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
answer in such case the Defendant must at his peril answer by the same day seven-night next following the day of his appearance although it be out of Term for the Chancery is said to be alwayes open But where the Subpoena is returnable on the last Return-day of the Term then the Defendant is at liberty to appear the first Return of the Term following But if the Subpoena be returnable upon a day certain although the day be the last day of the Term yet the Defendant is bound to appear and answer by that day seven-night next following the said appearance In all Cases where the Defendant makes Oath That he cannot answer without sight of Writings Evidences or Goods as aforesaid or conference with some other person or that he have a Dedimus Potestatem and Commission to take his Answer in the Country the Defendant must at his peril procure his Answer to be put in before the day after the first costs-day of the next Term following unlese it be in Trinity-Term for there it may be put in the second day after the second return or otherwise the Plaintiffs Clerk may upon his default make out an Attachment against him for not answering in time Where the Defendant hath a Dedimus granted him if there be cause of Plea or Demurrer found then the Defendant ought to move or petition the Court to have a special Dedimus Potestatem by order to answer plead or demur for that the Commissioners upon an ordinary Dedimus have power to take and return no other things than an Answer only Whâ—re the Defendant doth demur or put in any just Plea that he hath to the disability of the person of the Plainâ—iff or to the Jurisdiction of the Court under the hand of learned Counsel it will be received and filed although the Defendant do not deliver the same in person or by Commission And if he do not put in his Demurrer or Plea into the Paper of Pleas and Demurrers in the Register-Office appointed for purpose within eight dayes after the same is put into Court that so it may be argued before the Lord Chancellor or his Deputy as it shall sall in course the same being so omitted to be done the Plea or Demurrer is over-ruled of course and the Plaintiff may take forth a Subpoena to inform the Defendant to make better answer and another for costs for the said over-ruling Where a man exhibits his Bill in Chancery and dies pendente lite whoever hath the interest in the thing complained for whether Heir Executor or Administrator they may put in a Bill of Reviver against the Defendant or in case the Defendant die the Plaintiff may exhibit his Bill of Reviver against the Heirs Executors or Administrators of the Defendant Where a Bill is exhibited against a man and his wife and the matter contained in the Bill wholly concerns the wife and they both answer the Bill and after answer the husband dies in this case a Bill of Reviver must be brought by the Complainant against the woman if he intend to proceed in that Suit and the reason is for that the woman shall not be constrained to abide by that answer which she together with her husband or solely as wife unto the man hath formerly made to the Complainant for that she was at that time under Coverture And in case she survives her husband and continues possessed or seixed of the thing in controversy in statu quo she may as she shall think fit make a new answer and shall not be bound up or concluded by that answer which she made during Coverture or solely as wife to the man and yet if she thinks fit she may stand to that former answer of hers and proceed accordingly in that Suit Where a Plaintiff exhibits his Bill against a Femme sole and she appearing makes answer and afterwards marrying becomes under coverture pendente lite in this case the Plaintiff may proceed against her and her husband and shall not need any Bill of Reviver and her husband shall be bound by that Answer which she made while a Femme sole for that she shall not advantage her self by her own act Whereas on the other side if a Femme sole exhibit her Bill and the Defendant answer thereunto and afterwards she intermarrieth here there can be no further proceeds by the husband and wife without a Bill of Revivor because she hath abated her Suit by her own act of marriage of which the Defendant may take his best advantage Where the man and the Wife exhibits a Bill whereto the Defendant answereth afwards the man dieth the woman may be at her choice whether she will exhibit a new Bill or proceed upon the Bill by her husband and her self formerly exhibited Where there are two-seized of Joynt-estates or when they are Executors of one Will or Obligees or Obligors and they prefer a Bill in Chancery to which the Defendant