot be attached and Issues be returned upon Lands or Goods the same shall be to the value of four pounds which shall be forseited for not appearing one half to the Commonwealth the other half to the Plaintiff Observation 6. That the Course prescribed in this Section for an Attachment Proclamation Commission of Rebellion and Sequestration to be contained in one Process upon a Contempt is humbly conceived to be of dangerous consequence and more mischievous to the Defendant then any prejudice could formerly accrew to the Plaintiff by the ordinary course of taking out of the usual Process of Court on Non est inventus returned For that on a false Affidavit that the Defendants house was served according to the Direction of this Section which may by craft be done and yet the Defendant never hear of it untill in contempt The Defendant being a Merchant or other person living much on his Trade or Credit having occasion to travel beyond Sea or unto some remote parts of the Nation may have a Sequestration come upon his estate and his credit and trade destroyed and his goods wasted and mis-used before ever he shall hear it Those that are conversant with the practise of the Court of Chancery cannot but well remember that it is frequent upon false Affidavits or other indirect grounds to issue contempts against many men who upon due examination of the Business are often cleared And it were a sad Case that on a bare Affidavit or mistake any of the People of this Nation being in credit and repute should have their Lands Goods or Chattels attached or sequestred And if the Course proposed by the said Clerks for an Attachment and Proclamation to be the first Process contained in one Writ and Commission of Rebellion next and then Sequestration it were more safe for all parties Plaintiff and Defendant and less danger mischief and inconveniency would probably accrew to both by this course then the way directed in this Section SECT VII THat where the person of the Defendant shall not be attached on this process and in custody and the said process endorsed as aforesaid and the Defendant shall not appear on the return thereof the like process shall be sent to all the Shetiffs and Coroners of England and such others as the Plaintiff shall name and the Defendant shall also stand disabled to prosecute any Suit in any Court except in Causes where issue is joyned and there only to Tryal And the Court may also sequester the thing in demand by the Bill for the party not appearing untill appearance and answer except it appear to the Court by oath that at the service of the Summons the Defendant was not within the Commonwealth in which case the Court may give such time for appearance and Answer as shall be meet Observation 7. This hath dependance on the last Section which being held inconvenient this consequently must follow as impertinent and useless as to what is herein before excepted against as is humbly conceived SECT VIII THat where any Defendant hath declared under his hand that he will appear as aforesaid and appeareth not and is in custody for not appearing or having appeared for not answering or not answering sufficiently the Court shall order him to answer and the Bill to be taken as confessed And if within eight days after notice of that Order the Defendant shall not answer accordingly the said Cause shall be put in the Book of Hearings and such Decree made thereupon as if the Defendant had confessed the Equity in the Bill and if at the said hearing it shall appear that the said Defendant ought to discover any thing for the Plaintiffs relief the Court may enforce the same by strict restraint of the said Defendant and Fine to be imposed by the Court one half thereof to the Commonwealth the other to the Plaintiff Observation 8. The Court hath already sufficiently provided in matters of this Nature who in case the Defendant refuseth to answer will decree the Bill pro Confesso so that this Proposal might have been spared SECT IX THat where a Defendant doth appear and doth not answer plead or demur within eight days he shall forfeit 5. l. for the first eight days default to be paid to the plaintiff and 10. l. for every eight days default after one half to the plaintiff the other to the Commonwealth And the plaintiff may nevertheless in such case take forth such process as before to attach the Defendant by Body Land and Goods and in case that his Body be attached and it doth not appear that he hath Lands and Goods sufficient to answer the plaintiffs demands his Body shall be kept in safe custody untill he hath paid the costs and forfeitures and given good security to be taken in the name of the plaintiff and approved by the Sheriff or such party as doth Attach him to appear at the Return of the process and answer and not depart without leave of the Court. Observation 9. By the former course of the Court every defendant was to plead answer or demur within eight days after appearance unless the Court upon special cause appearing by Affidavit that the defendant without sight of Writing or Conference with the rest of the defendants or by reason of sickness or remoteness of his dwelling or some other extraordinary reason given to the Court who in such Cases will grant the defendant a Dedimus or give a further convenient time for him to answer according to their discretions in which cases there is no provision made in this Section but extraordinary rigidness in point of time so that this general Rule cannot be admitted in all Cases without much prejudice to many defendants SECT X. THat any Iustice of the Peace as well as Master of the Chancery in ordinary may take an Answer upon oath sigued with the Desendants hand or mark and shall deliver the same himself or transmit the same close sealed up to the chief Clerk and upon such delivery made or transmitting with an oath that it was not altered since it was so sealed the same shall be received and filed by the same chief Clerk as if it had been sworn in Court or returned by Commission and a Iustice of Peace may also take an Affidavit so as
