of the Great Seale both at one instant to Henry the first Sometime there were two Keepers of the Great Seale and both at once as were Jefferey le Templer and Iohn de Lexinton notwithstanding that Ralph Nevill remained Cancellor of whom infra Sometime the great Seale was delivered unto 3 at once as by Edward the 2d to Will Melton and 2 others joyned with him for a certain time to execute all such things as were to be done therewith during the Kings pleasure The election or creation of Chancellors and Keepers c. was of more than one sort and also of Men of divers degrees and qualities Sometimes and for the most part the Chancellor was elected by the King Durante bene-placito and put in power of his Office by the Delivery of the Seale and sometimes the Chancellor was made by Patent to hold that place or office during his life as Walter Grey Bishop of Chester in the time of King John and others some and the most part were elected by the King onely some had Patents of the King and were confirmed Chancellors by consent of the three Estates as were Ralph Nevill Bishop of Chester in the time of King Henry the third with whom the Prince being offended as reports Mathew Paris and demanding the Seale at his hands he refused to yield the same unto him affirming that as he had received it by the common consent of the Nobility so he would not without like Warran resigne the same And in the dayes of the same King it was told him by all his Lords spiritual and Tempotall that of ancient time the election and dispofition of the chief Justice Chancellor and Treasurer belonged to the Parliament anâ— although the King in displeasure did take the seaâ— from him and delivered the same to the custodâ— of others yet did the aforesaid Nevill remainâ— Chancellor notwithstanding and received the profits thereof to whom the King would havâ— restored the Seale but he refused to receivâ— it And hereupon may be gathered that the Keeper of the Seale is not Vice-chancellor in every respect Anâ—â—et us note by the way three several Parentâ— were granted unto this Ralâ—h Nevill aforesaid wâ— whereby he is ordained to be Chancellor and the third for the custody of the Scale all remaining among the Records in the Tower in haeâ—â—erba Henricus Rex c. Archiepiscopis Episcopis c. Sciatis nos dedisse concessâ—sse â—aâ— charta nostra confirmasse Vene Paâ—â—â— Randolpho Cicestrensi Episcopo Cancelldriaâ— nostram hahend â—â—nend toâ—o â—â—mpore vitae suae cum omnibus pâ—rtinent libertatihus â—â—â—eris consuetudinibus ad praedictam Cancellariam nostram habeat bene in pace libere 〈◊〉 integre honorifice cum â—â—â—â—bus exitus libertatibus omnious allâ—s ad eam perâ—inentibus sicut Cancellar Regn. Angl. praedecessor nostror ea melius quietius liberius integrius habâ—ere hijs Testibus c. datum per manum nostram 12. Fâ—br Anno Regni nostri 11. His second Patent was of this Forme Henricus Dei gratia c. Archiepiscopis Episcopis c. Sciatis nos concessisse et â—ac Charta nostra confirmasse pro nobis et haered nostris venerab. pri. Randolpho Cicistrensi Episcopo Cancellario nostro Cancellariam Angliae toto tompore vitae suae cum omnibus pertin. libertatibus liberis consuetudinibus ad praedict Cancellariam pertinen quare volumus et firmit praecipimus pro nob is et haered nostris quod praedictus Episcopus habeat ipsam Cancellariam toto tempere vitae suae cùm omnibus pertinent libertat et liberis consuetudinibus ad praedictam Cancellariam pertin. sicut praedictum est Testibus c. Datum per manum meum apud Westm. quarto die Maij Anâ—o regni nostri decimo septimo This is the transcript of his third Patent the same day and yeare Henricus Dei gratia c. Archiepiscopis c. Sciatis â—os concessisse et hac charta nostra confirmasse venerab. patri Randolpho Cicestr Episcopo cancellar. nostro custodiam Sigilli nostri toto tempore vitae suae cum omnibus pertin. libertat et consuetudinibus ad praedict. custod pertinent Ita quod sigillum illud Portat et custodiat in propria persona sua quamdiu voluerit vel per aliquem virum discretum sufficientem idoneum assignatsuum qui quidem assignat nob fidelitat faciat de fideli servitio de sigillo nostro loco suo fideliter Custodiendo aut quam custodiam praedicti sigilli recipiat 〈◊〉 si forte idem assignat â—suus discesserit vel vitam suam mutaverit vel ob causam rationalem per nos vel per ipsum Cancellar amotus fuerit vel ipse assignat sigillum illud ulterius portare noluerit idem Cancellarius loco illius assignat substituat alium virum discretum sufficientem idoneum substituat Item quod fidelitatem faciat nobis de fideli servitio suo de praedicto sigillo loco suo fideliter custodiend antiqua Carstiaca sigilli praedicti recipiat sicut praedictum est quare volumus firmiter praecipimus quod praedictus cancellar. habeat custodiam c. hiis Testibus c. Datum per manum nostrum apud Westm. quarto die Maii Anno Regni nostri decimo septimo Sometimes the Chancellors of England were elected by the Nobility as Nicholas of Eli was made Chancellor by the Barons But this seemed a usurpation by them for they were afterwards the most of them most sharply chastised and the said Nicholas deprived by Hen. the 3 d. disdaining to have Officers of that estate appointed him by his Subjects Sometimes the Chancellors were created out of the Nobility as Richard Nevill Earle of Salisbury in the time of Hen. the 6. Henry Bourchier Earle of Essex in the time of Edw. the 4. the Lord Wrotesley the Lord Rich c. Sometimes they were enobled after their advancement to that Office as Richard Scroope Knight created Lord of Boulton and Michael de la Poolâ— created Earle of Suffolk in the time of Rich. the 2. Sometimes they were the Sonnes of Noblemen and Princes children as Henry â—eauford sonne of John of Caunt c. in the time of Hen the 4. Sometimes of base and meane parentage as Wolsey Cardinall c. Sometimes Archbishops and Clerkes were ordained Chancellors whereof the first Archbishop was Walter Hubert Archbishop of Canterbury in the time of King John to whom a Nobleman said in scorâ—e That he had often seen a Chancellor made a Bishop but he never before saw an Archbishop made a Chancellor where of is to be noted that many of the former Chancellors were not Bishops when they were elected to that Office but afterwards promoted to their Bishopricks upon which promotions many of them did yeeld and surrender up their Authority of Chancellors and to this purpose maketh the testimony of Thomas Walsingham who writeth
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
