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
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.
two Tables of stone in which the Law was written To which S. James alluding James 2.13 saith That Mercy triumpheth over Judgement So the Princes and Governours of Nations in imitation to that heavenly representation have appointed two supreme States The one of Justice wherein nothing but the strict Letter of the Law is observed The other of Equity wherein the rigour of the Law is tempered with lenity which is nothing else but Mercy qualifying the sharpness of Justice Ipsae enim leges cupiunt ut jure regantur id est ut illi facili ac benigna interpretatione temperentur Equity doth diminish or adde to the letter of the strictest Law as times and necessities require and is defined by Aristotle to be Correctio legis generatim latae qua parte deficit Perionius terms it Correctio quaedam legi adhibita quia ab ea abest aliquid propter generalem sine exceptione comprehensionem The sense of both interpretations being one and the same that Equity is a Restriction of the rigour of the Law and so useful in the wel government of the Nation that without our Courts of Equity the Common Law may be termed Severity and the strict rigour thereof totally destructive to the People But since corruption hath crept into this Court and the usual delay together with the excessive Fees blemisht the primitive lustre thereof the grave Councellors and Patriots of these times like wise Chirurgions intend the preservation of the body by amputation of some putrid members Ne pars sincera trahatur for which purpose these ensuing Observations c. are humbly represented to those in Supreme Authority not in opposition to their judicial proceedings therein nor as a rule to frame and square their actions by in managing thereof but as a matter usefull as is humbly conceived for avoiding the tediousness of proceedings the impertinency of some Officers and the exorbitancy of excessive Fees of that Court which being regulated You the Heroes of our times may be truly said to have erected a Trophie to Justice and to have established Righteousness in the Nation Acts of Justice and Piety will make you glorious in the memory of men whiles others who prepare Altars and Tables to Fortune as saith the Prophet Isaiah have built on the quick-sands of imaginary greatness which serve them for no other purpose but to measure their own fall God hath made you the great Governours of this Nation to read the Decrees of your good success written as it were with the rayes of your own Justice and Piety By how much the more you are affected to this by so much the more the happy issue of your affairs shall crown your desires You have seen your Battails end in Bays and the thorns of your travails spring up to a peaceable and well framed Gevernment wherein God hath made you amongst men as Mountains over Valleys Be then Mountains of perfumes of which Solomon speaks in Cant. and not the Hils of Osee full of snares and gins rigorous harsh and strict in Government Since God hath elevated you as Cliffs above the Sea let your Laws be as Watch-Towers not Rocks to shipwrack the People If Suns let your Laws be as the Light to the blinde not Gomets to pour down Malignity Whilest thus you temper Mercy and Justice Equity and Law together with thoughts fixt on Judgement and Righteousness may propitious Heaven so prosper your Designs That the greatest may have matter to imitate and the whole Nation to admire your Justice and Mercy which is the Authors fervent Prayer Philostratus Philodemius SECT I. BE it Enacted by the Authority of this present Parliament That the Court of Chancery shall hear and determine all Causes of Equity in one certain Publique place and not elswhere And that there shall be in the said Court a Chief Clerk to be chosen from time to time by _____ who shall from and after _____ make forth all Process and all Commissions and other things issuing out of the said Court and shall take the Returns and File them and also all Bills Answers Pleadings and Depositions in the said Court and Enter and keep all the Records thereof and matters Filed as aforesaid there and shall have such and so many under-Clerks for writing and dispatching Business under him as shall be allowed and appointed by the Iudges of the said Court from time to time who shall administer an Oath both to the Chief Clerk and under Clerks to deal faithfully and uncorruptly in their Places and out of the Fee payable to the Chief Clerk shall appoint how much the under Clerks shall have for their pains which Chief Clerk and under Clerks shall constantly attend and execute their Places in person and not by Deputy and upon the aâ—oidance of the Chier Clerks place the under-Clerks shall from time to time succeed according to their Antiquity if they be not found uncapable of executing the said Office And all the Records and Matters Filed on Record in the said Court shall from and after _____ be in the custody of the Chief Clerk who is thereby appointed to take the same into his Charge Observation 1. THat to confine the Court of Chancery to hear and Determine all Causes of Equity in one certain publique Place and not elswhere may prove a great prejudice and inconveniency both to the Court and the People for that it may so fall out by sickness fire war or other casualties that it is impossible for the Lords Commissioners or others appointed Judges there to continue their sitting in the same place allotted for that purpose And in such cases before they can sit in a more safe and convenient place there must be an Act to authorize them by appointing that place which by the casualty aforesaid may be the occasion of several removals from place to place and of several Acts for that purpose In the Interval whereof there must certainly be a delay and fayler of Justice as to the benefit of the Court held forth to the People of this Nation And therefore it hath been the wisdom of former Ages in reference to their place of sitting to leave it to the discretion of the Lord Chancellor Lord Keeper and Lords Commissioners for the time being to appoint the most convenient places as occasion required for the better access of the People to make their Complaints and Addresses It being humbly conceived that not the formality of the place but its conveniency nor the manner but the matter of Equity and Right there Administred ought to be first preferred and chiefly endeavoured by all that are concerned therein To appoint one chief Clerk for the performing of all the things contained in this Section relating to his place being a Work formerly done by the six Clerks and their under Clerks in Chancery the Masters Deputy and Clerks of the Sub-poena Office and the Mr. Deputy and Clerks of the Affidavit Office being in all above 150. persons may prove a great
