for binding with coards the good man of the house and his wife and for taking out of a chest 5. li. in money I VratÌ„ praesentaÌ„t qÄ‘ G. C. nuper de M. in comÌ„ Cestriae alij ignoti Sect. 367. xvj die Martij Anno Regni Edwardi sexti dei gratia Angliae c. quinto circa horam vndecimam in nocte eiusdem diei apud A. in comÌ„ C. domum cuâ—usdam R. W. vi armis viz. baculis gladijs dagarijs burglariter ac felonice fregerunt et intrauerunt Ea intencione ad spoliand ' depredendum praed ' R. W. et in praed ' R. W. ac R. W. filium suum et lo. vxorÌ„ eius adtunc ibidem insultuÌ„ fecerunt et ipsum R. W. cum quodam instrumento vocatÌ„ Pothookes polices ipsius R. W. super trabem vocatÌ„ a beame domus praedict ' ipsum adtunc ibidem suspenditur praed ' R. W. et Ioh. vxorÌ„ eius cum cordis ligauerunt et C. s in pecunijs numeratÌ„ in quodam cisto contentÌ„ de bonis et catallis praed ' R. W. adtunc et ibidem inuentÌ„ felonice ceperunt asportauerunt et spoliauerunt vi armis ac contra pacem dicti dnÌ„i Regis ac contra formam statuti in huiusmodi casu editÌ„ et prouis An order to be obserued in the right framing of Indictments Quis quando vbi quid cuius quomodo quare QVis The person with his name surname addicioÌ„ of the Towne Quis. Countie Arte and degree Quando The day and yeare Quando Vbi Quid. Cuius Quomodo Quare Vbi The place Towne and Countie Quid The thing taken the coulour the marke the price and value Cuius The owner of the thing and whose it was Quomodo The manner of the doing and how Quare The entent which is comprised in this word Felonice SYMBOLEOGRAPHY Of Compromise and Arbitrements A Compromise defined A Compromise or Submission Arbitrium Compromissum Sect. 1. Submissio is the facultie or power of pronouncing Sentence betweene persons at controuersie giuen to Arbitrators by the parties mutuall priuate consent without publike authoritie 8. E. 4. 2. Compromise deuided EVery Compromise is generall or speciall Dyer 217. plac 6. Sect. 2. 4. Eliz. Compromise generall A Generall Compromise is of all quarrels actions executions and Sect. 3. demandes c. Compromise speciall A Speciall Compromise is euery submission to order which is not Sect. 4. so generall as when it is of certaine matters facts or things onely as of a Trespas or of all actions of Trespas or of a plaint or Debt or Detinue c. Parts of Iudgements AS of euery other iudgement so of iudgements which grow by coÌ„promise Sect. 5. there are two parts the persons and the question Persons in Iudgements PErsons chiefly regarded in Compromise are the striuing parties Sect. 6. and the Arbitrators Persons striuing THe parties striuing be they betweene whom the controuersie dependeth Sect. 7. and which compromit the same Dyer 217. 4. Eliz. Persons striuing 2. ANd they must be two at the least namely the plaintife and the defendant Sect. 8. of which sometime there be two or more of a side The Plaintife The Plaintife is he which moueth the question The Defendant The Defendant is he against whom the question is moued What persons may compromit and what not AL persons both male and female may make compromise but such Sect. 9. as are prohibited by nature or by law Impediments to compromit BY nature some are prohibited to compromit through defect of the Sect. 10. mind and some through defect of the bodie Impediments in mind naturall THrough the defect of the mind is when either age is such that by Sect. 11. nature they want discretion or being at age they want it eyther naturally or casually as Infants vnder one and twenty yeares old 10. H. 6. 14. 18. E. 4. 2. 7. E. 4. 5. Impediments in mind casuall ANd furious mad Lunatikes during their lunacy 12. E. 4. 8. and Sect. 12. Ideots Impediments in bodie DEfect of the body is such infirmity as hindreth the principall senses Sect. 13. necessary for the atteyning of knowledge as dumbnes deafnes and blindnes Dumbnes and deafnes naturall and casuall ANd therefore persons by nature dumb deaf cannot compromit Sect. 14. as it seemeth for they cannot haue vnderstanding neither can they graunt Perkins Sectio 25. But persons blind dumb deafe by chance which can write and read may well by writing compromit Impediments legall subiection ioynt power SVch persons seeme prohibited by law to compromit as be subiect to Sect. 15. others power or haue onely ioint powers with others as boÌ„dslaues or villeins least the award should become void on their part 35. E. 3. Couerture IN like maner women couert without their husbandes 2. H. 5. Sect. 16. 9. E. 3. 28. Death ciuill ANd persons ciuilly dead as Monkes Friers Canons professed Sect. 17. Nunnes and such other votaries which be in subiection to their Soueraignes 14. H. 8. 16. 2. R. 2. 5. Compromise HEreunto may be added men compelled to submit by threats or Sect. 18. imprisonment 8. Ass 25. 7. E. 4. 21. for in submission the consent ought to be free Attainder and Outlawrie OF this sort also are persons attainted of felony or treason and Sect. 19. persons outlawed or wayued in personall actions for they haue no goods 36. H. 6. 26. 16. H. 6. 47. 21. H. 7. 7. 8. E. 4. 4. 5. H. 7. 16. Ioint power PErsons prohibited to compromit for that they haue onely ioynt Sect. 20. power with others are the single members of euery corporation without their fellow members as a Deane without a Chapter an Abbot without his Couent a Maior without his Comminaltie The master of a Colledge or Hospitall without his fellowes and so of other societies or guilds 21. E. 4. 13. And in awarde it seemeth that such persons onely may of themselues compromit as may of themselues make good graunts Arbitrators defined AN Arbitrator is an extraordinarie Iudge which is chosen hath Sect. 21. power to iudge giuen to him by thonely mutuall consent will coÌ„promise election of priuate persons striuing to th end they may decide their controuersies 19. H. 6. 36. who because the controuersie is coÌ„mitted to his pleasure arbitremeÌ„t is termed an arbitrator for that it is done by the mutuall promise or compromise of the parties he is called compromissarius iudex Dyer 536. 19. Eliz. 39. Or a Iudge hauing cognizance by the compromise of the parties his power is larger then the power of any ordinarie or other extraordinary Iudge appointed by a magistrate for an arbitrator hath power to iudge according to the coÌ„promise after his owne mind aswel of the fact as of the Law not obseruing the forme of law but thother Iudges are tied to a prescript forme limitted to