CERTAINE OBSERVATIONS Concerning the Office of the Lord Chancellor Composed by the Right Honorable and most Learned Thomas Lord Ellesmere late Lord CHANCELLOR of ENGLAND Whereunto is annexed a perfect Table and a Methodicall Analysis of the whole Treatise LONDON Printed for Matthew VValbanck at Grayes-Inne Gate for Henry Twyford in Vine Court Middle Temple and Iohn Place at Furnivalls Inne Gate 1651. TO THE READER Courteous Reader SOme yeares past the Copy of this Treatise was delivered unto me by John Harding late of Grayes Inne Esquire deceased and one of the Readers of that Honourable Society and by him then affirmed to be composed by the Right Honourable and most learned Thomas Lord Ellesmere Lord Chancellor of England of whose great and eminent abilities I dare not presume to speake being so unable and unworthy to be a judge of and the rather I am confident no man will be so hardy as to detract from the memory of so famous a Statesman A Perfect Table of the most notable matters contained in the first Part of this Treatise CHancellor his name in severall Languages Page 1. His Antiquity and Authority here and in other forain Nations 3 4 c. His name and office in France from the time of Charls the Great 8. And in England from the time of Edward the Confessor 12 13 c. Cancillarii Regis and Cancellarii Regâ—i 14. Symon the Norman the first sole Keeper of the Great Seal about 23 H 3. ibid. Sometimes there were two Keepers and sometimes three 15. Chancellor and his Election of divers sorts and of divers degrees ib. 18 19 Chancellor chief Iustice and Treasurer their Election belongeth to the Parliament 16. Patents of the office and their severall formes 16 17. Chancery the nature and orginall thereof 21. Chancellor his ordinary Authority when it began 26 27. Much inlarged by 36 E. 3. 28 His absolute power whereupon it was grounded ibi Error there reversable only in Parl. 30. No prejudice for mis-pleading there or default of form ibid. Processe is a Subpoena and the order of Proceeding in the Court 31 The Iudge of the Court 31. How the Seale is to be ordered 32. The form and fashion thereof 33. The Assistants to the Lord Chancellor 36 Master of the Rols ibid. The Officers of the Court 37 38 c. And their privilege 40. The manner of proceeding and the matter of the subject from 44 to 120. See in the end of this Treatise an exact Summary or Analysis of the whole booke most methodically composed by the Author thereof These bookes following are Printed and to be sold for Mathew Walbanck at Grays Inne Gate for Henry Twyford in Vine Court middle Temple and John Place at Furnivals Inne Gate 1651. PErfect Convveyancer Mirror Iustice Abridgment of Lord Cokes Reports Abridgment of Lord Dyers Reports Abridgment of Plowdens Reports Perkins Law English Actions Slander Marches Reports History of Normans both parts Parsons Law Privilege of Parliaments Young Clerkes Guide Collins Iustice of Peace Pauls Progresse Attorney Common-pleas Attorneys Accademy Tearms of the Law Fathers Legacy Compleat Parson Book of Oathes Habeas Corpus Womans Lawyer Liberty Subject Wards and Liveries Wilkinsons Sheriff Derhams Manuel Letter Writer Amends for Ladies Bancrofts Epigrams English Grammer Lee Caesar Mr. Williams in Pauls Church yard sells them Thorps charge Edgars charge Books sold by W. Lee M. Walbanck D. Pakeman G. Bedell Touchstone of common assurances by William Shepheard Esquire Fleta corrected and enlarged by Io Selden Esquire Three Readings One by Sir Iames Dyer one by Sir Iohn Bregrave one by Thomas Risden Esquire Books sold by Iohn Place Transactions of the high Court of Chancery ' both by practice and president with fees and speciall orders in extraordinary cases by Wil. Tothill Esq and revived by Sir Robert Holborn late Bencher of Lincolns Inne Clarastella with pious occasional Elegies Epigrams and Satyres by Robert Heath Esq Vade mecum being the substance of all Statutes usefull for a Justice of Peace by Val. Young Esquire Certaine OBSERVATIONS concerning the Office of the Lord CHANCELLOR HAVING ENDEAVOVRED for duties sake some what to consider the nature of this high Place Dignity for two causes chiefly I was much discouraged For neither could I remember any man in this kinde of discourse to have bin imployed Neither any Iudge or Potentate with whom this Magistrate may be compared and herein the more I searched the more I found my selfe confounded IN THE Eighth Chapter of the Second of Samuel Jehosaphat the Sonne of Ahâ—lud the Chancellor among the Hebrewes as the second of David his chiefe Officers is termed Mazur in he Greeke Ananinnescoon by Tremelius and Jâ—aius translated a Memoria or Monitor by the Spaniard Chanciller which is all one with Cancellarius or a Comentarijs by the Italian Seritor de le Cose Fatte in the Duch Cantzfeâ— in the French Chroniqueur and in our English Translation a Recorder In the fift place is called Serayah and he is called Sopher which in all the aforesaid Translations is tearmed Scriba or Secâ—etarius saving that the Italian doth name him Cancellario Sebastian Munster conceiveth Mazur to be a Comentarius and he was ordeined saith he to be the principall Master to note such things as were worthy of remembrance or as Solomon saith his Office consisted in this point to report the actions of old time unto the King and Sopher was appointed to Record them Herewith agreeth for the signification of the words the twentieth of the same Booke of Samuel and the fourth Chapter of the first of the Kings But whether the Lord Chancellor of England as now he is may be properly termed Sopher or Mazur it may receive some needlesse question howbeit it cannot be doubted but his Office doth participate of both their Functions being by William the Conquer our appointed Magister Collegij Scribabarum by the same King instituted in the third yeare of his Raigne as writeth Polydore and likewise having had the keeping of the Rolls of Records as Bracton witnesseth either at the same time that the Common place was erected which was about the ninth yeare of Henry the third or not long after But something more neer to our name of Chancellor I finde the Hebrew word Kinkall in Greek Knilizo and in Latine Cancello whereof cometh Kankill in Greek Knilis and in Latine Cancellus and thereof not unproperly Cancellarius as he sâ—teth intra Cancellos legis viz. Conscientiae or otherwise a Cancellando as shall be afterwards touched Notwithstanding for that I finde the word Mazur better avowed than this latter and I do not remember much mention to be made of any great Officer among the Grecians neere sounding to Kniklum I will content my selfe with the former name only of the Hâ—bricians without further consideration of his Authority in Jury notwithstanding with this observation that long time before this Monarchy of the Hebrewes a speciall privilege of Jurisdiction in
