may declare his will thereof and may vary at his pleasure but if it be to any intent certain as to take back an estate taile or with remainders to others then he cannot change it for the interest that is in others 5. E. 4.8 a. Whether the use of gavell kind Lands should ensue the nature of the land and so of Borrough English or shall be at the common Law because the customes doe extend to Lands and not to uses or rents as is said against Fitz Harbert Although Cesti que use of a terme for yeares be not within the Statute of uses rather therefore he shall have remedy in Chancery Crompton 64. Where the complainant will rest upon the oath of the Defendant and be contented to be judged there by their the oath of bewraying is hardly granted Conscience never resisteth the Law nor addeth to it but onely where the Law is directly in it selfe against the Law of God or the Law of reason for in other things Equitas sequitur legem Saint Germaine Fol. 85.155 Sometimes equity helpeth a man to that for the which there is no Law of man provided fol. 85. ibid. Sometimes equity followes the meaning of the parties in their contract 86. Ibid. where a common inconvenience will follow if the common Law be broken there the Chancery shall not help 155. For albeit the party cannot with a good conscience take the advantage of sundry things to which he comes yet the Court of conscience is not thereby bound to help the other but must leave some things to the conscience of the party himself It is reported 8. E. 4.6 and 22. E. 4.6 yeare Book That the Lord Chancellor and Judges were of opinion that a Subpoena lyeth not against the Heire of a Feoffee in trust but our time affordeth that help against Executors very commonly as between Ouslowe and Ouslowe Lord Norris and Lester Cutting and Huckford c. At the common Law if a man were surety for anothers debt he was chargeable if the debtor failed in payment but Magna Charta cap. 8. ordereth that the pledge shall not be distrained if the principall debtor be sufficient to pay this grew troublesome to the Creditor and therefore it fell in use that the pledge should bee bound as principall and so by the common Law he is chargeable notwithstanding the sufficiency of the principall neverthelesse it is now usuall in Chancery to help this suerty against whatsoever default of the principall if so be he will offer the principall debt and dammages but in my opinion he ought to finde here no other reliefe then the principall debtor should find because he is not onely a principall by his own Bond but also was the cause for which the money was lent seeing that without him the principall had not been credited And experience bewrayeth that this favour to sureties breedeth contempt of Bonds Nihil est autem saith Cicero quod vehementius remp. continet quam fides quae nulla esse poterit si non erit necessaria solutio rerum creditarum fraudandi vero spe sublata solvendi necessitas consequitur But the Case of the purchasor bona fide of land subject to a Statute or recognizance is better then of such a surety and so is the Case also of the Heire of the Recognizor or Obligor for though the land be charged in their hand with the debt yet equity ought to relieve them touching any penalty unlesse they be found in Mora c. If a debtor will Collude with some of his friends in fraud of his Creditors and the friend breake trust with him this Court will not punish the breach yet Greene and Cotterells Case to the contrary fraus non est fallere fallentem But two Doctors and I took order in such a Case between Woodford and Multon Mich. 42. and 43. Eliz. by our report that the goods so conveyed in fraud should be transferred to the benefit of the Creditors A. Man was enfeoffed to the use of a woman sole which taketh an Husband they both for money sell to B. The land which payeth it to the wife and she and her Husband do pray the Feoffee to make Estate to B. Afterwards her huâ—band dyeth now by the Chancellor and all the Justices she shall have aide against the first Feoffee by Subpoena to satisfie her for the land and if the second Feoffee were conusant a Subpoena shal be against him for the land for all that the wife did during the Coverture as they said shall be taken to be done for fear of the husband 7. E. 4.14 Subpoena Fitz-Harbert 6. If A. sell land to B. for 20 l. with confidence that it shall be to the use of A. yet A. shall have no remedy here because the bargain hath a consideration in it selfe Dyer 169 per Harpar and such a consideration in an Indenture of bargaine and sale seemeth not to be examinable except fraud be objected because it is an estopell Lands be morgarged to A. and