suit or any part of it his Bill shall be dismissed and never after retained No Process of contempt shall go out for a Pauper untill it be signed by the Six-Clerk who dealeth for him and he must see there be cause for it In all Offices where he hath any occasion to pass any thing he must still shew his Admission Touching Petitions for the avoiding the multitude of frivolous ones drawn by persons who are altogether ignorant of the practice and course of the Court and the true state of the Petitioners business it were to be wished that none but able Sollicitors such as are described before both for Learning and Parts and not every broken fellow that can scarce write his name be allowed by the Court to practise as is before mentioned Page 27. SECT VI. ANother thing fit for our Sollicitor to know is the matter of Affidavits and how they are to be made that they may be effectual You must know then that Affidavits are most generally made before Masters of the Chancery but where it is for the serving of a Subpoena they are sometimes taken and certified by others An Affidavit may not be taken against an Affidavit for if it be the latter is not to be used An Affidavit ought not to be taken tending to the proof or disproof of the matter in question nor may any such matter be admitted to be colourably inserted into an Oath made of the serving of Process Caryes Rep. 63 69 81 82 84 85 98 99 103. There is also another point fit for our Sollicitor's knowledg for many times there may be some one belonging to the Court who is thereby a priviledged person by which means he cannot be sued for debt In such Case and against such a person so priviledged a Declaration for debt or any other thing whereof the Court holdeth Plea is to be delivered to one of the Six Clerks whom the Plaintiff maketh as his Attorney and he thereupon giveth a day as is commonly termed which is a week viz. the whole next Return to the Defendant to answer which day entred into the Six-Clerk's Costs-book in this manner Roberts against Johnson a day is given from the day of St. Michaâ—l in one Moneth in a Plea of Priviledg Day being thus given the Declaration under the Attorneys hand is sent over to the Petty-bag by one of the said Attorneys Clerks which Declaration is briefly entred by one of the Clerks there and likewise the day that is given to the Defendant to answer in a Roll there which is called Rotulus rememorationis Parvae-Bagae at which day by the course of the Common Law if the Defendant plead not he is fore-judged the Court But of late the course hath been to allow the Defendant a day of Imparlance that is day till the next Return after the Return given him to answer which is in this manner The Defendant retaineth one or other of the Six Clerks who imparleth or him which is done in the Six Clerks Costs-book in this manner Roberts against Johnson Imparlance until the morrow of All. Souls at which day it is sent over into the Petty-bag to be entred into the aforesaid Roll next under the said Declaration The said day of Imparlance being past another day viz. commonly five dayes in a week which is commonly called the Peremptory day is given by the Plaintiffs Attorney and entred into the Petty-bag as aforesaid to the Defendant to plead or else Judgement is to be entred against him If the Defendant plead his Plea is delivered by his Attorney to the Plaintiffs Attorney and then if the Plaintiff will proceed to a Tryal he is to joyn up the Issue if he may for in some Cases he cannot or else the Plaintiff is to reply and give the Defendant a day viz. a whole Term to joyn up Issue which is given and entred as the day to answer and if the Defendant by that day joyns not up the Issue Judgment is entred up by Nihil dicit Here note That after a Peremptory day given the Defendant cannot pray Oyer of the Bond and Condition or such like as of late hath been used for â—meer delay but if the Issue be joyned up either by the Plaintiff or Defendant then is the Record made up and the same with a Venire facias is sent into the Kings Bench to be tryed as an Action there at Issue and upon Judgment there execution is thereupon there awarded But if the Defendant refuse or neglect to imparl at the day given him to answer or plead for he may plead if he will at that day then is Judgment entred against him and execution is awarded Upon Judgment either by default or Nihil dicit some of these Writs of Execution are awarded If for Debt the Plaintiff may have an Elegit by Westminst 2. Cap. 18. or else a Levari facias or Fieri facias and if the Plaintiff cannot levy his Debt and Damages then he shall have a Capias ad satisfaciendum either for all or so much as resteth unsatisfied The Judgment being satisfyed the Plaintiff by himself or his Attorney if the Defendant desire it doth acknowledg satisfaction upon the Judgment in the Petty-bag-Office It is to be noted that whatsoever day is given by any of the Six Clerks and by them entred in their Book is yet worth nothing if the same be not entred in the Petty-bag This is the course used against a person that is priviledged by a Forrainer but if a Forrainer be indebted to a priviledged person or incur a suit then you must observe this couâ—se that followeth The Defendant being Arrested by an Attachment of Priviledg at the suit of a Priviledged person as aforesaid must retain one of the Six Clerks to his Attorney and must put in Bail to the Plaintiffs Action according to the course of the Court which is to appear from day to day untill the Plea be determined to satisfy the Plaintiff all such sums of money as the Plaintiff shall recover against him by reason of this suit then the priviledged man putteth in his Declaration and thereupon the proceedings are the very same as before against the priviledged man By the course of the Court the Defendant is to put in four Subsidy-men or sufficient Sureties be the Action never so small as appears by Archibald and Burialls Case 23 El. wherein the Defendant is bound in 400 l. the sum of the Action and every surety in a hundred pounds If Judgment be given for a priviledged person in this Court he may if he will take out Execution as before but if he will not then he may take out a Scire facias against the Defendant and his Manucaptors upon the Bail whereupon if Judgment be upon the said Soire facias in the Chancery then Execution is there awarded but if upon Issue joyned and sent into the Kings Bench and upon Tryal there Judgment be given then is Execution there awarded and upon