fides and how can an ignorant Countrey man judge what part of the Depositions are usefull for him and what not wherein some persons taking upon them more knowledge then probaly they may have out of a desire to save an inconsiderable charge may destroy a good Cause but if they will wilfully hazard their Causes it is fit they should abide the ill consequence thereof SECT XXV THat no stay shall be of any proceedings at the Common-Law upon a Bill of Erchange between Merchants nor of Execution upon a Iudgement at Law upon Bill extant after the said Iudgement without defeazance in writing of such Iudgement till the final hearing of the cause Observation 25. This seems very just and equitable SECT XXVI THat no stay of any proceeding at Law shall be but upon equity confessed in the parties Answers who is stayed or where the party stayed is in contempt for not answering or not sufficiently answering to some material charge in such cases the stay to be void upon clearing the contempt or sufficiently answering without any further order Observation 26. This is already provided for according as is proposed by the present Rules of the Court so that this Section was needless SECT XXVII THat where any cause comes to hearing the Iudges shall determine the same without delay or second hearing but if both parties consent the cause may be put the last in the Registers Book of hearing where the parties consent to a reference the Court may refer it Provided that no Iudge before full hearing doth move either party to consent in either of the Cases And where any reference shall be made by consent of parties they shall not have power for to countermand it and an Adward or Arbitrement made thereupon shall be full as if the reference was by order of Court and shall be a sufficient ground for a Decree And the Iudges shall sit constantly as well Vacation as Term untill the causes and motions in the Registers Book be heard and determined And they shall in all causes pronounce either decree presently in Court at the hearing saving in case of very great difficulty and then not to exceed above ten days and not to hear Councel a second time in the said cause Observation 27. To deny the parties to be reheard on payment of double costs if it go against them seems unreasonable on the grounds and reasons set forth Section the 13. touching re-arguing of Pleas and Demurrers As for References and Adwards the Court were never against them and if the parties on both sides agree there is an end of that difference In which cause it is well known the Court neither will nor can meddle with it for if both parties agree what need they trouble the Court which is for no other use or end then to determine those controversies which cannot be composed in an amicable way by the parties themselves But in case an Adward be indirectly made by practise or collusion in such cases the Court will relieve the party aggrieved according to the truth and merits of his Cause which hath been held a commendable and just course And as to that part of this Section which relates to restraining the Judges of the Court from hearing of Councel the second time this seems unreasonable if parties do desire it and the Court see cause and surely it cannot choose but give more satisfaction to the parties and carry with it a greater countenance and power of Justice to hear Councel if the parties on both sides desire it then to deny it to either for it hath been hitherto conceived a just complaint of the People for unjustice in cases wherein they have been concluded without permitting their Councel to be heard when they had something material to offer to the Court especially in case of new matter not offered before Whereas otherwise to hear both sides seems but just whilest the Judgement is still reserved in the breast of the Court who may order increase of Costs on re-hearings as they shall see cause SECT XXVIII THat the Register shall not execute his Office by Deputy except in case of sickness and then the Court to appoint one and shall in his draught of orders shortly express the sense of the Court as Rules in the Court of Common Law without any unnecessary preamble And if the Register draw up an order contrary to or not agreeing with the order pronounced in Court he shall answer the party grieved thereby his full costs and dammages to be given him by the Court or to be recovered by Action on the Case at his Election Observation 28. This method of drawing up Orders pithily hath been formerly proposed by the Clerks and if a Register draws an order contrary to the Declaration of the Court it is but just that he should be lyable to an Action of the Case but in case the course herein before proposed Sect. 16. for publique reading of the Orders in Court be established it will in all likelyhood prevent many miscarriages in drawing up of Orders and will be a means to shorten causes and avoid multiplicity of Orders and