her Majesty and her Subjects c. How the Court of Wards and Liveries is the Court wherein the Queenes prerogative for Wards is maintained out of which are sued Liveries and therein their ages are proved which are in Ward to the King by reason of Tenure c. How the Court of Starre-Chamber is ordained to redresse certaine great offences provided by Statute and appointed to this Court How the Duchie Court of Lancaster is also the Queenes Court and of Record wherein are holden all Pleas reall and personall which concerne any the Tenants of the Duchy lands now in the hands of her Majesty and parcell of her Crowne but severed in Court and Jurisdiction How in the Court of Requests are holden by vertue of their Commission none other but sutes that are made to her Majesty by way of supplication which is called the poore mans Court because he should have right there without paying any money How the Admirall hath disseisin of Marine How the Constable and Marshall of England determineth the Contract touching Deeds of Armes out of the Realme and handleth matters concerning warres within the Realme and Combats Blazon and Armory c. may be tryed by the Lawes of the Land How the Marshall of the Kings House before the Stat. of Articuli super chartas had Authority to heare and determine the pleas of the Crowne within the verge and now hath the hearing of Trespasses Contracts and Covenants made within the verge c. How the Court of Presidents and Councels in the Marches of Wales and in the North parts are Courts of equity in their principall Jurisdiction although they doe withall exercise other powers by vertue of other severall Commissions that doe accompany the same c. I might further busie my selfe with the County Courts Leets Courts of Barons and Courts of Pyepowders c. the Assizes Quarter-Sessions Commissions of Oyer and Determiner and Justices in Eyre to search and set downe when by whom and upon what occasion all the aforesaid Courts were erected wherein they doe containe within their appointed limits and wherein they doe usurp Jurisdiction which was appropriated to some others c. but for that the matters to be moved therein would require a severall Treatise of every severall Court for the which I feele my selfe very insufficient I will forbeare at this time to mingle Jurisdictions and onely continue in the course of the Court of Chancery the which Court I cannot finde in the time of the Conquerour to be served from the Court of the King and appointed to be holden by the Chancellor although I read in that time and the time of his sonne Rufus the ordinary course of Justice was altered in forme but not in substance and whether the Collegium sâ—ribarum founded by the Conqueror whereof he appointed the Chancellour to be President might beare the name and title of a Chancery in very truth I have much doubted for I cannot gather thereout any jurisdiction to determine causes and moreover I read expresly that during the Reignes of both the Williams Hen. 1. Stephen and Hen. the 2. there continued still a Court belonging to the King which was the place of Soveraigne justice both for matters of Law and Conscience called Curia Domini Regis and Aula Regia for that the Prince himselfe did many times sit there in person and had Justices a latere suo sedente as saith Bracton namely his chief Justice Chancelor Constable Marshall and others and howbeit in the 9. year of Hen. 3. by the erection of the Common Pleas the Common Pleas were withdrawn from the Court which followed the King to a place and Jurisdiction certaine it seemeth that by the division of Jurisdiction made by Bracton in his Book which he compiled by the commandement of K. Edw. 1. in the beginning of his reigne and of the particular authorities delivered out by the King to his Justices Commâ—ssioners and Delegates that the Jurisdiction oâ— determining the causes now belonging to this Court did remaine to the exercise of himselfe and yet was not the Jurisdiction of the other Courts out of the King for Jurisdiction as saith Bracton Non potest a Rege delegare but the causes proper to this Court were managed and determined either by himself in person or in his absence by his Chancellour Councellours of State and Iustices of Law that continually attend upon him for that service namely the Justices to informe him of the Law and the Chancellor which was most usually a spirituall person to give advice according to equity and good conscience in which respect also he was visitor for the King and passed the presentations of Benefices so that such as sought for reliefe by equity were sutors to the King himselfe who being assisted with the Chancellor and his Councell did mitigate the severity of the Law in his owne person when it pleased him to be present and did in absence either referre it to the Chancellor alone or to him or some other of the Councell yet have I some good causes of conjecture that the Chancellor in those dayes was a Judge ordinary in the same Court to hold plea by Latin Bil In monstrance de Droit Pleas and Enterpleas of Livery and Ouster ie Maâ—nes of portions and such like as a Minister to make processe c. And therefore I cannot agree with the opinion of some men that this Court of Chancery was erected and first assigned to the Lord Chancellor in the 36. year of Edw. 3. as well for the Patentees afore set downe doe grant and confirme unto the said Nevill officium Cancellariae of the Chancery and not Caucâ—llarii which was in Hen. 3. time as also for that in divers Statutes long before this time and in Yeare Books there is mention made of the ordinary authority of the Chancellor the Register and the Clerks of the Chancery viz. in the Statute of Glouc. in Anno 6. Quo warranto c. of Acton Burnell in Anno 11. Processe upon Recognizance in Westm 2. cap. 24. concordand Cleris de novo brevi c. Ad cap. 49. Champertie c. and Statut. Marchante Brev. al. Viscount c. in Anno 13. Slat de consultat procedendo c. in Anno 24. Articuli super chartas cap. 5. follow the King c. 6. Seale c. in Anno 28. of Ed. 1. and in Ed. 3. his time Anno t. Stat. 2. cap. 15. writing by Dures c. Anno 14. cap. 8. chuse Escheators c. Anno 5. Stat. Carhal adymytt Attorneyes c. Anno 19. Sacrum Clericorum cancellar. c. Anno 20. cap. 3 Oath of Justices Chancery c. ad cap. 6. Chancellor and Treasurer c. Anno 25. cap. 2. Sley Chancellor Treason c. and ibid. cap. 4. writ to Mayors c. Anno 31. ca. 3 Fifty wives c. in the 29. of the Booke of Assizes wee may see partition before this
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
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.