the Lord Chancellor and Master of the Rolls as aforesaid and sit with them and to whom References are made and before whom Deeds and Recognizances are acknowledged and Affidavits made This formerly might have been done before any Master at his own bouse by the option of the party concerned but now by an Act of Parliament made in the thirteenth year of King Charls the second ' s Reign there is a general Office erected for the said Masters wherein there are at certain hours every day at least two Masters attending to dispatch the said business which may not be done otherwise or other-where but by special Order The Register of the Court who hath divers under him that sit in Court and take notice of all Orders and Decrees made in Court either before the Chancellor or Master of the Rolls and accordingly afterwards at the request of the party concerned or his Sollicitor draw up those Orders and Decrees which are afterwards to be entred in the said Office in a Book of Entryes to that purpose kept and being so entred they must be returned to the Register who having set his hand thereto the same thenceforth are authentick and may not be altered without especial order from the Court. In this Office also are filed all Reports from the Masters and all exceptions taken to any of the same Reports The six Clerks in whose Office all proceedings upon Bill and Answer unto the very Decree yea and after Decree are acted and from whom likewise issue some Patents as for pardon of a man for Chance-medly Pattents for Embassadors Commissions for Bankrupts and these are done by their sitting Clerks of which each Six-Clerk keeps a set number The Cursitors of the Court who were incorporated by Queen Elizabeth by the name of the Twenty four Cursitors amongst whom all the business that lyes in the several Shires is severally distributed These make all Original Writs in the Chancery which are returnable in the Common Pleas and all Writs of Entry and Covenants The Masters of the Subpoena-Office the Clerk of the Affidavits where all Affidavits are to be filed which you would use in Court Heretofore they used them in Court and after filed them but now they must be first filed and a Copy thereof taken to be read in Court or else they signify nothing The Clerks of the Petty-bag who have many Clerks under them and these Clerks have much variety of business that comes through their hands and requires very much knowledg and experience for the managing thereof for this Office hath the making out of all Writs of Summons to the Parliament To this Office are all Offices that are found post mortem brought to be filed In this Office are all Pleadings of the Chancery concerning the validity of any Patent or other thing whatsoever that passeth the Great Seal And these Pleadings are all in Latine although most of the rest of their Proceeds were in English If any question arise about the acknowledgment of any private Deed between Subjects which is acknowledged in Chancery before the Lord Chancellor or Master of the Rolls or any of the Masters in Chancery and all Statutes and Recognizances taken before any Officers to that purpose deputed are transmitted hither and here prosecuted Here also are all suits for or against any person priviledged in the Court. And lastly It is a hand whereby to transmit divers things from the riding Clerk and the Inrolment-Office to the Chappel of the Rolls The Examiners are Officers of this Court who take the Depositions of Witnesses and are to examine them and to make out Copies of the Depositions There are likewise Clerks of the Rolls who sit constantly in the Rolls to make searches for Deeds Offices c. and to make out Copies thereof The Ushers of the Court hath the receiving and custody of all monies ordered to be deposited in Court and maketh Certificates thereof and payeth the same back again by order of the Court and not otherwise The Serjeant at Arms who carrieth the Mace before the Lord Chancellor to him all persons standing in high contempt are brought up by his Substitutes as prisoners The Warden of the Fleet likewise is bound to attend this Court to receive such prisoners as stand committed by the Court to him The Court consists of a double power ordinary and extraordinary the ordinary power is as in the cases of Scire facias to repeal Patents in case of Traverse Endowment of a Woman and the like and herein the Court is limited and confined to the Rules used in Common Law The other is extraordinary and unlimited as in cases of Equity wherein relief is to be had by a Suit here by way of Bill and Answer By the power of this Court are issued forth Commissions for charitable Uses Bankrupts and Sewers In some cases Commissions have been here granted to examine Wastes to set out meet wayes for Passages to prove a Childe legitimate to prove Customes and to examine Witnesses in perpetuam rei memoriam It proceeds by way of Bill and Answer and gives relief in many cases besides and beyond the Rules of the Common Law whereof practice will shew many experiments And to this purpose it is necessary for our