CHAP. V. Of what force the Decrees and Injunctions Executions and Punishments of the Chancery be 1. IN an Assize the Parliament wrote to the Justices to surcease notwithstanding which they proceeded and awarded the Assize whereupon the Chancellor did reverse the judgment before the Councell this reversall was adjudged void for that was no place where a Judgment might be reversed 39. E 3. 14. b. Judges 13. It was decreed in the Chancery by the advice of all the Justices that the Defendant should bring in an Obligation wherein the Complaintiffe was bound to him to be cancelled and because he refused hee was committed to the Fleete there to remain untill he would fulfill the Decree and the Defendant having put his Obligation in sute at the common Law the Complaintiffe pleaded this Decree in Barre and it was ruled to be no good plea in Barre because the obligation had lost his force by the Decree per Pâ—isoâ— alios Justic. in com Banco And if it had been decreed by expresse words that the Obligation should lose his force these words in the Decree would have bin voyd at the common Law per Billing Serjeant and of the Councellors awâ—rd a supersed under the Great Seal reversing the Decree and commanding the Justices not to proceed at the common law the same is not to be obeyed otherwise it is a supers of Privilege per Billing Boef Sâ—rjâ—ants 37. Henry 6. 13. Barre 75. b consc. 4 2. If a Feoffee upon trust refuse to performe the trust and upon Subâ—oeâ—â— in Chancery it is decreed that he shall reinfeoffe the Feoffor and he refuse and is committed if the Feoffor enter into the Land and the Feoffee bring an Assize against him this Decree is no plea in Barre to the Assize per Laicon Serjeant 37. H. 6. 13. 3. Note that Judgment was glven in the Chancery in Pleas of Debt or of Patents may be pleaded in any other Court at the common law other wist it is of decrees made thereupon a Subdoena because it is no Court of Record in respect of such sutes per Prisott cap. Justic. Co. Ba. 37. H. 6. 14. 4. Note that if it be decreed that a Defendant shall bring in an Obligation to be cancelled the Chancellor can do no otherwise but command him to prison to remain there untill he will doe it and that is all which the Chancellor can doe for if the party will lye in prison rather than deliver the Obligation the Complaintiffe is without remedy per Prisot cap. Just Co. Ba. 37 H. 6. 14. 5. Note that Young Justice demanded this Question What if the Chancellor should command me upon a pain that I should not sue my Debtor Billing Justice answered that he were not bound to obey it for that commandement is contrary to Law 9. E. 4. 53. b. Judges 22. but this is meant of a commandement no Bill being exhibited 6. In an action of Trespasse the Plaintiffe recovered by verdâ—ct at nisi prius before Judgment the Chancellor granted an Injunction commanding the Plaintiffe that he should not proceed to Judgment upon pain of 100l Fairfax Justice said that although the Injunction were against the Plaintiffe yet his Attorney might pray Jument vel è contra Hussey chief Justice of England said that they had communed upon the matter and they could seâ—â—o hurt that could come to the Plaintiffe although he prayed Judgement contrary unto the Injunction for the Law doth not give any forfeiture of the summe conteined in the Subpoena and if he be committed to the Fleet wee will ptesently grant a habeas corpus ret before us and then we will dismisse him and the Justices said though the Chancellor would not disallow the Injunction yet they would give Judgment if the party would desire it quod notum Banco Regis 22. E. 4. 37. 6. Judgement 86. 7. King Richard the third called before him into the Inner Starchamber all his Justices and demanded of them this Question among others That whereas Tho. Staunton had Iudgement in the Chancery to recover against Tho. Gate certain Lands and Tenements and in execution thereupon yet Tho. Gate contrary to the judgment and execution entred into the Lands where unto the chief Justices answered That if Gate had notice of the Judgment then at al times after such notice the Chancellor might compell him by imprisonment 2. R. 3. 9. 8. A Feoffee upon trust was enjoyned to make estate to the Feoffee before a certain day Subpoena 100l and he did nor perform the Injunction and Hâ—ssey chief Justice of England and Vavisor Justices and divers Apprentices said cleerly that there could no scire fac or other proces be awarded for the King against the party to levy the 100l because it is but a pain and if the Defendant make default in a Supoena the pain is not forfeited for it is put in the writ but only interiorem but if the party make default the Chancellor may assesse a Fine upon him according to his discretion and that assessement is a Judgment and a scire fac shall be awarded uppon that in such sort as it may be upon Recognizance in cancellar. 10. H. 7. 4. b. Const. 29. 