that now is and of euery or any of them or by or in the name of any other person or persons by the consents meanes procurements of them or any of them shall thenceforth surcease and be no further proceeded in by them nor any of them or by the means consent or procuremēt of them or any of them And before the c. be vtterly discontinued and made void ✿ And the said Arbitrators do further award order deeme and iudge by these presents that for the sure payment of the said summe of 400. pounds the said I. S. and G. S. within two daies next after tender or deliuery of the one part of this present award to the said I. S. shall well and sufficiently make seale and deliuer as their deeds to the said T. W. in c. one Obligation or writing obligatorie sufficient in the lawe wherein and wherby the said I. S. and G. S. shal acknowledge themselues and either of them to be ioyntly and seuerally bounden to the said T. W. in the summe of 800. pounds of c. with condition thereupon in due forme of law indorced for the sure paiment of the said summe of 200. li. parcell of 400. li. at or in the c. before c. And the other 200. li. residue of the said summe of 400. li. at or before the c. and at c. ✿ Also the said Arbitrators do further award c. that the said I. S. his executors or administrators or some of them shall and will before the c. at his and their owne proper costes and charges cause and procure to be cancelled and made void one recognisance of 200. li. bearing date the c. knowledged and inrolled in the Q. maiesties high court of Chancerie wherein and whereby the said T. W. standeth bounden to the said I. S. in the said summe with condition thereunto annexed That if the said T. W. his heires executors and administrators euery of them should well truely obserue performe fulfil keepe all euery the couenants grants articles agreements which on his and their parts were to be obserued performed fulfilled kept cōtained and specified in one Indenture bearing date the c. had and made betweene the said T. W. on the one partie and the said I. S. on the other partie concerning the marriage of W. W sonne heire apparant of the said T. W. and A. S. daughter of the said I. S. according to the true intent purport effect of the said Indenture That then the said Recognizance to be void and of no effect or else to stand c. as by the said Recognizance Indenture more plainly and at large appeareth ✿ And also that the said I. S. his executors or administrators or some of them shall and will before the feast of c. deliuer or cause to be deliuered vnto the said T. W. his executors or administrators or some of them in the said now dwelling house of the said T. W. aforesaid the said Indenture of couenants concerning the foresaid marriage cancelled or to be cancelled In witnesse whereof the said Arbitrators to both partes of this present award indented haue set their hands and seales Dated c. An Arbitrement or award of debt made by an Earle vpon submission by bond TO all true Christian people to whom this present writing of award Sect. 47. indented shal come The right Ho. G. Earle Marshal of England c. sendeth greeting c. Whereas diuerse suits variances cōtrouersies debates heretofore haue bin had moued depending between T. G. of T. in the coūtie of Y. yeomā on the one partie F. M. of D. in y◠said coūtie gentlemā on the other partie For pacifying ordering ending wherof the said T. G. F. M. haue bound themselues either to other in the sum̄ of 400. l of c. by their seueral oblig bearing date c. now last past with cōdition there vnder writtē to stād to abide performe fulfil keepe the award order rule doome iudgemēt determination of the said Earle indifferently elected chosen by the mutual cōsent at the earnest hūble request petition of both the said parties to arbitrate award order iudge determine of for cōcerning al al maner of actions suites quarrels debts duties demaunds whatsoeuer had moued or depēding or which hereafter might be had moued or depend between the said parties by reason of any matter thing or things whatsoeuer accrued or growē frō the beginning of the world vntill the day of the date of the same oblig So that the same award were made in writing indented vnder the hand seale of the said Earle before the xix day of c. th one part of the same writing indented deliuered or caused to be deliuered by the said Earle to the said T. G. his executors c. or any of them or to their or any of their vse vpon or before the said xix day of c. at or in the now māsion or Manor house of the said Earle called S. in c. the other part thereof to the said F. M. c. vt sup̄ as by the said oblig conditions thereof doth may more at large appeare ✿ Know you now that the said Earle of his meere good will fauour which he beareth to both the said parties of y◠great honorable respect which he hath of their future quietnes taking vpon him the charge burden of the said award hauing deliberatly at sundry times at large heard considered the griefs allegations proofes of both the said parties doth by these presents arbitrate award order deeme iudge of concerning the premisses in maner forme following viz. ✿ That the said F. M his c. or some of them shall well truely pay or cause to be paid vnto the said T. G. his c. or some of them the sum of 160. l of c. in the c. in maner forme following viz. vpon c. 80. l therof and vpon c. other 80. l therof residue in full paiment satisfaction of the said sum of 160. l ✿ And that in consideration thereof the said T. G. shall permit suffer all suits actions quarrels debts duties and demands growen before the date of the said oblig to cease be discontinued and no further prosecuted by him or any other by his procurement ✿ And furthermore for as much as the said F. M. is charged as is aforesaid for the paimēt of the said sum of 160. l partly by reason of a iudgment heretofore giuē for the said T. G. against one L. S. in the Q. Maiesties court cōmonly called the K. bench in an actiō of debt in which the said T. G. hath recouered against the said L. S. 285. l and 4. d. as by the record thereof remaining in the said court appeareth His honor doth further award