Patent by them signed and also with the Masters of Requests which have the oversight and admitment of all such Writs and Patents as are to be sealed and moreover in every Parliament of France there is by the King of France established a Chancery wherein is placed a Keeper of the Seale a certaine number of Secretaryes as in the former which are said subscripti in sublevamen Cancellarij propter multitudinem negotiorum in Cancellaria Curia Regis affluentium and likewise as are in the Great Chancery there is one Audiencer one Comptroler and one Referendary or Recorder The Chancellor if he doe exercise his Office hath for wages by the yeare eighteen thousand French livers and having a Keeper of the Seale substituted he received twelve thousand Livers and six thousand Livers are assigned unto him principally for the entertainment of the Masters of Requests which do ordinarily dyne at the Lord Chancelors Table in their turne of quarters he hath also besides his wages many other rights and duties as at the entry of Kings into Cityes he hath a garment of cloth of Gold and yearly he hath certain Elles of Velvet a certain number of lights and an allowance of Wax the Chancellor ought not nor may not passe any writing under Seale contrary to the deliberation and determination of the Privy Councell neither whereof any doubt is moved by any Master of Requests of the household but he ought to send the same to the Councell for a resolution Of those which have accesse to the Seal we may place in order next to the Chancellor the Master of Requests which are appointed him for surveyors and examiners of such writings as passe the Seale especially of Patents and Commissions and all other persons whatsoever are forbidden to enter at Sealing time saving the Kings Secretaries the Audiencers the Comptroller the Procurator Generall which is ordained in the said Chancery and the Câ—afewax By this appeareth the name and some part of the Office of the Chancellor of France to be given by Chaâ—lemain more than one hundred years before the time of Edward the Confessor in whose dayes began the name of our English Chancellors according to the assertion of Florentius Wigornensis for that the aforesaid Edward having spent a great part of his Age in Normandy was the first that brought the use of the Seale from thence and with it the name of him that had the charge thereof and that is the Chancellor in whom Leafricies the Britain is named the first Chancellor But saving correction I must be of that opinion of the Normans we did not learn our manner of sealing not onely for that I have seen the Copies of our Kings Patents before those dayes with Ego Iâ—a Ego Aluredus c. subsignavi which indeed may be al one with subscripsi according to 40th Law in the Digests lib 50. But surely I have either seen the very points of the Saxony Danish Seale or else they were counterfeit to no profitable purpose Let other men give what credit they will to the collection of Chancellors by Mr. Thinne in the new addition to Mr. Hollinsteeds Chronicle lately Published For my owne part I am neither of experience nor judgment to impugne it But under the authority of allowable writers I shall set downe and that shortly what I have gathered in so few daies as I have therein bestowed of the present estate of our Modern Chancellor and herein some particulars of the Court of Chancery and first in mine opinion he is the same Chancellor that was Rembaldus to holy Edward and Mauritius to William the Conquerour whose office was to make and seale the instruments that passed from the Prince as writeth Lupanus and as for the former mentioned Chancellors before this time they seem more kindly cheif Secretaries than to exercize the present Office of Chancellors For howsoever I am induced probably to conjecture that before Edward the Confessor there was use of Sealing as I have said so have I no warrant to allege for a great Seale of the King to passe the Instruments whereof the charge was committed to the Chancellors the which as I take it may be reputed the originall of his office and this his originall office was not altered by the aforesaid Conqueror in the erection of the College of Scribes or notaries neither his name changed as I conceive the words of Pollydore where he saith that Ejus Collegij Magistrum vocavit Cancel larium qui paulatim supremus effectuâ— magistratus of qualis hodie habetur But I suppose that authority was also given him by sealing and making certain Writs originalls the forme whereof was for the most part produced out of Normandy but not the granting of all originalls because that by Glanvill it is affirmed that many of them did beare Teste of himself viz. Ranulpho Ganvilla who was chief Justice many yeares after and this by the way is to be remembred that in the name of Chancellor our ancient Histories may easily deceive us for some were called Cancellarij Regis and others Cancellarij Regni and of those which had this great Seaâ— of the K. in their charge and custody Some were termed Chancellors and Seale bearers also that had no partakers of their office such a one was the same Rembaldo to the aforesaid Edward and many others some were Keepers of the Great Seale and that solely Qâ—i Custodiam sigilli Regli acciperent Cancellarii vices acturi officium c. as saith Mathew Paris of John Maunsell although there may be perceived some small difference betweene a Keeper of the grev Seale and a Vice Chancellor for of Vice-Chancellors also I finde two sorts the one as I take it exercising the Office of a Chancellor in matters of Justice and such a one was Malus Catulus in the time of Richard the First another which was chiefe Secretary as it seemed unto the Chancellor to write the Patent of the Prince and such a one was Sywardus whose name I have seen subscribed to a Charter of Edward the Consessor Ego Sywardus Notorius ad vicem Rambaldi Regis Dignitatis Concellarij subscripsi The first sole Keeper of the Great Seale I take to be Symon the Noâ—man who had the Seal delivered unto him in the 23d year of the Raigne of King Hen. 3d. and shortly after also taken from him againe when he was also banished the Court for that he would not seale the Patent whereby Thomas Earl of Flanders might aske 4d for every sack of Wool that went out of England into Flanders But that the Authority of the Lord Keeper was beforetime some way inferiour to the Authority of the Chanceller that may seem by the Act of Parliament which was made Anno 5 Eltz that did equall the power of the one with the other sometimes also the Chancellor of England had a Keeper of the seale subscribed to him and so was Ranulphus the Chancellor and Richard the Chaplaine keeper
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
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