B. where A. onely payeth the money and the intention was that B. should take nothing now B. shall be compelled to release to A. 27. Eliz. A. willeth that B. shall sell his Land to C. now C shall have a Subpoe against B. to compell him to sell the testators land unto him 15. H. 7.12 Pyers was bound in a Statute to Hawes and Ioan for the behoof of Ioan and Hawes released to Pyers whereupon she brought a Subpoena against them both but Pyers was discharged although he knew the confidence because it is permitted in such a case a man should help himselfe to be discharged of his bond and the Subp. stood against Hawes because he had deceived Ioane 11. E. 4.8 a. Tamen quaeâ— for it is no conscience to be a partaker in fraud therefore if my Feoffee in use had made a Feoffment unto one that knew of the use the Subpena did lye against them both 5. E. 4.7 And the Case precedent kiked not the reporter If an Obligation be made to B. to the use of C. now B. shall be compelled here to sue upon that Obligation 2. E. 4.2 If one Executor will release a debt without the consent of his copartner whereby the Will cannot be performed the releasor and the releasee shall be ordered therefore in Chancery 4. H. 7.4 By the Chancellor against the opinion of â—ineux If a Subpoena be brought against three Executors and one of them appeareth he shall not be compelled to answer till they be driven to appear also for they are but one 8. E. 4.5 By the Chancellor So if two Copartners or joynt Tenants-joyne in a Quare impedit and the one will plead covenously he shall be compelled here to joyn with the other in Plea or presentment And so if lands be severally given by one deed to two men he which
made by the Feoffees of them for founding a Chauntry and this in the 20. of H. 6. and held no superstitious use nor by the Lord Chancellor if it had been absolutely given ad divina Celebranda and for saying of Obites for most part of the Churches of England are so founded if it be granted to a Priest contra if it be granted to a particular Priest ad divina Celebranda and saying Obites c. The Case was that those Lands were after given to found a Chappell of Ease by the Feoffees and then new come in upon the first grant would have had it a concealement and got a Pattent thereof and Commissioners upon the Statute 39. Eliz. took it from the Pattentee And note that the Commissioners make the decree the Lord Chancellor heareth the exceptions against the said decree and decreed the possession according to the Commissioners decree leaving the Pattentee to exhibite his Bill against the parishioners and to shew what cause he could for reversing thereof 18. Iunii 1. Iacob George Littleton of the Inner Temple lent money upon bonds taken in other mens names and had not any in his own name among the rest he purchased five markes per annum in two other mens names with this trust that he might injoy it during his life and after it should be to the erecting of a Schoole in the Towne where the said George was born and buryed as the Feoffees declared in their answer and in his life time after the purchase he repealed his intent of converting the same to the use of the Schoole to divers others but by his will he gave certaine Acres of Land to I. C. and I. H. and then devised all the rest of his lands to his Brothers Sonne who sues Ceux que trust for converting unto him the five marke land which Justice Warberton presently decreed for him saying his will was his Declaration But in his words there was but a meaning onely exprest me contradicente for if I. C. make a Feoffement to the Use over according to Articles annexed he cannot alter the same by a later will contra if it be to the use of his Will 19 Iunii 1. Iacobi Cutting Cleark of the Outlawries bought lands of Bedwell whereof he was seized as Tenant by curtesie promising the Heire should assure at full age and by morgage assured other lands for performance thereof Cutting before full age dyeth without issue his Heire not known for some claimeth as Hâ—ire on the Fathers side some as Heire on the Mothers side others as assignees by devise and another as Executor sued a Statute for performance of Covenants Bedwell being willing to assure brought all into the Chancery that he might incurre no prejudice till he should know to whom he should assure and ordered that he should assure to two of the six Clarks they to reassure to the Heire when he should be found 10. Octob. 