10. Note that a Decree in Chancery doth bind the right of the party but doth not only bind his person to obedience that if he will not obey the Chancellor may commit him to ward untill he do obey and that is all which the Chancellor may doe but Judgement given in the Kings Court Common-pleas and other Courts of the common law do bind the right of the party per Knightly Serjeant in Canc 27. H. 8. 15. Judges 1. b. Judgment 2. 11. If an Injunction in Chancery be made That I shall not sue S I. if I dye my Executors may sue him notwithstanding for they are not bound thereby For if I be bound by Obligation that I shall not sue S I. if I dye my Executors may sue him and it is no for feiture of the Obligation per Fitzharbert Justic. in Canc. 27. H. S. 16. consc 1. and Brook in abridging the case doth think it were hard that the Chancellor should enjoyn the Heirs or Executors although they were expressed in the Injunction 27. H. 8 15. But at this day the form of Injunctions doth by expresse words extend to bind the Heirs Executors Counsellors Attorneys and Solicitors of the party saving that the Serjeants of the law do take themselves to be exempted by Warrant of their Oath by which it seemeth also that they should not be of Counsell with any Complaintiffe in the Chancery 12. Note that in the Book called Fleta which was made in the time of King Edw the first by all the Justices either at such time as they were in the Fleet or else at such time as they inhabited in the street called
Sigillum ad dictum hospitium suum secum detulit inde brevia chartas literas consignavit c. And to the same purpose of bestowing the Old Seale appeareth in Richard the 2. a Writ directed to the Treasurer c. of the Exchequer in this form Rex Thesaâ—rar et camerar. Quia ex relata fide dignor accepimus quod quotiescunque magnum Sigillum quod pro regimine Regni nostri Angl. ordinat existit per mortem Regis aut alio modo mutari contigerit sigillum illuâ— Spigurnello cancellar. nostrae pro temporâ— existen. tanquam feodum suum de jure pertinere debet nos volentes dilecto nobis Willialm Wightman Spigurnello cancellar. nostra pro feod suo magni Sigilli dom Ed. nuper Regis Angl. Avi nostri quod post mortem dict. Avi nostri cum gubernaculum Regni praedict. suscepimus mutatum existit satisfieri jubere vobis mandamus qud cidem Williel centum solid pro feodo suo sigilli praedict. de thesauro nostro solvatis excusa praed. Teste Rege apud Westm. 6. die Junij c. The Assistants of the Lord Chancellour are the Masters of the Rolls and the Masters of the Chancery The Chancellor and the Master of the Rolls have been heretofore spirituall persons it appeareth by the election of Bishops c. before rehearsed to the place of Chancellor and by a Patent of Ed. the 3. the Master of the Rolls was appointed and installed in the house of the Rolls in Chancery-lane by the Lord Chancellor the which manner of induction and installment continued as long as the Masters of the Rolls were of the Clergy which may be proved by the Presidents of those Inrollments and the Writs themselves extant of Record The Mr. of the Rolls at this day is the Keeper of all Records Judgements and Sentences given in the Chancery Besides that in the absence of the Chancellor he doth both heare and decree c. as well in the Court as in the Chappell of the Rolls howbeit the Decrees made by him are entred either Per curiam or Per cancellar. and further he hath much preheminence and divers prerogatives by Statutes Commission and prescription The Masters of the Chancery are for the most part Doctors of the Civill Law and doe assist the Court to shew what is the equity of the Civill Law and what is conscience but surely they have bin heretofore such as have beene expert in the course of the Chancery and skilfull in the Lawes of the Realme as appeareth by the 2d of Rich 3 d. where they doe shew unto the Justice the course of Writs of Error and may be gathered out of the Book Intituled Fleta whose words are these Est inter caetera quoddam Officium quod dicitur Cancellaria quod in viro provido discreto utpote Episcopo vel Clerico magnae dignitatis debet comitti simul cum cura magni sigilli regni cujus substituti sunt omnes Cancellarij in Anglia Hibernia Wallia Scotia omnes quae sigilla Regis custodientes ubique praeter custodem sigilli privati cuiâ— associentur Clerici honesti circumspecti Domino Regi Jurat qui in legibus consâ—eâ—udinibus Anglicanis notitiam habent pleniorem quorum officium sit supplicationes querelas conquerentium audire eis super qualitatibus injuriarum ostensurum debitum remedium exhiberi per brevia Regis c. And further of the Masters of the Chancery ibidem Episcopi autem collaterales socij Cancellarij esse dicuntur Praeceptores eo quod brevia causis examinatis remedialia fieri praecipiant hoc quandoque tam sive denarijs ad opus Regis tam sive Fine c. The Officers in this Court are the Pregnatory of whose Office in Fleta is written thus Habet Rex Clericos suos Prothonataries in Officio illo qui cum Clericis c. Familiares Regis esso consueverunt praecipue ad victum vestitum qui ad brevia scribend secund. diversitates queretarum sunt intitulati qui omnes