that no Sheriffs or other Officers were forced to take such Oaths since few or none of them do or can perform the same according to the Letter and purport thereof which may occasion a general inundation of perjury with which the Land already mourns The many contradictory Oaths and other unperformed Vows and Oaths which have been taken in this Nation since the beginning of these unhappy Wars yet so little observed being one of the grand sins of the Nation insomuch that we have great cause to fear that it will produce a more fearfull National Judgement and Punishment on this Land then hath hitherto befallen the Inhabitants thereof SECT III. THat the process of Appearance in the said Court of Chancery shall be by Summons in this form and no otherwise The Keepers of the Liberties of England by Authority of Parliament to A. B. of C. in the County of D. We command you to satisfie A. D. of _____ the Complaint in his Bill a Copy whereof we send you or within 15. days after notice thereof to appear and answer the same Given under the Great Seal of England the _____ day of _____ And the name of the party that made the same and the true party that sued it forth or the Attorneys name shall be written under Observation 3. Against this there is no Exception made by the Author only he desires it may be considered whether the stile of the Writ be so proper to be now used as is proposed by this Section SECT IV. THat a Plaintiff may put the names of all Defendants into one Writ of Summons and that all other Process of the said Court shall be sealed open and the shewing the Summons where the Defendant is present and leaving a fair Copy thereof with him or her and a Copy of the Summens and Bill at his or her habitation with some person there if any be to be found or else at the door of the House if no person be there to be found shall be a good service on that Defendant And the party serving the same shall endorse the Summons with the time and manner of service and make oath thereof before some Iustice of Peace or Master of Chancery and return it whence it issued and the Bill shall be duly filed at or before the Return of the Summons Observation 4. To give way for Plaintiffs to put the names of all Defendants into one Writ hath been formerly found inconvenient because thereby litigious persons and especially Paupers would take opportunity to make a multitude of Defendants out of meer malice and vexation and rather to wrest unjust Compositions from them then out of any just cause of suit the same being too much practised in remote parts of this Nation whereby many of the People to purchase their ease and quietness and to avoid needless trouble and charges in answering vexatious troublesom persons will rather give them something then to be exposed to a needless Suit For prevention whereof the Court formerly would not suffer above three to be inserted in one Sub-poena so that very few unless they had some colourable cause of Suit would be at the charge of taking out of more Sub-poena's then they had just cause so to do And when it falls out that Defendants cannot be personally served with Billets or live very remote in such a case the Parties Plaintiff must be unavoidably exposed to take out several Sub-poena's to be left at their dwelling Houses which is accompted good service by this System of the Proposers The sealing of all the Process of the Court open was formerly certified by the Clerks in Chancery in obedience to the orders of the former Committee for regulating the Law as a very commendable course to avoid mistakes and other inconveniences But as to the leaving of the Copy of the Bill with the Defendant or at his house in his absence at the time of service of the Sub-poena it may prove of little use but rather an inconveniency and double charge for it may so fall out that the Plaintiff may on better advice alter his Bill before he Files it and who can swear that he left a true Copy of the Plaintiffs Bill with the Defendant or at his house before such Bill be Filed on Record and examined with the Record by the party that is to leave a Copy for the Defendant without which no contempt can issue forth against him And as for those that serve Subpoena's and are imployed in business of that nature they are for the most part illiterate persons and Affidavits of such service may occasion many perjuries and great troubles expences and debates thereabouts whereas if all Bills were first Filed in the office before a Sub-poena granted as hath been ingeniously proposed by the said Clerks the same being agreeable to the ancient wholsom course of the Court and the Defendant to make his address to the Office for a copy under Teste it is conceived to be a far more safe and regular course And moreover in case a Copy of a Bill be left with the Defendant or at his house at service of a Sub-poena before the Defendant will repair to Counsel to draw his Answer he will in all likelihood examine it with the Record it self and have it under Teste all which doth but increase labour and expence and loss of time for otherwise he doth but answer an uncertain matter or an individuum vagum for it may so fall out that the Record and Copy left at Service may much differ and one word or syllable doth cause a great alteration And if this course of delivering Copies of Bills Answers and Pleadings be intended to save charges to both parties a reasonable abatement of the present Fees would in all likelyhood give the Client far more satisfaction then this new invented course the consequence whereof may probably prove very fatal and prejudicial both to the Plaintiff and Defendant SECT V. THat from and after the establishing of Country Registers any person that exhibits a Suit in equity for any Mannors Lands Tenements and Hereditaments shall not have the benefit of any Decree to be made touching the same as against any purchaser or other claiming interest in or profit out of the same for valuable consideration But from the time of the entring of such his Claim Suit or Decree in the Registry where the same do lie Observation 5. To this the Author makes no exception so the People be not debarred of the benefit of Suit already commenced or to be commenced in this Court before the establishment of Country Registers and touching precedent incumbrances SECT VI. THat the Defendant being duly served and not appearing shall forfeit 40. s. to the Plaintiff and 20. s. to the Commonwealth and Process shall be made forth directed to the Sheriff Coroner or such other person as the Plaintiff shall name to attach the Defendant by Body Lands and Goods to inforce him to appear and answer returnable