spare the Clyent much expence SECT XXIX THat the Register shall upon every Decree pronounced in Court enter the very words of the Decree in his Book without interlineation and publickly read the same in Court at that sitting of the Court to be there allowed And that the Iudges shall sign all Decrees publickly in Court at certain times to be for that purpose appointed which Decrees are to be drawn up forthwith after the Decree pronounced And that from and after _____ no Suit shall be admitted in any Court of Equity for the obtaining of any Decree for any Mannors Lands Tenements and Hereditaments upon any prefence of trust or Agreement whatsoever which shall not appear in Writing under the hand of the party who ought to perform the same or by some Deed or Will in writing Observation 29. As to the first part hereof which concerns the Register in relation to the Decretal Orders of the Court it is very well approved of And it were well the same course were observed on all other Orders granted in Court as hath been before proposed Sect. 16. And for the time and manner of signing of Decrees and Dismisses the Author makes no objection but in the latter part which relates to the barring of the Court from relieving any person for any Lands Tenements or Hereditaments upon any pretence of trust or agreement which shall not appear in writing c. the Author makes no Objection against it provided that this extends not to precedent trusts before the establishing hereof by any Act and before Country Registers be appointed where such trusts and agreements ought to be inrolled and entred for the right truth is if matters of trust and agreement and other matters of Fact betwixt parties were reduced into writing and inrolled it would avoid many litigious causeless suits and prove a speedy way of
opinion of ours because Kings are fittest to inform Kings and Judges to teach Judges Jurisdiction But further out of our Science and Profession we have thought fit these further reasons and proofs very briefly to offer because in case of so ancient a possession of Jurisdiction we hold it not fit to amplifie Premunire The said Statutes upon which this question grows are principally one whereof is a Statute of Premunire and the other is a Statute of simple prohibition That of the Premunire is the Statute of 27. E. 3. Car. 1. And the Statute of simple prohibitions 4. H. 4. Car. 23. there be divers other Statutes of both kinds but the Question will rest on these two as we conceive it for that the Statute of 27. E. 3. it cannot in our opinion extend unto the Chancery for these Reasons 1. Out of the mischief which the Statute provides for and recites viz. that such Suits and Pleas against which the Statute is provided were in prejudice and disherison of the King and his Crown which cannot be applied to the Chancery for the King cannot be dis-inherited of Jurisdiction but either by the Forreigner or by the Subject but never by his own Court 2. Out of the remedy which the Statute appoints viz. that the offenders shall be warned within two moneths to be before the King and his Councel or in his Chancery or before the Kings Iustices of the one Bench or the other c. By which words it is opposed in it self that the Chancery should give both the offence and the remedy 3. Out of the penalty which is not only severe but hostile namely that the offenders shall be put out of the Kings protection which penalty altogether savours of adhering to Forreign Iurisdictions and would never have been inflicted upon excess only of Iurisdiction in any of the Kings Courts as the Court of Chancery is 4. Out of the Statutes precedent and subsequent of 25. E. 3. Car. 1. and 16. R. 2. Car. 5. which are of the same nature and cannot be applied but to forreign Courts for the word alibi or elsewhere is never used but where Rome is named especially before 5. The dis-junctive in this Statute which only gives the colour viz. that they which draw out of the Realm in Plea whereof the cognizance pertaineth to the Kings Court or of things whereof Iudgements be given in the Kings Court or which do sue in any other Court to defeat or impeach the Iudgements given in the Kings Court This last disjunctive we say which must go further then Courts out of the Realm which are fully provided for by the former branch hath sufficient matter and effect to work upon in respect of such Courts which though they were locally within the Realm yet in Iurisdiction were subordinate to the Forreigner such as were the Legats Courts and Deligates Court and in general all the Ecclesiastical Courts within the Realm at that time as it is expresly construed by the Iudges in 5. E. 4. fo 6. 6. In this the sight of the Record of the Petition doth clear the doubts where the Subject supplicates to the King to ordain remedy against those which pursue in other Courts then his own against Iudgements given in his Court which explains the word other to be other then the Kings Court. 