Sollicitor to read Tothills and Caryes Reports CHAP. IV. Of the whole duty of our Sollicitor in his Practice HAving in the former Chapter gone through the most necessary things which our Sollicitor ought to know barely it remains now we should come to the practick part of it wherein we shall set down plain and easy Directions for the greatest part of their manner of proceedings wherein for methods sake we will begin with their first Process called a Subpoena This Writ of Subpoena is the leading Process of this Court as to the procedure by Bill and Answer and is a close Writ and doth require the Defendants appearance in Court at a certain day and under a certain pain therein limited to make answer to the complaint of the Plaintiff which is indeed the Bill which in former times was wont to be put in before the Subpoena sued forth but now of long time hath been otherwise used This first Subpoena is called Subpoena ad respondendum and is distinguished by that name because there are several other Subpoena's in order to further proceeding as a Subpoena for Costs a Subpoena to make a better answer a Subpoena to rejoyn a Subpoena for Wiâ—nesses to testifie a Subpoena to hear Judgment and a Subpoena ducens tecum for Writings Evidences c. Touching the Subpoena to answer you must be very careful that there be no mistake in the body of the Writ for that may prejudice the Plaintiff and the Defendant may take advantage thereof if he find it but if there be a mistake only in the Label no advantage can be taken by it In none of these Writs may there at any time be put more then three names This Writ may be returnable two wayes
any matters Tothil 173. CHAP. V. Shewing our Sollicitor several other Incidents which be ought to be skilled in and much relating to his Practice HAving now in the former Chapter and the several Sections thereof passed through the general proceedings of the Chancery upon Bills Answers and all other things even to the Decree and Review thereof there are yet some things remaining which in many cases are not only incident but even essential to those affairs wherein our Sollicitor ought to be particularly skilled And the first of these is concerning Injunctions And this is looked upon in the general Acceptation as a main and chief branch of the power of the Court for that it makes stay of Procedings at Common Law and as before is said is many times granted to gain possession of Land and so becomes subsequent to the Decree Where it stays proceedings at Law in some cases it gives leave to go to Tryal and Judgment but stays Execution and where the matter of Law is tryed it bars them from Judgment as the cause may be Or where there is a Judgment and that executed it will stay the money in the Sheriffs hand after the party is arrested at Law for the money This Writ is commonly procured either upon some Writing or matter of Record plainly appearing or upon a very old Debt that hath long slept Creditor and Debtor being both dead or in such cases where the Defendant doth not appear but fits an Attachment or if he appear either Answers not the Bill or confesseth not so much thereof as is sufficient Where either the Defendant is beyond the Sea or being in the Kingdom doth absent himself so that he cannot be served or where upon any pretence he hath gotten time to answer the Court doth usually in those cases upon motion grant an Injunction to stay suit till the Defendant doth appear Where a Commission is granted to take an Answer in the Country an Injunction upon motion will be granted to stay the Defendants Suit at Law if any be till the Answer come in and of this the Defendant is bound to take notice though he be not served therewith Where there is a Verdict at Common Law in an Action of Debt and a Bill be afterwards here exhibited for Relief the money must be deposited in Court before an Injunction can be obtained unless in some cases where some special matter in Equity appears by the Defendant's Answer or in some former Decree Where a person priviledged in this Court is sued elsewhere that Suit may be stayed by an Injunction Where Timber is unjustly felled ancient Meadow-ground plowed up ancient Pastures that have not been plow'd up in twenty years before or for the Maintenance of Inclosures kept in twenty years before an Injunction is grantable according to the case Where an Injunction is granted to quit a possession it is granted of Houses and Land only and not of a Rent or such-like thing and it is not to be granted before the hearing of the cause unless upon an Oath that the Plaintiff was in possession at the time of the Bill put in and then only of that possession he had then and three years before and at the time of the motion and not be extended to the possession of those from whom he claims And this shall not hinder the Defendants Suit in Law making of a Lease taking of a Distress c. And this Injunction will soon be dissolved again if the Plaintiff delay his Suit Where it is to stay or remove a Suit by Certiorare Bond must be first given that the Bill hath matter sufficient in it to bear it and shall be proved true within fourteen days after he hath the Writ and if it be not done in that time after Certificate of his neglect from the Examiners it shall be dismissed with costs and a Procedendo granted Where the Injunction is to be obtained by motion for matter in the Answer there the case must be put in writing to the Court. Where it is granted upon the merit of the cause or upon special cause in equity it is to stand till the hearing unless the Plaintiff delay his Suit This Writ thus obtained must be served either on the party himself his Counsel Attorney or Sollicitor c. as the case requires and the manner of serving is much like to that of serving a Subpoena A bare Petition only will not