Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	common_a	error_n	writ_n	3,288	5	9.7175	5	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A74899	Seasonable observations on a late book intitvled A system of the law: as it was contrived and published by the committee appointed for regulation: so far as it relates to the high Court of Chancery, and the fees and proceedings thereof: Wherein several proposals made by the said committee, are held unsafe and inconvenient; some are approved of, and illustrated; and others supplyed wherein the same are conceived defective: With further proposals, for the better regulation of said court, and more speedy and cheap hearing of causes. And an exact table. 1. Containing the fees now paid to the grand officers and patentees. 2. How much will satisfie the true labourers. 3. What wil [sic] be saved thereby to all suiters in the said court. Unto which is likewise annexed, the memorable case put by the late King James, to the then learned judges of the land, touching the power and jurisdiction of the said court, for relieving complainants after judgements given in the Courts of Common-Law; and how far the Statutes of Præmunire do extend to restrain the said court therein: With the reasons and resolutions of the said judges thereupon: Tendered to the consideration of the supreme authority: and published for the general good and information of all practitioners and suiters in the said court. / By Philostratus Philodemius.	Philodemius, Philostratus.	1653 (1653)	Thomason E705_4	41,217	70

finde them bread and salt XVIII For a search or reading any Order or Record in Chancery l. 0 s. 1 d. 0 Observation 18. This cannot be ascertained unless by the terms as is already paid in all Courts or else according to the nature of the search which may sometimes take up four or five hours or more whereas every Coachmans-wages is more considerable then what is proposed in case of long searches which often fall out XIX To the Cryer and Door-keeper to each of them at the final hearing of every cause from the party that hath a Decree for whom Dismission is pronounced l. 0 s. 1 d. 0 Observation 19. The Proposers have forgot those other persons that attend the Court and ought to have allowances accordingly either by way of sallary or from the Clyents XX. For the Copy of any Record in Chancery or other thing there filed not before particularly exprest 2.d for every 12. lines with ten words in a line the party taking what party he pleaseth l. 0 s. 0 d. 2 Observation 20. No Officer or Clerk will attend this place at this rate when as sometimes they make not any Copy of Record in three or four days and the Copy may prove but short and especially if the party may choose what part thereof he please as indeed he might have formerly done before this Proposal How this can recompence the pains and attendance of any honest able trusty man and afford maintenance for himself and his family is left to consideration especially if they intend that the Plaintiff and Defendant are to deliver to each other Copies of all Bills and other pleadings in the Cause so that it is likely the Clerk will not have an occasion to make Copies of any pleadings in a whole Cause unless the depositions whereby he is tyed to continual attendance but no work or wages provided for him by this System XXI For writing any thing to the Seal not before mentioned for every 12. lines with ten words in a line l. 0 s. 0 d. 3 Observation 21. There is no Clerk of any parts or abilities will undertake this imployment at this mean rate XXII And to the Commonwealth for the whole great Seal the same Fees that have been accustomed Observation 22. This was formerly paid XXIII For every Answer in writing on Petition l. 0 s. 2 d. 6 Observation 23. This is a sufficient Fee and but reasonable Forasmuch as some persons seem to be unsatisfied of the power and authority of the high Court of Chancery to give relief to Complainants after Judgement given against them in the Courts of Common Law which some have lately openly declared For publique satisfaction therein I have thought it very usefull to recite the Case put by the late King James concerning the power and jurisdiction of the said Court in matters of that nature together with the Cettificate Reasons and Resolutions of the several Learned Judges thereupon IAmes by the grace of God c. Whereas our right trusty and wel-beloved Sir Francis Bacon Knight our Councellor and Attorney General received a Letter from our Chancellor of England dated 19. Martii 1615. written by our express Commandment directing and requiring him and the rest of our Learned Councel to peruse such Presidents as should be produced unto them of the time of King H. the 7. and since of Complaints made in the Chancery there to be relieved according to equity and conscience after Iudgements in the Courts of Common Law in Cases where the Iudges of the Common Law could not relieve them And thereupon to certifie us