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A69998 Certaine observations concerning the office of the Lord Chancellor composed by the Right Honorable and most learned Thomas, Lord Ellesmere, late Lord Chancellor of England ; whereunto is annexed a perfect table and a methodicall analysis of the whole treatise. Egerton, Thomas, Sir, 1540?-1617. 1651 (1651) Wing E359; ESTC R4472 72,038 136

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that in the 3 year of Rich. the 2. in a Parliament holden at London Dominus Richardus Scroope cessit officio Cancellariae c. Archiep. Cantuar. Magister Simon Sudbury contra gradum suae dignitat ut plurimi conclamabant illi Officio militaturus accessit sed si ipse illum procuraverit aut sponte susceperit novit Deus Sometimes were chosen to that place Archbishops and Cardinalls as John Thoresby Archbishop of York and Cardinall c. in the time of Edw. the 3. c. Sometimes Threasaurers of England were advanced to the honour of Chancellors as Henry de Burgh in the time of Edw. the 3. Sometimes to the Office of the Keeper of the Great Seale as John de Cheshall in the time of Henry the 3. and many other to either of the places Sometimes common Lawyers were called to be Chancellors as Robert ●erning Justice and Robert Thorpe Justice in the time of Edward the 3. Sir Thomas Moore in the time of Hen. the 8. and others Sometimes were trusted with the Keeping and exercise of the Seale as John Maunsell L. Chiefe Justice in the time of Edw. the 3. c. Sometimes the Lord Keeper of the Privie Seal was made Lord Chancellor as Edmund Stafford in the time of Henry the 4. and others Sometimes were made Keepers of the Seale men cunning in the Custome of the Chancery as was Sylvester de Eversden in the time of Hen. 3. Sometime men learned in the Civill and Common Lawes as William of Kilkenny in the time of the said King Sometimes the Master of the R o●●s as Henry Cliffe in the time of Edw. 3. who was his Chancellor also and others Sometimes a Keeper of the Wardrobe hath been appointed to keep the Seale as John Drakensord to Edw. 1. Some have been twice Lo. Chancellors as John Hotham in the time of Rich. 2. Some thrice as John Stratford in the time of Edward 3. And sometimes there have been three Chancellors in one year as Rotheram Alcoch and Moreton in the 1. yeare of Htn. 7. and he that hath been the longest in office either of Chancellor or Keeper of the Seale is not remembred to have continued above 18. years Some with their Office of Chancellor have retained other places as William Velson after Bishop of Tel●ard was at one time Chaplaine and Chancellour to William the Conquerour Rannlph Brittaine at one time Cancellarius Regis specialis as saith Matthew Paris and Treasurer of the Chamber But the mightiest of living by multiplicity of Offices that I may readily finde were John Maunsell in the time of Henry the 3. Simon Langham in the time of Edw. 3. John Stafford in the time of Hen. 6. Woolsey Cardinall in the time of Hen. the 8. And in honour and temporall Dignities the Lord Marquesse of Winchester who was Keeper of the Seal in the time of Edw. the 6. And thus much may suffice for the Originall Office Dignity and Election of the Lord Chancellor Now may something bee added of the Conrt of Chancery and Authority absolute of the Chancellor As the Chancellor is at this day Norma omnium jura Reddentium c●●●mnes Magistrat honorun suorum fasces submittere not ●ndignentur And withall as Budeus calleth them Promus Condus clementiae benigni●atisque principalis and generally the mouth the eare the eye and the very heart of the Prince so is the Court whereof he hath the most particular administration the Oracle of equity the Store-house of the favor of Justice of the liberality Royall and of the right pretoriall which openeth the way to right giveth power and Commission to the Judges hath jurisdiction to correct the rigour of Law by the judgement and discretion of equity and grace It is the refuge of the poore and afflicted It is the Altar and sanctuary for such as against the might of rich men and the countenance of great men cannot maintaine the goodnesse of their cause and truth of their Title the entry and doore whereof ought Patere omni postulanti omnibus ●oris nulli tamen ●●are which is meant not to gape after such men as bring rewards o● seek accesse to the help thereof