makes Answer and after one of them dies here the Survivor may proceed in his Suit against the Defendant and shall need no Bill of Revivor Note That the Bill of Revivor must pursue the first Bill exhibited for where there is any variance between them the Defendant may be discharged and the Bill will be dissolved Where there are Administrators durante minore aetate of an Infant Executors in the nature of a Guardian and they sue on the Infants behalf and the Suit depending the Infant comes to age here it seems there needs no Bill of Revivor Where the Complainant hath exhibited his Bill of Revivor and hath procured thereupon a Subpoena to be served he will be upon this in the same case as the Predecessor was when the Bill accrued unless some good cause to the contrary as that he is not Heir Executor nor hath the like interest c. can by the Defendants Answer be shewed Where a man doth willingly refuse to Answer and doth stand out all process of Contempt the Court will take the matter of the Bill pro confesso and decree it accordingly See Tothil 69. If the Answer be good to common intent the Plaintiff must Reply and prove the matter if he can and not insist upon insufficiency of the Answer No exception can be taken to an Answer after a Replication put in for it is then admitted to be good but before Replication it may be excepted against But where it is excepted against the causes must be shewn in Writing and delivered in to the Plaintiffs Clerk the same Term the Answer comes in or with eight dayes after and if he amend it in eight dayes he shall pay no costs otherwise he must Where an Answer is excepted against as insufficient it is usually referred to a Master to consider of the Exceptions and he to certify whether it insufficient or not if he certify it insufficient then the Plaintiff may take out Process for costs and the Defendant's second Answer is not to be received till he hath paid
the costs The first Answer being returned insufficient the Defendant must pay forty shillings for single costs if it be an Answer that came in by Commission and insufficient he must pay fifty shillings costs The second insufficient Answer pays three pounds the third five pounds and you may have a Subpoena both for cost and for a better Answer In all cases of Exceptions the insufficiency appearing in the same Exceptions are the point to be insisted on and no new Exceptions may be moved But if the Master upon reference finds the Answer to be sufficient and accordingly certifies it there the Plaintiff must pay forty shillings cost If the Exceptions to an Answer be put in after the Term there shall be time given to answer them untill the fourth day of the next Term unless the Court hasten it If an Answer come in by Commission and be not good no new Commission will be admitted but upon Oath of inability of the person and his payment of fifty shillings costs as before Where a Cause goes to hearing upon Bill and Answer the sam must be admitted to be true in all points and no other Evidence is to be admitted but what is matter of Record to which is provable by the Record it self Caryes Rep. 78 30. SECT 3. THe third thing necessary for a perfect Sollicitor is to understand clearly the matter of Pleas and Demurrers wherein he must observe First That a Demurrer is alwayes where there is matter defective contained in the Bill or where is forraign matter The Plea of forraign matter may be of two sorts either where it is to the Jurisdiction of th Court or to the disability of the person as where the Plaintiff is Out-lawed or Excommunicate or where there is in this or any other Court a Bill or Suit depending for the same cause or it may be that the Cause hath been formerly dismissed in this Court or the like or if the matter of it appear pear upon Record it may be put in without Oath otherwise not In case it be a Demurrer it must express the cause of the Demurrer yet other causes may be insisted on at the time of arguing thereof in Court When if the Demurrer be over-ruled the Defendant shall pay five Marks costs and where it is allowed the Defendant shall have no costs If one plead a Plea that is insufficient and in over-ruled to be as where it is an Out-lawry pleaded and it is not a good Plea he must pay five Marks costs An Out-lawry is not to be pleaded unless you plead the Record Sub pede Sigilli Also A Plea of Out-lawry if it be in a Suit for the same thing for which a man sueth to be relieved in Chancery is not to be allowed but otherwise it is allowed and will be in force to hinder all the Plaintiffs proceedings till it be reversed But when it is reversed the Plaintiff may upon payment of twenty shillings costs upon a new Subpoena served put the Defendant