dissolve an Injunction nor if it be had by motion can it be dissolved without a motion of the adverse party Where an Injunction is granted till the Answer be put in and no order be made to continue it within fourteen days after the Answer come in in this case it shall be dissolved upon the Register's Certificate thereof only And if no Motion be made that Term or at the next General Seal after the Term to continue it for insufficiency of or matter confessed in the Answer it is of course dissolved so where it is to stay a Suit at Common Law and the Plaintiff doth not proceed for three years together Where the Injunction is disobeyed if you would force obedience thereunto upon Oath made thereof all the Processes of Contempt are to go out against him one after another and being taken he is to be imprisoned till he yield obedience to it or give security to do it Nor is he to be heard in the principal case till he yield obedience in every thing to the Injunction Tothil 107. Caryes Rep. 112 113. SECT 2. Another materiall point is about Dismissions and how they are to be managed and attained Concerning which he is to know That this is prayed by motion and had upon Plea to the Bill or at the hearing of the Cause but not after Examination of Witnesses before hearing but upon a discontinuance of prosecution and then by motion and order Where the Plaintiff discontinues his Prosecution after all the Defendants have answered by the space of two Terms the cause is to be dismissed the third Term upon course but after a Replication put in it cannot be dismissed without an Order upon a Motion Where a Cause is dismissed upon a full hearing recorded and certified by the Lord Chancellor it cannot be again retained nor a new Bill admitted but where there is new matter Where the Bill is duly dismissed of course or by order no motion will be heard to retain it till the costs assessed upon the dismission be paid and certified from the Clerk on the other fide that it is done No Dismission or retainer upon a Dismission will be granted on a bare Petition only In cases of Dismission not upon a full hearing to a new Bill this may be pleaded But generally for all causes of Dismission the Court will retain and dismiss it as they see cause as daily practice and experience doth plainly manifest See Caryes Rep. 34 43 74 76 110. SECT 3. A Third point much and frequently incident to practice are References to the
satisfaction of the Debt and damages the Bail is to be discharged upon the acknowledgment of satisfaction as before is mentioned against the priviledged person If either the Plaintiff or Defendant upon Declaration of Priviledg or Scire facias demur in Chancery the Demurrer being joyned a day is set down by the Lord Chancellor or Lord Keeper for the arguing thereof before him And if upon the Argument it fall out to be a Respondeas ouster then Judgment is entred thereupon and if it be against the Defendant then Execution is awarded and if against the Plaintiff then it is that Nilcapiat per Billam that he take nothing by his Writ or Declaration But if it be a Respondeas ultra then is the Defendant to pay costs and a day given for him to plead peremptorily or Judgment to be entred Thus have I quite gone through the whole practick part wherein our Sollicitor ought to b◠versed I shall in the next place give you a Table of Fees which in regard he may in dealing for Clyents have occasions for frequent disbursments I think it very necessary which are in short these and shall make one entire Section and the last of this Chapter SECT VII A Table of Fees  l. s. d. FOr all first second or other Copies of all Bills Answers and other Pleadings whatsoever as also of all Certificates and Examinations made or taken by vertue of any Commission out of this Court and of Interrogatories therewith returned and also of all Declarations or proceedings by English Bill or according to the course of the Common Law and for Copies of Records Rolls or Evidences brought in to be copyed or remaining in the said Court for every sheet of paper containing 15 lines 00 00 08 For the inrolling of all Warrants whereby any Patents Commissions Licenses Pardons Leases or other Grants whatsoever do pass by and under the Great Seal after the rate of every skin so passing the Great Seal 00 02 00 For the inrolling of all Warrants for Commissions of the Peace or Goal delivery for a liberty for Oyer and Terminer for Pyracies for the preservation of the Game of Swans and for Commissions for enquiry sued out for the benefit of any private person for every of the said Commissions 00 01 08 For the inrolling of all Warrants for all Commissions of Appeal and for the Admiralty for every one of them 00 00 04 For the inrolment of every Warrant for every ordinary License or Pardon of Alienation 00 03 04 But if the same be of more then ordinary length then according to the length after the rate of ten shillings the skin and not above 00 10 00 For inrolling all Warrants for all Commissions in the nature of Writs of Diem clausit extremum Mandamus Ideota proband ' Lunatio ' inquirend ' Melius inquirend ' for every of them 00 03 04 For inrolling the Warrants for every Patent or Grant of the Custody of any Ward 00 08 08 But this of Wards I suppose now to be of little use in regard all manner of Wardships are quite taken off by a Statute made in the 13th of King Charls 2. For inrolling the Warrant for every Presentation Donation or Revocation to any Rectory Vicarage Deanary Archdeaconry Chancellorship Treasurership or Dignity to any Metiopolitical Cathedral or Collegiate Church or for any Cannonship or Prebend in any of the said Churches or for the Mastership in any Hospitall or Ecclesiasticall Living or for the Grant of any Presentation or Presentations pro unica vel pluribus