Fleet-lane it is thus written Tot erant formulae Brev. quot sunt genera actionum quia non poterit quid sine bre agere praecipue de libero tento suo quia non tenetur quis respondere sine brevi nisi gratis voluerit cum hoc secerit quis ex hoc ei non injurabitur volenti enim scienti non fit injuria 13. By this it is to be collected that the right and possession of land may be decreed in the Chancery in a sute commenced by the parties consent as appeareth also by a President following 14. Agnis Lumbard being expulsed without proces out of Tenements in Beverley by Thomas Lumbard they submitted themselves to the Decree Order and Award of Michael De la Polle Earle of Suffolk Lord Chancellor who by writing under his Seal decreed that she should have the Tenements rents and arrerages thereof during her life and an Injunction Subpoena was awarded to the tenants to pay the rents and arrerages accordingly and to certain tenants unto whom Tho. Lumbard had leased against the will of Agnis that they should not meddle any more therewith or else they to shew cause to the contrary in decimaquinta pascha also it was then decreed by the advice of Robert Belknap chief Iustice of the Common-pleas and of John de Waltham Master of the Rolls and others that she should be put it full and peaceable seiz in thereof whereof a Writ Patent by warrant of the Counsell was directed to the Bailiffes Aldermen and Burgesses of Beverly to put her in seizin and possession and to defend her therein claus. Anno 9. R. 2. pro Agnet Lumbard CHAP VI Whether the Chancellor may intermixe his power absolute with the ordinary 1 IF an attachment of Privilege be sued against an Attorney in the Chancery this attachment is in the nature of an action at the common law and the Chancellor said that in that sute he had two powers one as a Iudg temporall another as a Iudge of Conscience for if it appear unto him upon the matter shewed in the sute that there is conscience he may judge thereof according to Conscience but all the Iudges said that he might not ludge aecording to Conscience because it is to be ruled according to common law and if there be Conscience in the matter then the party grieved may exhibite a bill thereof and in that the Chancellor may judg according to conscience 8. E. 4. 66. consc. 15. jurisd. 112. 2. One was bound unto I S. and I D. in a star staple and I S. released afterwards I S. not knowing thereof sued execution the Debtor sued an Audita querela and upon the scir. fac I S. and I D being demanded in the Chancery I D. made default and that was ruled to be a default in them both Yet this being the Court of Conscience we as well judge according to conscience as to law and it were against conscience that he which had no knowledge of the release should pay damages But Chock Iustice said that in this case they are and must be Iudges only according to Law and the Master of the Rolls said he would be advised 11. E. 4. 9. b. dammages 3. One traversed an office in the Chancery and being at issue was sent into the Kings Bench to be tryed the party came and shewed that the King had granted the Land before so he should have had a scir. â—ac against the Grantee wherefore he pursued not his Traverse and it was demanded of the Justices if he might have a scirâ— fac out of he Chancery upon the first Traverse and they all answered that he might because that in pleading a default of form should not in any case be prejudiciall in the Chancery for it cannot be called a Court of conscience if the act of a Clerke in pleading should cause the party to lose his sute and his expences 4. In Camera Scaccarij 14. E. 4. 76. traverse d' Office 39. 6. jurisdict. 76. Upon Petition made to the King and by him delivered over to the Chancellor to do right appeared that the Kings Tenant being Tenant in Taile had granted with warranty Lands and an advowson to a College and that the King had Presented by colour of the Wardship of the Heir contrary to the grant and the Incumbent pleaded for the King That the Heir had no Lands discended from his Father and that the Wardship was no Barre but because it appeared by divers Offices returnd into the Court that Lands to the value of 1000. markes were discended to the Heir Therefore the Court awarded in Conscience That the College should be restored to the Presentation without tryall by Jury that the same assetz did discend 43. ass p. 21. Agr. 75. Hereby it appeareth That although the Chancellor may not mix his absolute power with the ordinary concerning the right of the cause yet he may somewhat use the same in matters of expedition of proceedings CHAP. VII The form of the Pleadings ONe sold certain Wool to I S. and I D. for 3. l. and I S. had all the profit thereof and they were bound in severall Obligations Afterwards the Creditor sued I D. the surety upon one of the Obligations being 300l who sued a Subpoena and shewed in his Bill that the Creditor was satisfied of a great part and had given long day for the rest and exception was taken to the bill by Catesby Aâ—prentice because that the Complalntiffe alleged that a great part of the whole summe was paid and shewed not how much was paid and it may be that the money paid was for other obligations and not for this also he hath not shewen what day was given to I S. The Chancellor said that it did not lye in the notice of I. D what summe was paid or what day was appointed and therefore he cannot declare it but it must appear upon the examination of the Defendants confidence but he shall shew certainly such matter as lyeth in his knowledge Also in this Court it is not requisite that the Bill be all certaine according to the solempnity of the Common law for it is but a Petition 9. E. 4. 41. Subp. 12. et b. Conse. 3. 2. Note that the Chancellor said that a man shall not be prejudiced by mispleading or for default of form but according to the verity of his matter and the Chancellor must judge secundum conscientiam non secundum allegat For if the Complaintiffe suppose by his Bill that the Defendant hath done him wrong a d the Defendant answereth nothing yet if the Chancellor have knowledge that the Defendant did no wrong to the Complaintiffe the Complaintiffe shall not recover any thing 9. E. 4. 14 Snbp. 1â— jurisd. 51. Consc. 26. 3. Mispleading nor default of form shall not be prejudiciall to the Chancery omnes Justice in Camera Scacc. 14. E. 4.
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
married by him and therefore he revoked his Will and willed that his other daughter should have the land by conscience Laicon when he made his first Will the first daughter had presently an interest in the land which he would not defeat as if one make a Feofment to the use of a stranger he cannot afterwards revoke that use Illingworth there appeareth not any cause why the first daughter should have the land and therefore seeing the Feoffor had not quid pro quo it is no bargain but of his meer will which he may by good conscience change as if the Feoffor had afterwards fallen into poverty he might with good conscience compell the Feoffee to re-feoff him again Prisot ch. Justice of the Common-pleas when the Re-feoffor had once declared his Will and willed the land to his daughter the Feoffee standeth presently subject to the will of the daughter and is discharged of the Feoffee and such a Will is as strong as a Feoffee which is annexed to a Livery of Seizin Fortescue chief Justice of England the Feoffor may have his will if there be special cause otherwise not as if after the first Will the Feoffor had a son born he might well have changed his Will and given it to his son and heir for there is a reasonable cause of his claim and so it is if the daughter had become a Felon 35 H. 6 sub poena 3. Stac consc. note that the better opinion is conceived to be that he may revoke the first Will 15 Eliz. Dyer 3. 25. 4. Note it was agreed if any infeoff another he may declare his Will unto him afterwards and appoint the use to whom he will 31 H. 6. sub poena 23. Stach consc. 