he put his hand and seal thereto and name the place of his habitation and the same may be made use of in any Court as if the same had been sworn in any Court before a Iudge of the same Court but no razure nor interlineation is to be in any Affidavit whatsoever Observation 10. To this the Author makes no exception only desires that there may be special care taken in Commissionating faithfull and honest able Justices of the Peace in whom the Propositors by this System do repose in many things as much power as is now intrusted in the Reverend Judges of the Law SECT XI THat where the Plantiff or Defendant do cause any Pleas Answers Demurrers Replications or Rejoynders to be filed by the chief Clerk they shall give to the adverse party or leave with his Attorney for him a true Copy of the same which he shall have without Fee Observation 11. The same Objection that was made Section fourth touching Copies of Bills may serve for this SECT XII THat where any defendant appears upon the return of Summons or process if the Bill be not filed he shall have his full costs to be taxed by the chief Clerk without further attendance then the next day after the return day And not to appear again upon Suit of the same party before the costs paid and upon new Summons Observation 12. The Proposals of the Clerks mentioned in Section fourth That all Bills be first filed wherein the plaintiff prays process before the same be granted will as is conceived prevent all preferring of costs and all those delays unnecessary expences costs and trouble that formerly happened thereby both to the plaintiff and defendant SECT XIII THat where any Defendant pleads or demurs if it be in Term time the same shall be determined within fourteen days after it be put in if in Vacation either before or in the first week of the Term To which end the Iudges of the Court shall appoint certain times for the determining the same not interrupting the course of hearing other causes and shall upon the first hearing of a plea or demur give their positive Order herein without a second hearing And where any plea or demurrer is over-ruled the Defendant shall pay 40 s to the Commonwealth for a fine bâ—sides the plaintiffs costs Observation 13. To limit a time for arguing of all pleas and demurrers as is conceived tends to the forestalling the Judgement Justice and Discretion of the Court whose practise hath been hitherto to dispatch them all in order with as much expedition as they could but in case there be so many entred in the Books and Papers of pleas and demurrers that in ordinary courses according to their dates and entries they cannot be heard within the 14. days to binde the Lords Commissioners or Judges of the Court to hear and dispatch them within that time is conceived to be too unreasonable an obligation which in all probability no Judges or Lords Commissioners will undertake to perform And in case it fall out that a plea or demurrer come to be argued in the absence of the plaintiff or defendant and by reason thereof be ordered to stand or be over-ruled if the party absent shew good cause why he could not attend the arguing of such plea or demurrer upon payment of double costs of the Court if it go against him the Court would not deny the re-arguing thereof which was never yet held unreasonable by any practitioner of the Court or other unbiassed person it seeming unjust and unreasonable that in case either party be surprized or prejudiced by non-attendance in such cases that on payment of double costs he should not be heard therein SECT XIV THat when a sufficient Answer is put in the plaintiff shall reply within eight days and if it be insufficient shall within eight days put in exceptions thereto or enter it in the Registers Books for hearing upon the Answer otherwise the cause to be dismissed without any motion and the chief Clerk to Tax full costs within the time aforesaid and no dismission Fee to be paid by the defendant in this cause or any other But if the plaintiff will in such case pay full costs and charges he may exhibit a new Bill Observation 14. This is sufficiently provided for by the general and special Rules of Court made by the present Lords Commissioners for the great Seal of England to the satisfaction of all Suitors SECT XV. THat References to particular Masters of Chancery be forborn and there shall be from henceforth but six Masters of Chancery in ordinary to be named by the Parliament and eligible at the end of every three years and to have by the year _____ two or three whereof shall sit day by day at some certain publique place so long as any thing depends in reference before them and shall have a Register to attend them which two Masters or three of them at the least shall hear and report things under their hands which come before them always ending one cause before they begin another Observation 15. This course if setled would in all likelihood prove of very great use and benefit to the People and prevent delays and corruptions by references to particular Masters only this is desired to be added that there be some extraordinary punishment imposed as well on Masters of Chancery as on all other persons that are Judges who shall directly or undirectly take any bribe gratuity or reward in any Cause but barely their Stipends allowed by the State SECT XVI THat for the orderly hearing of causes and motions in Court and references before Masters of Chancery the Register shall keep two distinct Books in one of which any party who hath a cause ready for hearing shall enter the same in either of them any person who hath a reference to the Masters of the Chancery shall enter the same in the Register always in the Margin figuring the Books by numbers according to the time of the entry and the party entring every such cause or reference subscribing his name And there shall not hereafter be any Motions in Court for reference of insufficient answers to Bills or Interregatories or touching contempts or for scandal or impertinency in Bills or Answers But any party desiring a reference in any such cause may enter the same in the said Books of reference to be heard before the Masters Observation 16. This Court of entring causes and references is conceived of good use and benefit to the People The present Lords Commissioners having in a good measure made provision therein But it is likewise humbly proposed that all motions in Court be likewise entred with the Registers and the cause and end of the motion briefly inserted And that the same may be heard in course which will be a means to hear and determine Causes and Motions with equal dispatch whereas now eminent Lawyers and Favourites are called by their names to move who make sometimes