1. Iacobi Nota that the Lord Chancellor Egerton in the Case of Pigot that if a power be reserved to make Leases by a Covenant without transmutation of possession the Chancery shall not help because the first is void in Law if upon transmutation of possession and the power be not precisely followed that doubtfull and rather most strong against help for then the Estate workes and the power gone and upon Wills no help causa patet antea fol. 1. and difference inter will and testament testament requires Executors will of lands 11. Octob. 1. Iacobi Young purchased lands in the name of one Mason to the use of him and his Heires dying without declaring any setled determination of this trust or confidence Dethicke a kinsman procures Mason to convey the lands to him and he conveyes it over to infants Mericke a nearer kinsman sues in Chancery as next Heire if the benefit of the trust appear to appertain to Mericke notwithstanding the conveyance to infants being decreed for them they shall hold by the decree during the minority And a proviso for the infants to assure at full age per Cook Attorney veniendo de Westm and there appearing no certain disposing thereof it was ordered that Mason should repay the money he had for making the conveyance to Dethicke and Merick to have the lands ordered for him 11. Octob. 1. Iacobi Those who are curious to have the defendants to amend their answers ordered first by the Lord Chancellor to put in sureties in Court for proof of the contents of their Bills according to the Statute 15. H. 6. or Iuramentum Calumniae were better perchance 13. Novemb. 1. Iacobi Commission to examine witnesses went out to Sir Aâ—exander Brett and others who made certificate against Sir Alexander of partiall proceedings Philipps Serjeant moved at the Rolls for a Commission to others to examine in whom the misdemeanor was in Sir Alexander or in the certifyers fuit negatum for such collaterall certificates are not required of the Commissioners but let them certifie the matters committed to their charge and if there be misdemeanor let the party wronged thereby make affidavit thereof and then take out his Attachment 13. Novemb. 1. Iacobi A release was offered to be deposed that it had been seene by some at the Barre it being affirmed that by casuall meanes it was lost but the Lord Chancellor said the oath should be that he saw it sealed and delivered and not that he saw it after it was a deed For in Munson the Justice his Case a Deed was brought into the Chancery and a Vidimus upon it being but a counterfeit copy and after the fraud discovered and the true Deed produced therefore none allowance to be given of a Deed without producing the Deed or proving the execution thereof and here appeareth what want we have of Notaries and their Deputies 16. Novemb. 1. Iacobi The Deane and Chapter of Bristoll made sundry Leases misreciting the name of their Corporation and an intricate Case of sundry such Leases made of one thing to divers men wherein the Lord Chancellor said that it was fit to help such Leases in Chancery being for reasonable time and upon good consideration contra of long Leases without consideration of fine or good rent and that Judges might have done well at the first to have expounded the Law so with averment that they were the same parties and so was the old law till now of late especially where the mistaking rose on their part who had the keeping of the evidences the which the Leases could not see but must take a Lease by the Colledge Clark in a writ where you may have a new no harme to abate it for a misnomer and yet in that case sometimes in old times an Averment of Comer per lieu nosme â— auter where they were sued by others and not named so by themselves 23. Novemb. 1. Iacobi Haule had a Dutchy Lease gotten upon untrue surmises and the King
aide in Chancery If a man grant a rent charge out of all his Lands and afterwards selleth his Lands by parcels to divers persons and the grantee of the rent will from time to time levy the whole rent upon one of the purchasors onely he shall be eased in Chancery by a contribution from the rest of the purchaseâ—s and the grantee shall be restrained by order to charge the same upon him onely A man recovered at the common Law a debt in one County where the obligation was made in another county against the Stat. 6. R. 2. c. 2. The Defendant sued and suggested in Chancery that by this meanes he was put from divers Pleas of which he might have taken advantage if the obligation had been sued in the very County and he had ayde there for the Chancellor said that he sued to hide the truth and against conscience also which cannot be so well found in any place as in the very County where a thing is done 9. E. 4.2 and 9. E. 4.15 A man shall not be prejudiced by formality or mispleading c. Touching Copy-holders Mr. Fitz-Harbert in his Natur. Brevium fol. 