of the Manor that the Lord may auow without atturnement 26. H. 6. Fitz. Per que seruitia 21. If the tenant in Per que seruitia appeare confesse the action at the Fine ImprisonmeÌ„t Distringas ad atturnand ' after iudgement will not atturne he is punishable by imprisonment or fine at the discretion of the Court as it seemeth 3. E. 3. ItinÌ„ North. Fitz. per que seruitia 17. Coparceners Iointenants and tenants in common may not fourch Essoine by essoine to essoine seuerally but haue onely one essoine as one sole tenant might haue W. 1. cap. 42. 3. E. 1. Rast ' esâ—oine 4. Of the Ingrossing of Fines WHen the note of the fine is made with the Custos breuium if it Sect ' 170. be of lands in possession or when atturnement is made if it be of a reuersion remainder rents or seruices then may it be ingrossed by the Chirographer And the Ingrossing of a fine is nothing els but the entring of the coÌ„cord Ingrossing thereof with the Chirographer and the writing and deliuery of the Indentures thereof Fitz. na 147. a 5. H. 4. ca. 14. which be called the Chirographe of the fine and is made in forme following viz. Haec est finalis concordia facta in curia dnÌ„ae Reg. apud WestmÌ„ a die Fine en taile de reuersion de rent Pasch in 15. dies AnÌ„ regni Eliz. c. 39. coram Edmundo Anderson T. Walmsley R. O. R. B. Iustic ' dnÌ„ae Reg. alijs fidelibus tunc ibi presentibus inter A. B. querÌ„ L. C. deforc ' de decem mercatÌ„ redditÌ„ cum pertinÌ„ in B. quem P. de A. tenent ad terminum vite vnde placitum conuentionis sumÌ„ fuit inter eos in ead ' curÌ„ scz quod praed ' L. concessit pro se heredibus suis quod praed ' redd ' cum pertinÌ„ quem praed ' P. tenuit ad terminum vite ex dimissione pÌ„d ' L. in praed ' vill ' die quo hec concordia facta fuit qui post decessum ipsius P. ad praedict ' L. heredes suos debuit reuerti post decessum ipsius P. integre remaneant praedict ' A. RemÌ„ as heires de corps hered ' de corpore suo procreatÌ„ tenend ' de capital ' dominis feodi illius per seruitia que ad praed ' redd ' pertinent imperpetuum si contingat RemÌ„ as droit heires quod idem A. obierit fine herede de corpore suo procreatÌ„ tunc post decessum ipsius A. praed ' redd ' cum pertinÌ„ integre remanebit rectis heredibus ipsius A. tenend ' de capitalibus dominis feodi illius per seruitia que ad praed ' redd ' pertinent imperpetuuÌ„ Et pro hac concessione fine concordia idem A. dedit pref L. centum marcas argenti And so of others according to the diuersitie of their cases Of the Tabling of fines ingrossed The Chirographer of fines of the common plecs for euer must write Sect ' 172. Tables and make one table for euery county where her Maiesties writ ruÌ„neth conteining the contentes of euery fine that shall passe in any one terme as the name of the County townes and places wherein the tenements mencioned in any fine be the name of yâ— plaintife deforceant of euery manor named in any fine And the first day of the next terme after thingrossing of euery such fine shal fixe euery of the said tables in some open place of the court of Common plees and so euery day of the said terme during the sitting of the said Court and the said Cirographer shall deliuer to euery sheriffe of euery County his vndersherife or deputie faire written in parchment a perfect content of the table so to Contents be made for that shire in the terme that shal be next before thassises to be holden in the same county or els meane betweene the terme and the said assises to be set vp the first day euery day of the next assises in some open place of the Court where the Iustices of assises then shal sit to continue there so long as they shall sit in the said Court if either the Chirographer or sherife faile herein he forfaiteth v. li. and the Chirographers fee for euery such table is iiii d 23. Eliz. cap. 3. How many proclamations are to be made vpon fines and when FOure proclamations onely are now to be made vpon euery fine with Sect ' 172. proclamation that is to say one in the terme in which the fine is ingrossed and in euery one of the three termes next insuing the ingrossing thereof one proclamation 31. Eliz. cap. 2. But if any of the same proclamations faile by reason of the adiornement AdiournemeÌ„t of any of the said termes by writ of adiournement duely made yet is such fine good and a good fine with proclamations as if the same had bin proclaimed 1. Mar. ca. 7. Bu if any proclamation be made vpon a sunday it is error because it Sundaies is not dies Iuridicus Dyer fo 128. pl. 53. 55. 2. Eliz. Of Proclamations of fines at the assises and general Sessions how they must be certified TO the end better notice of fines may come to them to whom it appertaineth Sect ' 173. Sessions it is ordained by the said statute of 4. H. 7. ca. 24. That the Iustices of the common place shall send a transcript of such fines to the Iustices of assises in the counties where the lands doe lie to be proclaimed Assises openly and solemnly at all the assises which shal be there in holden within one yere after the Ingrossing of such fines And that the like Transcript be made to the Iustices of the peace there to be proclaimed at foure generall Sessions in the said Counties and both the same proclamations to be made and certified into the common place the second day of the returne of the terme then next following And it is to be noted That while the said fines are read all plees must cease 4. H. 7. cap. 24. The forme of euery such proclamation is thus After the crier hath Proclamation made an O yes for silence saying O yes les fines lies or to that effect the Cirographer or his deputie readeth the fines thus EborÌ„ A Fine with proclamations betweene A. B. plaintife and C. D. deforciant of tenements in D. c. If the cognisees in fines die before thingrossing thereof no Proclamations Cogniseâ— dead shal be made because they had their election to haue yâ— fine with proclamations or without which election is now by their death determined Dier fo 254. pl. 104. 8. Eliz. Plow fo 266. b. Of the Inrolement of all the parts of fines after the ingrossing thereof and Proclamations passed BY the Statute of 23. Eliz. ca. 3. it is ordeined that there shall be for Sect ' 174. Office of Inrolment