three or four motions in a day and sometimes more whereas other Councellors of good parts and abilities are forced to attend a week or more before they can be heard the Clyent in the mean time suffering in his Cause and the Councellor though in no fault suffering in his reputation And that for prevention of mistakes in the drawing of Orders contrary to the meaning and Declaration of the Court it is humbly proposed that the Register do take the Order of the Court Verbatim and read it openly that Councell on both sides may except against and settle the same in Court according to the Direction and Declaration of the Court and that the Register on a good penalty presume not to draw any Order otherwise or add to or diminish from his Notes without consent of parties on both sides The Register as the case now stands being in a capacity to do great hurt and prejudice to the people of this Nation if inclined to the Cause of either party Plaintiff or Defendant SECT XVII THat if the Iudges or Master of Chancery shall hear any cause motion or reference in any other order then as they are set down in the said Registers Books they shall forfeit 20. l. one half to the Commonwealth the other half to the party whose cause should be next heard in due course and the Register to forseit 5. l. to be paid in the moyeties as aforesaid that shall alter the number on the said Books except it shall be by consent of parties or where neither party doth attend And then such cause to be put at the end of all the causes then entred in the said Books respectively Observation 17. Against this there is nothing excepted SECT XVIII THat upon a second insufficient Answer the party shall be committed and kept within the prison untill he make a sufficient Answer Observation 18. Against this Proposal there is no exception made SECT XIX THat in case erceptions be taken to a Report defiring the opinion of the Court the same shall be entred in the Book of Motion and the party excepting shall deposite 3. l. with the Register and if the Court shall judge the exceptions void it shall be restored to him and the adverse party shall pay him 40. s. costs But if his exceptions be adiudged friâ—ilous the Commonwealth shall have 20. s. of the 3. l. and the adverse party the residue Observation 19. This course is already established by the orders of the Lords Commissioners saving the 20 s forfeiture to the Commonwealth which seems more reasonable as well in this case as in other places where such forfeitures are mentioned to be paid to the parties concerned and aggrieved And besides the extreating and levying of these petty forfeitures will stand the Commonwealth in more charge then the same will amount unto and none will prosecute such forfeitures since no particular benefit accrews to the prosecutors thereby SECT XX. THat after a Defendant hath once appeared he shall perfect his Answer re-ioyn and ioyn in Commission and attend the hearing upon notice to his Attorney or known Solicitor without any more process and the Plaintiff to do the like after he hath Replyed Observation 20. To rejoyn and joyn in Commission on notice to the Clerk and Solicitor is approved of but not to proceed to hearing on such notice which may prove very prejudicial to the party in whose absence the cause may be heard for want of due notice given him thereof especially if the party be barred of a re-hearing as is unsafely proposed Sect. 27. SECT XXI THat in every cause where Commissioners are prayed to examine witnesses duplicate Commissions shall issue at the request of the Defendant to be executed in such Counties as either parties shall think fit which may be executed in any place returnable within 60. days from the date and return publication to pass of course and either party or his Attorney to be at Liberty to enter the same into the Registers Books of hearing And if no Commission issue and Witnesses be exacted in Court the cause shall be published within sixty days from the time of Replication and then to be entred with the Register as formerly but where Commissions are to be executed beyond the Seas the chief Clerk shall set down a time for the return and publication and either party may certifie at the hearing that he could not produce his witnesses within sixty days to be examined so as notice was given in writing to the other party before publication of such witnesses names and place of abode and to what points they are to be examined at the hearing And where the Court gives order to examine any parties witness the same is to be done by vertue of that order without any Commission and the charges of Commisson in such causes are to be spared Observation 21. This is very well approved SECT XXII THat where Witnesses shall be examined for to prove a contempt the party accused may likewise examine Witnesses to clear the same Observation 22. This is already provided for in the Rules and Orders established and published by the present Lords Commissioners of the Great Seal of England SECT XXIII THat Commissioners for Examination of Witnesses shall take an oath before execution of any Commission to execute the same faithfully and impartially which each Commissioner is impowered to administer to the other and the Clerks attending such Commissioners shall take an oath which is to be administred by the Commissioners to write down the Depositions of the Witnesses truly and indifferently without partiality and every of the Witnesses shall be sworn and examined and the depositions put in writing and in presence of the Commissioners and not elfewhere Observation 23. This is an excellent course for the due and regular carrying of Commissions there having been hitherto in many causes too much foul practise used in the taking of Depositions wherein many Commissioners and Clerks on both sides for the most part Act rather as Parties or Agents for the persons concerned then as becometh honest indifferent persons according to the trust reposed in them by the Court so that through the indirect practise of cunning Clerks and Commissioners meeting with persons of the other side not so skilfull nor so ill disposed many a good and honest cause is overthrown SECT XXIV THat after publication either party may see the depositions of either side and not be obliged to take Copies of any more then he shall conceive material so as he take not the part of a Deposition to one Interrogatorie And Plaintiffs and Defendants may if they agree take but one Copy of all or any part of the Depositions and make use of the same Observation 24. This seeming benefit may prove more prejudicial to the parties concerned then the charge of full Copies may amount unto for how can Councel be instructed in the merits of the Cause without sight and perusal of Copies of all the Depositions of both