7. With this agreeth notably the Book of Entry which translates the word in other Courts not in alia Curia but aliena Curia This Statute of 27. of Ed. 3. being in corroboration of the Common Law as it self recites we do not finde in the Register any president of the Writs of ad jura Regia which are framed upon these Cases that were afterwards made penall by Premunire but onely against the Ecclesiastical Courts Lastly we have not found any president at all of any condition of the Statute of Premunire of this nature of Suits in Chancery but only two or three Bills of Indictments preferred sed nihil inde venit for ought appears to us For the Statute of Hen. 4. that no doubt was made against proceedings within the Realm and not against Forraign and therefore hath no penalty annexed nevertheless we conceive that it extends not to the Chancery in the Case delivered for these Reasons 1. The Statute recites where the parties are made to come upon grievous pain sometimes before the King himself sometimes before the Kings Councel and sometimes in Parliament to answer thereof anew c. where it appears that the Chancery is not named which could not have been forgotten but was left out upon great reason because the Chancery is a Court of Ordinary Iustice for matter of Equity and the Statute meant only to restrain extraordinary Commission and such like proceedings 2. This appears fully in viewing and comparing the two Petitions which were made the same Parliament of 4. H. 4. placed immediatly by the one before the other the first of which was recited by the King and the second whereupon the Statute was made whereof the first was to restrain three ordinary proceedings of Iustice that is to say in Chancery by name in the Exchequer and before the Kings Councel by process of Privy Seal unto which the King makes a Royal prudent answer in these words The King will charge his Officers to be more sparing to send for his Subjects by such process then they have heretofore been but notwithstanding it is not his minde that the Officers shall so far abstain but they may call his Subjects before them in matters and causes necessary as it hath been done in the time of his good Progenitors and then immediatly followeth the Petition whereupon this Act now in Question was made unto which the King gave his assent and wherein no mention is made at all of the Chancery or Exchequer 3. If the Chancery should be understood to be within the Statute yet the Statute extends not to this Case for the words are that the Kings Subjects after Iudgements are drawn thereof anew which must be understood when the same matter formerly judged is put in issue or question again but when the case is called into Chancery only upon point of equity there as the point of equity was never in question in the Common Law so the point of Law is of Fact as it concerns the Law is never in question in the Chancery so the same thing is not twice in question or answered anew for the Chancery doth supply the Law and not cross it 4. It appears to our understanding by the clause of Error and Attaint in the same Statute what Iurisdiction it was that the Statute meant to restrain viz. such Iurisdiction as did assume to reverse and undo the Iudgement as Errour or Attaint doth which the Chancery never doth but leaves the Iudgement in peace and only meddles with the corrupt conscience of the party for if the Chancery doth assume to reverse the Iudgement in the point adjudged it is void as appears 39. E.
he put his hand and seal thereto and name the place of his habitation and the same may be made use of in any Court as if the same had been sworn in any Court before a Iudge of the same Court but no razure nor interlineation is to be in any Affidavit whatsoever Observation 10. To this the Author makes no exception only desires that there may be special care taken in Commissionating faithfull and honest able Justices of the Peace in whom the Propositors by this System do repose in many things as much power as is now intrusted in the Reverend Judges of the Law SECT XI THat where the Plantiff or Defendant do cause any Pleas Answers Demurrers Replications or Rejoynders to be filed by the chief Clerk they shall give to the adverse party or leave with his Attorney for him a true Copy of the same which he shall have without Fee Observation 11. The same Objection that was made Section fourth touching Copies of Bills may serve for this SECT XII THat where any defendant appears upon the return of Summons or process if the Bill be not filed he shall have his full costs to be taxed by the chief Clerk without further attendance then the next day after the return day And not to appear again upon Suit of the same party before the costs paid and upon new Summons Observation 12. The Proposals of the Clerks mentioned in Section fourth That all Bills be first filed wherein the plaintiff prays process before the same be granted will as is conceived prevent all preferring of costs and all those delays unnecessary expences costs and trouble that formerly happened thereby both to the plaintiff and defendant SECT XIII THat where any Defendant pleads or demurs if it be in Term time the same shall be determined within fourteen days after it be put in if in Vacation either before or in the first week of the Term To which end the Iudges of the Court shall appoint certain times for the determining the same not interrupting the course of hearing other causes and shall upon the first hearing of a plea or demur give their positive Order herein without a second hearing And where any plea or demurrer is over-ruled the Defendant shall pay 40 s to the Commonwealth for a fine bâ—sides the plaintiffs costs Observation 13. To limit a time for arguing of all pleas and demurrers as is conceived tends to the forestalling the Judgement Justice and Discretion of the Court whose practise hath been hitherto to dispatch them all in order with as much expedition as they could but in case there be so many entred in the Books and Papers