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
Difficult matters was reserved to Moyses wherein he might demeane his decrees according to the Information of his good conscience for so it may be understood if I be not deceived that in those cases he asked Counsell of God who gave him Warrant of his Authority and therefore some have not feared to call him Cancellariu Dei So was Joseph said to be Pharaohs Chancellor and therefore his Successors the Chancellors in our dayes are called Patres Patriae as he was Patriarcha and as the King only was in seate superiour unto him so is the Chancellor with us at this day Primus post Regem secundus in ordine of any temporall Magistrate And surely if in Greece I should look for a meet pattern and president to this purpose I would hope to finde him in the Common-wealth of the Athenians where from the time of the first King Cecrops unto the Athentes Anno I dare be bold â—o affirme that little light would be given unto â—ny man much better conversant in the Greekish Histories than my selfe and from the same time into the Tyranny of â—isistratus from thence to â—e renewed Domecticy after the Domination of Antigonus I cannot single out any one Justicer of â—ike quality unlesse I might allow that Solon was therefore Chancellor for that he did moderate and temper the positive Laws of Draco by his discretion as well in decreeing as in execution the which â—berty and power was after attributed to the Nemothâ—tae not those which did make lawes but those that did allow or reforme the lawes already famed But mee seemeth the chiefest part of our â—han cellors Office may be applyed to the Senate â—o whom the power was given of making decrees in the causes of private persons and the holding of dayly accidents but so as that they did not oppugne or contrary the lawes positive And further we may say of him that he hath Jus consultandâ— with their Demarches Jus judicandi between Citizen and Citizen with Action between Citizen and Alieâ— with their Polymarchus whom the Masters of the Rolls and the Masters of the Chancery are Paredri to informe him of the law as shall more easily be gathered in the processe of this Treaty and that he hath jus imperandi and Principatio judicior with the Aâ—opagitae and further that he may multum irrâ—gaâ—e with the aforesaid The smothetae whereof it followeth that he is undoubtedly a most absolute Magistrate and for that he hath closed in his office a credit for conservation of the peace over all the Realm with shall not be amisie to call him Nomophilax with this remembrance that Plutarch writeth Eumenes Cardiqnus to be ArchigraÌ„matea Alexandri magni Valgo Cancellarium ac principem Scribarum qui lâ—gothetâ— in regno petitiones deâ—retabat quos signabit in eis se suseridebat In the policy of the Roman Empire I meet not with one example saving that by report of Dyonisius the best and worthiest of the hundreth Senators was chosen by Romulus to whom oversight of Justice the appeasing of Tumults and the conservatioÌ„ of peace in the City was appointed at such times as the K. was otherwise busied in the expedition of warfare not unlike to the Ordinance of Edâ— the 3. who in the twentieth yeare of his raigne addressing himselfe to his warres upon the French did then authorize the Chancellor and the Treasurer of England to hear and determine of all complaints against extortion of Officers maintenance imbracery and such like offences by which authority he procured to be confirmed unto them by Act of Parliament and so it is at this day The Chancellor of France Vâ—carius Regis and as will appear hereafter and that there was no other Magistrates in the time of the Roman Kings is expressed by the same Dyonisius excepting onely Tribunus Celerum which was Militaris and as some hold opinion certain Quaesteres for oversight o the Treasury sent but otherwise in Rome omnia Regum Arbitrio administrata sunt in imitation whereof the two great Officers of France which are preferred before all other Et semper adsunt ad latu principis are the Constable of the Kingdom and the Chancellor which is called Quaestor by some writers Now in the permanent and ordinary offices of their popular government what Magistrate might be so mighty or generall in his Jurisdiction as is the present preheminence of the Chancellor I speake not of the Consuls of Dictators which did want nothing at all but the title and the denomination onely of Kings and chief Rulers Herbert Budaeus doth not sticke to call him Praefectum praetorio and further qui loco Dictatoris sit that our Chancellor hath Jus â—dicendi appeares by his rules and orders for matters of Consclence in the Chancery which doe especially concerne his absolute Authority Jus judicandi upon Audita quâ—relaes Petitions de droit c. where he judgeth according to form of Common Law jus cogendi by his service of the Mace and jus coercendi for over all the Realm he hath authority to command a man to Prison How he might be termed Censor in that he sendeth for the Commissioners for survey of Armour c. Aediâ—es in the prizing of Wines and Fish c. in the appointing of Sewers c. And so to compare him with the severall Officers of that Common-wealth by reason of his severall qualityes it were both tedious and impertinent only I have thought convenient to term him Pretor for these congruities First quoad cognitionem then quead curationem The Cognizance of the Pretor was either Domesticall or Popular Domesticall whereby he might hear the Complaints of every private man which his Palace and in his owne Chamber Ministrante at que admittente Cubiculario and order them by the Law of his Reason the which orders were ingrossed by any one of his Clarks and sealed with his owne signet Popular when he sate in Basilieâ— or in Foro where he was Circumdatus Cancellâ—s and had attendant upon him Scribes Cryers of the Court and Serjeants and this was called Locus staâ—uendi in whose constitutions there were two kinds one of decreeing another of giving judgement He was said to decree when without the Counsell or advise of the Judge he would manumiss emancipate award possessions of lands and goods commit wardship of pupills grant injunctions and generally when without assistance of a Judge he did hold cognizance of causes and determine thereof as he thought convenient and in this manner of Cognizance sometimes he would statuere sine Judice sometime he would Rem iudicibus Statuendum permittere as we may fitly translate to dismisse them to the Common law It was said the Judgment of the Pretor either when he proceeded to Judgment according to leges Regis duodecim tabulas Jus Civile leges plebiscita or Senatus Consulta and herein his authority was not absolute as in the other or where himselfe did heare and define