vicibus thereunto For the Inrolling of the Warrants for every Mandamus ad Installand ' 00 03 04 For the Inrolling of all Warrants for all Wine-Licenses for every life 00 03 04 Or such Fee not exceeding that proportion as by the Chancellor shall be set down though formerly they paid if it were granted for three lives but 00 06 08 For the inrolling Warrants for every Pardon of Outlawry 00 03 04 For inrolling Warrants for every Denization or Commission of Bankrupts 00 03 04 For writing of every Exemplification as well of Records in the Tower as of any Record whatsoever after the rate of every Skin 01 06 08 The Six Clerks Fee of every Clyent for every Term whilst his cause dependeth undetermined by Decree or by Dismission the Termly Fee of 00 03 04 And so if there be twenty Plaintiffs in one Bill they all pay but one Fee for one Term. But for every three Defendants reckoning the husband and Wife but for one person there is due for their first appearance 00 03 04 And upon the first appearance if every Defendant appears severally by himself he is to pay the Fee of three shillings four pence but every Term afterwards during the continuance of the Cause there is only the Fee of three shillings four pence the Term to be paid for all the Defendants that did appear in any Term or Vacation in the same Cause  l. s. d. For a Writ of Subpoena to answer 00 02 06 If there be three in the Writ you pay more 00 00 06 For an Attachment 00 02 10 For breaking it up with the Sheriff and his Warrant thereon 00 02 04 For the return of the Attachment 00 00 04 For a Proclamation of Rebellion 00 02 10 Breaking it up and Warrant 00 02 04 The Return 00 00 04 For a Commission of Rebellion 00 18 02 For the inrolment of every Liberate and Allocate 00 03 04 The Rule which the Plaintiff gives the Defendant to make answer by a day when the Defendant appeare 00 00 04 For each Rule for publication after examination of Witnesses 00 00 04 For entring them with the Register for each 00 00 04 The Defendants appearance 00 04 00 In which is included the Clerks Fee for the Term.  l. s. d. For the Oath made that the answer is true 00 01 00 And so for every Defendan◠if they be never so many    For a Commission to take an answer in the Country by Dedimus Potestatem 00 07 10 Besides the ingrossing of the Bill which is included in it every sheet 00 00 06 For a Subpoena for Costs where the Bill is not put in by the Complainant within the time limited 00 02 06 For a Bill of costs and the entry of it 00 02 04 For a Joynt-Commission to examine Witnesses in the Country 00 07 10 The Plaintiff payes the Defendant 00 06 08 For the examination of every Witness here before the Examiners 00 02 06 For the Oath of every Witness that is to be examined 00 01 00  l. s. d. For the Copies of Depositions returnable by Commission 00 00 08 For Copies of Depositions taken in the Examiners Office for each sheet 00 01 00 For the drawing up of an Order upon motion to the Register for the first side 00 03 00 For every other side 00 01 06 For entring of the same Order every side 00 00 06 Fees of an
are burthens and eye-sores to the Commonweal nothing but a cypher Et fruges consumere nati Now Education may be atchieved as well by association as inculcation for good Company is like a wholesome Air a man may profit much even by the changeable interview of a good man This is a thing of a very great consequence in young minds according to that of the Poet Quo semel est imbuta recens servabit odorem Testa diu They are apt to be seasoned either with good or had Resolutions and to receive the impress of any custom which their fiâ—st company shall by the silent perswasions of their actiâ—ns impose upon them So then though company is a great matter and will prevail much yet evil customes may be deleted at least altered or amended by inculcation which must not be done with terms of affected indignation but in a more moderate way mixing reprehensions with fair perswasions and laying before the eves of their Understanding the gentrous Examples of several persons so by recording tractable and officious dutifulness to enslame them to imitate and surpass them 3. Having thus both by Precept and Example received the benefit of Education towards the refining of his natural wit it is in the next place necessary that our Sollicitor should be perfected by Learning Now although Learning have a private and pleasing end in it self as being the harbour where the free and untroubled Consideration hath a delightful repose from the Sea of more unquiet thoughts yet it is but a servingquality preparing the mind to a nobler end of well-doing for Knowledg or Learning teacheth not her own use but as a necessary mean enableth us to good actions and it ought to be measured by Vertue and if loved for any rhing it must be because it informeth us to do vertuously It is an excellent Commendation that Pliny giveth to Trajan Praestas quaecunque tibi praecipiunt tantumque eas literas diligis quantum ab illis probaris We must use the Precepts of Learning as the Laws of our behaviour we must remember that the glory and encrease of Knowledg consists in the exercising of Goodness and the masculine and active power of the mind must be joyned thereto to make us perform good and great things But as it is to be followed so it is not to embraced with too vehement fervency but let that saying of Cato be remembred That active minds cannot be with a more honest idleness then the study of Letters corrupted not idleness by any greater or more dangerous policy find easie entertainment in a well-governed Commonweal This Learning will at length teach to lay hold on another most excellent branch of her self which is Experience and indeed it is the most entire part of Learning without which the most absolute Schollars and learnedest