of pleas and demurrers that in ordinary courses according to their dates and entries they cannot be heard within the 14. days to binde the Lords Commissioners or Judges of the Court to hear and dispatch them within that time is conceived to be too unreasonable an obligation which in all probability no Judges or Lords Commissioners will undertake to perform And in case it fall out that a plea or demurrer come to be argued in the absence of the plaintiff or defendant and by reason thereof be ordered to stand or be over-ruled if the party absent shew good cause why he could not attend the arguing of such plea or demurrer upon payment of double costs of the Court if it go against him the Court would not deny the re-arguing thereof which was never yet held unreasonable by any practitioner of the Court or other unbiassed person it seeming unjust and unreasonable that in case either party be surprized or prejudiced by non-attendance in such cases that on payment of double costs he should not be heard therein SECT XIV THat when a sufficient Answer is put in the plaintiff shall reply within eight days and if it be insufficient shall within eight days put in exceptions thereto or enter it in the Registers Books for hearing upon the Answer otherwise the cause to be dismissed without any motion and the chief Clerk to Tax full costs within the time aforesaid and no dismission Fee to be paid by the defendant in this cause or any other But if the plaintiff will in such case pay full costs and charges he may exhibit a new Bill Observation 14. This is sufficiently provided for by the general and special Rules of Court made by the present Lords Commissioners for the great Seal of England to the satisfaction of all Suitors SECT XV. THat References to particular Masters of Chancery be forborn and there shall be from henceforth but six Masters of Chancery in ordinary to be named by the Parliament and eligible at the end of every three years and to have by the year _____ two or three whereof shall sit day by day at some certain publique place so long as any thing depends in reference before them and shall have a Register to attend them which two Masters or three of them at the least shall hear and report things under their hands which come before them always ending one cause before they begin another Observation 15. This course if setled would in all likelihood prove of very great use and benefit to the People and prevent delays and corruptions by references to particular Masters only this is desired to be added that there be some extraordinary punishment imposed as well on Masters of Chancery as on all other persons that are Judges who shall directly or undirectly take any bribe gratuity or reward in any Cause but barely their Stipends allowed by the State SECT XVI THat for the orderly hearing of causes and motions in Court and references before Masters of Chancery the Register shall keep two distinct Books in one of which any party who hath a cause ready for hearing shall enter the same in either of them any person who hath a reference to the Masters of the Chancery shall enter the same in the Register always in the Margin figuring the Books by numbers according to the time of the entry and the party entring every such cause or reference subscribing his name And there shall not hereafter be any Motions in Court for reference of insufficient answers to Bills or Interregatories or touching contempts or for scandal or impertinency in Bills or Answers But any party desiring a reference in any such cause may enter the same in the said Books of reference to be heard before the Masters Observation 16. This Court of entring causes and references is conceived of good use and benefit to the People The present Lords Commissioners having in a good measure made provision therein But it is likewise humbly proposed that all motions in Court be likewise entred with the Registers and the cause and end of the motion briefly inserted And that the same may be heard in course which will be a means to hear and determine Causes and Motions with equal dispatch whereas now eminent Lawyers and Favourites are called by their names to move who make sometimes
three or four motions in a day and sometimes more whereas other Councellors of good parts and abilities are forced to attend a week or more before they can be heard the Clyent in the mean time suffering in his Cause and the Councellor though in no fault suffering in his reputation And that for prevention of mistakes in the drawing of Orders contrary to the meaning and Declaration of the Court it is humbly proposed that the Register do take the Order of the Court Verbatim and read it openly that Councell on both sides may except against and settle the same in Court according to the Direction and Declaration of the Court and that the Register on a good penalty presume not to draw any Order otherwise or add to or diminish from his Notes without consent of parties on both sides The Register as the case now stands being in a capacity to do great hurt and prejudice to the people of this Nation if inclined to the Cause of either party Plaintiff or Defendant SECT XVII THat if the Iudges or Master of Chancery shall hear any cause motion or reference in any other order then as they are set down in the said Registers Books they shall forfeit 20. l. one half to the Commonwealth the other half to the party whose cause should be next heard in due course and the Register to forseit 5. l. to be paid