redress and little occasion would be for the parties to make address to the Chancery in such cases and a Law to binde the People to reduce their Acts Deeds Contracts and Agreements into writing inrolled will work a great peace in the Land in reference to Law-suits and would spare many thousand pounds a year to the people by prevention thereof as is humbly conceived SECT XXX THat in all Cases where a Plaintiff is dismissed the Desendant shall have full costs and where the Plaintiff hath just cause of relief the Plaintiff shall have full Costs saving in a case where he might have had the like benefit without Suit and there he shall have no costs but pay the adverse party full costs and a Fine of 40 s to the Commonwealth save also where the Defendant by Answer submits to the Iudgement of the Court and claims nothing to his own use in which case he shall neither pay Costs nor Fine but the Plaintiff to pay him costs if the Court finde cause And where the Plaintiff is relieved for part and dismissed for part either party to pay costs to the other and if a Plaintiff be relieved against any one or more Defendants and not against others such others shall have their full costs And whereas any is to pay costs and is not able such party shall be sent to the Work-house to work during the pleasure of the Court one half of the benefit of his work to go towards the payment of his Costs or be whipt or both at the discretion of the Court And no person is admitted to sue as a poor man unless he bring a Certificate from some Iustice of the Peace Councellor or Sergeant at Law or Iudge of the County Iudicature of his poverty and the Iustness of his Cause Observation 30. All this Section seems very just and reasonable and may prove of good use and benefit to the people of this Nation if established by Authority SECT XXXI THat in all cases where a Plaintiff is dismist he shall pay a Fine to the Commonwealth of 20. s. and if the Plaintiff hath a decree against any Defendant such Defendant shall pay aliue Fine to the Commonwealth where he paid costs to the adverse party And a Defendant for every insufficient Answer after the first shall pay a like Fine to the Commonwealth and a Plaintiff a like Fine for frivilous exceptions and every person judged in contempt for that unnecessary trouble of the Masters of the Court by entring a reference before them in their Book shall pay a like Fine to the Commonwealth Observation 31. As to the payment of 20 s Fine in this Section proposed to the Commonwealth it should seem more reasonable that the same should be paid to the party aggrieved and concerned which may be considerable in his purse whereas if the same be cast into a publique Treasury it will little add thereto SECT XXXII THat the shewing a Decretal or other Order of the Court under the Registers hand to the party who is to observe the same and leaving a Copy thereof with him or leaving the same at his dwelling with some person there if any be there to be found or otherwise at the door of the house shall be a sufficient service and the party shall be in contempt if he yield not obedience thereto within eight days and thereupon process may and shall issue forth to attach his body and if the order be to pay money then also to levy the same of his goods and chattels lands and tenements as upon a Iudgement at the Common Law And the Sheriff and Coronor in execution of their Offices upon process forth of Chancery shall have the same power as in execution of process at Common Law and leavy their own Fee befide the money for the party or Commonwealth and behave themselâ—es as in cases of other Execution And all process of Summons under a penalty and the course of Arresting by any other Writ of Attachment then is by this Act appointed Attachment with Preclamation Commission of Rebellion Mossenger or Sergeant at Arms as to the Execution of any process of the said Court to be henceforth forborn and Writs of Executions of Orders and Decrees under Seal to be no more used Observation 32. The course prescribed for service of Decretal Orders in this Section seems to be inconvenient for since the Proposers have directed that all the Process of Summons shall be under the Seal of the Court which is the first and least considerable of all the Process issuable out of the Court why a Decree which is the last and most considerable of all Writs should not be under Seal is left to consideration it being easie to counterfeit a Registers hand and if discovered not so penal as the counterfeiting of the Great Seal of England wherein pains of death are provided for the party offending and therefore in respect of the difficulty of counterfeiting the great Seal and the hazard and punishment attending the same it is held and taken to be the most safe convenient course which strikes a terrour in the persons concerned and worketh a more honourable respect to the Decree and Authority of the Court that made it then to a bare Registers hand which may be had for twelve pence at any time And as to the Proposal which would make a decree in Chancery equivalent to a Judgement at Law it was formerly proposed by the Clerk and cannot but be well approved of by all un-byassed persons since Execution of the Law is the life of the Law And the precedent reasons that are offered for the issuing forth of Decrees under Seal of this Court will satisfie all ingenious men for the issuing forth of all Writs of Executions of Orders under Seal of this Court SECT XXXIII THat whereas any man is attached for breach of a Decree he shall not buy or sell at liberty but by order of Court And in all such process of Attachment it shall be mentioned that it is for breach of a Decree Observation 33. This is a very strict course as is humbly conceived and tends to the disinabling the party against whom the decree is past to pay hâ—s Debts or to make satisfaction to the party demandant But to restrain him from disposing or selling of the matter decreed seems reasonable SECT XXXIV THat there shall be no more money ordered to be paid into Court unless by consent of both parties and no Fees shall be paid for paying out the money already in Court And the party who thought to have dammages for detaining any money which is brought into Court shall have it during the time the money remains in Court to be paid by such as were the cause for the bringing it into Court. Observation 34. To restrain the Court from ordering moneys to be paid into Court without relation to the nature of the Case may prove a great prejudice to many persons for in case there be one or more Suits