that in the 3 year of Rich. the 2. in a Parliament holden at London Dominus Richardus Scroope cessit officio Cancellariae c. Archiep. Cantuar. Magister Simon Sudbury contra gradum suae dignitat ut plurimi conclamabant illi Officio militaturus accessit sed si ipse illum procuraverit aut sponte susceperit novit Deus Sometimes were chosen to that place Archbishops and Cardinalls as John Thoresby Archbishop of York and Cardinall c. in the time of Edw. the 3. c. Sometimes Threasaurers of England were advanced to the honour of Chancellors as Henry de Burgh in the time of Edw. the 3. Sometimes to the Office of the Keeper of the Great Seale as John de Cheshall in the time of Henry the 3. and many other to either of the places Sometimes common Lawyers were called to be Chancellors as Robert â—erning Justice and Robert Thorpe Justice in the time of Edward the 3. Sir Thomas Moore in the time of Hen. the 8. and others Sometimes were trusted with the Keeping and exercise of the Seale as John Maunsell L. Chiefe Justice in the time of Edw. the 3. c. Sometimes the Lord Keeper of the Privie Seal was made Lord Chancellor as Edmund Stafford in the time of Henry the 4. and others Sometimes were made Keepers of the Seale men cunning in the Custome of the Chancery as was Sylvester de Eversden in the time of Hen. 3. Sometime men learned in the Civill and Common Lawes as William of Kilkenny in the time of the said King Sometimes the Master of the R oâ—â—s as Henry Cliffe in the time of Edw. 3. who was his Chancellor also and others Sometimes a Keeper of the Wardrobe hath been appointed to keep the Seale as John Drakensord to Edw. 1. Some have been twice Lo. Chancellors as John Hotham in the time of Rich. 2. Some thrice as John Stratford in the time of Edward 3. And sometimes there have been three Chancellors in one year as Rotheram Alcoch and Moreton in the 1. yeare of Htn. 7. and he that hath been the longest in office either of Chancellor or Keeper of the Seale is not remembred to have continued above 18. years Some with their Office of Chancellor have retained other places as William Velson after Bishop of Telâ—ard was at one time Chaplaine and Chancellour to William the Conquerour Rannlph Brittaine at one time Cancellarius Regis specialis as saith Matthew Paris and Treasurer of the Chamber But the mightiest of living by multiplicity of Offices that I may readily finde were John Maunsell in the time of Henry the 3. Simon Langham in the time of Edw. 3. John Stafford in the time of Hen. 6. Woolsey Cardinall in the time of Hen. the 8. And in honour and temporall Dignities the Lord Marquesse of Winchester who was Keeper of the Seal in the time of Edw. the 6. And thus much may suffice for the Originall Office Dignity and Election of the Lord Chancellor Now may something bee added of the Conrt of Chancery and Authority absolute of the Chancellor As the Chancellor is at this day Norma omnium jura Reddentium câ—â—â—mnes Magistrat honorun suorum fasces submittere not â—ndignentur And withall as Budeus calleth them Promus Condus clementiae benigniâ—atisque principalis and generally the mouth the eare the eye and the very heart of the Prince so is the Court whereof he hath the most particular administration the Oracle of equity the Store-house of the favor of Justice of the liberality Royall and of the right pretoriall which openeth the way to right giveth power and Commission to the Judges hath jurisdiction to correct the rigour of Law by the judgement and discretion of equity and grace It is the refuge of the poore and afflicted It is the Altar and sanctuary for such as against the might of rich men and the countenance of great men cannot maintaine the goodnesse of their cause and truth of their Title the entry and doore whereof ought Patere omni postulanti omnibus â—oris nulli tamen â—â—are which is meant not to gape after such men as bring rewards oâ— seek accesse to the help thereof by corruption and it is called Caria saith Valla a Cura for that care and heed is to be taken therein for the deciding of controversies but it seemeth rather to be called Curia an Assembly or the place of assembly c. like as the Kings Court was first called Curia for that the Court of Justice was there first holden For the originall of this speciall Court is to be considered that in the time of the Saxons and of the Danes the King by himselfe did hold a high Court of Justice wherein he sate in person and did judge not onely according to meer right and Law but also after equity and good conscience and this is confirmed by the Law of the Saxon King Edgar viz. Let no man seek to the King in matter of variance unlesse he cannot finde right at home but if the right be too heavy for him then let him seek to the King to have it lightned The like to this Law is also among the Lawes of Canutus the Dane and for the understanding of this right at home we may remember that in those days were certaine Jurisdictions over Leets Boroughs and Tythings c. and there by authority permitted to the Reeves or Judges of the lower roomes for the hearing of sutes of small importance and grant of greater power to the Sheriffes and Aldermen which had the charge of greater Assemblies all was retained and reserved to the King himselfe the decision of such matters as by just cause of appellation either for law or equity should be brought before him to be considered and resolved in the aforesaid high Court of the King out of which as were the former so were all the high Courts of Justice or Conscience at this day derived by the Ecclesiasticall Courts or Temporall And here I might take some fit occasion to touch by the way how in the Parliament Lawes not onely for civill and criminall causes but also for the matters of the Church are made abrogated or mitigated common wrongs not holden in other Courts are there amended and heard and difficult causes are there ended Attainders confirmed and annulled corruption of blood there restored errors committed in other Courts there corrected and all constitutions for the State are there confirmed c. How in the Kings Bench are properly all such causes onely to be handled which appertaine to the Crowne or wherein the King is a partie if they be not by Commission particularly assigned to some other Court How in the Court of Common Pleas are holden all Common Pleas between subject and subject of all matters of Common Law How in the Exchequer are the Queenes receipts and her yearly revenues recorded and kept how it is her common Treasury and a Court for Justice betweene