5. If I infeoff one to perform my last Will and himself a stranger I have no cause of sub poena against the Feoffee but I may sue my first Feoffee and recover in damages for the value of the land per Yelverton Wilby Clericis Rotulorum and this is meant where the second Feofment is made bona fide in which cause I have no remedy for the land and so it was adjudged in the Cardinal of Winchesters case but if the second Feofment had been also upon trust then I might recover the land by sub poena against the second Feoffee 31 H. 6. sub poena 19. Stach sub poena 6. If I make a Feofment upon trust that the Feoffee shall infeoff my heir when he cometh to full age and the Feoffee infeoffeth a stranger bona fide to the intent to disinherit inherit my heir there the trust is deteined and the heir is without remedy against the second Feoffee by sub p. or otherwise but if the Feoffee had retâ—ined the land himself and refused to infeoff the heir at his full age he might have compelled him thereunto by sub poena per Dunby Just in com banco 33 H. 6. 15. 7. Richard Frank made Feoffees to the use of the last Will of him and Agnes his wife and they dyed having issue John and Izabel John was outlawed of murther and also delivered to the Abbot of Westminster as a Clerk attainted for robbing a boy called a Monstral out of the Church of the Prioress of Clerken-well and lastly was indicted and outlawed for Felonies and Treasons and during his life Isabel sued a sub poen against the Feoffees to be infeoffed of the land as next heir to the land the Feoffees upon their Oaths confessed the trust wherefore it was decreed by the Court by advise of John Fortescue Knight chief Justice of the K Bench and divers other Justices and Serj. that the Feoffees should execute an estate to Isabel and her heirs qâ— nota petic in Canc. Ann. 33 H. 6. 2 pts 8. It the Feoffee upon trust do refuse to perform the trust by denying to re-infeoff the Feoffer he shall be compelled thereunto by sub poena and decree and imprisonment per Liac Ser. 37 H. 6. 13. 9. One having four Feoffees seised to his use sold his land to J. S. and said to two of his Feoffees that his Will was that they four should make a Feofment unto J. S. accordingly which two Feoffees notified his Will unto the other two who refused to joyn in the Feofment whereupon the first two alone made a Feofment to J. S. of their parts and afterwards the Feoffer sold the lands to J. D. and required those two Feoffees which refused before to infeoff J. D. who did so accordingly and J. S. sued a sub poena against the two Feoffees which refused and because the two Feoffes did bur onely give notice to the other two Feoffees of the Feoffers Will and did not tell them that the Feoffer had commanded them to infeoff I. S. and without commandment they were not compellable to make the Feofment therefore the two Feoffees which so refused were dismissed per canc omnes Iust. 37 H 6. 35. sub poena b. consc. 5. 10. If the Feoffer do send his servant to his Feoffees commanding them to make estate according to his Will the Feoffees are not bound to make a Feofment without specialty proving his Will per plur. Instic 37 H. 6 35 sub poena 1 b. consc. 5. 11. One willed that his Feoffees should make an estate for life to I. S. the Remainders to I. D. in fee I. S. refused to make the Estate for life I. D. may compell the Feoffees by sub poena to limit an estate in rem unto him after the death of I. S. per Ienney Serj. Fincham apprentice and Fincham said that the Feoffees ought to make an Estate to the heir of the Feoff r during the life of I. S. if I. S. did â—â—fuse the rem to I. D. 12 And I. D. may compell the Feoffees by sub poena to grant the rem in the life of I. S. for else by the refusall of I. S. he should lose his rem otherwise it is if a man devise â—aâ—ds by his Testament to I. S. for life the rem to I. D. further if I. S. refuse yet there needeth 〈◊〉 sub poena because he may enter by the law bâ— force of the Testament 37 H. 6. 36. sub poena 6. consc. 5. 13 If any Feoffee in trust be dissâ—izâ—d I may have sub poena to compel him 〈◊〉 bring Assize against the Dissâ—â—sor per Mâ—â—le Danvers Iustice in communibance 2 E. 4. 2. b. consc. 5. 14 If If I be bound by obligation to I. S. to the use of I D. that I shall infecâ—s I. D. for certain lands if I do offer a Feofnient unto I. D. and do refuse â—o receive the obligation is thereby discharged but I. D. may â—ave a sub poena to compell me to infeoff him notwithstanding per Danby Capit. Iu stice de communi banco 2 E. 4. 3. 15
is punishable by sub poena as well as the Feoffee 11 E. 4. 8. sub poena 13. consc. 17. 28 A sub poena was sued against two sons and heirs of gavel land to compell them to make an Estate of the land of which the Complaintiff had infecffed their father and others to his use of whom their father was the Survivor the Defendant said that the common voice of the Country is that the Feofment was to the use of the Complaintiff and of his VVife and of the Heirs of their two Bodies begotten who have Issue therefore they prayed a VVrit to warn the Issue and upon the VVrit the issued appeared and shewed that he was under age and prayed that the matter might stay untill he came to age and the Chancellour by the advice of Laicon and Littleton Iustices awarded that the matter should not stay because he was not seized of the Land by a Discent wherefore the Issue by his next Cousin declared his Title 14 E. 4. Age 20. 30 Note that a sub poena doth lie against the Heir of the surviving Feoffees 14 E. 4. Sub. 14. 31 A sub poena was brought against three Feoffees upon trust to compell them to execute an Estate to the Complaintiff one of them said that the Complaintiff made a Feofment to the other two in his absence to the behoof of all three and he died never agreed to the Feofment and the Land is holden of him so that he cannot execute an Estate but that he shall extinguish his own Seigniority and therefore he disclaimed in the Land and it was allowed to be a good answer per curiam Cancellarii 16 E. 44. sub poena 18. 32 If I and another do submit our selves to an award and it is awarded that I shall cause my Feoffees in trust to release to the other being in possession I may compell my Feoffees by sub poena to fulfill the award per omner Iustic. in communi banco 17 E. 4. 4. 33 A VVoman made a Feofment upon confidence and afterwards took a Husband and in her Death-bed she made Testament that her Feoffees should make an Estate to her Husband and to his Heirs the VVoman died and the Husband sued a sub poena to compell the Feoffees to perform her Testament and it was ruled that the Testament was void and that the Feoffees were not compellable to perform the same for Law and Conscience do allow nothing to be good which is done by VVoman Covert concerning her Inheritance except it be by Fine leavied where she is openly examined in the Court for this Testament would be a Disinheritance inheritance to her Heir but she may make her Testamet of Goods and make Executions by consent of her Husband per Cancell omnes Justic. uno tantum excepto And Vavasor shewed to the Court that Anno 7 E. 4. a VVoman Covert having Feoffees upon trust she and her Husâ—and sold the Land and she received the money and afterwards the Husband died and she sued a sub poena and it was adjudged to be a good sute 18 E. 4. 118. consc. 28. b. Testament 13. 34 The custome of Kent is that an Infant of fifteen years may sell his Land and the case was that an Infant made Feoffees upon trust and afterwards being above fifteen years old he willed the Feoffeâ—s to make an Estate thereof to him and his VVife in tail and the question was whether they were compellable by sub poena to do it or no and it was holden that the Feoffees were not compellable because the Infant cannot will his Land by the custome for the custome is onely of Sale and is always to be construed strictly according to the very words also at the Common Law such a VVill made by the Infant of Lands is void and so it is in conscience per Littleton Jenney omnes socios Justic. 