12. noteth well that forasmuch as hee cannot have any writ of false Judgement nor other remedy at common Law against his Lord therefore he shall have aide in Chancery and therefore if the Lord will put out his Copyholder that payeth his customes and services or will not admit him to whose use a surrender is made or will not hold his Court for the benefit of his Copyholder or will exact fines Arbitrary where they be customary and certaine the Copyholder shall have a Subpoe to restraine or compell him as the Case shall require Dyer 264. and 124 Fitz. Subpoena 21 First this Court forbeareth directly to examine any Judgement given at the common Law to which end the Statutes 27. E. 3. cap. 12.39 E. 3. cap. 14.4 H. 4. cap. 23. and 16. R. 2. cap. 5. were made and it seemeth that the common Law used some power to restraine such examinations of Judgements before all these Statutes for 13. E. 3. upon a recovery had upon a Quare impedit the Defendant sued for help in the Chancery and they sent a prohibition and upon that an Attachment against him Fitz-Harbert prohibition 21 the like hath been done upon suits in the courts of requests But yet 9. E. 4.65 one recovered debt upon an obligation in one county whereas the obligation was made in an other county and he complained in Chancery because he had lost some advantages which he might have taken if the triall had been in the other county which thing in effect was made a Law by the Statute 6. R. 2. c. 2. And in the Case of Paramore Ann. 3. 13. Eliz. A fine supposed to be levyed by an Infant was examined in Chancery after it had been allowed by examination of the Justices of the com Pleas but whether these and such other may seeme rather to examine the manner then the very matter and substance of the thing adjudged it is worthy of consideration Sir Will. Cordall Mr. of the Rols denyed to compell one to atturn here that was at liberty by the common Law in the Case of Sir Iohn Windham Chancellor Bromeley likewise denyed such compulsion generally but where the party quarrelled with the particular Tenants Estate or entreth iuto some part of the Lands in demise or hath covenanted for recompence for non atturnment there he utterly denyeth to inforce the atturnment Pasch. 21. Eliz. in Case of Philips and Doctor Sandford Such assurances as be used for the common repose of mens Estates the Chancery will not draw in question for a fine with Proclamation ought after the five yeares to be a bar in conscience as it is in Law so shall it be of a common recovery for docking the intaile Doctor and Student 33.155 So likewise it seemeth that the continued possession of the Bastard eisne shall prevaile in conscience against the right of the Mulier â—â—sne And albeit a feme covert may be thought to joyne with her Husband for fear in a fine of her lâ—nds yet after the five yeares it shall not be recalled for the generall inconveniences that may ensue to that highest assurance Doctor and Student 154. And if remedy in Chancery should be extended to a Collaterall Warrantye the same Saint Germaine saith that then all writings shall be examined If the extender undervalue the Lands as there is no remedy at the common Law 15. H. 7. Dupleges Case because the Debtor may help himselfe by payment of the debt so in conscience there ought to be no reliefe unlesse it were done by Covin. Idem Upon Nudum PactuÌ„ there ought to be no more help in Chancery then there is at the common Law neither against him that hath waged his Law in debt though peradventure falsely Idem Where a man made Title to a rent seck of which there was no seizin nor for which he had any action at the common law and prayed help here it was denyed upon conference had by the Lord Keeper with the Judges Michal 1596. A Copyholder dyeth leaving two daughters by divers Venters both which do enter and take the profits without doing fealties or paying fine and without any admittance by the Court and the eldest dyeth without issue This onely possession sufficeth to order the Copyhold to the collaterall heir of the eldest and not â—or the sister of the half bloud 12. Eliz. Dyer 291. A Copyholder in Fee hath issue a daughter and a son by two venters the Lord committeth the custody of the Land and of the son to the Mother who taketh the profits and the son dyeth before any admittance this Copyhold was ordered also for the Heire Collaterall against the Sister of the halfe bloud because the Mothers possession serveth for the son Anno 12. Eliz. Ibid. The Lord devised a Copyhold to C. for life and after passed the Freehold of the soyle thereof by livery of seizin thereof to B. for life reserving a rent and then by fine