S. habet de dono praedict ' G. pro hac recognÌ„ fine concordia idem S. concessit praed ' G. I. praed ' manerium cum pertinentijs illud eis reddidit in eadem curia habend ' tenend ' eisd ' G. I. hered ' quos ideÌ„ Render in taile G. de corope ipsius I. procreauerit de praed ' S. hered ' suis imperpetuum reddend ' inde per annuâ— vnam rosam ad festum Nat. SctÌ„ Io. BaptÌ„ Forteine seruice pro omni seruitio considerac ' exactione ad praed ' S. hered ' suos pertinenÌ„ Et faciend ' inde capital ' dominis feodi illius pro praed ' S. hered ' suis omnia alia seruitia que ad illud manerium pertinent Et si contingat RemÌ„ in taile qnod praed ' G. obierit sine hered ' de corpore ipsius I. procreatÌ„ tunc post decessumipsorum G. I. manerÌ„ praed ' cum pertinenÌ„ integre remanebit W. fratri eiusdem G. hered ' de corpore suo procreatÌ„ tenend ' de pÌ„dictÌ„ S. et hered ' suis per praedict ' seruitia sicut praed ' est imperpetuum Et si contingat quod praed ' W. obierit sine herede de corpore suo procreato tunc post decessum ipsius W. praedict ' manerium cum pertinenÌ„ integreremanebit I. fratri eiusdeÌ„ W. heredi de corpore suo procreatÌ„ tenend ' de praedict ' S. hered ' suis per praedict ' seruitia sicut praed ' est imperpetuum Et si contingat qvod praeÄ‘ I. obierit sine herede de corpore suo procreato tunc post decessum ipsius I. praed ' manerÌ„ cum pertinenÌ„ integre remanebit E. fratrieiusdem I. herÌ„ de corpore suo procreatÌ„ tenend ' de praed ' S. heredibus suis per praedict ' seruitia sicut pÌ„d ' est imperpetuum Et si contingat quod praed ' E. obiret sine herede de Reâ—erter corpore suo procreato tunc post decessum ipsius E. praeÄ‘ manerium cuÌ„ pertinÌ„ integre reuertatur ad praed ' S. hered ' suos quietÌ„ de alijs hered ' ipsorum G. I. W. I. E. tenenÄ‘ de capitalibus dnÌ„is feodi illius per seruitia que ad illud manerium pertinent imperpetuum A Mittimus REx Iusticiarijs de banco salutem Mittimus vobis sub pede sigilli Sect ' 195. nostri c. vel sic Transcriptum pedis vel sic Tenorem pedis cuiusdam finis leuati in curia dnÌ„i Edw. nuper Reg. Angl ' aui noostri annÌ„ regni sui decimo coram W. socijs suis tunc lusticiarijs ipsius aui nostri de banco apud W. per breue nrÌ„m inter I. querenteÌ„ W. deforciantem de tanto c. quod vel quem coram nobis in Cancellaria nostrÌ„ venire fecimus vobis mittimus sub pedi sigilli nostri vt in loquela que est coram vobis per breue nostrum inter I. filium I. petenteÌ„ E. tenentem de eod ' mess c. securius procedere valeatis c. T. c. A Mittimus for the foote of a Fine Rex Balliuis suis S. salutem Quia in leuatione diuersorum finium coram I. S. W. W. nuper balliuis ville S. inter W. R. M. vxorÌ„ eius querÌ„ W. T. Capellanum deforc ' de octÌ„ messuagijs c. deceÌ„ solidatÌ„ redditÌ„ cum pertinentijs in S. Anno c. iuxta libertates burgensibus villae praedictÌ„ per chartas progenitorum nostrorum quondam regum Ang. concess leuatÌ„ â—rror interuenit manifestus sicut per inspectionem tenorum finÌ„ium pâ—edict ' necâ—on recordi processus leuationis eorundem quae â—oram nobis postea ad sectam W. M. et H. W. de S. consanguineorum Error by the heire vpon a fine et haered ' praedict ' M. venire fecimus nobis constat Et nos in curia nrÌ„a coram nobis ob errores in leuatione finium praedictÌ„ ac â—n recordo processu â—orundem comê‘tos considerauimus qd ' pedes finium pÌ„dict ' a filaâ—ijs finium pÌ„dictÌ„ extrahantur cancellentur Et ideo vobis man damus qd ' pedes finium praed ' qui in custodia vestra existunt mittatis coram nobis tali die vbiâ—unque c. cancelland ' iuxta consid ' nostram supradictam Et habeatis ibi hoc breue T. c. Whether any but he which reuerseth a fine may reape benefit thereby IF the estate conâ—eined iâ— a fine be once within fiâ—e yeares after proclamations Sect. 196. lawfully defeated That partie hath thereby lost his whole estate both against him which did reuerse the same and all others which had right or title peramont and made no claime within the fiue yeares Alâ—eit he which brought his action haue not iudgement execution within 7. yeares after the proclamations Pâ—o. fol. 358. b. In like maner if there bâ— tenant for life the remainder for life the remainder in fee the first tenaÌ„t for life alien the alienee leuie a fine with proclamations the second tenant for life enter or claime as he may he defeateth the fine against himselfe and him in the remainder also Plowd fol. 359. a. 7. Eliz. Warrantia chartae A Writ of Warrantia charte lieâ—h where a man by deed of graunt Sect. 197. feoffement releas or confirmation or fine or by exchange bindeth himselfe and his heires to warrant the lande to an other who beyng tenant of the land is impleaded for the land or rent out of the same in an Assisâ— or writ of 〈◊〉 in 〈◊〉 of an Assiâ—e or in a Scire facias vpoÌ„ a fine or in any other action reall wherein the tenant may not vouch he may sue a Warrantia chartae against him his heirs which made warrantie And for a tenant by homage auncestrel or any particuler tenant vpon reseruation of rent or for egalty of seruices vpon particion Fitz. Nat. f. 1â—4 d. f. g. h. Fitz. Nat. 135. e. 31. E. 3. 8. E. 4. 11. Rex c quod iuste c. waâ—antizet D. vnuâ—fi messuagium cum ê‘tinentijs Briefe de Warrantia chartae in R. qd ' tenet dâ— eo tâ—nere claâ—nat vnde chartam suam habet vt dicit Et si c. vel sic Manerium de N. cum pertinentiis aduocationem eiusdem villae quae tenet c. vsque ibi vnde chartaÌ„ suam habet vel chartam R. patris vel matris vel alterius antecessoris praedicti H. cuius haeres ipse est vt dicit Et nisi c. vel De eo quod idem A. waâ—antizet praefato D. maneria de N. K. hundreda de F. et G. cum pertinentijs aduocationem Ecclesiae de N. ideo vobis mandamus c. But if a man in feoffe an other with warrantie by â—eede and the feoffee