at such time as the Plaintiff shall desire which Process shall not be executed or being executed shall be discharged if the Defendant pay the aforesaid forfeitures and charge of the Process and under his hand on the backside of the said Process Declare that he will appear within the Return thereof and within eight days after make his Defence or otherwise make Oath before the Sheriff or Coroner that he had no notice of the said Summons with such Declaration to appear and Answer as aforesaid and such Process either executed or thus endorsed or where it cannot be executed shall at the return day be returned whence it issued and be there filed And in case the body cannot be attached and Issues be returned upon Lands or Goods the same shall be to the value of four pounds which shall be forseited for not appearing one half to the Commonwealth the other half to the Plaintiff Observation 6. That the Course prescribed in this Section for an Attachment Proclamation Commission of Rebellion and Sequestration to be contained in one Process upon a Contempt is humbly conceived to be of dangerous consequence and more mischievous to the Defendant then any prejudice could formerly accrew to the Plaintiff by the ordinary course of taking out of the usual Process of Court on Non est inventus returned For that on a false Affidavit that the Defendants house was served according to the Direction of this Section which may by craft be done and yet the Defendant never hear of it untill in contempt The Defendant being a Merchant or other person living much on his Trade or Credit having occasion to travel beyond Sea or unto some remote parts of the Nation may have a Sequestration come upon his estate and his credit and trade destroyed and his goods wasted and mis-used before ever he shall hear it Those that are conversant with the practise of the Court of Chancery cannot but well remember that it is frequent upon false Affidavits or other indirect grounds to issue contempts against many men who upon due examination of the Business are often cleared And it were a sad Case that on a bare Affidavit or mistake any of the People of this Nation being in credit and repute should have their Lands Goods or Chattels attached or sequestred And if the Course proposed by the said Clerks for an Attachment and Proclamation to be the first Process contained in one Writ and Commission of Rebellion next and then Sequestration it were more safe for all parties Plaintiff and Defendant and less danger mischief and inconveniency would probably accrew to both by this course then the way directed in this Section SECT VII THat where the person of the Defendant shall not be attached on this process and in custody and the said process endorsed as aforesaid and the Defendant shall not appear on the return thereof the like process shall be sent to all the Shetiffs and Coroners of England and such others as the Plaintiff shall name and the Defendant shall also stand disabled to prosecute any Suit in any Court except in Causes where issue is joyned and there only to Tryal And the Court may also sequester the thing in demand by the Bill for the party not appearing untill appearance and answer except it appear to the Court by oath that at the service of the Summons the Defendant was not within the Commonwealth in which case the Court may give such time for appearance and Answer as shall be meet Observation 7. This hath dependance on the last Section which being held inconvenient this consequently must follow as impertinent and useless as to what is herein before excepted against as is humbly conceived SECT VIII THat where any Defendant hath declared under his hand that he will appear as aforesaid and appeareth not and is in custody for not appearing or having appeared for not answering or not answering sufficiently the Court shall order him to answer and the Bill to be taken as confessed And if within eight days after notice of that Order the Defendant shall not answer accordingly the said Cause shall be put in the Book of Hearings and such Decree made thereupon as if the Defendant had confessed the Equity in the Bill and if at the said hearing it shall appear that the said Defendant ought to discover any thing for the Plaintiffs relief the Court may enforce the same by strict restraint of the said Defendant and Fine to be imposed by the Court one half thereof to the Commonwealth the other to the Plaintiff Observation 8. The Court hath already sufficiently provided in matters of this Nature who in case the Defendant refuseth to answer will decree the Bill pro Confesso so that this Proposal might have been spared SECT IX THat where a Defendant doth appear and doth not answer plead or demur within eight days he shall forfeit 5. l. for the first eight days default to be paid to the plaintiff and 10. l. for every eight days default after one half to the plaintiff the other to the Commonwealth And the plaintiff may nevertheless in such case take forth such process as before to attach the Defendant by Body Land and Goods and in case that his Body be attached and it doth not appear that he hath Lands and Goods sufficient to answer the plaintiffs demands his Body shall be kept in safe custody untill he hath paid the costs and forfeitures and given good security to be taken in the name of the plaintiff and approved by the Sheriff or such party as doth Attach him to appear at the Return of the process and answer and not depart without leave of the Court. Observation 9. By the former course of the Court every defendant was to plead answer or demur within eight days after appearance unless the Court upon special cause appearing by Affidavit that the defendant without sight of Writing or Conference with the rest of the defendants or by reason of sickness or remoteness of his dwelling or some other extraordinary reason given to the Court who in such Cases will grant the defendant a Dedimus or give a further convenient time for him to answer according to their discretions in which cases there is no provision made in this Section but extraordinary rigidness in point of time so that this general Rule cannot be admitted in all Cases without much prejudice to many defendants SECT X. THat any Iustice of the Peace as well as Master of the Chancery in ordinary may take an Answer upon oath sigued with the Desendants hand or mark and shall deliver the same himself or transmit the same close sealed up to the chief Clerk and upon such delivery made or transmitting with an oath that it was not altered since it was so sealed the same shall be received and filed by the same chief Clerk as if it had been sworn in Court or returned by Commission and a Iustice of Peace may also take an Affidavit so as