pro victu vestitut de proficuo sigilli in cujuscunque usus pervenerit debent honeste inveniri But at this day there is but one Pregnatory neither doth he exercise his Office in the form abovesaid The Clerk of the Crown is the chief Guardian of the matters of the Crown The six Clarks of the Chancery which are the Attornies as well for the Plaintiffe as Defendant in every Sute in this Court and they were heretofore Spirituall men as may appear by the Statute 14. Hen. 8. which doth License them to Marry with Proviso That the Master of the Rolls may notwithstanding grant those Offices as before time the forfeiture by reason of Marriage only excepted The Register who is the penner and keeper of the Decrees Publications Orders and Injunctions issuing out of this Court The Comptroller of the Seale who is to see and allow of all the Writs made in the Court of whom I take it is spoken in Fleta where it is said Eleget Rex Clericos in Officio illo expertes legales qui formas brevium cognoscunt qui approband admittant defectiva omnino repellan quibus omnia brevia priusquam ad sigillum perveniunt cum deliberatione distincte et aperte in ration dictione litera silliba examinare injunctum est sciend quod nullum brenisi per manus â—orand debet ad Sigillum admitâ—i Two Examiners also who do take the Examination of the Witnesses brought to prove or disprove any thing in Sute in this Court and to put their Depositions and Answers made to their Interrogatories in writing The Clerk of the Hamper which doth receive the Fines due for every Writ sealed in this Court c. The three Clerks of the Pettibagge which doe Record the Offices that are found in the Court of Wards and have the making of divers Writs proper to their Office c. The 24. Cursitors have sundry divisions of charges for the writing of all Writs Originals c. in all the Shires of England c. Qui bus de gratia Cancellaria concessum est pro expeditione populi brevia facere Cursoria as is in Fleta the which Cursitor s at this day by Ordinance set downe by the deceased Sir Nicholas Bacon Lord Keeper and confirmed by her Majesties Letters Patents are authorized and appointed to make all manner of Writs of Debt Trespasse Accompt Assizes Attaints Replevies Conspiracies Cui in vita Dower and Forme dons Ejectments of Leases and custodies Errors false Judgments Petitions quare impedit Recordaries and Writs of Right valore Marritagij Wast Excommunicat Caâ—iend and all Writs of Covenant and of every and all manner of Dedimus potestat to be made upon any such Writs and originall processe and all other originall Writs or of the nature of originall VVrits that are to be made
7. b. traverse d' Office 39. b. jurisd. 76. 4. A Subpoena was sued against T. Tate and before answer Tate exhibited a Bill against the Complaintiff to have an estate in the same land and because his Bill came in last he was forced to put in his answer to the first Bill and so they were at issue And afterwards it was shewed to the Court that Tates Bil did vary from his own answer in two points which were the ground of the matter And it was holden by the Chancellor by the advice of the Kings Serjeants that the answer should stand and it was notwithstanding the Bill and it was objected that if the matter were fond for Tate then he should recover upon his Bill but now he cannot doe so because his answer is directly contrary Whereunto the Kings Serjeants answered That Tate might be suffered to amend his Bill according to his answer because he was sworne upon his answer but not upon his Bill quod nota 14. E. 4. subp. 15. 5. A Bill was abâ—â—red for insufficiency of matter and the Complaintiffe shewed new matter and the Defendant was awarded to answer to it per Cur. cancellar. 16. E 4. 6. If a sub poena be sued against 4. Executors and one of them doth onely appear he shall not be forced to answer without his Companions but Markeham Capit. Iustic. Angl. But Rogers Apprentice said that he might answer alone if he would without his Companions but shall not be compelled thereunto 8. E. 4. 5. Brooke Conâ—c 15. CHAP. VIII What Costs and Damages shall be awarded in the Chancery 1 NOte that where a Woman is onely endowed by reason that her first Dower was recovered from her she shall recover no damages for damages are not awarded in the Chancery per Cur. cancellar. in praesen Iust. 43. Asss. p. 32. 43 E. 3. 