heires that shall so surrender the premisses as aforesaid by copie of Court Rolle according to the custome of the said Manor or otherwise as by the said â— E. his heires and assignes or any of them or by his or their learned counsell shal be reasonably deuised or aduised at the proper costes and charges of the said R. E. his heires assignes not altering by the said assuraunce or assuraunces so to be deuised or aduised as is aforesaid any custome libertie or iurisdiction of the said Lordship manor or other the premisses with all and singuler the said lands tenements and hereditaments and al other the premisses with their appurtenances whatsoeuer before by these presents ordered and iudged to be surrendred as is aforesaid foure acres of land now in the occupacion of c. parcell of the premisses to be chosen by the said R. H. c. only excepted foreprised To haue to hold the same lands tenemeÌ„ts all other the premisses with the appâ—rtenances except before excepted vnto the said R. E. to his heires males incorrupt within the 4. degree of consanguinitie according to the ancient custome of the said manors And if it happen that the said R. E. do deceâ—â—â— before the said surrender made as is aforesaid Then to haue to hold the said premisses with the appurtenances to the heires of the said R. E. which so shall surrender the same to his heires males incorrupt within the 4. degree of consanguinitie c. An Awarde reciting that either of the parties stand bound to other to performe the award And that the award is made before the prefixed time in the Obligations and with the full consent of both the parties TO all christian people to whom this present writing indented of award Sect 51. shal come R. W. and R. C. send greeting in our Lord God euerlasting Know ye that whereas variance strife debate and controuersie hath heretofore bin had moued and stirred betweene A. B. of C. and D. E. of E. of for and concerning the right title interest vse possession and occupation of c. for the appeasing ending whereof either of the said parties by their mutual assents consents agreements haue submitted compromitted and bound themselues either to other by their seueral writings obligatory bearing date c. in the suume of c. to stand too abide obey obserue performe fulfill and keepe the award arbitrement ordinance dome and iudgment of vs c. Arbitrators indifferently elect and chosen betweene the said parties of and for the premisses as by the said seueral obligations with condition for the performance therof more at large appeareth Whereupon we the said Arbitrators taking vpon vs the labour busines and charge of the same award and willing to set the said parties at a final peace vnitie and concord for and concerning the premisses haue by good aduise deliberation seene heard and throughly examined both their titles allegations euidences and proues in and to the said premisses and thereupon before the day and time appointed vnto vs by the said obligations for the making giuing vp and finishing And finishing of the said award wee the said Arbitrators by and with the full assent consent and agrement of both the said parties do make publish declare and giue vp this our present award betweene the said parties of for and concerning the premisses in manor forme following First we award ordaine deeme and iudge that c. Also we awarde c. And finally we award ordeine deeme and iudge c. In witnesse whereof we the said Atbitrators and also both the said parties to to the award haue interchangeably put our hands and seales the x. day of M. in the xx yere of the raigne of our Soueraigne Lady Elizabeth by the grace of God of England France and Ireland Queene defendor of the faith c. SYMBOLEOGRAPHY Of the Chauncerie Proceedings in the same and Supplications Billes and Aunsweres The Chauncerie SEing by Gods fauor we intend somewhat to Sect 1. discourse of the maner of proceeding in Chancerie suits and to set downe some Presidents thereof to the performing whereof it seemeth requisite first to vnfold the nature of Equitie Conscience the rigor of the common Lawes of this Realme as the proper obiect or matter whereabout such suites are for the most part occupied to the end it may with the more facilitie be vnderstood how and when such suits are fitly to be taken in hand Therefore we wil first speak of Summum ius which oftentimes precisely regardeth the verie letter and words of the common Lawes for remedie whereof parties grieued pray aide of this honorable Court of Chauncerie to bridle extremitie and reduce such rigor to Equitie and Conscience Of strict or precise Law which is called Ius summum ARistotle calleth it Eract or precise Law because that if it haue Sect 2. no allay in it to qualifie the harshnes seuerity of it it is vnpleasant and sower in tast and repugnant to Equitie And Budaeus saith that this word strict and precise Law is a word which amongst the Ciuilians signifieth verie hard law exact and ful of rigor and almost vniust For they that writ of the Law make these words strict Law and Equitie opposite the one to the other thus farre Budaeus The Lawiers do also tearme it Ius subtile subtil Law Other Lawiers do tearme it Summum Ius Law in the highest degree or most exact and it is so taken of them when men stand more vpon the letter of the Law then vpon the meaning of the writer or maker of the Law In which behalfe it so falleth out oft times that vnder a colour of knowledge of the Lawes many grosse and dangerous errors be committed Corasius Missel li. 2. ca. 8. Nu. 12. Oldendorpius deuideth this Ius summum or Law in the highest degree into two branches the one proper the other improper Law in the highest degree so properly termed or taken is an vndoubted infallible rule of honestie which may generally without exception be put in executioÌ„ in any coÌ„mon weale whether it be originally grouÌ„ded vpon the Law of Nature or vpon the Law of Nations For examples whereof you may take all the rules and principles of the Law for these rules and principles of the Law do in their kind most strictly and exactly define and bound out the matter which thâ—y handle barely and nakedly without any regard of circumstances of the fact that may fal out of which sort of rules are these Keepe thy word hurt no man these are general rules of Law in the highest degree so righteous and full of Iustice in their kind that by the Law of Nature it selfe better and more rightfull cannot be giuen Li. 1. F. de pactis But here you see no respect had to any circumstance of your worde or hurting for this point belongeth to Equity or the Court of Conscience which with vs is called