of the truth of that they should finde and of their opinions concerning the same which Letter followeth in these words Mr. Attorney his Majestie being informed that there be many Presidents in the Court of Chancery in the time of King H. the 7. and continually since of such as complained there to be relieved according to equity and conscience after Iudgements in the Courts of Common Law in Cases where Iudges of the Common Law could not relieve them being bound by their Oath to observe the strict rules of the Law is willing to understand whether there be such President as he is informed of And therefore hath commanded me to let you know that his will and pleasure is that you call to assist you his Majesties Sergeants and Solicitors and to peruse such Presidents of this kinde as shall be produced unto you and thereupon to certifie his Majesty of the truth of that you shall finde and of your opinions concerning the same And for your better direction therein I have sent you here inclosed a note in writing delivered to me mentioning some such Presidents in King H. 7. time and since and I am told that there be the like in former times his Majesty expecteth your proceedings in this with as much speed as conveniently you may And so I rest York-house 19. Martii 1615. Your very assured loving friend T. Elsmore Chancellor And whereas our Attorney General and the rest of our learned Councel did thereupon return unto us their Certificate subscribed withall their hands according to our commandment and direction given them by the said Letter which Certificate followeth in these words Certificate According to your Majesties Commandment we have advised and considered of the Note delivered unto us of Presidents of complaining and proceeding in Chancery after Judgements had at Common Law and have also seen and perused the Originals out of which the same Note was abstracted upon all which we do finde and observe the points following 1. We finde that the same Note is fully verified and maintained by the Originals 2. We finde that there hath been astrong currant and practise of proceedings in Chancery after Judgement and many times after Execution continued from the beginning of King H. 7. raign untill the time of the Lord Chancellor that now is both in the Raigns separatim of the several Kings and in the times of the several Chancellors whereof divers were great learned men in the Law it being in cases where there is no remedy for the Subject by the strict course of the Common Law unto which the Iudges are sworn 3. We finde that this proceeding in Chancery hath been after Judgements in Actions of several natures as well real as personal 4. We finde it hath been after Judgements in your Majesties several Courts of Kings Bench Common Pleas Justice in Oyer c. 5. We finde it hath been after Judgements obtained on Verdicts and Demurrers and where Writs of Errour have been brought 6. We finde in many of the Cases that the said Judgements are expresly mentioned in the Bills in Chancery themselves to have been given and relief craved thereupon sometimes for stay of Execution and sometimes after Execution of which kinde we finde a great number of King H. 7. time 7. We finde the matter in Equity laid in such Bills in most of the Cases to have matter precedent before the

opinion of ours because Kings are fittest to inform Kings and Judges to teach Judges Jurisdiction But further out of our Science and Profession we have thought fit these further reasons and proofs very briefly to offer because in case of so ancient a possession of Jurisdiction we hold it not fit to amplifie Premunire The said Statutes upon which this question grows are principally one whereof is a Statute of Premunire and the other is a Statute of simple prohibition That of the Premunire is the Statute of 27. E. 3. Car. 1. And the Statute of simple prohibitions 4. H. 4. Car. 23. there be divers other Statutes of both kinds but the Question will rest on these two as we conceive it for that the Statute of 27. E. 3. it cannot in our opinion extend unto the Chancery for these Reasons 1. Out of the mischief which the Statute provides for and recites viz. that such Suits and Pleas against which the Statute is provided were in prejudice and disherison of the King and his Crown which cannot be applied to the Chancery for the King cannot be dis-inherited of Jurisdiction but either by the Forreigner or by the Subject but never by his own Court 2. Out of the remedy which the Statute appoints viz. that the offenders shall be warned within two moneths to be before the King and his Councel or in his Chancery or before the Kings Iustices of the one Bench or the other c. By which words it is opposed in it self that the Chancery should give both the offence and the remedy 3. Out of the penalty which is not only severe but hostile namely that the offenders shall be put out of the Kings protection which penalty altogether savours of adhering to Forreign Iurisdictions