time made in the Chancery and execution thereof by Scire fac out of the com pleas in the 20 Ed. 3. Sute in the Chancery by Petition to repeale a patent c. So may wee remember 15. 18 and 2. Edw. 3. for Petitions c. before this time and divers other cases In 20. of Edw. 3. an absolute power was by Statute given to the Chancellor joyntly with the Treasurer to punish divers offences therein mentioned according as Law and Reason required c. but whether this may be said to give them authority of extraordinary and absolute proceeding against theÌ„ I stand in some doubt how be it I do not think that the jurisdiction of the Chancery was thereby inlarged but it seemeth very probable that the Statute of 36. of the same King though it were not the foundation and erection of the Chancery did notwithstanding adde a great measure of jurisdiction unto the same for there it was agreed by Parliament that if any man were grieved contrary to the Articles in that Statute mentioned which were many and generall or others contained in divers Statutes he might come into the Chancery or any for him and thereof make his complaint where he should be relieved by force of the said Articles and Statutes without elsewhere pursuing to have remedy By which Law the Chancellouâ— was not onely made sole Judge in this Court but was inabled also to proceed in judgement there after his owne discretion for otherwise the wordâ— without other Sute were not beneficiall but saving correction I take the Statute of 17 Edw. 2 to be the especiall ground-work of the Chancellor his absolute power where authority is given him upon untrue suggestions to ordaine and award damages according to his discretion by expresse word c. after which time his power from time to time Vires accrevit eundo be enlarged by sundry Parliaments as by one to senâ— forth Proclamations of Rebellions c. against such as would not appeare and by others both to grant Commissions of divers kinds and to doâ— many other things whereof mention shall bee made in the cases set downe hereafter concerning his power absolute the which is intended the speciall but an object of this Treatise Now therefore in the meane time may we confidently cali the Chancery the Kings High Court of Conscience made especially to redresse private causes such as by extremity of Law cannot have agreeable end to equity by reason of circumstances hindering wherein it is to be noted that conscience is so regarded in this Court that the Lawes are not neglected but they must both meet and joyne in a third that is in a moderation of extremity It holdeth plea also of common or civill matters between the Prince and his Subjects so farre forth as the same hath to do with Petitions Traverses Monstrance de Droit and such like out of this Court as from the person of the Prince came all manner of originall Writs whereof some are Commissional or Commissary giving Authority to certaine Judges or Officers to heare and determine causes some are certificatory or Remotaries of Records Pleas or other Acts some doe command to proceed as Writs De Procedendo c. some inhibit or excuse as Prohibitions Protections or Graunties de jours and of Essoynes c. Some are deductory to summon and bring the party impleated into the Court to answer to the Plaintiffe Out of this Court come most commonly Commissions Patents Licenses Inquisitions c. of this Court is said Arâ—iculâ— super narrationes novas that it is Curia ordinaria pro brevibus originalibus emendis concedendis sed non pro placitis Communibus habuendis meant as it seemeth according to the course of the common Law and in the Treatise of Diversities of Courts It is noted that the Court of Chancery is a Court of high nature out of the which doth proceed Writs Originall as is aforesaid and there a man may traverse Offices and in the same Court the Kings Widdowes shall be sworne that they will not marry without the Kings leave before they be endowed and it is there said that the errour upon a Patent or Traverse there cannot be reversed anywhere else then in Parliament c. And in this Court a man shall have remedy for such things for therewith he shall not have remedy at the common Law c. ibid. In this Court of Chancery a man shall not bee prejudiced for his mispleading or for default of forme but according to the truth of the matter for that awards there are to be made according unto conscience and not Ex rigore Juris And further in Fleta are these words Fiant autem brevia inde audicialia in Cancellaria ea recognitionibus contractis habitis inde Rotulis Cancellariae irrotulatis Et ex Recordo Consellario Cloricis sibi assasiatus per hanc constitut concessae quia de hâ—s quae Recordata sunt coram Cancellario Dom. Regis ejus Justitiar qui recordum habent in rotulis eorum irrotulantur non debent fieri processus placiti per summonationem vel Attachiamenta Essonia visus terrae alios Solempnitaâ—is Curiae sicut fieri consuevit in contractibus commencionibus factis extra Curiam c. This Court is also by some called Oâ—ffic Juris Civilis Anglorum because out of this Court issue all manner of Proces which give the party his cause of action in other Courts The Proces in the Chancery is a Subpoena which is to call the party before the Chancellour upon paine of one hundred pounds c. and this is the way used to bring in the partie or else by the Serjeant as shall be said afterwards and how the paine is but in terrorem for thereof shall be no forfeiture but if the party come not in or comming in will not obey the order of the Court hee shall be imprisoned during the pleasure of the Lord Chancellour as will appeare in the severall handling of his absolute power where also will be remembred the Stat of 15. H. 6. that no Subpoena may be granted without Suerty to satisfie the Defend. for his damages and expences â—f the matter cannot be made good which is contained in the Bill c. The order of proceeding in the Chancery is by Injunctions Decrees and Orders the which how farre they binde the party and how hee is punished by imprisonment for resisting them shall be also shewed in the cases of the power absolute hereafter plaeed The Judge in this Court is the Lord Chancellour onely and he is Keeper also of the Great Seale the which is usually carryed with him wheresoever he goeth so he goe not beyond the Seas for then he is to leave it behinde him to such for whose fidelity he will answer As did John Stratford Chancellour and Embassadour in the time of Edw. 3. And so did Stephen Gardiner in the time