the Chauncery as the case may fall out And the law in the highest degree being thus properly taken is wrongfully termed by the common sort of men wrong in the highest degree for to speake generally and at a word it is the iustest reason that may be whether Naturall or Rationall so farre is it from being to be rightfully taken wrong vntill it be stretched and as it were set vpon tenture bookes to be drawen to some inconuenient circumstance of the fact as when a man doth couenant or giue his word to do some dishonest fact or hurtfull and dangerous to the common wealth In which case if a man should wrest this rule of Law Keepe thy word in steede of doing right in the highest degree he should commit iniustice in the highest degree Not because the Law hath any fault in it selfe but because through his error and cauelling with the Law he worketh wickednes not iudging a right the circumstances of the fact wherein Law and right standeth Li. Si. F. de pactis Law in the highest degree improperly taken is so termed when by an ouer rigorous and hard interpretation it is drawen to inconuenient kinds of facts or by colourable arguments is drawen to frustrate the good meaning of the Law L. Inciuile cum L. seq F. de Legibus Many examples hereof we haue in the Law As it is a Law that no man shall be forced against his will to commence or maintaine any suit or action Now put the case that I. S. is wrongfully impleaded by I. N. who hath framed a cunning action full of glorious shewe against him the said I. S. But I. N. finding in conclusion that he is not able to proue and make good his action becommeth nonsuit I. S. praieth remedy of the Iudges against this wrongfull vexation of I. N. and he the said I. N. in defence of his wrongful vexation vrgeth this rule of Law that no man is compellable to maintain an action Shall he be heard in this case No saith Iustinian this false glose of I. N. is not to be suffered or borne withal This tearme or word of Law in the highest degree being thus taken we may wel say that Law in the highest degree is wrong in the highest degree For the more subtilly that a man doth argue the more authorities he heapeth togither to inforce such a law so much the more and greater wrong and iniustice shall he doe Of Equitie EQuitie is that which is commonly called equall and good sometimes Sect 3. equall and iust and sometime equall iust Lib. 1. Pen. F. de Iusticia iure I. si ius F. si certum petatur Arist termeth it Epieices and other terme it Epieician which is as much to say a mittigation or moderation of the Lawe written in some circumstance either of the things themselues of the persons or of the times Law saith Donatus is that that maketh all things straight and not pliable to th one nor other Equitie is that that dispenseth with many points of the Law Oldendorpius saieth that Equitie is nothing else but a sound or vpright will or iudgement of an honest man nothing craftie or subtill so measuring out to euery man that that is his that in the meane while noe man is wronged as appeareth most elegantly in I. bona fides I. Incurrit F. depos Equitie as some other say is a reasonable measure conteining in it selfe a fit proportion rigor so that it differeth from Law in this that Law is a determinate sentence set downe according to the rules of the law But Equitie is a certaine proportion and allay vpon good occasions setting on side the common rules of the Law and so they cal it a ruled kind of Iustice allayed with the sweetnes of mercie Equitie is diuersly termed in the Law sâ—metime it is very significantly called a Conueniency because it ministreth amongest men a fit proportion aunswerable to the persons the matters the places and the times Sometimes plain dealing is called Equitie which is opposite to the dealing of man by nice points of the Law Sometime it is taken for naturall Iustice or the Law of Nature Sometime it is taken for Law that is opposite to forged and deuised Law Sometime it is taken for Religion c. And to be short Equitie is the correction or amendement of a good Law which is defectiue in some part by reason of the generalitie of it Of the diuision of Equitie EQuitie is twofold written and not written for Equitie may be vsed Sect 4. both in Schooles and places of Iudgement two waies The one by taking good heed how and in what sort Princes and Lawiers haue obserued Equitie in making and setting downe of lawes appointed to be rules and squares of mens actions So that if at any time any case falleth out which is in all points aunswerable to the Law void of any different circumstances which might require some change or alteration of the Law they may accordingly frame their iudgements being sure and out of doubt that the Law of Equitie is alreadie chalked out to them An other way Equitie is to bee prattised in these particuler facts which daily fall out and haue no certain line and square set out for them in the Lawes alreadie made so that we must bee forced to deliuer our Iudgements in them according to certain circumstances applyed as neerely as we can to the principles of our Law And herein standeth the greatest vse of Equitie most fit for common weales And therefore we may well call it an vnwritten Equitie not because we are at our liberties to define and determine of it without due regard had to the Lawe written but because it taketh some libertie not to bind it selfe to the generall Rules of the Law Of the efficient cause of Equitie GOD is the efficient cause of Equitie who hath so disposed of the Sect 5. nature of mankind that we are not in any wise able to set downe a certaine rule for fuâ—ure things and yet hath bestowed vpon vs so much knowledge as whereby we may frame certain generall rules of honest life which may serue for directions in all particuler actions and facts daily and hourely falling out amongst men if they be duly and carefully examined by the rule of Equitie which hath hereye cast vpon all ordinarie circumstances Of the material cause of Equitie THe Law of Nature the Law of Nations and good maners are Sect 6. the materiall cause of Equitie for a well minded man and of sound Iudgement will make of these three an holsome and verie medicinable mixture for any state and common wealth But the matter where about this Equitie must occupie and busie her selfe are the affaires of men infinite as they fall out For right or Law will bee rightly ministred if as matters fall out the circumstances thereof duely considered the ministers of the Law do frame their Iudgements accordingly Of the formal