21 E. 4. b. Testament 17. 35 Note in Burgh English land where the youngest shall inherit if the Father make a Feofment upon trust the youngest son shall have the use and the sub poena and so it is of Gavel-kinde land where all the Brothers do inherit per Dig. App. 21 E. 4. 24. b. Testament 17. 36 Hussey chief Justice of England said that when he came first to the Court which was about thirty years past it was holden by all the Court that if one infeoffed another of trust which died seized so that his Heir were in by Discent no sub poena should lie against the Heir for the same reason a sub poena might be against the Heir after two Discents which were inconvenient but the Chancellor said that there are Presidents in the Chancery that a sub poena doth lie against the Heir in Cam. Scacc. 22 E. 4. 6. b. consc. 23. 37 If a ftoffee upon confidence make a feofment to one that hath knowledge of the confidence the feoffer shall be restored again in the Chancery otherwise it is if the purchasor had no knowledge of the confidence per Cancel 7 H. 7. 12. sub poena 18. 38 The Feoffees upon trust of an Infant may grant all ordinary Offices for term of life as Steward Bailiff and Receiver and they shall have allowance thereof in their Accounts when they are called to account in the Chancery but they cannot grant any fees for term of life without the assent of the Heir when he is of full age per Hussey Brian cap. Just Ang. But Keble Serjeant said that if the Feoffor were able and willing to be Bailiff or Receiver himself or if that there were need of any Steward Bailiff or Receiver then he might repeal the Grants by sub poena also it was agreed that the feoffees might defend the Land in all sutes with the profits thereof and should have allowance thereof in Counsel 8 H. 7. b. Ftofments al uses 12. 39 Note it was adjudged that a VVoman Covert Executrix might make sale of her lands to her Husband and that it is a good Bargain and the feoffees upon trust are bound to make a feofment accordingly and in this case because three feoffees did the contrary they were committed to the Fleet 10 H. 7. 20. This is to be understood where the Land was devised to the Woman being Executrix to the intent to be sold for the performance of the VVill of the Testator 40 Certain feoffees were seized to the case of Sir Richard Rooe for life and afterwards to the use of others and the feoffees made a feofment in fee to Sir Richard Rooe the question was whether Sir Richard Rooe had forfeited his Estate or no and Hussey and Brian chief Justices agreed that it was no forfeiture by the common Law for no mans Reversion is discontinued continued thereby otherwise it is if Tenant for life of land had made a feofment to a
stranger for that were a forfeiture and the Chancellour said that in the first case it was no forfeiture in conscience but he would reform so much as was amisse done and no more and so it had oftentimes been ordered before the Chancellour 10 H. 7. 2. 41 A feoffee upon trust was seized by a sub poena by the Feoffor and the feoffee was injoyned that he should make an Estate to the feoffor before a day certain sub poena 100. lib. in Cauâ— 10 H. 7. 4. 42 The Heir of Co. qu. use shall have after the death of his father the issues and profits of the Lands as if his father had died seized thereof and he may compell the Feoffees upon trust by sub poena to infeoff him and shall have all advantages as if his father had died seised in Camera Scacc. per Wood Serjeant 13 H. 7. 7. 43 If the Feoffees upon trust will not infeoff the Feoffor he may compell them by sub poena in communi banco per Brian cap. Justic. de communi banco Danvers Justic. 14 H. 7. 19. 44 One having feoffees in trust devised by his Testament that his Feoffees should sell the Land the Feoffor died the Feoffees infeoffed others to the first use the second Feoffees may not perform the Will but the first Feoffees may and the second Feoffees may do it because there is a kinde of use in I. S. seeing he is specially named and he may compell them to sell unto him and if the Will were that the Feoffees should sell his Lands to pay his Debts the Creditors may compell the feoffees to selâ— it but if he had willed that the feoffees should sell the Land for money to be distributed there no man can compell them to make the Sale per Fineux cap. Justic. Read Tremaine Iust. If the Will were that his Executors should sell it though his Executors refuse to administer yet the ordinary Administrator may not sell it but the Executors themselves may notwithstanding the refusall cause the uses not testamentory per Finenx cap. Iusiic Angl. Read Termail Iustic. And if he will that his Land shall be sold and shew not by whom his Executors shall sell it and not the feoffees for the Executors have the greatest confidence put in them for they have the disposition of the money for which it is sold per Fineux cap. Iust. Angl. Read Tremaine Frowick Serjeant And if the Will be that the Land shall be sold the Heir shall take the profits untill it be sold per eosdem in Banco Regis 15 H. 7. 1â— b. Feofm al use 12. 45 If one having feoffees upon trust do make his Testment that they shall have an Estate to I. S. and dieth if the feoffees infeoff others to the first use the second feoffees may make the Estate by Kingsmell Serjeant 14 H. 7. 33. 23. Feofments al use 12. 46 In a Formedon against two feoffees upon trust if the feoffees refuse such Pleas as the feoffor doth minister to them or if they or one of them do refuse to vouch where the feoffor sheweth to them good cause of voucher the feoffor hath no remedy against the feoffees to compell them buy by sub poena or else by Action upon the case per toâ—am Curiam And Bradnell chief Justice of the Common-place said that if a feoffee upon trust die without Heir or die his Heir being within age or is attainted of felony so that the Land cometh to the Lord the Lord shall have it to his own use and the feoffor hath no remedy in communi Banco 14 H 8. 24. 47 The feoffees upon trust may grant the Offices of Steward and Receiver per Newdibank Serjeant if the feoffor die without Issue within age the Lord shall hold the land to his own use and if the feoffees acknowledge a Stat. Merchant and the Conusee do extend the Land he shall hold it to his own use because the said persons do come unto the Land by the operation of Law and not by their own Act nor by the Act of the Feoffees but if the feoffees infeof a stranger which hath notice of the first use there the second feoffee shall be seised to the first use though he paid a consideration Quia participes criminis consentientes agentes paci plena plectentur dolus fraus nemini patrocinetur and if the second feofment be to one that hath notice and he pay consideration then he shall be seised to the first use but if he pay no consideration nor have no notice yet it shall be to the first use per Justic. Servients If the feoffees grant a Rent for Life out of the Land without any consideration If it be to one that hath notice of the first use this Rent shall be to the use of the feoffor of the Land per Pollard Brook Fitzherbert Iust. in communi Banco 14 H. 8. 4. 48 A use shall ensue the nature of the Land for if it be use of the Burgh English Land the youngest shall have it and if of Gavel-kinde then all the Children por Pilman Serjeant 14 H. 8. 6. in banco 27 H. 8. per Pollard apprentic 49 If the feoffee upon trust die his Heir shall be subject to the trust per Bradwell cap. Just Fitzherbert Brook Justic. in communi banco â—4 H. 8. 7. 