and would never have been inflicted upon excess only of Iurisdiction in any of the Kings Courts as the Court of Chancery is 4. Out of the Statutes precedent and subsequent of 25. E. 3. Car. 1. and 16. R. 2. Car. 5. which are of the same nature and cannot be applied but to forreign Courts for the word alibi or elsewhere is never used but where Rome is named especially before 5. The dis-junctive in this Statute which only gives the colour viz. that they which draw out of the Realm in Plea whereof the cognizance pertaineth to the Kings Court or of things whereof Iudgements be given in the Kings Court or which do sue in any other Court to defeat or impeach the Iudgements given in the Kings Court This last disjunctive we say which must go further then Courts out of the Realm which are fully provided for by the former branch hath sufficient matter and effect to work upon in respect of such Courts which though they were locally within the Realm yet in Iurisdiction were subordinate to the Forreigner such as were the Legats Courts and Deligates Court and in general all the Ecclesiastical Courts within the Realm at that time as it is expresly construed by the Iudges in 5. E. 4. fo 6. 6. In this the sight of the Record of the Petition doth clear the doubts where the Subject supplicates to the King to ordain remedy against those which pursue in other Courts then his own against Iudgements given in his Court which explains the word other to be other then the Kings Court. 7. With this agreeth notably the Book of Entry which translates the word in other Courts not in alia Curia but aliena Curia This Statute of 27. of Ed. 3. being in corroboration of the Common Law as it self recites we do not finde in the Register any president of the Writs of ad jura Regia which are framed upon these Cases that were afterwards made penall by Premunire but onely against the Ecclesiastical Courts Lastly we have not found any president at all of any condition of the Statute of Premunire of this nature of Suits in Chancery but only two or three Bills of Indictments preferred sed nihil inde venit for ought appears to us For the Statute of Hen. 4. that no doubt was made against proceedings within the Realm and not against Forraign and therefore hath no penalty annexed nevertheless we conceive that it extends not to the Chancery in the Case delivered for these Reasons 1. The Statute recites where the parties are made to come upon grievous pain sometimes before the King himself sometimes before the Kings Councel and sometimes in Parliament to answer thereof anew c. where it appears that the Chancery is not named which could not have been forgotten but was left out upon great reason because the Chancery is a Court of Ordinary Iustice for matter of Equity and the Statute meant only to restrain extraordinary Commission and such like proceedings 2. This appears fully in viewing and comparing the two Petitions which were made the same Parliament of 4. H. 4. placed immediatly by the one before the other the first of which was recited by the King and the second whereupon the Statute was made whereof the first was to restrain three ordinary proceedings of Iustice that is to say in Chancery by name in the Exchequer and before the Kings Councel by process of Privy Seal unto which the King makes a Royal prudent answer in these words The King will charge his Officers to be more sparing to send for his Subjects by such process then they have heretofore been but notwithstanding it is not his minde that the Officers shall so far abstain but they may call his Subjects before them in matters and causes necessary as it hath been done in the time of his good Progenitors and then immediatly followeth the Petition whereupon this Act now in Question was made unto which the King gave his assent and wherein no mention is made at all of the Chancery or Exchequer 3. If the Chancery should be understood to be within the Statute yet the Statute extends not to this Case for the words are that the Kings Subjects after Iudgements are drawn thereof anew which must be understood when the same matter formerly judged is put in issue or question again but when the case is called into Chancery only upon point of equity there as the point of equity was never in question in the Common Law so the point of Law is of Fact as it concerns the Law is never in question in the Chancery so the same thing is not twice in question or answered anew for the Chancery doth supply the Law and not cross it 4. It appears to our understanding by the clause of Error and Attaint in the same Statute what Iurisdiction it was that the Statute meant to restrain viz. such Iurisdiction as did assume to reverse and undo the Iudgement as Errour or Attaint doth which the Chancery never doth but leaves the Iudgement in peace and only meddles with the corrupt conscience of the party for if the Chancery doth assume to reverse the Iudgement in the point adjudged it is void as appears 39. E.