men cannot attain to any degree of perfection in civil actions For there is more of certainty in the Principles of Practice then in the most necessary Demonstrations or clearest discourses of Reason And these men that are intendants as our Sollicitor ought to be and practized in the Occurrents of Courts are fitter for any active employment and can with better easiness dispatch any business Quoniam enim habent oculum ab ipsa experientia vident ipsum principium These become as it were Trusty Oracles on whose judgment a man may safely repose his whole fortunes they are on earth instar praesciorum numinum whose advice a man ought to take before he engage himself in any action For the mean by which Wisdom enableth to foresee a success and accordingly after due Consideration rule the present is Conjecture which by comparing things passed presupposeth out of the same causes the same effects Now in this obscure and incertain deliberation upon the future our Sollicitor being experienced is like him who having tryed a dangerous passage in his own person and noted the by-turnings which might divert him into an Errour can in the darkest night with a secure and forward alacrity go the same and overcoming all difficulties arrive at the appointed place whereas another though furnished with the soundest directions yet never having proved it quaketh at every shadow and having his spirits shut up in amazement plainly hazardeth his person Now the Rules to perfect this Experience in our Sollicitor are to frequent the Courts of Justice as Free-Schools of civil Learning to endeavour to understand all Occurrences therein to confer thereof with men expert real of a deep insight such as are not carried away with apparences but can spy day at a little hole as the Proverb speaks and make judgment out of matters themselves and discern between truth and truth's likeness and know when covert designes are the foyls of more eminent intentions 4. And now our Sollicitor being thus forward toward perfection lest he should be too much elated and puft up all those his foregoing parts must be ballanced and kept eaven by the unbyassed Rules of a sound Judgment and solid Discretion which should be the balance in which he should weigh all his actions The first part hereof is Deliberation in which he must neither resolve with haste nor affection the one not giving time enough to discuss those things which ought to be considered the other so occupying the mind that no thought can creep in which doth not in all regards conform it self to give sufferance to that passion He must promise himself nothing before his Conceptions are by great presumptions assured of successe for the fervency of hope maketh men somewhat more retchlesly negligent insomuch that when they are disappointed they are as impatiently grieved as if they had fallen from an essential felicity Like Novice-Marchants who fore-counting great gains and failing of their fresh expectation are suddenly embarked in that irrecoverable mischief of Debt Another point of discretion which he ought to make use of is Principiis obstare to provide at the beginning and not linger till he be surprized both in his business and judgment And what he cannot compass at the first it is best by timing and waiting to expect an opportunity for often things by time receive contrary revolutions and conclude clean different from their apparence and likelihood And although he may sometimes wait long yet he must continue in Action and managing of the matter so may new businesses arise out of the former both by reason of the coherency and way that opens one to another Herein must be observed that of Cicero he must non solum animis sed etiam oculis servire civium he must not think himself discharged except he accompany his actions with fair likelyhoods This if it be not affected sets a splendour and gives a grace to our actions teaching us to put a difference in persons and with divers natures to treat diversly applying to every mans humour Some men are so incapable that they make small things great easy businesses impussible and enter prize nothing which through their
47 80 81. Tothil 189. The Interrogatories to examine Witnesses must be succinct and apt and when Witnesses upon such Interrogatories are examined in Court you cannot examine the same Witnesses upon putting in new Interrogatories Witnesses ought to be examined by Examiners in Court if they live in or near the Town and not by Commissioners for no Commission whatsoever ought to be issued out into any place within ten miles of London Either party as well Plaintiff as Defendant after Answer put until Publication be past may examine what Witnesses they please in Court before one of the Examiners but before Answer and after Publication no Examination will be allowed but by special order some special cause being shewed Notice must be given both of the names and dwelling-places of the persons examined in all cases of examination After an Order for Publication and that delivered to the Examiner no Witness may be examined in Court though he were sworn before and if any such be his Depositions may be suppressed Caryes Rep. 27 58 93. Tothil 189 190 192. No Abstract or Copy of the Depositions of any Witnesses is to be delivered till Publication be past Neither may any Depositions be suppressed upon a bare Petition only with References and Certificates upon it Where there are several Causes which are meerly cross Causes between the same parties and touching the same matter there the Depositions of Witnesses in the several Causes may be used at the hearing of both Causes being heard together without any motion Where Depositions are regularly taken they may not be suppressed by motion but if any Depositions appear to the Court to be gotten by practice