inconveniency to the People of this Nation for these Reasons 1. It being conceived impossible for one Clerk to discharge the same with that Care and Expedition as the nature of the place requireth for that all the number of Bills Answers Replications and other pleadings and proceedings and other things formerly transacted by 6. coming to the hands of one and the entry thereof being material in point of time Those delays and mistakes incident thereto may prove a great prejudice to the People 2. That by mistakes neglects and other errors in the Filing and Entring of Pleadings and other proceedings in the said Court relating to the Practical part thereof there must consequently arise many Differences betwixt the Parties Plantiffs and Defendants and the Clerks on both sides and these Differences must necessarily be determined by that one chief Clerk mentioned in this Section And in such a Case whether or no it is likely there will be so just regular and indifferent Report made of the matters to him referred especially if the Errour relates to himself or his under Clerks by mis-entring or not entring which frequently must fall out as when there are 3. or more superintendent Clerks intrusted therein And how is it possible for one Clerk personally to attend his Office and the Court and File all Pleadings take all Affidavits and make all Sub-poena's and yet sit to hear and certifie all matters to him referred and to do all those things by himself personally without Deputy with that care expedition uprightness and indifferency as the nature and duty of his place requireth is left to the consideration of all rational men 3. Whether such a trust vested in one person be he never so able and honest be not too great and large a power to the indangering of the Peoples Causes and a snare laid for an honest man in consequence of time to act contrary to safe and wholsom principles For the wisdom of all former Ages was such that they thought not fit to make one person sole Judge of any one of the Courts of Westminster to prevent corruption partiality or other indirect proceedings for two is better then one and three may do more then both And as there are three Lords Commissioners appointed Judges of the Court why it may not prove more safe expeditions and convenient to the People to have three persons to enter all pleadings and keep all Records and to certifie all proceedings of the Office and make all reports and references c. is likewise left to consideration it being far more easie and probable that one may be mistaken or corrupted then three And the reducing of six to three will as is conceived much ease the People in point of Fees and give them more satisfaction and assurance of a regular and ust proceeding then if reduced from six to one as is proposed by this Section 4. Whereas it is proposed by this Section that the chief Clerk shall have such and so many under Clerks for writing and dispatching of Business under him as shall be allowed by the Judges of the Court who are also to ascertain what they shall receive for their pains out of the Fees of the chief Clerk It is desired to be considered whether this course doth not tend to the Ingrossing and Monopolizing the Profit and Fees received in the said Office into the hands of one and to make him rich by impoverishing many for certainly when the Proposers of this Act did direct that the Fees of the under Clerks should be allowed by the Judges of the Court out of the Fees of the chief Clerk they did forget that in their Table of Fees they took upon them to ascertain what the under Clerk shall have for his pains and what the chief Clerk for his which are so unproportionable and unsuitable to their respective places and imployments That the Labourer viz. the under Clerk who is worthy of his hire shall not be able to live by his labour and the chief Clerk who takes the least pains and care shall suck the fruits of other mens labours And whereas formerly above 100. Clerks daily laboured to maintain six yet upon some more honourable considerable conditions then is proposed by the Table of Fees made by the Proposers Now they must labour to maintain one upon such poor inferiour terms that no Clerk of any parts or abilities to undertake Business will own such an unworthy beggerly imployment so that the chief Clerk must be contented with Brewers-Clerks Kitchin Boys or some such persons to undertake the difpatch of the Peoples Business And this one chief Clerk according to the Table of Fees made by the Proposers will gain twice as much by his place as any one of the present six Clerks do which can easily be made apparent by those that sufficiently know the nature and benefit of their imployments SECT II. THat there shall be such and so many Attorneys of the said Court as the Iudges thereof shall from time to time appoint who shall take the like oath as Attorneys at the Common Law and untill such appointment be made the six Clerks and Clerks of the Pettibag and the under Clerks to the Clerks in their Office and to the Clerks in the Pettibag in their Office shall be Attorneys of the said Court Observation 2. What the Proposers mean by Attorneys of the Court is not discovered by this Section But I finde in the Table of Fees something allowed to them being 10. s. and no more for what they are to do in a whole Cause viz. 3. s. 4. d. for Filing a Bill or entring an appearance 3. s. 4. d. at joyning Issue and 3. s. 4. d. at hearing It is humbly conceived the Proposers did deal discreetly in not prescribing what they are to do for this 10. s. and also in leaving it to the Judges to appoint how many of them shall be allotted for this purpose for it may so fall out that as the Proposers would have but one chief Clerk so they will have but two Attorneys and then an Attorneys place will be of more benefit then any one of the best Colonels pay in all the Army But if they intend there shall be so many Attorneys in the Court as will discharge the Office and Duty of Attorneys viz. To draw their Pleadings Breviats and other things needfull and fit to be perused by Councel and to direct and advise them in all their proceedings It is not likely that they will finde any Attorney qualified for that place that will undertake that imployment for ten shillings in a whole Cause And whereas it is proposed That Clerks and Attorneys should take Oaths for the discharge of their respective places It is much admired that in those times wherein so many of the Honest Conscientious People of this Nation have written and declared against Oaths ex Officio as illegal arbitrary and unwarrantable should go about now to impose the same anew And it were well
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
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