cause of Equitie THe formal cause of Equitie is the matching and leueling of facts Sect ' 7. falling out and the circumstances thereof with the rules of the Law as buildings are framed to Carpenters lines and squares Of the final cause of Equitie THe final cause of Equity or effect is to keepe an equalitie amoÌ„gst Sect ' 8. the state of men who are at much odds squares amongest themselues to the end the common wealth may be preserued in safety which standeth for the most part in righteous iudgements Why Equitie is sometimes compared to a ruler NOt vnfitly is Equitie tearmed the rule of maners for as by a Sect ' 9. rule the faults of a building are discouered so doth Equitie Iudge a right both of the written Law and also of all mens actions and behauiours And therefore such as are ministers of Iustice applie and frame their Iudgements after the square and rule of good and egall that is to say of Gods Law and the Lawes of Nature Against which Lawes what Iudgements soeuer be giuen cannot be but vniust and vnrighteous How Equitie and Clemencie differ THere is a difference betweene Equitie and Clemencie for Equitie Sect ' 10. is alwaies most firmely knit to the wil of the Law which way soeuer it bends whether to clemencie or to seueritie But clemencie is onely proper to the Prince or those Magistrates that haue like power of administration of Iustice as Princes haue Of the difference betweene Equitie and strict Law STrict Law Equitie differ herein that strict Law doth set downe Sect ' 11. in a generall sort what it enacteth is seuere and not to be moued one way or other it taketh order for things once for all the grounds principles which it bringeth forth are vniuersall full of seuerity and sharpnes from which rules it will not start asâ—â—e no not the breadth of an heire But Equity is fitly compared to a Shoomakers shop that is well furnished with all sorts and maner of lastes for mens feete where each man may be sure to finde one last or other that shall fit him be he great or â—â—all It is not also vnfitly compared to an Apothecaries shop stored with al kind of drugges fit for all the maledies diseases of men Which drugs notwithstanding in case they should be vnskilfull compounded togither would in stead of healing worke present death to the patient that should receiue them For it requireth the industrie and exquisite art of a good Phisition to make a right composition discerning and tempering by iust proportions good venims from euill In like sort in affaires both publike and priuate equity doth particularly carefully examine the causes the times the circumstances the sorts and differences of persons and matters and by former iudgement giuen in like cases gathereth and frameth an absolute and perfect deciding and determining the matter presently in question and sute And S. German to the like effect saith Equitie is a righteousnes tempered with mercie which considereth all the particuler circumstances of the deed Doct. Stu. Lib. 1. cap. 16. This Equitie saieth he must alwaies be obserued in euery Law of man and in euery Maxime or generall rule thereof for that mens acts are so diuers and infinite that it is impossible to make any general Law which may aptly meete with euery particuler act and not faile in some special case Therefore Law-makers do foresee things which may oft happen in so much as strictly to obserue the word and tenor of the law were in some cases both against Iustice and the comon wealth Wherefore in such cases we must stick fast to that which reason and Iustice require which is that Equitie may mittigate Rigorem iuris which equitie is no other thing theÌ„ an exception of the Law of God or of the Law of Reason from the general principles of mans positiue law not agreeing with them in some particularitie which exception is inwardly implyed in euery general ground or Maxime of the Law And yet taketh not away the very right but substituteth right in steed of that which by the onely letter of the Law seemeth to be right and is not Neither may we therefore accuse the Law of crueltie which as is said generally taken is good of it selfe and not cruel though it reach not fully to euery particuler circumstance of mens actions And therefore if a Law were made that no man vnder the paine of death should open the gates of a Citie before the Sun rising yet he who for sauing the Citizens flying from their Enemies to the same gates openeth them before that time offendeth not thintent and equitie of that Law D. S. Lib. 1. cap. 6. Or if a Statute were made that whosoeuer doth such an Act should be put to death yet if one of Non sanae memoriae or an infant of tender yeres which wanteth discretion do such an act they shall not therefore suffer death Or if a Statute were made that whosoeuer receiueth or aydeth with meate drinke or otherwise I. S. an offendor knowing his offence shal be accessary thereunto as a felon yet if his wife knowing his offence receyue and ayde him she shall not thereby be a Felon for in the generalitie of such Statutes Madmen Infants and his owne wife are not inteÌ„ded to be included but excepted by implication By lâ— which we may gather that the outward words of the Law onely are not the law but the inward sence and meaning thereof For our Lawes as all other Lawes haue two parts that is to say the flesh and soule The letter resembleth the flesh the intent and reason the soule Nam ratio legis est anima legis The Law may be compared to a Nut whereof the letter resembleth the shell the sence the kernell And as the profit of the nut is not in the shell but in the kernell so the fruit of the Law is not in the letter but in the sence And as he which resteth vpon the shel leeseth the fruit of the nut so he which staieth vpon the letter wanteth the profit of the law for the letter is sometimes larger and sometimes narrower then the intent which Equitie regardeth Plow 9. b 465. a And Bracton of Equitie writeth thus aequitas est rerum conuenientia quae in paribus causis paria considerat iura omnia bene coequiparat Et dicitur aequitas quasi aequalitas vertitur in rebus id est in dictis factis hominum lib. 1. cap. 4. SectÌ„ 35. How the Chauncerie is termed the Court of Conscience ANd for so much as this Court bridleth the rigor of the Common Sect ' 12. Law by giuing actions and exceptions for remedies whereby law none were according to equitie and conscience to maintaine aequum bonum the common people terme the Chauncery the Court of Conscience Yet herein conscience is so regarded that Lawes be not neglected for they must ioine hands in