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
Chancery is never adjourned for the Chancery is alwaies open 4. E. 4. 21. b. jurisdict. 6. In an audita querela sued to avoid a recognizance knowledged in the Chancery the Chancellor ought to judge according to the course of the common Law because the matter commeth before him by Originall Writ but upon matters depending before him upon Bill he may judge according to conscience 5. E. 6 Con. 72. casus Rosse Pope 7. The Ceancellor ought not to take precise knowledge of any surmizes nor ought not to take away the Jurisdiction of any Court nor the profit of any person by credit or suggestions 6. E. 6. Con. 74. casus Wymbish c. 8. By these authorities it appeareth that 〈◊〉 hath two powers th' one ordinary th' other absolute By the ordinary he holdeth plea in Latin and the Record after issue joyned is sent into the Kings Bench to be tryed by Jury And this is wholly according to common Law and in such it is a Court of Record but the absolute power holdeth plea upon Subpoena and by English Bill and by pleading and so it hath been used excepting in Anno 20. H. 6. there are some Bils in French as appeareth by the Records of that Year and he intermedleth only with matters of Conscience and therein it is no Court of Record and in both these powers he may hold plea out of the Terme CHAP. II. What matters he may hold plea of in the absolute power 1. THe Chancery in the absolute power holdeth sute by Subpoena only of such matters as are nor remediable by the Common Law per Prisot capit Justic. in Com. Banco 37. H. 6. 14. per Jenney Apprentic 39. E. 6. 2. 6. conscience 6. 4. E. 7. 4. Subp. 17. 2. It appeareth that in Anno 21. E. 4. Many Subpoena's were used to be sued and therefore Fairfax Justice said That if the Chancellors would be good Pleaders there would not be so many Subpoena's sued in the Chancery as there are for divers of those Chancery matters might be converted to actions upon the case and so the Jurisdiction of the Common Law Courts should â—e maintained as for example if one do obtain a Supersed of privilege upon a false surmise an action upon the case doth lye and there needeth no Subpoena 21. E. 4. 23. 3. The Chancellor must judge secundum conscientiam non secundum allegatum For if the Complaintiffe suppose in his Bill that the Defendant hath done some wrong and the Defendant answereth nothing yet if the Chancellor hath knowledge that he hath done no wrong to the Complaintiffe the Complaintiffe shall not recover at all per Cancel 9. E. 4. 14. subp. 11. b. consc. 26. 6. Jurisdictions 50. 4. One sued by Bill in the Chancery and he could not prove his Bill but the proofe of the Defendant was better than his Wherefore Grevill Serjeant said That the Defendant ought to have Judgment to be discharged and Complaintiffe to be barred to whom it was said for the Complaintiffe That the matter is determinable at the Common-Law and therefore such Judgements may not be given and Grevill said That the Complaintiffe shall be estopped to sue so because it is his own doing And when one sueth a Bill he must prove his Bill before he shall have Judgment although the Defendant never answered and the Chancellor was of the same opinion but yet Conesby Serjeant said to the Defendant That he should never have Judgment in the Chancery upon the matter but only a procedendo 21 H. 7. 34. H. 5. By these causes it appeareth That the Chancellor holdeth plea but of matter not remediable by the Common Law and that he must judge according to truth and not upon the default of the party as the Common Law uâ—â—â—h 6. Note that in ancient time where the matter was against reason and the party had no remedy by the Common Law it was used to sue for remedy in Parliament and the Parliaments were holden of course twice every year but now most of those sutes are in the Chancery and the Parliaments are not so often holden vide Rot. Parl. Brooke Parl. 33. 7. The Chancellor said Nullus recedat a Cur cancellar. sine remedio but Fineux said si nul lus recedat sine remedio ergo nullus indiget esse confessus but the common Law is ordained for many matters and some such as are not remediable by the Common Law are to be relieved in the Chancery but divers are remediable by neither and such are in Conscience between a man and his Confessor 4 H. 7. 4 8. In many cases where a man doth wrong yet he shall not be compelled by way of compulsion to reform it for many times it must be left to the Conscience of the party whether he will redresse it or not and in such case he is in Conscience as well bound to redresse it if he will save his soule as he were if he were compellable thereto by the Law As if the Defendant wage his Law in an action of debt brought upon a true debt the Plaintiffe hath no means to come by his debt by way of compulsion neither by Subpoena nor otherwise and yet the Defendant is bound in Conscience to pay him Also if the Grand Jury in Attaint affirm a false Verdict given by a petty Jury there is no other remedy but the Conscience of the party Also where there can be had no sufficient proof there can be no remedy in the Chancery no more than there may be in the spirituall Court as Doctor and Student Câ— 18. 9. Note by these two last Authorities that there are two sorts of â—â—ges conscientiae the one is lex conscientiae politicae by which the Chancellor ordereth matters In which Law of Conscience there is respect had unto the Lawes Customes and State of this Commonwealth and the other is lex conscientiae Divinae by which there is no compulsive relief in this world but the offendor standeth at the judgment of God only and this in times past was said to be examinable between the Offendor and the Confessor Note also that this rule Nullus recedat a cancellar. sine remedio is to be expounded that the Chancery giveth remedy for the common law matters by granting of the Originall Writs which are for the most part returnable into the common law Courts and for matter of Conscience by examining them in the Chancery it self neither doth this rule any way extend to the Law of Conscience divine The Statute made in the 4. H. 4. is this That whereas in Plea reall as well as personall after Judgment given in the Kings Courts the parties be made to come upon grievous paine sometimes before the King himself sometimes before the Kings Councell and sometimes into the Parliament to make new answer thereunto to the great