to answer the same Bill Where the Plaintiff conceives the Plea for matter or manner naught he may put it to the Judgment of the Court. Where a man pleads a former Suit he need not set it down with the Register but it shall be referred to a Master to certify which must be done within a Month upon the Plaintiffs procurement and if the Master certify against the Plaintiff he must pay five shillings costs if there be no Report within a Moneth of filing the Plea the Bill will be dismissed of course with seven Nobles costs If the Demurrer to any Bill be put in upon any slip or mistake in the Bill the Plaintiff of course laying down to the Defendants Clerk twenty shillings for costs may amend his Bill within eight dayes after the Demurrer put in but not after that time If the Demurrer be admitted by the Plaintiff to be good within eight dayes after the filing of it and he doth pay the Defendants Clerk in Court forty shillings costs then the Defendant shall not need to attend his Demurrer but the Bill shall stand dismissed of course without motion unless both sides agree to the amendment of the same yet such dismission is to be no bar to a new Bill to be exhibited by the Plaintiff Where the Plaintiff finds sufficient cause for an Order upon the Answer he may go to hearing thereupon without further proof of which there oughe to be very good advice taken in which case he must get his Clerk to present the same in course to be set down to be heard upon Bill and Answer But in case the Court shall not find grounds to make a Decree or final Order the Bill shall be dismissed with costs or the Plaintiff admitted to reply if he deserve it first paying down five pounds costs within four dayes after such hearing else the dismission to stand and the conclusion of the Order upon hearing is to be penned by the Register accordingly and then such dismission shall be a good Plea in bar of any new Bill for the same matter Where a Plaintiff proceeds so far as to proof and upon the hearing it clearly appears that the Plain iff might have had full relief upon Bill and Answer albeit he be relieved in the same cause yet he shall pay costs See more fully these things in the Collection of Orders and Caryes Reports 39 87. SECT 4. OTher things in practice necessary to be understood by our Sollicitor are Replications Rejoynders and Sur-rejoynders Now a Replication is the Plaintiff speech in way of a Reply to the Defendant Answer the Rejoynder is the Defendants Answer to the Plaintiffs Replication and the Sur-rejoynder is the second defence to the Plaintiffs Action opposite to the Defendants Rejoynder 1. The Replication must be short relating to the substance of the Bill and it must avoid superfluous and crimâ—nous matter 2. The Replication must affirm and pursue the Bill and confess and avoid traverse or dâ—ny the Answer 3. The Rejoynder that must pursue and confirm the Answer and must sufficiently confess or avoid traverse or deny any material part of the Replication 4. No new matter must be put into the Replication and so much matter only is necessary to be there as will avoid the matter of the Answer 5. If upon the Answer there be so much confessed that the Plaintiff need not to draw into pleading and prove all the points he must see to it and reply and go to proof onely in those particulars in question and necessary to be proved 6. When the Defendant doth demur or disclaim to any Bill exhibited against him the Plaintiff cannot reply and if the Defendant in those cases be served with a Subpoena ad rejungendum having before made no other Answer but a Demurrer or Disclaimer as aforesaid he shall have costs for unjust vexation Where the case is such that the parties cannot come to issue by reason of some new matter disclosed in the Defendant's
any matters Tothil 173. CHAP. V. Shewing our Sollicitor several other Incidents which be ought to be skilled in and much relating to his Practice HAving now in the former Chapter and the several Sections thereof passed through the general proceedings of the Chancery upon Bills Answers and all other things even to the Decree and Review thereof there are yet some things remaining which in many cases are not only incident but even essential to those affairs wherein our Sollicitor ought to be particularly skilled And the first of these is concerning Injunctions And this is looked upon in the general Acceptation as a main and chief branch of the power of the Court for that it makes stay of Procedings at Common Law and as before is said is many times granted to gain possession of Land and so becomes subsequent to the Decree Where it stays proceedings at Law in some cases it gives leave to go to Tryal and Judgment but stays Execution