the moderation of extremitie Diuers CurÌ„ 105. Nam ipse etiam leges cupiunt vt iure regantur id est vt leui facili ac benigna interpretatione temperentur vereque dicitur Nullus recedat a Cancellaria sine remedio 4. H. 7. 4. Of Conscience THis Conscience is defined Reliqua in hominerationis scintilla bonorum Sect ' 13. malorumque facinorum index Iudex igitur bipertita ea approbatio scilicet opprobatio illa in bene hec in secus factis Iustus Lipsus lib. ciuilis doctrina cap. 5. or thus Conscientia est taâ—itum animi infallibileque facti nostri iudicium a communi Iustitiae formula quam Deus insculpsit omnibus hominibus productum per quod aut accusatur res mala aut defendiâ— bona Oldendorpius Corasius in Miscel lib. 4. cap. 20. Conscience is an actuall applying of knowledge to some particuler act of man as Saint Germain saith Doct. and Stu. cap. 15. And Synderesis which is termed a natural power of the Soule perswading good and disswading euil D. S. lib. 1. cap. 13. is nothing els but attenta obseruationis occasio cuÌ„ oâ—bus circumstantijs eius Theucid lib. 7. and ministreth the general principles of that knowledge Vere igitur diâ—itur conscientiam veraÌ„ nisi adhibeat Iudex non potest causam secundum equitatem definire simille testes totidemque videat ob oculos instrumenta Conscientia enim cum mille testium vim obtineat certa est non fallitur At in probationibus saepe vel error vel dolus versatur sicut experientia heu nimis frequens nos docet Oldend Of Iudgements in Chauncerie SO great is the power iurisdiction and maiestie of this court that Sect. 14. Iudgements therein giuen are not to be controlled or reuersed in any other Court then the high Court of Parliament which is the chiefest of all other Courts in this Realme Diuers Cur. 105. 37. H. 6. 14. Of the power ordinarie of the Chauncerie ANd this Court is armed with twofold power that is to say with Sect. 15. power ordinarie and absolute 9. E. 4. 15. By ordinary power the Lord Chauncelor proceedeth as at the common Law as in proceeding vpon Recognizances there knowledged and trauerses of offices in which parties are to plead and ioyne issue as at common Law And so in suit against or for Clerkes of the Chauncerie and other persons priuiledged by Attachment there for matter of action remediable by the common Law c. But when they be at issue the Record must be transmitted into the K. Bench to be tried by Iurie And when it is so tried it must be remaunded into the Chauncerie that iudgement may be there giuen and execution had vpon the same 24. E. 3. 45. 14. E. 4. 7. 8. E. 4. 6. Of the power absolute of the Chauncerie THe absolute power is not tied to the rules of the common Law Sect. 16. but by that matters may be examined omnibus vijs modis quibus rei veritas melius sciri poterit iudged secundum allegata probata and not by Iurie of twelue men as at the common Law But by examination of witnesses as in the courtes of the Ciuill Law Smithus de Rep. Angl. lib. 2. cap. 12. Diuers Cur. 106. 9. E. 4. 15. Neither is such precise forme of pleading vsed in the ChauÌ„cerie as at the common Law nor any aduaÌ„tage to be taken for mispleading or want of forme so as the substance of the matter be sufficiently disclosed in conscience Diuers Cur. 106. 9. E. 4. 15. 24. E. 3. 45. 14. E. 4. 7. Diuers other speciall aucthorities and priuiledges hath the Lord Chauncelor by sundrie Statutes as thereby appeareth And partition made in the Chauncery rendring rent is good and may well be sent into the Kings Bench and execution thereupon made by Scire facias â—7 H. 6. 43. li. Ass 32. And if lands be recouered from a woman whereof she was endowed in the ChauÌ„cerie she may haue a Scire facias there to be newly endowed 29. Ass 23. Of a Subpena ANd seeing the ordinarie meanes to call and bring in the parties to Sect. 17. aunswere in this Court is eyther by the Serieant of the Mace as before or by Subpena which onely is thoriginall processe of this court and must be directed to the parties D. St. lib. 1. cap. 17. Smith de Rep. Ang. lib. 2. cap. 12. Cases remediable in Chauncerie HAuing thus perused Equitie and summum Ius with their differences Sect. 18. and also what conscience is whereupon suits in this court do chiefly lie It seemeth good now specially to consider such speciall cases as be remediable in Chauncerie and for which a writ of Subpena lieth there as in cases following A Subpena lyeth in no case but where the common Law fayleth so as the partie who in Equitie hath wrong can haue none ordinarie remedie by the course and rules of the common Law 39. H. 6. 26. 7. H. 7. 11. as in these cases following and such like As if the Queene by her letters Patents giue vnto A. goods forfeited to her highnes by Treason A. may sue for the same in Chauncerie 39. H. 6. 26. And it seemeth if one Coexecutor alone releas debt due to the testator his companion may thereof haue remedie in Chauncery against his Coexecutor onely if no couin be in the debtor but if there be then against them both 4. H. 7. 4. Diuers Cur. 106. And by Moyle if in a Quare impedit by two Coparceners th one make a false plea of couin betweene him the defendant then his companioÌ„ by suit in the Court may enforce him to ioine with him in a true count 6. E. 4. 10. If lands in Auncient demesne extended by statute Marchant be recouered by common recouerie the cognizee hath no remedie but in conscience 7. H. 7. 11. If feoffees in trust commaunded by cestuy qÌ„ vse to enfeoffe his vendee refuse to do it a Subpena lyeth for the vendee against them 37. H. 6. 36. If cestuy qÌ„ vse deuise by his will that his feoffees make an estate to I. S. for life the remainder to H. in fee and I. refuse to take his estate H. after the death of I. may by Subpena compell the feoffees to make estate to him accordingly per Ienny Finch 37. H. 6. 36. Tenant in Borough english enfeoffe A. to the vse of the feoffor and his heires and die his yongest sonne shall haue a Subpena and not the eldest for the vse is of the nature of the land 5. E. 4. 7. If a man make a feoffement in trust of lands discended to him ex parte matris and die without issue his heire ex parte matris may haue a Subpena 5. E. 4. 7. If a man make a feoffement to performe his will and after to infeoffe his heires and declare his will for yeares and die hauing issue a sonne and a daughter by one venter