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