and where the matter of Law is tryed it bars them from Judgment as the cause may be Or where there is a Judgment and that executed it will stay the money in the Sheriffs hand after the party is arrested at Law for the money This Writ is commonly procured either upon some Writing or matter of Record plainly appearing or upon a very old Debt that hath long slept Creditor and Debtor being both dead or in such cases where the Defendant doth not appear but fits an Attachment or if he appear either Answers not the Bill or confesseth not so much thereof as is sufficient Where either the Defendant is beyond the Sea or being in the Kingdom doth absent himself so that he cannot be served or where upon any pretence he hath gotten time to answer the Court doth usually in those cases upon motion grant an Injunction to stay suit till the Defendant doth appear Where a Commission is granted to take an Answer in the Country an Injunction upon motion will be granted to stay the Defendants Suit at Law if any be till the Answer come in and of this the Defendant is bound to take notice though he be not served therewith Where there is a Verdict at Common Law in an Action of Debt and a Bill be afterwards here exhibited for Relief the money must be deposited in Court before an Injunction can be obtained unless in some cases where some special matter in Equity appears by the Defendant's Answer or in some former Decree Where a person priviledged in this Court is sued elsewhere that Suit may be stayed by an Injunction Where Timber is unjustly felled ancient Meadow-ground plowed up ancient Pastures that have not been plow'd up in twenty years before or for the Maintenance of Inclosures kept in twenty years before an Injunction is grantable according to the case Where an Injunction is granted to quit a possession it is granted of Houses and Land only and not of a Rent or such-like thing and it is not to be granted before the hearing of the cause unless upon an Oath that the Plaintiff was in possession at the time of the Bill put in and then only of that possession he had then and three years before and at the time of the motion and not be extended to the possession of those from whom he claims And this shall not hinder the Defendants Suit in Law making of a Lease taking of a Distress c. And this Injunction will soon be dissolved again if the Plaintiff delay his Suit Where it is to stay or remove a Suit by Certiorare Bond must be first given that the Bill hath matter sufficient in it to bear it and shall be proved true within fourteen days after he hath the Writ and if it be not done in that time after Certificate of his neglect from the Examiners it shall be dismissed with costs and a Procedendo granted Where the Injunction is to be obtained by motion for matter in the Answer there the case must be put in writing to the Court. Where it is granted upon the merit of the cause or upon special cause in equity it is to stand till the hearing unless the Plaintiff delay his Suit This Writ thus obtained must be served either on the party himself his Counsel Attorney or Sollicitor c. as the case requires and the manner of serving is much like to that of serving a Subpoena A bare Petition only will not dissolve an Injunction nor if it be had by motion can it be dissolved without a motion of the adverse party Where an Injunction is granted till the Answer be put in and no order be made to continue it within fourteen days after the Answer come in in this case it shall be dissolved upon the Register's Certificate thereof only And if no Motion be made that Term or at the next General Seal after the Term to continue it for insufficiency of or matter confessed in the Answer it is of course dissolved so where it is to stay a Suit at Common Law and the Plaintiff doth not proceed for three years together Where the Injunction is disobeyed if you would force obedience thereunto upon Oath made thereof all the Processes of Contempt are to go out against him one after another and being taken he is to be imprisoned till he yield obedience to it or give security to do it Nor is he to be heard in the principal case till he yield obedience in every thing to the Injunction Tothil 107. Caryes Rep. 112 113. SECT 2. Another materiall point is about Dismissions and how they are to be managed and attained Concerning which he is to know That this is prayed by motion and had upon Plea to the Bill or at the hearing of the Cause but not after Examination of Witnesses before hearing but upon a discontinuance of prosecution and then by motion and order Where the Plaintiff discontinues his Prosecution after all the Defendants have answered by the space of two Terms the cause is to be dismissed