depending for profits of Lands or other things whereunto the Plaintiffs and Defendants make several claims and the Tenants or others concerned who derive an interest under the parties Plaintiffs or Defendants have rents or moneys in their hands but cannot with safety pay the same untill the right be determined it might prove a great inconveniency to the Tenants to pay their Rents to either parties before the Court on hearing of the Cause declare to whom the right appertaineth the payment thereof in the interim in dubious and intricate causes may occasion the parties to pay the same again and so consequently multiply unnecessary suits which the wisdom of former Ages hath prevented by staying the rents in the Tenants hands on good security given to pay the same to whom the Court shall order or else by ordering them to bring the rents c. into Court to be disposed of as the Court shall direct on mature and deliberate consideration had of the merits of the Cause whereby it may appear to whom the same beiongs And it seems unreasonable that no Fees should be paid for the paying out of the money already in Court since the Officer that hath charge thereof hath been put to the trouble in receiving and keeping the same who is lyable to make satisfaction therein if the same be imbezelled and must be at the trouble and loss of times to pay the same out and receive discharges for the same for all which pains trouble and hazard it seems reasonable that the Officer should receive satisfaction accordingly SECT XXXV THat where any party may take forth Sub-poena's of course to bring in a Deed the Register shall grant an order of course under his hand and like order where the Court doth direct it And the Sub-poena's Ducens tecum to be forborn And the Register shall take for such order and entring it 12.d and no more Observation 35. This is already provided for by the late Rules made by the present Lords Commissioners more expeditious and at less charge then is proposed in this Section viz. that the party may of course without order or motion take out a Writ of Ducens tecum to bring in any writings confessed in the Defendants Answer but in case the party on his examination and consideration had to the title set forth in his Answer do make good claim to the Writings the Plaintiff in such case is to pay costs which order is conceived to be a more wholsom and safe course then what is prescribed in this Section SECT XXXVI THat the time of redemption of Lands morgaged before or at the passing of this Law where no suit is depending for the same shall not exceed two years from the passing this Act and the time of redemption upon any morgage after to be made shall not exceed one year from the entry of the Morgage after the condition broken and from the time of Entry within the year and untill redemption the Morgagee shall receive double dammages if it be redeemed unless where an Infant is the Heir of a Morgager and to redeem shall have two years and not above from the time of the entry of the Morgagee after the condition broken paying single dammages And that in all cases where the Morgager dyes having an heir within Age and the Morgagee redeemable such Heir upon satisfaction of costs and dammages may joyn with his Guardian to make re-conveyance of the Land Morgaged And the same shall be good against such infant and all claiming under him Observation 36. The time limited for redemption of Lands morgaged seems very short and too strict and tends to the forreiting of many mens estates when Morgagers cannot raise moneys within the time prescribed by this Section for Redemption and in case money-mongers combine together in such cases Morgagers must either forfeit their lands at half the value or else sell it at an extraordinary undervalue And by this means no moneys can be raised by persons indebted but on unconscionable disadvantagious terms which cannot but occasion a decay of Trade and Commerce in the Nation and either disable Creditors to pay their Debts or else expose them to ruine by forfeitures of their Estates at great undervalues But on the other side it seems unreasonable that a Morgagee shall be subject to a Bill in equity for redemption after 20. or 30. years forfeiture and sometimes longer and after alienation of the estate which occasioneth many unnecessary troublesom and chargeable suits so that a reasonable certain time being limited beyond which there shall be no redemption seems just and convenient which is left to the grave consideration of those who are to Enact the same SECT XXXVII THat from the time of hearing of Suits now depending in Court of Equity upon Morgages there shall not be in any case above six moneths allowed for time of Redemption from the hearing of the Cause and there shall be no stay of any legal proceedings upon any Morgage unless equity be in the Defendants Answer confessed or adiudged of the Court upon hearing of the Cause Observation 37. This seems reasonable SECT XXXVIII THat a Morgagee entring and a Morgager redeeming Lands Morgaged the Morgagee shall not be responsable for more then the profits he hath clearly made of the Lands while he had the same in Morgage deducting his necessary charges which shall be determined by the Oath of the Morgager his Heirs and Assigns and no other profits shall be required or admitted SECT XXXIX THat the form of the Oath shall be that neither the Morgagee nor any other deriving title under him to his use hath made other or more profits of the Lands then are given in upon such oath as far as he knoweth believes or can possibly discover and that there hath not been any fraud nor wilfull neglect so far as he knoweth or believes in the management thereof whereby the profits were not made to his use of the Lands or Tenements Morgaged Observation 38. and 39. Against which the Author offers this to consideration that in case the Morgagee will let the Lands to a friend of his at an extream undervalue this cannot be termed properly a fraud for any man may let out his own Lands or what he is justly possessed of and hath power to let and set at what Rates he pleaseth but in case the Morgager or any other for him or any other person offer the Morgagee a far more considerable rent and as good terms and securities as he was to have from another Tenant who was to have it at an undervalue this will render it a fraud otherwise not And as to the Provision made in this Section touching the oath to be taken by the Morgagee the Morgagee may greatly damnifie the Morgager in point of Redemption and yet take the Oath herein before directed And it were well if course were taken to avoid the taking of oaths which are sacred unless in cases of necessity And therefore it is
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