they may by order of the Court be suppressed Depositions taken in Chancery may by order of the Court be made use of in any other Court. Caryes Rep. 35.56 He that will examine Witnesses in perpetuam rei memoriam to preserve a testimony he must first exhibit his Bill and shew his Title to the thing and that the Witnesses to prove it are old and not like to live long whereby he is in danger to lose it and then pray a Commission to some Gentlemen of credit in the Country to examine them and a Subpoena to the parties interested to shew cause if they can to the contrary and if the party interested being duly served within fourteen dayes shew cause the Plaintiff must desist and if no cause be shewn he may go on alone if the other will not joyn with him as he may if he will and then fourteen dayes warning is to be given of the execution thereof In this case the Court will appoint Commissioners and give Articles to examine upon or they may be examined in Court by an Examiner But here observe That none but aged and impotent persons may be examined upon this Commission Where the Defendant takes Exceptions to the proceedings in speeding the Commission as whether he did appear or not and whether Oath were made before them of notice given to him of the time and place of execution thereof in such case the Commissioners must certify up with the Commission the Exceptions the Defendant so took This testimony taken upon this Commission is not to be published while the Witnesses live but in some cases as either by consent of the parties or upon Oath made that either the Plaintiff hath some tryal at Law wherein he shall need it and that the Witnesses are not able to come to the place or otherwise by order of Court and then the Commission is to be opened by a Master and to be considered of and afterwards it may if the party will exemplify it by order of this Court be given in evidence in any other Court These Depositions thus taken shall not be made use of to be given in Evidence against any other but the Defendant who was warned to defend it his Heirs or Assignes or some other claiming by or under him by some interest which accrued to him after the Bill preferred Tothil 189 190 191 192. Where both Plaintiff and Defendant have examined what Witnesses they please and are ready to go to hearing there neither of them must first give the other a Rule for Publication which Rule being expired and no cause shewn to the contrary then Publication passeth After which neither party can examine Witnesses unless it be by special order of the Court which will not be granted without an Oath made that the party which requireth the same nor any of his Council or Sollicitor have seen read or been made privy to any Examinations of any the Witnesses formerly examined in that cause by either of the parties and thereupon some good cause be shewn either by Oath or Certificate of Commissioners why the party could not get his said Witnesses examined within the time limited for their Examination in which case sometimes the Court giveth liberty to examine Witnesses by a time prefixed with this Proviso That the party shall not in the mean time see any of the said former Examinations After Publication is had the Plaintiff or if he neglect the Defendant may procure a day of hearing of course to be set down by his Clerk at the end of the Term when either the Lord Chancellor or Master of the Rolls do set down Causes to be heard The days must be set down according to the priority of Publication neither must any Cause be presented for hearing the same Term that Publication passeth All Process to hear Judgment must be returnable six or seven days before the day of hearing except it be in the beginning of the Term when the time will not bear it and the Writ must have on the back of it the very day of hearing at which day if the Plaintiff do not appear the Defendant is to be dimissed with costs Caryes Rep. 45. SECT 6. OUr Sollicitor having thus far with diligence managed his Clyents businesse and brought his Cause to a hearing the next point of his care will be to get the Decree drawn up which should be done as short as with conveniency it may and not râ—cite the Pleadings at large but the sum thereof briefly And if it be made before the Master of the Rolls or any of the Judges it ought being drawn to be first signed by them and afterwards by the Lord high Chancellor and then it must be inrolled which Signing and Inrolment ought to be done before the first day after the next Michaelmas or Easter-Term after the making of iâ— Where the Decree concerns Lands or Leases it must be entred into the Registers Docker-Book within six Months after the making of it otherwise it shall not prejudice the Purchaser of the Land neither indeed shall any Decree be binding to any but those who are served with Process ad audiendum Judicium or that did appear Gratis The Purchaser that comes in by Conveyance bona fide from the Defendant before the Bill exhibited and that is no party by Bill or Order