the third Term upon course but after a Replication put in it cannot be dismissed without an Order upon a Motion Where a Cause is dismissed upon a full hearing recorded and certified by the Lord Chancellor it cannot be again retained nor a new Bill admitted but where there is new matter Where the Bill is duly dismissed of course or by order no motion will be heard to retain it till the costs assessed upon the dismission be paid and certified from the Clerk on the other fide that it is done No Dismission or retainer upon a Dismission will be granted on a bare Petition only In cases of Dismission not upon a full hearing to a new Bill this may be pleaded But generally for all causes of Dismission the Court will retain and dismiss it as they see cause as daily practice and experience doth plainly manifest See Caryes Rep. 34 43 74 76 110. SECT 3. A Third point much and frequently incident to practice are References to the
Rejoynder that requires to be answered unto the Plaintiff may Sur-rejoyn to the Rejoynder and the Defendant likewise to the Sur-rejoynder if there be cause As for the time of the Replication to be put in after the Answer you are to observe that the Plaintiff hath time for all that Term and all the next Term and untill the beginning of the third Term to put in his Replication The next Term after the Answer is put in the Defendant may give the Plaintiff rule to reply and if such rule be given and the Plaintiff reply not costs will be given against him but if there be no rule given and the Plaintiff doth not reply the second Term after the Term the Answer is put in the Bill will be dismissed with costs of course But in case the Plaintiff doth reply and that the Replication be in Court the Defendant can have no costs Where the Complainant hath replyed the Defendant may if he will rejoyn Gratis and force the Complainant to joyn in Commission Where the Plaintiff intends to go to Commission he must serve the Defendant with a Subpoena ad rejungendum before he can have Commission to examine Witnesses and upon return of that Subpoena and Oath made of the serving of it the Plaintiff may by entring Rules force the Defendant to rejoyn and joyn in Commission or go on to the examining Witnesses without him for having given him seven dayes to rejoyn if within that time he refuse to do it he ought not to be admitted to do it afterwards Where the Defendant is served with a Subpoena ad rejungendum and doth not upon the Plaintiff's Clerk's demand to the Defendant's Clerk deliver Commissioners Names by the end of the Term wherein the Subpoena is returnable there the Plaintiff may either without motion or petition give Names and take a Commission ex parte See Caryes Rep. 111. And this hath brought you to another branch of your Sollicitors duty viz. the manner of joyning in Commission and executing thereof SECT 5. IN the joyning in Commission therefore to examine Witnesses the Complainant according to dayly practice first gives four Names and then the Defendant gives four Names now the Plaintiff or his Sollicitor strikes out two of the Defendant's Names and the Defendant or his Sollicitor strikes out two of the Plaintiff's names and the other four being on each side two remain the Commissioners This being done and the Commission ready the Plaintiff is to have the carriage thereof and he or his Commissioners must give either in person or by Note left in writing at the place of the usual a bode of the other party fourteen dayes notice to him of the time and place of executing the Commission and if there be default then made by the Plaintiff or his Commissioners in the execution thereof he must pay the Defendant such costs as he upon his Oath shall make appear he was put to in the attending the said Commission and the Plaintiff must renew the Commission at his own charge and the Defendant shall have the carriage of it And so on the other side shall the Plaintiff have if the Defendant have the carriage of the Commission and it be lost by default of his side But where it becomes void by an err our of the Clerk in making of it the costs shall be born by him and that side for whom it was taken out Where the Defendant hath the carriage of the Commission he must give notice to the Plaintiffs as is before directed and if such notice be not given either all the examinations will be quashed or otherwise the Court will grant to the other side a Commission ex parte Where there hath been Publication there no Commission can be granted or renewed for examining Witnesses without speciall Order Where a Commission hath been to examine Witnesses without reference and certificate upon it it cannot be discharged upon a bare petition Where a Commission is taken