finde them bread and salt XVIII For a search or reading any Order or Record in Chancery l. 0 s. 1 d. 0 Observation 18. This cannot be ascertained unless by the terms as is already paid in all Courts or else according to the nature of the search which may sometimes take up four or five hours or more whereas every Coachmans-wages is more considerable then what is proposed in case of long searches which often fall out XIX To the Cryer and Door-keeper to each of them at the final hearing of every cause from the party that hath a Decree for whom Dismission is pronounced l. 0 s. 1 d. 0 Observation 19. The Proposers have forgot those other persons that attend the Court and ought to have allowances accordingly either by way of sallary or from the Clyents XX. For the Copy of any Record in Chancery or other thing there filed not before particularly exprest 2.d for every 12. lines with ten words in a line the party taking what party he pleaseth l. 0 s. 0 d. 2 Observation 20. No Officer or Clerk will attend this place at this rate when as sometimes they make not any Copy of Record in three or four days and the Copy may prove but short and especially if the party may choose what part thereof he please as indeed he might have formerly done before this Proposal How this can recompence the pains and attendance of any honest able trusty man and afford maintenance for himself and his family is left to consideration especially if they intend that the Plaintiff and Defendant are to deliver to each other Copies of all Bills and other pleadings in the Cause so that it is likely the Clerk will not have an occasion to make Copies of any pleadings in a whole Cause unless the depositions whereby he is tyed to continual attendance but no work or wages provided for him by this System XXI For writing any thing to the Seal not before mentioned for every 12. lines with ten words in a line l. 0 s. 0 d. 3 Observation 21. There is no Clerk of any parts or abilities will undertake this imployment at this mean rate XXII And to the Commonwealth for the whole great Seal the same Fees that have been accustomed Observation 22. This was formerly paid XXIII For every Answer in writing on Petition l. 0 s. 2 d. 6 Observation 23. This is a sufficient Fee and but reasonable Forasmuch as some persons seem to be unsatisfied of the power and authority of the high Court of Chancery to give relief to Complainants after Judgement given against them in the Courts of Common Law which some have lately openly declared For publique satisfaction therein I have thought it very usefull to recite the Case put by the late King James concerning the power and jurisdiction of the said Court in matters of that nature together with the Cettificate Reasons and Resolutions of the several Learned Judges thereupon IAmes by the grace of God c. Whereas our right trusty and wel-beloved Sir Francis Bacon Knight our Councellor and Attorney General received a Letter from our Chancellor of England dated 19. Martii 1615. written by our express Commandment directing and requiring him and the rest of our Learned Councel to peruse such Presidents as should be produced unto them of the time of King H. the 7. and since of Complaints made in the Chancery there to be relieved according to equity and conscience after Iudgements in the Courts of Common Law in Cases where the Iudges of the Common Law could not relieve them And thereupon to certifie us of the truth of that they should finde and of their opinions concerning the same which Letter followeth in these words Mr. Attorney his Majestie being informed that there be many Presidents in the Court of Chancery in the time of King H. the 7. and continually since of such as complained there to be relieved according to equity and conscience after Iudgements in the Courts of Common Law in Cases where Iudges of the Common Law could not relieve them being bound by their Oath to observe the strict rules of the Law is willing to understand whether there be such President as he is informed of And therefore hath commanded me to let you know that his will and pleasure is that you call to assist you his Majesties Sergeants and Solicitors and to peruse such Presidents of this kinde as shall be produced unto you and thereupon to certifie his Majesty of the truth of that you shall finde and of your opinions concerning the same And for your better direction therein I have sent you here inclosed a note in writing delivered to me mentioning some such Presidents in King H. 7. time and since and I am told that there be the like in former times his Majesty expecteth your proceedings in this with as much speed as conveniently you may And so I rest York-house 19. Martii 1615. Your very assured loving friend T. Elsmore Chancellor And whereas our Attorney General and the rest of our learned Councel did thereupon return unto us their Certificate subscribed withall their hands according to our commandment and direction given them by the said Letter which Certificate followeth in these words Certificate According to your Majesties Commandment we have advised and considered of the Note delivered unto us of Presidents of complaining and proceeding in Chancery after Judgements had at Common Law and have also seen and perused the Originals out of which the same Note was abstracted upon all which we do finde and observe the points following 1. We finde that the same Note is fully verified and maintained by the Originals 2. We finde that there hath been astrong currant and practise of proceedings in Chancery after Judgement and many times after Execution continued from the beginning of King H. 7. raign untill the time of the Lord Chancellor that now is both in the Raigns separatim of the several Kings and in the times of the several Chancellors whereof divers were great learned men in the Law it being in cases where there is no remedy for the Subject by the strict course of the Common Law unto which the Iudges are sworn 3. We finde that this proceeding in Chancery hath been after Judgements in Actions of several natures as well real as personal 4. We finde it hath been after Judgements in your Majesties several Courts of Kings Bench Common Pleas Justice in Oyer c. 5. We finde it hath been after Judgements obtained on Verdicts and Demurrers and where Writs of Errour have been brought 6. We finde in many of the Cases that the said Judgements are expresly mentioned in the Bills in Chancery themselves to have been given and relief craved thereupon sometimes for stay of Execution and sometimes after Execution of which kinde we finde a great number of King H. 7. time 7. We finde the matter in Equity laid in such Bills in most of the Cases to have matter precedent before the