annoyance of the parties and in subversion of the common Law It is ordained That after Judgment be given in the Kings Courts the parties and their heirs be thereof quiet untill the Judgment be admitted by attaint or by error if there be any error as it hath beene used by the Law in the time of the Kings Progenitors Stat. Anno 4. H 4. Ca. 22. And upon the said Statute is made by Doctor and Student an inference viz. There is a Statute made 4. H. 4. cap. 22. Whereby it is Enacted That Judgements given in the Kings Courts shall not be examined in the Chancery Parliament nor else where by which Statute it appeares that if any Judgement be given in the Kings Courts against Conscience that there can be had no remedy for the Judgement cannot be remedied without examination and the examination is by that Statute prohibited Yet this Statute is not against Conscience for if such Judgments should be examined in the Chancery before the Counsell or in any other place the Plaintiffes should seldome come to the effect of their sure nor the Law should never have end to eschew that inconvenience the Statute was made lib. Doct. Stud. cap. 18. Note by that Statute and by this explanation thereof that the Chancery may not examine nor intermeddle after judgement is given at the Common Law and yet the Statute speaketh not expresly of the Chancery CHAP. III. Whom he may call to be assistants to him 1 IN a Parliament holden in the 2 d. yeare of H. 4. The Commons exhibited a Petition conceiving that the Justices of both the Benches were called into the Chancery from both their places to help the discussing of matters traversed into the Chancery whereby the Common Law was hindred and the subjects damaged and therefore they prayed That it might be Enacted That when any traverse of any Office is tendred in any scir. fac awarded that the same may be sent and returned into one of the Benches there to be discussed and ended according to Common Law To which Petition the King answered the Chancellor may do so by his Office and let it be as it hath been heretofore by the discretion of the Chancellor for the time being Rot Parl. Anno. 2. H. 4. Artic. 95. 2. The Statute de Anno 4. H. 4. is Let the Chancellor have power by Authority of Parliament to call unto him such Justices as it shall please him and the chiefe Baron of the Exchequer it need be to provide remedy from time to time according to their diseretion Stat. Anno 4. H. 4. cap. 9. in most of the time of H. 6. the Decrees were entred in this forme Considerat fuit per cur de Assensu Johannis Fortescue Milit. capitalis Jusâ—ic Dom Regis ad placita tenend. diversor alior Justic. Servient ad legem in Cur. praesent existent quod c. And sometime it was De assensu omnium Justic. utriusque Banci And sometimes of one or two Justices petition in cancellar. de temps H. 6. In the Chancery upon a Subpoena sued the matter being doubtfull in Law the Chancellor adjourned the parties into the Exchequer Chamber and called the Justices of both Benches to assist him 27. H. 6. 13. b. consc. 4. 37. H. 6. b. consc. 7. E. 4. 14. 22. E. 4. b. The Lord Chancellor called Fiâ—z-harbert Justice into the Chancery to assist him in the argument of a Question in Law arising upon a sute of Conscience 27. H. 8. By these Authorities it is evident That the Chancellor may as well in matters conce ning the absolute as ordinary power call the Justices to assist him and that either into the Chancery or into the Exchequer Chamber CHAP. IV. How the absolute power increased and of the Statutes concerning the same 1 THe Statute of Magna Charta is That Nulâ—us liber homo caâ—iatur vel imprisoâ—etur aut dâ—â—ssâ—isâ—tur de libero tenemento suo vel libertat vel liberis consuetudinibus suis aut ut legetur aut â—xuletur aut aliquo modo disturbatur nec super eumibimus â—ec super eum mittemus nisâ— per legem terrae Magna Charta cap. 30. This Chapter is but a confirmation of the custom of the Realme lib. Doct. Student cap. 7. 2. The Statute of the 5. E. 3. is That none shall be attached by any accusation nor forejudged of life nor limb nor his Lands Tenements Goods nor Chatels seized into the Kings hands against the form of the Great charter and the Law of the Land Statute 5 E. 3. cap. 9. 3. The Statute of 15. E. 3. is That none shal bâ— taken by Petition or Suggestion made to the King or to his Councell unlesse it be by Indictment or Presentment of good and lawfull men where such deeds be done in due manner or by Proces made by writ or originall at the Common Law nor that none be put out of the Franchises nor of their Free holds unlesse he be duely brought in to answer and forejudged of the same by way of Law and if any thing be done against the same it shall be redresled and holden for non-Stature Anno 25. Edw. 3. cap. 4th 4. The Statute 28. E. 3. is that no man shall be put out of any Land or Tenement or taken or imprisoned or disherited or put to death without being brought in to answer by due proces of the Law Statute Anno 28. E. 3. cap. 3. 5. By these Statutes it seemeth that neither the King Counsell not Chancellor might not atach imprison banish or put to death any man nor seize his lands nor goods or cause him to answer but upon indictment presentment or originall as in the case ensuing A Commission was awarded out of the Chancery in 42. E. 3. to Commissioners authorising them to apprehend a man and his goods and to commit him to Prison and because this was done without Indictment or sute of any party or other due Proces it is contrary to the Law and the Commission was adjudged void per Knivet Thorpe Captal Justic. 42. Assi. 15 crompton 67. The Statute of 37. E 3. That though it be not conteined in the great Charter that no man be taken imprisoned or put out of his Freehold without proces of the law yet divers people make false suggestions to the King himself as well for malice as otherwise whereby the King is often grieved and divers of the Realm put to great damage and losse against the form of the same Charter Wherefore it is ordained that all they that make such suggestions be sent before the Chancellor Treasurer and his great Counsell and that they there finde surety to pursue their suggestions and to incurre the same pain that the other should have had if he were attached in case that this suggestion be found evill and then proces of the Law be made against them without being