by corruption and it is called Caria saith Valla a Cura for that care and heed is to be taken therein for the deciding of controversies but it seemeth rather to be called Curia an Assembly or the place of assembly c. like as the Kings Court was first called Curia for that the Court of Justice was there first holden For the originall of this speciall Court is to be considered that in the time of the Saxons and of the Danes the King by himselfe did hold a high Court of Justice wherein he sate in person and did judge not onely according to meer right and Law but also after equity and good conscience and this is confirmed by the Law of the Saxon King Edgar viz. Let no man seek to the King in matter of variance unlesse he cannot finde right at home but if the right be too heavy for him then let him seek to the King to have it lightned The like to this Law is also among the Lawes of Canutus the Dane and for the understanding of this right at home we may remember that in those days were certaine Jurisdictions over Leets Boroughs and Tythings c. and there by authority permitted to the Reeves or Judges of the lower roomes for the hearing of sutes of small importance and grant of greater power to the Sheriffes and Aldermen which had the charge of greater Assemblies all was retained and reserved to the King himselfe the decision of such matters as by just cause of appellation either for law or equity should be brought before him to be considered and resolved in the aforesaid high Court of the King out of which as were the former so were all the high Courts of Justice or Conscience at this day derived by the Ecclesiasticall Courts or Temporall And here I might take some fit occasion to touch by the way how in the Parliament Lawes not onely for civill and criminall causes but also for the matters of the Church are made abrogated or mitigated common wrongs not holden in other Courts are there amended and heard and difficult causes are there ended Attainders confirmed and annulled corruption of blood there restored errors committed in other Courts there corrected and all constitutions for the State are there confirmed c. How in the Kings Bench are properly all such causes onely to be handled which appertaine to the Crowne or wherein the King is a partie if they be not by Commission particularly assigned to some other Court How in the Court of Common Pleas are holden all Common Pleas between subject and subject of all matters of Common Law How in the Exchequer are the Queenes receipts and her yearly revenues recorded and kept how it is her common Treasury and a Court for Justice betweene
married by him and therefore he revoked his Will and willed that his other daughter should have the land by conscience Laicon when he made his first Will the first daughter had presently an interest in the land which he would not defeat as if one make a Feofment to the use of a stranger he cannot afterwards revoke that use Illingworth there appeareth not any cause why the first daughter should have the land and therefore seeing the Feoffor had not quid pro quo it is no bargain but of his meer will which he may by good conscience change as if the Feoffor had afterwards fallen into poverty he might with good conscience compell the Feoffee to re-feoff him again Prisot ch. Justice of the Common-pleas when the Re-feoffor had once declared his Will and willed the land to his daughter the Feoffee standeth presently subject to the will of the daughter and is discharged of the Feoffee and such a Will is as strong as a Feoffee which is annexed to a Livery of Seizin Fortescue chief Justice of England the Feoffor may have his will if there be special cause otherwise not as if after the first Will the Feoffor had a son born he might well have changed his Will and given it to his son and heir for there is a reasonable cause of his claim and so it is if the daughter had become a Felon 35 H. 6 sub poena 3. Stac consc. note that the better opinion is conceived to be that he may revoke the first Will 15 Eliz. Dyer 3. 25. 4. Note it was agreed if any infeoff another he may declare his Will unto him afterwards and appoint the use to whom he will 31 H. 6. sub poena 23. Stach consc. 