2. Damages 195. B. sc. sa. 161 W. Fishlack exhibited a Petition to the King against the Prior of Windham that his ship sailing to Lon. was assaulted by Enemies of France that he his Mariners for fear fled to the land by boae by Hapsburgh in Norsolk and the ship being spoiled by them was cast up at Hapsburgh in the Priors land who seised the same as wreck The King delivered the Peâ—it by writ to the Admiral willing him to do justice who proceeding therein upon sute of the Prior made to the King was commanded to certifie his proceedings before the King and his Councel and to warn the parties to appear at a day certain in the Chancery where upon hearing it seemed to the Justices and Kings Serjeants and other Lawyers being there that the ship goods and chattels ought not to be accounted wreck and Judgement was given that William Fishlack should be restored thereunto and to his damages costs and expences which he had sustained by the Priors default in the prosecuting and that he should satisfie the Prior and his servants for their reasonable costs imployed in saving the shâ—p and goods Clauss An. 5 R. 2. R. 6. pro W. Fishlack de Bacton It was enacted Anno 17 R. 2. that where people be compelled to come before the Kings Councel or in the Chancery by writs granted upon untrue suggestions the Chancellor after that such suggestions be found and proved untrue shall have power to ordain and award damages after his discretion to him which shall so unduly be troubled Stat. Anno 17 R. 2. c 6 accusation 8. It was enacted Anno 15 H. 6. that no writ of sub poena shall be granted till Surety be found to satisfie the party grieved for his damages and expences if the matter cannot be made good which is conteined in the bill Stat. Anno 15 H. 6 c 4. accusac 9 5. It was used since these Statutes to enter the Sureties upon the bill in this form Plegii de prosequend T. W. de H. in Com. Midd. Ar. J. K. de B. in Com. Midd. Ar. or else in this form Memorand qd 23 die Januar. An. R. R. H. 6 34. E F. de paroch de S London Fulles T. J. de London Yeâ—man coram ipso Domino Rege in Cancellaria sua personaliter constituit manuceperunt â—ropraed querent quod si ipse materiam in hac supplicatione content verum probare non poterit tunc ipsi omnia damna expenss quae sub poena dâ—ct dâ—f in hac parte sustinebit per considerationem Curtae satisfaciet juxta formam statuti inde editi but this is now neglected Peâ—ic in Canc. de An. H. 6. 6. Note if a Bill be exhibited and the Deft demur upon the insufficiency thereof and by the Court the bill is awarded insufficient in that case the Def. shall have no costs or damages by the statute because the statute giveth the damages â—here the bill is found true or untrue but in this case the truth is not tried 7 E. 4 14. Dam. 44. b. Costs 19. b. Damages 163 per Cancellartam Jnstic utriusque Banci in Camera Scaccar 7. Note that the grantee of Lands or Goods upon trust is not compellable in conscience to sue or â—efend but onely at the costs and charges of the grantor 7 E. 4 29. 8. It seemoth that if one sue execution upon a statute staple where he hath released the duty before and the debtor sueth an Audit quer against him to avoid the Execution and the creditor maketh default he shall pay damages vid. 11 E 4. he fo. 46. a casu secundo In an action of Tresp the Plaint recovered by verdict and the Plaint shewed in the Kings bench that the Chancellor had awarded an Injunction against him whereby the sure had not long delayed and now depending the Injunction he prayed his Judgement in the Kings Bench and it was given but the Court would not afford any damages for the Plaint vexation in the Chancery by the Injunction in Banco Regis 22 E 4. 37. b. Damages 138. b. Iudgement 86. 10. In an Action of Trespas the Defendant was found guilty by verdict and the Plaintiff shewed in the Common place that the Defend had sued a sub poena in the Chancery and had obtained an Injunction that he should not proceed at the common Law till the matter in the Chancery were tried and how by means of the sute in the Chancery the Plaintiff had spent ten Marks and now the Injunction is dissolved the Plaintiff dismissed to the common Law and therefore he prayed the Justice to increase the costs because of this vexation And Brian the ch. Just awarded that the Plaintiff should recover three pounds for his costs besides his damages in com banco 21 E. 4. 78 b. consc. 22. b. costs CHAP. IX Reformation and Reversal of Iudgements and Decrees made in the Chancery 1. NOte that upon a
Decree made in the Chancery by sub Poena the party may have a writ of error in the Parliament to recover the same if it be erroneous in such sort as he may have to reverse Judgements erroneously given in the Kings Bench per Chock Serjeant 37 H. 6. 3. Iurisd. 53. error 95. But note that Brook abridgeth the case that Prisot the chief Justice was of the contrary opinion which is not to be so collected by the book but by implication yet may it seem that no writ of error doth lie but a petition to the Parlament in the nature of a writ of error but Prisot said that Judgements in the Chancery upon scire facias to repeal Parents and pleas or persons priviledged are reversable by Parlament because they are Judgements but the decrees are not 2. Cholmly Serjeant said if a decree be made in the Chancery that the Chancellor hath not power to reverse that decree in the same Court but it must be redressed in the Parlament for Judgement given in the Kings Bench Common-place or Exchequer are not reversable in the same Court but in a higher Court But Knightley Serjeant said that a decree was but an Order taken by the Court for the time the which upon good causes shewed may be redressed in the same Court hut Devistall Serjeant said that if it might be so there would be an incessant confusion of all causes wherefore the Chancellor cannot reverse an absolute Decree but he may reverse a Decree which is made with a quousque for an absolute decree is much like a definitive sentence given in the spiritual Court which cannot be redressed in the same Court but by application into a higher Court and the Kings Secretary interrupted him to speak any further of the authority of the Chancery In Cancell 27 H. 8. 