shall not be bound up by any Decree But where a man becomes a Purchaser pendente lite and without any colour of privity or allowance of this Court there it shall regularly bind him yet in such case if there have been any intermission of the Suit or the Court be acquainted with the Conveyance then the Court is to give order and direction in it No Decree made by the Court can be crossed altered or explained upon a bare petition only and yet thereby it for some speciall Reasons may be stayed for a while till it can be moved in Court A Decree once inrolled cannot be reversed or altered but by a Bill of Review unless it be in case of mis-casting where the Case is demonstrative and then it may be done by Order A Decree will bind the person of a man for where any do refuse to obey it the Court will imprison them till they conform It binds also the Rights and Titles to Lands and Goods for the Court by Order of Sequestration and Injunction will dispose of the possession thereof for ever to him to whom the Court judgeth the right to belong in conscience Where a Decree is to be made upon a pretence of Equity against the Judgment of another Court that Judgment is first read and then the Decree is not to vacate the Judgment but to order the unreasonable party The Decree being this obtained our Sollicitor may sometimes meet with stubborn and perverse people it is most requisite therefore that he be instructed how the Court doth use to enforce Obedience to their Decrees and to punish the breach of them that so he may the better know which way to take to procure the Court to do the same in his Clyents behalf And that is to be obtained thus First he must serve the party with the Decree it self under the Seal of the Court and if he yield not obedience thereunto but stands obstinate then proceed to take out all the Processes of contempt against him one after another and the party being taken will be straightly imprisoned and not set at liberty till he yield obedience to it that is that he perform that part of the Decree which is presently to be done and give security to perform the other part which is to be done in the future Also the Lord Chancellor may for his contempt fine him what he please and afterwards the same may be estreated Where the Decree is for Land and the party remains obstinate or wilful after his imprisonment the Court upon motion will grant an Injunction for the possession and this being disobeyed after it is served and Oath made thereof the Court in that case will grant a Commission to some Justices and if need be a Writ of Assistance to the Sheriff to put him in possession Caryes Reports 23 34 36.37 Tothil 56 57. Where this Injunction is granted for possession of the Land and the party sits out all Process of contempt and cannot be found by the Sergeant at Arms or make a Rescue there the Court being by Oath upon motion informed thereof will grant a Sequestration of the Land Tothil 107. And this Sequestration is granted sometimes as well of the Goods as of the Profits of a mans Land and that for his wilfulness in standing out in contempt and disobedience to the Court as well where it is for discharge and payment of Debts and Duties as where the Decree is for payment of a sum of money Tothil 175 176. SECT 7. IN case of contempts upon force or ill words used upon any that serveth Process or other words of scandal to the Court if they be proved by Affidavit the party forthwith upon motion will be committed if the words spoken deserve it For other contempts against the Orders of the Court take in short as followeth First An Attachment goes forth upon Affidavit made of the contempt then the party being taken is to be examined upon Interrogatories which is many times upon motion referred to one of the Masters of the Chancery The Contempter coming in Gratis of upon Process should give notice to the Clerk of the other side of his appearance and if there be not Interrogatories put in within eight days or being examined if no reference be of the Examination nor Commission taken out of the other side or Witnesses examined to prove the contempt in a Month the Contempter shall be discharged and shall recover costs to be taxed by a Master without any motion But if after he have appeared upon the contempt he depart unexamined he must stand committed till he be examined and cleared and if it be sound he must clear it and pay costs ere he be discharged Such as stand comitted for contempts upon Attachments or Commissions of Rebellion must enter into Bond to attend from lay to day and not to depart without leave of he Court Caryes Rep. 9 44 70 71 82. Imprisonments upon contempts for matters past may be discharged ox gratia after sufficient imprisonment or it may be otherwise dispensed withall But where the imprisonment is for non-performance of any Order of the Court in force then the person so in contempt ought not to be discharged except he first obey only the Court may dispense with the contempt for a time After all this and a Decree performed or else the party in prison for non-performance as aforesaid yet ought our Sollicitor to understand that his Clyent for all this may be a great way off from an end for upon performance and obedience to the Decree a Bill of Review may be brought At the putting in of which the party that prefers it must enter into a Renognizance with Sureties for the satisfying of Costs and Damages for the delay if it be found against him Where a Cause is dismissed upon full hearing and the dismission signed and enrolled it cannot be retained again but by a Bill of Review and that in some special cases too for No Bill of Review is grantable but upon Errour in Law appearing in the body of the Decree it self without averment or further examination of any matter or fact which might have been had at the time of the Decree unless he shew some new matter which hath risen in time after the Decree whereof the Plaintiff could not have advantage before and then upon Oath made that there is a discovery of such new matter this Bill by the leave of the Court may be exhibited giving security as before Where the Decree is to yield the possession of Land deliver Writings or to pay money he must first perform that before a Review but if the Decree be to extinguish a Right convey Land release a Debt acknowledge satisfaction or to cancel Records or Evidences or the like it may be stayed by the Cour's order till the Bill of Review be determined No witnesses which either were or migh have been exâ—mined upon the former Bill shall upon this Bill of Review be examined 〈◊〉