50 Note by Brook Justice that uses are created by the common Law and are relieved by conscience and all medling with the Land by the Feoffees ought to be at the desire of the Feoffor and if the Feoffee do otherwise he is chargeable in conscience 14 H. 8. 8. in communi Banco 51 If one have Feoffees in trust of Seigniory if the Tenancy do escheat unto them they shall be feised to the use of the Feoffor and so it is of Land recovered in value per 〈◊〉 Iust in communi Banco 14 H. 8 9 52 One having feoffees upon trust wills that his Executors should sell his Lard 〈◊〉 died if that Executor make another Executor in that case the Executor of the Executor cannot sell the Land because the first Executor had that power as in authority severall from his Executor ship and though the first Executor had refused the Aministration yet he might have sold the Land per curiam in cancellaâ—â—a Scacc. And if he had willed that the chief Justice should sell his Land although that the chief Justice had resigned his Office and another been placed yea the first should sell his Land per Bradwell Justic. communis Banci and if the will were that John S. should sell his Land if I. S. die his Heir cannot sell it because the trust is determined per Shelley Ingelfield Justic. Willoughby Spilman Serjeants 19 Hen. 8. 9. 53 Note by a Statute in Ann. 1 R. 3. the Will of the
made I. S. his Procurator of his Benefice and promised him by Oath that he would save him harmlesse for the Occupation the Clerk resigned unknown to be the Procurator and he was sued for the Occupation and therefore sued a sub poena Jenney Apprentice said that he ought to sue in the Court Christian for the breach of his faith as if one be affianced to a Woman and then forsake her he is to be sued there and not here the Chancellor said that it was true that he ought to sue there for breach of Oath Si petit ipsum canonice inimicitia but he shall have remedy here for the Damages he sustained by the not performance of the promise Jenney said also that it was his folly to trust his word and therefore he had no remedy Quia Deus est Procurator fatuorum S E. 4. b. consc. 14. sub poena 7. A sub poena was sued against three Executors and one of them appeared and the Complaintiff prayed that he might be compelled to answer Fairfax said that he ought not to answer untill his fellows appeared also for in the Action of the common Law one Executor shall not be forced to answer without his Companions by the statute of 9 E. 3. cap. 3. Also it may be that the others can shew matter to abate the Bill of which this Executor hath no knowledge the Chancellor said that the three Executors are instead but of one person viz. the Testator and therefore one of them being but a Member shall not be forced to answer untill they have all appeared Also if he should answer it might be that through his ignorance the other should be concluded which were not conscience also that statutes that ordain Proces do not extend to this Court but if it give a little right this Court must obey it 8 E. 4. 5. because 15. Responder 6. A sub poena was sued because the Defendant had recovered upon an Obligation by sute one Court whereas in truth the Obligation was made in another Court by means whereof the Complaintiff could not be suffered to plead divers Pleas which he might have pleaded if the sute had been pleaded in the right Court and the Counsellor said that the sub poena did well lie because the Defendant did against conscience for he would not have the truth known and therefore be sued in a forreign County and the truth cannot be so well known and tried in any place as it may be in the County where it was done 9 E. 4. 2. sub poena 10. b. consc. 6 Worsley and Middleton bought certain Wools price three pounds of Sir Henry Wich and were bound by severall Obligations whereof one was of three hundred pounds and Miadleton had all the profit of the Woolls Sir Henry died and made his Executrix against whom Worlsey sued a sub poena shewing in his Bill that whereas she had received a part of the money of Middleton and had given him longer day yet notwithstanding she had put in sute against Woolsey Catesby for the Defendant said that though â—he had respited the sute against Middleton yet Worsley is not to have advantage by it for by Law and Conscience she might have sued which of them she would and if she had granted to Middleton that she would never sue him yet that is no Discharge to Worsley the Chancellor said that at first she might have chosen to sue the one or the other but seeing that she had made a covenant in the law of nature between her and Middleton to respit the sute against him that shall give advantage to Worsley for she hath chosen to be paid by Middleton and if he had either paid her or else that it were agreed between them that she should take it up of a stranger which is indebted to Middleton Worsley should have advantage of that 9 E. 4. 41. sub poena 12. b. consc. 7 A Debtor made a Gift of all his Goods to another to the intent to defraud his Creditors and keep still the Goods in his own possession and took Sanctuary at Westminster and died the Goods coming to the hands of his Wife who took another Husband against whom being possessed of the Goods the Creditors sued a sub poena and the Husband was compelled to answer to it per curiam cancell 16 E. 4 9 consc. 19. it seemeth the Gift waâ— void in Law One was Surety for another and the Debtor with two others were bound by Obligation to the Surety to save him harm lesse afterwards the Surety paid the money and sued his Obligation against the principall and the two others which sute depending the principall sued a sub poena against the Surety to have certain Goods out of his hands which he had delivered unto the Surety for his security before the making of the Obligation and so prayed that he might not be double charged wherefore he prayed re-delivery of his Goods the Defendant answered that his Goods were delivered for another cause and shewed the cause and thereupon they were at issue and the Complaîntiff prayed an Injunction that the Defendant should not proceed in sute upon the Obligation but the Court denied it because the Defendant had intituled himself by severall means as well to the Goods as to the Obligation and therefore it were against reason to delay his sute qd nota 16 E. 4. 9. b. consc. 20. One was Surety in a statute Merchant payed the money without having a Release and notwithstanding that the Conusee sued Execution the Question was whether the Chancellor might grant a sub poena against the Conusee Fairfax Justice and Hussey chief Justice of England said that he might not for it were not reason by the Testimony of two Witnesses to defeat a matter of Record and so it is of an Obligation for the Debtor may refuse to pay the Debt without any Acquittance it is his folly to pay the Debt twice then to avoid Accord or Specialty by two Witnesses and the Chancellor said that it was the common course of the Chancery to grant sub poena upon an Obligation so satisfied and that thereof there are divers Presidents in the Chancery but he agreed that no sub poena doth lie upon statute because it is matter of Record in Cam. Scacc. 22 E. 4. 6. b. consc. 23. 10 A Bill exhibited conteining that whereas the Defendant had recovered Debt and Damage against the Plaintiff and was paid without any Release or Acquittance yet the Defendant had sued Execution notwithstanding and because the Complaintiff had no remedy by the common Law he prayed a sub poena but the Chancellor would not grant it without advice of the Justices for by that means every Record might come to be examined before him and so the common place should be destroyed 22 E. 4. sub poena 16.