6. In a writ of error to reverse a Judgement of petition in Chancery the Defendant took exception that the Judgement given in the Chancery might not be reve sed in the Chancery being all one Court but in the Parlament Et non allocatur exception per Cur Cancell 42. asss. p. 22. b error 131. It seemeth that this was not properly a reversall of the petition but rather and is like to the case ensuing I the Lord Chancellor grant a patent of land and after make a patent to another of the same land the second patent is revocable in the Chancery by scire facias but not by writ of error for a Court may reform but not reverse their own Judgements 2 R 3. A statute Merchant was acknowledged in the Chancery the money payable Anno 16. and the party sued execution and his writ supposed the same to be payable Anno 14. and by this sute the Feoffee was put out of power and he sued a writ of error in the Kings Bench and it was awarded that he should be received to the sute 18 E. 3. 25. error p. 17. asss. p. 24. And Plowden reciting the case saith that if upon sutes in the Chancery according to the order of the common Law there be error that shall be reformed by a writ of error in the Kings Bench which is a higher Court 13 El. Com. 393. The Second Part of the Absolute Power CHAP. I. Of Lands IF two Copartners bring a Formidon and one of them by Covin between the Tenant and him will not joyn with the other in a true Declaration the other may compell her by such poeâ—a to joyn in the true Declaration for else the Action would abate per Mâ—â—le Iustice Ienâ—ey Serjeant in Co. Ba 6 E. 4. 10. b. consâ— 12. 2. If two men have a wood jointly and one of them felleth the wood and keepeth all the money to himself his fâ—llow hath â—o remedy by the Law for as when they took the wood joyntly they put each other in trust and were contented to occupy together so the Laâ— suffereth them to order the profitâ— thereof according to the trust that each did put in other and yet if one took all the profits he is bound in conscience to restore the half to his fellow for as the Law giveth him right onely to half the land so it giveth him right onely in conscience to the half profits and yet it cannot be said that the law is against conscience for the Law willeth not that one shall take all the profits but leaveth it to their conscience Lib. Doct Stud. cap. 19. 3. In many cases conscience shall be ruled after the Law as the eldest son shall have his fathers land by conscience as he shall in law and so he shall in law and so in Burgh English the youngest son shall enjoy the land both in law and conscience and in Gravel-kinde all the sons and daughters shall inherit together and there can be no other reason gives why it should be so in conscience but because law or custome is so lib. Doct. Stud. 2. c. 15. for divers good causes upon that ground 4. Tho. Parrick and Agnes his wife exhibited a bill conteining that one Beatrice whose heir Agnes is was seized and took to husband Thomas Bradley present in the Court and dyed Bradley continued as Tenant by the curtesie of England untill now of late he claimeth and publisheth that he hath fee-simple and withheld the Charters wherefore they prayed that he might he examined what estate he claimeth and to be recorded and to knowledge what Charters he hath to deliver them to the complainants defendant Dâ—smissum est à curia quietus sine die per consi cur co qd materia in hac supplicatione contenta non est sufficiens ad pâ—nendum ipsâ—m defend ad examinat super â—undem petition Pet. in Canc. 20 H. 6. the defendant hath authority by law to keep the Charters and although in words he claimeth fee-simple yet because it is not alleadged that he did not any act to the dis-inheritance of the complainants therefore it seemeth he was dismissed CHAP. II. Of Lands in use or trust LAnds in Lond. were devised to the devisors son and three others in fee and that one of them should have the profits during his life the devisor dyed the son and heir sued a sub p against the two others to compell them to release unto him because the use of the land ought to be in him after the death of the per â—or and it was thought reasonable per omnes Justic. in camera Scac. 3 H. 6. devise 22. 8 feofment al uses 49. So it is if the same had been done by Feofment 2. Onâ—â—made a Feofment upon confidence and afterwards declared his will to the Feoffee that one of the daughters should have the land after his decease and after that he came to the Feoffee and told him that his said daughter would not be