out by consent and the one side at the speeding thereof do put in no Interrogatories nor examine any Witnesses unless upon a motion and by order of the Court he shall never be after admitted to have a new Commission Where the Defendant had Witnesses and they being served did not appear but make default here a new Commission will be granted to the Defendant See Caryes Rep. 91 45. Tothil 3. The next thing is the choice of Commissioners and exceptions against them First they must be men indifferent for the Exceptions that are usually taken against them are that he who is named Commissioner is of Kindred or Allyed to the party for whom he is named and so may very well be deemed to side with that patty or that he is Master to the party for whom he is named or that he is Landlord or of his Council or Attorney for him or one to whom he is indebted or one that hath a Suit with the adverse party The Commission being to be sate upon at the time and place appointed the Commissioners must call the Witnesses before them where if they appear not an Attachment issues against them unless it be where Witnesses are impotent and then the Commission may be adjourned to them to examine them where they be and usually the Witness may demand his costs before he Answer Where Witnesses appear to be examined the Commissioners or Examiners must examine them themselves and not leave so weighty a business to the trust of their Clerks or others to do it They are to hold the Witnesses to the point insisted upon They should examine them but to one Interrogatory at a time and not to read another to them till they have answered that first They are to take what comes from them in answer to what they are examined and not upon their sight and reading all the Interrogatories to let them set it down themselves After they have been examined upon better thoughts they may suffer them to amend their Examinations They ought not neither to ask idle Questions besides the matter of the Interrogatories nor set down impertinent Answers They are to set down truly in Parchment their Sayings and that done they are to set their hands to every Schedule and send them up into Court as they are taken with a Certificate and if the Commissioners meet with any obstruction in the Work they must certify that also After the Commission is duely executed and returned up one of them must deliver it in Court or they must send it by one that must make Oath that he received it from one of their hands and that it is not altered to his knowledge If any one of the Commissioners commit any misdemeanor about examination the party grieved upon Oath thereof made may have an Attachment against him Where is a disagreement among the Commissioners or where there is any other special cause that obstructs the Commission they may have an Examiner sent down on purpose to do it See Caryes Rep. 30 31 40
satisfaction of the Debt and damages the Bail is to be discharged upon the acknowledgment of satisfaction as before is mentioned against the priviledged person If either the Plaintiff or Defendant upon Declaration of Priviledg or Scire facias demur in Chancery the Demurrer being joyned a day is set down by the Lord Chancellor or Lord Keeper for the arguing thereof before him And if upon the Argument it fall out to be a Respondeas ouster then Judgment is entred thereupon and if it be against the Defendant then Execution is awarded and if against the Plaintiff then it is that Nilcapiat per Billam that he take nothing by his Writ or Declaration But if it be a Respondeas ultra then is the Defendant to pay costs and a day given for him to plead peremptorily or Judgment to be entred Thus have I quite gone through the whole practick part wherein our Sollicitor ought to b◠versed I shall in the next place give you a Table of Fees which in regard he may in dealing for Clyents have occasions for frequent disbursments I think it very necessary which are in short these and shall make one entire Section and the last of this Chapter SECT VII A Table of Fees  l. s. d. FOr all first second or other Copies of all Bills Answers and other Pleadings whatsoever as also of all Certificates and Examinations made or taken by vertue of any Commission out of this Court and of Interrogatories therewith returned and also of all Declarations or proceedings by English Bill or according to the course of the Common Law and for Copies of Records Rolls or Evidences brought in to be copyed or remaining in the said Court for every sheet of paper containing 15 lines 00 00 08 For the inrolling of all Warrants whereby any Patents Commissions Licenses Pardons Leases or other Grants whatsoever do pass by and under the Great Seal after the rate of every