in the moyeties as aforesaid that shall alter the number on the said Books except it shall be by consent of parties or where neither party doth attend And then such cause to be put at the end of all the causes then entred in the said Books respectively Observation 17. Against this there is nothing excepted SECT XVIII THat upon a second insufficient Answer the party shall be committed and kept within the prison untill he make a sufficient Answer Observation 18. Against this Proposal there is no exception made SECT XIX THat in case erceptions be taken to a Report defiring the opinion of the Court the same shall be entred in the Book of Motion and the party excepting shall deposite 3. l. with the Register and if the Court shall judge the exceptions void it shall be restored to him and the adverse party shall pay him 40. s. costs But if his exceptions be adiudged friâ—ilous the Commonwealth shall have 20. s. of the 3. l. and the adverse party the residue Observation 19. This course is already established by the orders of the Lords Commissioners saving the 20 s forfeiture to the Commonwealth which seems more reasonable as well in this case as in other places where such forfeitures are mentioned to be paid to the parties concerned and aggrieved And besides the extreating and levying of these petty forfeitures will stand the Commonwealth in more charge then the same will amount unto and none will prosecute such forfeitures since no particular benefit accrews to the prosecutors thereby SECT XX. THat after a Defendant hath once appeared he shall perfect his Answer re-ioyn and ioyn in Commission and attend the hearing upon notice to his Attorney or known Solicitor without any more process and the Plaintiff to do the like after he hath Replyed Observation 20. To rejoyn and joyn in Commission on notice to the Clerk and Solicitor is approved of but not to proceed to hearing on such notice which may prove very prejudicial to the party in whose absence the cause may be heard for want of due notice given him thereof especially if the party be barred of a re-hearing as is unsafely proposed Sect. 27. SECT XXI THat in every cause where Commissioners are prayed to examine witnesses duplicate Commissions shall issue at the request of the Defendant to be executed in such Counties as either parties shall think fit which may be executed in any place returnable within 60. days from the date and return publication to pass of course and either party or his Attorney to be at Liberty to enter the same into the Registers Books of hearing And if no Commission issue and Witnesses be exacted in Court the cause shall be published within sixty days from the time of Replication and then to be entred with the Register as formerly but where Commissions are to be executed beyond the Seas the chief Clerk shall set down a time for the return and publication and either party may certifie at the hearing that he could not produce his witnesses within sixty days to be examined so as notice was given in writing to the other party before publication of such witnesses names and place of abode and to what points they are to be examined at the hearing And where the Court gives order to examine any parties witness the same is to be done by vertue of that order without any Commission and the charges of Commisson in such causes are to be spared Observation 21. This is very well approved SECT XXII THat where Witnesses shall be examined for to prove a contempt the party accused may likewise examine Witnesses to clear the same Observation 22. This is already provided for in the Rules and Orders established and published by the present Lords Commissioners of the Great Seal of England SECT XXIII THat Commissioners for Examination of Witnesses shall take an oath before execution of any Commission to execute the same faithfully and impartially which each Commissioner is impowered to administer to the other and the Clerks attending such Commissioners shall take an oath which is to be administred by the Commissioners to write down the Depositions of the Witnesses truly and indifferently without partiality and every of the Witnesses shall be sworn and examined and the depositions put in writing and in presence of the Commissioners and not elfewhere Observation 23. This is an excellent course for the due and regular carrying of Commissions there having been hitherto in many causes too much foul practise used in the taking of Depositions wherein many Commissioners and Clerks on both sides for the most part Act rather as Parties or Agents for the persons concerned then as becometh honest indifferent persons according to the trust reposed in them by the Court so that through the indirect practise of cunning Clerks and Commissioners meeting with persons of the other side not so skilfull nor so ill disposed many a good and honest cause is overthrown SECT XXIV THat after publication either party may see the depositions of either side and not be obliged to take Copies of any more then he shall conceive material so as he take not the part of a Deposition to one Interrogatorie And Plaintiffs and Defendants may if they agree take but one Copy of all or any part of the Depositions and make use of the same Observation 24. This seeming benefit may prove more prejudicial to the parties concerned then the charge of full Copies may amount unto for how can Councel be instructed in the merits of the Cause without sight and perusal of Copies of all the Depositions of both