3. fo 14. We finde no presidents of any proceedings to conviction or Iudgement of any Indictment framed or grounded upon this Statute no more then the Statute of Premunire and the late Iudgements are contra diversa Satuta not mentioning the particular Statutes 6. Lastly it were a great mischief to force the Subject in all cases to seek remidy in equity before he knows whether the Law will help him or no which oftentimes he cannot do till after Iudgement therefore he is to seek his remedy when he hath his hurt There be divers other things of weight which we have seen and considered of whereupon we have grounded our opinions but we go no further then upon that we have seen but because matter of President is greatly considerable in this Case and that we have been attended by the Clerks of the Chancery with the presidents of that Court and have not yet been attended by any Officer of the Kings Bench with any Presidents or Indictments although we required them and gave them convenient time to have attended us with their Presidents we shall give your Majestie faithfull Accompt of them as we have done of the other all which c. Francis Bacon Hen. Mountague Rand. Crewe Hen. Yelverton John Walter NOw forasmuch as Mercy and Justice be the true Supporters of our Royal Throne and that it properly belongeth to Us in our Princely Office to take care and provide that our Subjects have equal and indifferent Justice ministered to them and that where their case deserveth to be relieved in course of Equity by Suit in our Court of Chancery they should not be abandoned and exposed to perish under the rigour and extremity of our Laws We in our Princely Judgement having well weighed and with mature deliberation considered of our said several Reports of our Learned Councel and all the parts of them do prove ratifie and confirm as well the practise of our Court of Chancery expressed in their first Certificate as their Opinions for the Law upon the Statute mentioned in their latter Certificate the same having relation to the Case sent them by our said Chancellor And do will and command that our Chancellor or Keeper of our Great Seal for the time being shall not hereafrer desist to give unto our Subjects upon their several complaints now or hereafter to be made such relief in equity notwithstanding any former proceedings at the Common Law against them which shall stand with the true merits and justice of their Cases and with the former ancient and continued practises and presidency of the Chancery And for that it appertaineth to our Princely Care and Office only to be Judges over all Judges and discern and determine such differences as shall or may at any time arise between our several Courts touching their Jurisdictions and the same to settle and decide as we in our Princely wisdom shall finde to stand most with our honour and the example of our Royal Progenitors in the best times and the general Weal and Good of our People for which we are to answer unto God who hath placed us over them our Will and Pleasure is that our whole proceedings herein by the Decrees formerly set down be inrolled in our Court of Chancery there to remain on Record for the better extinguishing of the like Questions or differences that may arise in future times 18. Julii 14. Jacobi Regis per ipsum Regem Additional Proposals with a Table of Fees annexed for the better regulation of the Fees and proceedings of the High Court of Chancery 1. THat all Pattents of Offices and places of Trust granted by the late King or his Predecessors be wholly laid aside the Pattentees being the men that swallow up the great Fees of the Court. 2. That no Offices or places of Trust be bought or sold contrary to the Stat. of 5. Edw. the 6. but the same may be supplied by persons bred up in such Office and so qualified for that purpose and of approved integrity to the Commonwealth and that some additional provision be made for the better prevention thereof 3. That there be appointed three chief Officers in Chancery for the orderly bundling entring and keeping of all Bills Answers Replications Depositions and others pleadings and proceedings there which three Clerks shall from time to time end and decide all controversies and differences betwixt the Clerks and Attorneys of the Court in relation to the practical part thereof or otherwise certifie the Court in matter of fact for further order therein as the Court shall think fit Which chief Officers shall take care for the due observance of the Table of Fees And that the Attorneys orderly demean themselves in their places and imployments without sinister or indirect dealing one with another or with their Clients And in case of abuses of that nature they shall from time to time certifie the Lords Commissioners or the Judges of the Court thereof whereby the same may be timely redressed and the said chief Clerks to have an Annual Stipend and allowance from the State for their service and attendance in the Execution of the Premisses and no other Fee to be paid unto them 4. That from amongst the present practising Clerks there be appointed 72 Persons which shall be the Attorneys of the said Court who shall file all Bills enter all Appearences copy all sorts of Pleadings and make out all Subpena's or Process of Appearances and shall make all other Writs formerly issuable out of the Six Clerks Office and advise and direct their Clients in all proceedings so far as appertaineth to the duty of an Attorney who shall receive for their pains therein according to the Fees in the Table annexed mentioned And upon the death or removal of the said chief Officers or other contingent inability the said Attorneys according to their Seniority and deserts to succeed them and their Clerks in like manner to succeed as Attorneys which will be a means to preserve Clerkship and persons of integrity in the said office to serve the Commonwealth 5. That the Registers and Examiners and other Officers of the Court shall execute their places personally and not by Deputies unless in cases of sicknesse or other extraordinary occasion wherein the leave of the Court for his or their absence shall be obtained and his Deputy approved of by the Court and their Clerks to succeed them according to their Seniority and deserts 6. That no person may be permitted to sollicite Causes or to take any reward or Fees by pretence thereof other then such as shall be allowed and approved of by the Lords Commissioners or Judges of the said Court and their solliciting Fees may be ascertained and their names inrolled whereby the formal scandal and imputation occasioned by ignorant persons unwarrantably owning such imployments may be prevented 7. That such as shall be appointed Judges of the said Court shall have a certain Annual sallary and they to take no Fees under any pretence