skin so passing the Great Seal 00 02 00 For the inrolling of all Warrants for Commissions of the Peace or Goal delivery for a liberty for Oyer and Terminer for Pyracies for the preservation of the Game of Swans and for Commissions for enquiry sued out for the benefit of any private person for every of the said Commissions 00 01 08 For the inrolling of all Warrants for all Commissions of Appeal and for the Admiralty for every one of them 00 00 04 For the inrolment of every Warrant for every ordinary License or Pardon of Alienation 00 03 04 But if the same be of more then ordinary length then according to the length after the rate of ten shillings the skin and not above 00 10 00 For inrolling all Warrants for all Commissions in the nature of Writs of Diem clausit extremum Mandamus Ideota proband ' Lunatio ' inquirend ' Melius inquirend ' for every of them 00 03 04 For inrolling the Warrants for every Patent or Grant of the Custody of any Ward 00 08 08 But this of Wards I suppose now to be of little use in regard all manner of Wardships are quite taken off by a Statute made in the 13th of King Charls 2. For inrolling the Warrant for every Presentation Donation or Revocation to any Rectory Vicarage Deanary Archdeaconry Chancellorship Treasurership or Dignity to any Metiopolitical Cathedral or Collegiate Church or for any Cannonship or Prebend in any of the said Churches or for the Mastership in any Hospitall or Ecclesiasticall Living or for the Grant of any Presentation or Presentations pro unica vel pluribus vicibus thereunto For the Inrolling of the Warrants for every Mandamus ad Installand ' 00 03 04 For the Inrolling of all Warrants for all Wine-Licenses for every life 00 03 04 Or such Fee not exceeding that proportion as by the Chancellor shall be set down though formerly they paid if it were granted for three lives but 00 06 08 For the inrolling Warrants for every Pardon of Outlawry 00 03 04 For inrolling Warrants for every Denization or Commission of Bankrupts 00 03 04 For writing of every Exemplification as well of Records in the Tower as of any Record whatsoever after the rate of every Skin 01 06 08 The Six Clerks Fee of every Clyent for every Term whilst his cause dependeth undetermined by Decree or by Dismission the Termly Fee of 00 03 04 And so if there be twenty Plaintiffs in one Bill they all pay but one Fee for one Term. But for every three Defendants reckoning the husband and Wife but for one person there is due for their first appearance 00 03 04 And upon the first appearance if every Defendant appears severally by himself he is to pay the Fee of three shillings four pence but every Term afterwards during the continuance of the Cause there is only the Fee of three shillings four pence the Term to be paid for all the Defendants that did appear in any Term or Vacation in the same Cause  l. s. d. For a Writ of Subpoena to answer 00 02 06 If there be three in the Writ you pay more 00 00 06 For an Attachment 00 02 10 For breaking it up with the Sheriff and his Warrant thereon 00 02 04 For the return of the Attachment 00 00 04 For a Proclamation of Rebellion 00 02 10 Breaking it up and Warrant 00 02 04 The Return 00 00 04 For a Commission of Rebellion 00 18 02 For the inrolment of every Liberate and Allocate 00 03 04 The Rule which the Plaintiff gives the Defendant to make answer by a day when the Defendant appeare 00 00 04 For each Rule for publication after examination of Witnesses 00 00 04 For entring them with the Register for each 00 00 04 The Defendants appearance 00 04 00 In which is included the Clerks Fee for the Term.  l. s. d. For the Oath made that the answer is true 00 01 00 And so for every Defendan◠if they be never so many    For a Commission to take an answer in the Country by Dedimus Potestatem 00 07 10 Besides the ingrossing of the Bill which is included in it every sheet 00 00 06 For a Subpoena for Costs where the Bill is not put in by the Complainant within the time limited 00 02 06 For a Bill of costs and the entry of it 00 02 04 For a Joynt-Commission to examine Witnesses in the Country 00 07 10 The Plaintiff payes the Defendant 00 06 08 For the examination of every Witness here before the Examiners 00 02 06 For the Oath of every Witness that is to be examined 00 01 00  l. s. d. For the Copies of Depositions returnable by Commission 00 00 08 For Copies of Depositions taken in the Examiners Office for each sheet 00 01 00 For the drawing up of an Order upon motion to the Register for the first side 00 03 00 For every other side 00 01 06 For entring of the same Order every side 00 00 06 Fees of an
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
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