Judgements and no matter of agreement afterwards 8. We finde in the said Cases not only the Bill preferred but motions orders injunctions and decrees thereupon for the releasing and discharging of the Judgements or avoiding the possession thereupon obtained and sometimes for the mean profits and release of Costs 9. We finde in some of the Cases that in this very point that Judgement hath been given hath been stood upon by the Defendant and alledged by them by way of Demurrer and over-ruled 10. We finde that the Judges themselves in their own Courts when there appeared to them matter of Equity because they by their Oath and Office cannot stay the Judgement except it be for some small time have directed the party to seek relief in Chancery 11. We finde that this hath been done not only in times of the several Chancellors but by the Judges themselves and that without difficulty while they sate in the Chancery in the vacancy or absence of the Chancellor 12. We finde the hands of sundry principal Councellors at Law whereof divers of them are now Judges and some of them in chief places to Bills of that kinde 13. Lastly there were offered to have been shewed unto us many other Presidents whereof we heard some read and found them to be of like nature with those contained in the Note Fran. Bacon Hen. Mountague Ran. Crew Hen. Yelverton AND whereas also our said Attorney received another Letter from our said Chancellor with a Case therein inclosed written likewise by our erpress Command dated 27. Martii 1616. directing and requiring him and the rest of our learned Councel together with the Attorney of our dear Son the Prince to consult together upon the said Case and to consider advisedly of all the points thereof and thereupon to peruse all the Statutes of Premunire or the Provisoes of all other Statutes as they should conceive to be necessary to be considered of for resolving the Question propounded in that Case and thereupon to report to us their opinions in writing concerning the same which Letter and Case therein inclosed follow in these words Mr. Attorney his Majesty hath perused this Case inclosed and commanded me to send it to you And his Majesties will and pleasure is that you Mr. Sergeant Mountague Mr. Sergeant Crew Mr. Solicitor and Mr. Walter the Princes Attorney that you confer together thereupon and consider advisedly and deliberately of all the parts thereof and thereupon to peruse all the Statutes of Premunire or Provisoes of all other such Statutes as you shall conceive to be necessary to be considered of resolving the question propounded in this Case this his Majesty would have to be done with mature deliberation and yet with as much speed as conveniently you can and when you have sufficiently informed your selves therein then to report unto him your opinions in writing and so I commit you to God and rest Your loving Friend T. Elsmore Chancellor York-house 27. Martii 1616. The Case A. hath Judgment and Execution in the Kings Bench or Common Pleas against B. in an Action of debt of 1000. l. and in an Ejectione firm of the Mannour of D. B. complains in the Chancery to be relieved against these Judgements and Executions according to conscience and equity allowing the Judgments te be good and lawfull by the rigour and strict Rules of the Common Law and the matter in conscience is such as the Judges of the Common Law being no Judges of equity being bound by their oaths to do the Law cannot give any remedy or relief for the same either by errour or attaint or by any other means Quest Whether the Chancery may relieve B. in these or such like Cases or else leave him utterly remediless and undone And if the Chancery be restrained herein by any Statute of Premunire c. then by what Statute or by what words in any Statute is the Chancery so restrained and conscience and equity banished concluded and damned Certificate According to your Majesties commandment we have deliberatly advised of the Case sent to us by the Lord Chancellor and of the Statutes as well those of Premunire as others as far as we take it may concern the Case And for our better information herein we have thought fit to send for and peruse the Original Records themselves remaining in the Tower of London of those Statutes not only appearing upon the Rolls of Parliament with the Kings answers which is the Warrant of the Roll of Parliament VVe have also taken into consideration as well Book-Law as divers other Acts of Parliament which may give light unto the Statutes whereupon the question properly doth grow together with such ancient Records and Presidents as we could finde as well which maintain the Authority of the Chancery as those which seem to impeach the same Opinion And upon the whole matter we are all of one opinion that the Chancery may give relief in the Case in question And that no Statute of Premunire c. or other Statute restraineth the same And because we know not what use your Majesty may be pleased to make of our opinion either for the time present or for the future we are willing to give some reasons for the same not thinking fit to trouble your Majesty with all those things whereupon we have grounded our selves but selected out some principal things which moved us to be of this opinion to the end the same may be a fuller object of your Majesties Princely Judgement whereunto we always submit our selves Prescription And first of all we must lay for a sure foundation that which was contained in our former Certificate concerning the continual practise by the space now of 120. years in the time of King H. 7. H. 8. E 6 Q.M. Q.E. of this Authority and that in those times when the same Authority was managed not only by the Bishops which might be thought less affectionate towards the Laws of the Land but also by divers great Lawyers which could not but both know and honour the Law as the means of their advancement Sir Tho. Moore the Lord Audly the Lord Rich Sir Richard Bacon Sir Tho. Bromley and Sir John Pickring And further the most of the late Judges of the Kingdom either as Judges when they sate in Chancery by Commission or as Councellors at Law when they set their hands to Bills have by their Judgements and Councel upheld the same Authority And therefore forasmuch as it is a true ground that optimus legum interpres consuetudo especially where the practise or custom passeth not amongst vulgar persons but amongst the most high and most scient Magistrates of the Kingdom and when also the practice of the same shall lie under so heavy a pain as the Premunire this is unto us a principal and implicite satisfaction that those Statutes ought not to be construed to extend to this Case And this of it self well known as of far more force to move your Majesty then any