5. If I infeoff one to perform my last Will and himself a stranger I have no cause of sub poena against the Feoffee but I may sue my first Feoffee and recover in damages for the value of the land per Yelverton Wilby Clericis Rotulorum and this is meant where the second Feofment is made bona fide in which cause I have no remedy for the land and so it was adjudged in the Cardinal of Winchesters case but if the second Feofment had been also upon trust then I might recover the land by sub poena against the second Feoffee 31 H. 6. sub poena 19. Stach sub poena 6. If I make a Feofment upon trust that the Feoffee shall infeoff my heir when he cometh to full age and the Feoffee infeoffeth a stranger bona fide to the intent to disinherit inherit my heir there the trust is deteined and the heir is without remedy against the second Feoffee by sub p. or otherwise but if the Feoffee had ret●ined the land himself and refused to infeoff the heir at his full age he might have compelled him thereunto by sub poena per Dunby Just in com banco 33 H. 6. 15. 7. Richard Frank made Feoffees to the use of the last Will of him and Agnes his wife and they dyed having issue John and Izabel John was outlawed of murther and also delivered to the Abbot of Westminster as a Clerk attainted for robbing a boy called a Monstral out of the Church of the Prioress of Clerken-well and lastly was indicted and outlawed for Felonies and Treasons and during his life Isabel sued a sub poen against the Feoffees to be infeoffed of the land as next heir to the land the Feoffees upon their Oaths confessed the trust wherefore it was decreed by the Court by advise of John Fortescue Knight chief Justice of the K Bench and divers other Justices and Serj. that the Feoffees should execute an estate to Isabel and her heirs q● nota petic in Canc. Ann. 33 H. 6. 2 pts 8. It the Feoffee upon trust do refuse to perform the trust by denying to re-infeoff the Feoffer he shall be compelled thereunto by sub poena and decree and imprisonment per Liac Ser. 37 H. 6. 13. 9. One having four Feoffees seised to his use sold his land to J. S. and said to two of his Feoffees that his Will was that they four should make a Feofment unto J. S. accordingly which two Feoffees notified his Will unto the other two who refused to joyn in the Feofment whereupon the first two alone made a Feofment to J. S. of their parts and afterwards the Feoffer sold the lands to J. D. and required those two Feoffees which refused before to infeoff J. D. who did so accordingly and J. S. sued a sub poena against the two Feoffees which refused and because the two Feoffes did bur onely give notice to the other two Feoffees of the Feoffers Will and did not tell them that the Feoffer had commanded them to infeoff I. S. and without commandment they were not compellable to make the Feofment therefore the two Feoffees which so refused were dismissed per canc omnes Iust. 37 H 6. 35. sub poena b. consc. 5. 10. If the Feoffer do send his servant to his Feoffees commanding them to make estate according to his Will the Feoffees are not bound to make a Feofment without specialty proving his Will per plur. Instic 37 H. 6 35 sub poena 1 b. consc. 5. 11. One willed that his Feoffees should make an estate for life to I. S. the Remainders to I. D. in fee I. S. refused to make the Estate for life I. D. may compell the Feoffees by sub poena to limit an estate in rem unto him after the death of I. S. per Ienney Serj. Fincham apprentice and Fincham said that the Feoffees ought to make an Estate to the heir of the Feoff r during the life of I. S. if I. S. did ●●fuse the rem to I. D. 12 And I. D. may compell the Feoffees by sub poena to grant the rem in the life of I. S. for else by the refusall of I. S. he should lose his rem otherwise it is if a man devise ●a●ds by his Testament to I. S. for life the rem to I. D. further if I. S. refuse yet there needeth 〈◊〉 sub poena because he may enter by the law b● force of the Testament 37 H. 6. 36. sub poena 6. consc. 5. 13 If any Feoffee in trust be diss●iz●d I may have sub poena to compel him 〈◊〉 bring Assize against the Diss●●sor per M●●le Danvers Iustice in communibance 2 E. 4. 2. b. consc. 5. 14 If If I be bound by obligation to I. S. to the use of I D. that I shall infec●s I. D. for certain lands if I do offer a Feofnient unto I. D. and do refuse ●o receive the obligation is thereby discharged but I. D. may ●ave a sub poena to compell me to infeoff him notwithstanding per Danby Capit. Iu stice de communi banco 2 E. 4. 3. 15