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
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
Feoffor is made good by the common Law release before it took effect but by conscience 1 R. 3. 54 One make a Feofment to the use of his last will and Testament and declareth by his Testament that the Land shall be to the use of his VVife for Life and afterwards to the use of Revoke his Son in tail in this case he may change his VVill and the uses at his pleasure because it is referred to his Testament per Bradwell capit Iust. communis banci Fetchlers Inglefield Iust. in communi Banco 19 H. 8. 11. 30 H. 86. Feofment 47. 55 If I do covenant with I. S. that when he shall infeof one of three Acres I and my Heirs and Assignes will stand seised of other Lands to his use If I make a Feofment unto me that hath no notice of this use yet it I. S. do infeof me of their Acres the Feoffee shall be seised to the use of I. S. because it is a Springing use and the land is charged with that use in whose hands soever it come but if I have feoffed and they sell the said land to me that hath no notice of the use there the second Feoffees shall be seised to their own use 30 H. 8. 6. Feofments al use 50. 56 If I do buy lands and the Seller executeth an Estate unto me habendum imperpetuum without saying to my Heir the meaning of the Bargain being that I shall have the Fee-simple if the Seller do refuse to make further assurance I may compell by sub poena per Audley Cancell temp. H. 8. liber qui dicitur fundamentum legum Angliae B. consc. 25. 57 The Feoffee upon trust sold away part of the Lands and received money for it and the rest he kept and took the profits and dyed the Feoffor per Bill in Cancell recovered against the Feoffees Executor the money received the value of the profits per decretum in Cancell ex assensu omnium Iustic. aliorum de Concilio Regis praesentium pet. in Cancell de Anno 34 H. 6. CHAP. III. Of Copy-holds TEnant at will by Copy of Court Roll shall have a sub poena against his Lord if he put him out of his Tenâ—menâ— per Kirkby Magistrum Rotulornm Pool Serjeant in Canc. 32 H. 6. 21. Stat. sub poena 2. Note Littleton Serjeant said that he saw once that Tenant by Copy Court Roll sued a sub poena against his Lord and it was holden by the Justices that he should recover nothing but Daaby chief Justice of the common Pleas said that the Judgement was so given because he sued to have recovered the Free-hold whereunto he being a Copy-holder could have no right 7 E. 4. 19. sub poena 6. Tenant per Copie 10. CHAP. IV. Of Chattels Real ONe being bound in a Statute Merchant paid the money without having a Release and notwithstanding the Conusee sued Execution the Question was whether the Chancellor might grant a sub poena against the Conusee Fairfax Iust. and Hussey chief Justice of England said that he might not for it were no reason that the Testimony of two VVitnesses should defeat a matter of Râ—cord Cameâ—a Scacc. 22 E. 4. 6. Richard Reade had Execution of certain Lands upon a statute Merchant and the Debtor sold the Land to Sir William Capell who recovered the same by Default with Voucher against the Debtor whereupon William Capell entered and the Termor sued a sub poena and it was holden that if Reade had no remedy to falsifie this recovery then he should be restored in the Chancery by sub poena because it was done by Covin per Cancell Hussey Brian cap. Iust. 7 H. 7. 11. 12. b. consc. 8. b. Faux Recovery 25 If a Recovery be had against the Lessor and the Lessor for years do not pray to be received if by that means he have no remedy at the common Law he shall have remedy in the Chancery so that he were in Prison or beyond Sea or had any reasonable cause of his Default per Conisby Keble Serjeants but quaere it he had no such cause 7 H. 7. 10. If one make a Lease for years or grant his Lease for years to a use this grant and use is good notwithstanding the statute of Ann. 3 H. 7. cap. 15 uses 7. because the statute maketh onely these Gifts of Chattels void which were made to defraud Creditors 3 M. 16. Feofments al use 60. CHAP. V. Of Chattels Personals IT was agreed upon between I. S. and I. D. that I. D. should have certain Debts due unto I. S. by divers persons and I. D. did enter into Obligation to I. S. for the Government of certain summs in consideration of the same Debts and because there were but things in Action and that I had no remedy to recover the Debts by the common Law therefore I. D. sued a sub poena against I S. to be discharged of the Obligation by conscience and for so much as it appeared that by his Contract no Duty could rest in I. D. therefore it was decreed that I. D. should bring in the Obligation by conscience for so much it appeared that by his Contract no Duty could rest in I. D. therefore it was decreed that I. S. should bring in the Obligation to be cancelled or else release to I. D. per Canc cum opinione omnium Justiciar 37 H. 6. 13. b. Barr. 75. 6. consc. 4. 2 Sir Thomas Brown being possessed of certain Goods was attainted of Treason which Goods came to the hands of Iohn Brown the King by Patent gave the Goods unto Walwine and Walwine sued a sub poena against Iohn Brown for the Goods who came into the Chancery by Jenney his Counsel and demanded Judgement of the sub poena for that a sub poena doth not lie but where the party hath no remedy by the common Law and in this case the Complaintiff may have an Action of Detinue for the King might have had the like Action to whom it was answered by Greefield being the Complaintiffs Counsel that the King himself can have no Action by the common Law for Goods forfeited untill the Goods have been seised to his use or else that the Goods be proved to be his by matter of Record and yet the King hath Election to sue for them in what Court he will and so may his Patentee also the Grantee can have no Action for the Goods at the common Law without having had possession seeing they were granted to him as things in Action and the Court held that the sub poena did lie very well and John Brown was commanded to bring in an Inventory of the Goods against the next day or else to be committed to the Fleet in Cancell 39 H. 6. 26. b. conse. 6. A Clerk
proffits of the people but if the same acts or ordinances be examined and approved by the Chancellor Treasurer or chiefe Justice or three of them or before both the Justices of Assize in their circuit in the Shire where such acts and ordinanees be made upon paine of forfeiture of 40 l. for every time that they do the contrary Stat. de Anno 19 H. 7. cap. 7. Corp. 2 3. If the Wardâ—ns and Masters of Fellowships of handicrafts within any City or Borough or Town Corporate where such Wardens be and in such where no Wardens of handicrafts are then if the Bayliffs or Governors of the Boroughs or Towns will wrongfully intreat any stranger in executing of the Stat. de Anno 14. H. 8. then the stranger so grieved may by bâ—ll or information complain to the Chancellor or Treasurer of England or to the Justices of Assize in the County for the time being which by their examination shall have authority to hear and determine the same Complaint and to award to the Complainant such amends as by their discretions shall be thought reasonable Stat. Anno 14. H. 8. cap. 2. Aliens 3. 4. The Tables to be set up in the City of London touching Scavage within the same shall be first viewed examined and approved by the Chancellor and Treasurer the President of the Counsell and the Lord Privy seal the Lord Steward and the two chief Justices or by 4. of them at the least and by them subscribed Stat. Anno 22 H. 8. cap. 8. Aliens 5. If any Printers or Sellers of Printed Books doe inhance their prises in sale of binding at too high and unreasonable prises in such wise as complaint be made thereof unto the King or to the Chancellor or Treasurer or either of the chief Justices then they or two of them shall have authority to enquire thereof as well as by oathes of 1â— persons as otherwise by due examination by their discretions and after the same so found then they or two of them from time to time shall have authority to redress such inhaunsing of prises by their â—retions and to limit prises as well of the books as for binding them and moreover â—hat the offendor being convicted forfeit for every book by them sould and inhaunsed 3. s. 4 d. the one half to the King the other to the party grieved that will complaine Stat. Anno 25 H. 8. cap. 15. books 6. The Chancellor Treasurer President of the Counsell Privy Seal and the two chief Justiees or three of them shall have authority by their discretion to set prices of all kind of Wines that is to say of the prices of the But Tun Pipe Hogshead Ponchen Teirce Barrel or Rundlet when it shall be sold in gross so that they or any of them cause the prices by them set to be written and open Proclamation thereof to be made in Chancery in Term time or eise in the City Borough or Town where any such Wines shall be sold in gross 28. H. 8. cap. 14 Wines 20. 7. The L. Chancellor Keeper of the Great Seal Treasurer President Privy Seale and other of the Privy Couusell the chief Justices or three of them at the least whereof the Lord Chaneellor Keeper Treasurer President or Privy Seal to be one upon complaint made in writing shall have Authority to take order with the bodies lands and goods of Banckerupts for the payment of their debts Vide Stat. Anno 34 H. 8. cap. 4. Banckerupts And thus much of the Absolute power of the Lord Chancellor his Judiciall power the which poor barren Treatise I have not presumed to collect either for instruction of hi Honor from whose wisdome I have alwayes thought nothing can be hidden or for ostentation of my reading and experience who do freely acknowledg my selfe the most ignorant man of my profession but to this end and with this intention have I done it partly to provoke some good matter from those learned Lawyers and skilfull Antiquaries that are Attendants ûupon his Lordship and especially for satisfaction to his desire that did demand it and may command me Sic litabant Mola qui non habcbant Thuca FINIS An ANALYSIS IN the Office of the Chancellor of England are six things to be considered I. HIS ANTIQUITY in Office and not in name which hath been from the time of the first Creation of Kings and Rulers And he was called AMONG the Hebrewes Mazcre AMONG the Grecians Nomophilax AMONG the Romans Praetor In OFFICE and name which hath bin from the time of Charls the Great King of France IN OFF CE and name in England which hath bin from about the time of King Edward the Confessor II. The ETYMOLOGY of his name Either à Cancellando Iniqua Concessa Regis viz. by cancelling or disallowing the unjust Grants of the King by withholding them from the Seale untill the King may be better informed according to the verse Et mandata pii principis aequa fuit Iniquas leges viz. by cancelling the rigor of extreme laws in tempring them with Conscience according to the verse Hic est qui leges Regni cancellat iniquas RECORDS viz. Of Cancelling such Records as ought to be made void which may be either by drawing of crosse lines over such Records and by entring of a vacat in the Margent declaring the cause of the Cancelling Which may also be either by Judgment given in the Court for admitting such Record or else by personall agreement of such partie or parties as it only concerneth Or by plucking the Records from the File And this ought not to be done but by authority of Act oâ— Parliament Or â—Cancellis for that he fitteth in Judgement within certain limits or bounds c. III. His constitution which hath bin and may be in two sorts viz. By Letters Patents which hath been but rarely used and I find only three of them of Record Walieâ— Grey Bishop of Chester and Chancellor by Patent dated Anno 7 Regis Johannis Ralph Nevill Bishop of Chichester and Chancellor by severall Patents one bearing date Anno 11 H. 3. the other Anno E7 ejusd. Regis One other in the time of H. 6. BY DELIVERY of the Great Seal unto his hand and custody which delivery is to be entred of Record wherein is to be noted that the Keeper of the Great Seal had the Seal delivered in diverse manners It was delivered to the Chancellor by the King and immediately he took an Oath for the faithfull exercising of the Office of Chancellor and then he sealed Writs therewith alone It was delivered to the Keeper of the Great Sease without any Oath and therefore he did not commonly Seale therewith but in presence of some of the Masters of the Chancery IIII. Hâ—S preheminences viz. Unto him are substituted all the Chancellors in England Ireland Wales and Scotland and aâ—l they that have charge of any the Kings Seales wheresoever beside the Lord Privy seal By prescription
The punishment of Scandala magnatum to be inflicted upon them that misreport of him by the Statutes of W. 1. cap. 33. and of Anno 2 R. 2. ca. 5. He may weare in his apparel Velvet Satten and other Silks of any colour except purpuâ—â— and any manner of Furs except black Genets of what estate or degree soever he be by the stat of 24. of H. the 8. He must follow the Court and at all times be neer the King by the Statute called Articuli super Chartas Anno 28. E. pr. cap. 5. He may have three Chaplaines qualified whereof everâ— one may purchase dispensation to have two Benefices by the Statute de 21. H. 8. cap. 13. To sâ—ay him it is Treason declared by the Statute of 20 of Edw. the 3d. cap. 11. If he be a Baron or above hâ— shall sit in the Parlament on the left side of the Chamber on the higher part of the form on the same side above all Dukes except such as are soone Uncle Brother Nephew or Brothers or Sisters Sonne to the King and also above all Officers except the Vice-gerent And if he be no Baron he shall sit at the uppermost part of the Sacks in the midst of the Chamber and in such degree he shall siâ— in the Star-Chamber and in all other Assemblies and Conferences of Counsell by the Statute Anno 31 H. 3. cap. 10. He is a Conservor and Iustice of the peace throughout England by prescription He is the only Visitor of all Hospitalls and Free-Chappels which be of the foundation of the King or his Progenitors by prescription He is Prolocutor in the higher house of Parlament by prescription c. V. Places of his Judiciall Session viz. CHANCERY where he is the only Judge assisted by the Master of the Roâ—s and the Masters of the Chancery and heareth and determineth causes of Law and Conscience as Chancellor COUNSELL chamber where he is associated with others of the Privy Counsell and heareth and determineth causes of Estate as a Privy Counsellor STARRE Chamber where he is associated with the Lord Treasurer President of the Counsell and Privie Seale and associated with one Bishop one Temporall Lord of the counsell and two Justices and heareth and determineth perjuries causes penall and of Common peace by the Statutes of Anno 3 H. 7. cap. 1. and 21 H. 8. cap. 20. as a speciall Judge EXCHEQUER chamber where he is associated with the Treasurer and associated by the Justices and other Sage persons and examineth and reverseth or affirmeth judgments given in that Court by the Statute of 31 E. 3. cap. 12. as a special Judge VI HIS Authority and power which is of two sorts viz. As a Judge and that is either ORDINARY as in these Scire fac or execution upon a Statute Merchant taking acknowledgement of Recognizances Scire fac or execution upon a Recognizance knowledged in the Chancery Scire fac to repeale Patents which are void or faulty Monstrance de droit Petition de droit Traverse of Offices and Inquisitions Pleas and Enterpleas upon assignment of Dower Pleas and Enterpleas upon livery and ouster le maine Pleas and Enterpleas upon partition Attachments upon contempts in not executing of Writs and Proces by Officers or upon signification of untrue or insufficient causes thereof writs de Corodioâ— or Pencor habendo unto Abbots Priors and Bishops Andita querela sued upon sutes in the Chancery Prohibition to stay proceedings in the Court Christian or Admiralty and consulation to be granted thereupon Originalls or Bils by persons priviledged in the Chancery Originals or Bils against persons privileged there Writs of Privilege sued by persons privileged to remove sutes in other Courts into the Chancery AND DIVERS other of like soâ—t ABSOLUTE and by this power he ordereth and decreeth matters of Conscience and the pleadings are in English whereas in his ordinary power he holdeth plea of matters according to the form of Common Law and the pleadings are in Latine AS a MINISTER GRANTING of pardons of Common Grace GRANTING and sealing of Commissions OF patents and preservations c. MAKING of Originall Writs of Processe upon the Statute Staple c. CONSTITUTING of certaine Officers belonging to his Office GIVING of Oathes to Officers And such like FINIS 2 Sam. 8. 16. Pretor The Chancellor of France The Election of the Chancellor Hen Beakford 〈◊〉 The nature originall of the Chancery Parliam Kings Bench Common Pleas Exchequer Court of Wards Star-chamber Dutby Court Court of Requests Admiralls court Constable of England Marshalls court President of Wales the North parts Proces Cancella riae The Judge The Assistants The Master of the Rolls The Officers of the Chancery 9. E. 4. Potentia ordinatam Potentia absoluta Default Excom. veritatis 37. H. 6. Court of Record 8. E. 4. Statute proces Right Filz Natura brevium Term 4. E. 4. Adjournment 5. E 6. Common Law Originall Conscience 6. E. 6. Surmise English Bill Pleadings in French 39. H. 6. No remedy Good pleaders Privilege surmise false Secundum Conscientiam Secundum allegatum Default 9. E. 4. 21. H. 7. Estoppell Default Rot. Parliam br Parliam Remedy without Remedy Conscience Doctor Student without Remedy Conscience Wager of the Law False verdict Proofe Stat. 4. H. 4. Judgment Sta 4 H 4 Justices Chief Baron Temp. H. 6 Decrees Justices Serjeants 27 H. 6 37. H. 6. 7. E. 4. 22. E. 4. Exchequer Chamber Justices 27. H. 8. Chancery Magna Charta Doctor Stud. Stat. 5. E. 3 1â— E. 3. 5. Stat. 42. E. 3. Stat. 37. E. 3. 12. E. 3. Câ—â—â—â—â—n Puâ—sell Stat. 43. E. 3. Rot. Parl. 3. H. 6. Stat. 15. H. 6. 21. E. 3. Petition 39. E. 3. Judgment Reversall Counsell 33. H. 6. Obligation supersed Privilege 37. H. 6. Assise Decree Plea 37. H 6. Judgment Plea Decree Court of Record 37. H. 6. 9. E. 4. Commandement 22. E. 4. Injunction Judgment Forfeiture Subpoena Habeas Corpus 2. R. 3 Judgment Notice Imprisonment 2. R. 3. 9. 10. H. 7. Injunction Subpoena Forfeiture 27. H. 8. Decree Right Person Imprisonment 27. H. 8. Injunction Execution Obligation Brooke Heire Executor Fleta Consent 8. E. 4. Privilege Judge Temporall Conscience And the Debtor was discharged of the execution and prayed his damage against them both and the Master of the Rolls said although by the CommoÌ„ law damages shold be adjudged against them both Audita querela Damages Conscience Common Law 14. E. 4. Traverse of Office Mispleading 9. E. 4. Obligation longer day Incertainty the sum Notice the day certainty Mispleading 14. E. 4. Bill Answer Variance Amend 16 E. 4. Answer 16 E. 4. Answer 8 E. 4. Executors Answer 43 E. 31 Damages Wreck Damages Costs 17 R. 2 Damages Stat. 15. H. 6. Surety Damna Expenss 7 E 4. Bill â—nsuffic Costs Damages Bill untrue 7 E. 4. Grant to use costs 11 E. 4. Audit que Damages 2â—E 4. Injunction Kings Bench Iudgement Damages 21 E. 4. Common place Injunction Dismission 37. H.