levyed doth grant the said Land to the said C. come ceo que il ad de son done c. And C. accepteth the said rent of B. and thereupon it was questioned whether or no the Copyhold of C. were gone in conscience 28. H. 8. Dyer 30. A Copyholder within age is admitted and the Lord committeth the custody to the Mother of the Infant whose under-Tenant cutteth down Timber Trees which being presented the Lord seizeth the Land for the forfeiture during still the nonage and keepeth it till he dyeth and it descendeth to his Heire who and his Father had kept it 40 yeares and for that the Copyholder moved suite in the Chancery 29. yeares since which was now revived and the forfeiture was taken during his minority he was restored to his possession
hath the deed shall be compelled here to shew it for the defence of the others Title 9. E. 4.41 A. made a Deed of Feoffment to his own use to B. but gave no livery of seizin A. dyeth C. his heire bringeth a Subpoena against B. but by Morton Master of the Rolls C. was denyed help here because B. had nothing in the Land and if he abate there is remedy at the common Law against him 18. E. 4.13 Where certainty wanteth the common Law faileth but yet help is to be found in Chancery for it for if the Queen grant to me the goods of A. that is attainted of Felony and I know not the certainty of them yet shall I compell any man to whose possession any of them be come to make Inventory of them here 36. H. 6.26 Cur. It is most usuall in Chancery to demand evidence concerning the complainants Lands to which he maketh Title which are not in Châ—sts Baggs or Boxes and whereof he knoweth not the Date c. And in that Case the Defendant made Title to the Lands and justified the detaining of the evidences for maintenance of his right whereupon it was ordered that the complainant should bring an action for the Land at the common Law to which the Defendant should plead in chiefe and that he for whom the verdict should passe should also have his possession stalled here 28. Eliz. If a man have cause to demand land by action and knoweth not the Tenant of the land by reason of the making of secret Estates it hath been lately used to draw them in by oath to confesse the Tenant but it is now doubted A Tenant in common of a Manor for long time occupyed wholly by the other Tenant in common which knoweth not the quantity of the Mannor by reason the other hath also sold Lands intermingled had the sight of the Court Rolls and Writings of his companion concerning onely the quantity of the Mannor but not concerning the sold Lands nor his Title to the Mannor and the other was ordered also to shew the like on his part Capell and Mym 1599. The Chancery also giveth help for perfecting of things well meant and upon good consideration As if in a Feoffment of Lands for money the word Heires be omitted in the deed Audeley Chancellor 9. H. 8. said that he would supply it A man bought debts due upon Obligations and gave his own Obligation for the money to be paid for them and because he had not quod pro quo but onely things in action and the seller would not use action upon them for the benefit of the Vendee It was ordered here by the assent of the Judges thereto called that the Vendor should bring in the Obligation to be cancelled 37. H. 6.14 But if a man pay money upon an Obligation or a Statute that is single the Obligee or Counsee shall not be called hither to cancell it though the other had no acquittance upon the payment made 22. E. 4. b. les Justices and Doctor and Student 23. who said that a man shall have no ayde here to supply his folly As if he pay a debt upon a single Obligation or Statute without taking acquittance But Robert Stillington Episcopus Bathoum said that deus est proâ—urator futurus I thinke if money be paid upon a redemption of a morgage by Indenture without taking an acquittance the morgage shall bring in the Indenture to be cancelled here So if a man sell lands in two Counties for money and maketh livery in the one onely he shall be compelled in conscience to perfect the assurance by another livery Doctor and Student 37. for the contract faileth onely in a circumstance or ceremony A lease is made of a House and Woods wherein it is covenanted thâ—t the Leassee shall have Housboot and Fireboot By this it is implyed and meant that he shall not have any of the Woods to any other purpose but that they belong to the Lessor and it is usuall to help him in the Chancery to them leaving sufficient for these boots A Messuage was demised cum pertinentiis onely but for that sundry Lands had been occupyed therewith for the same rent and by the same words the Lord Chancellor Bromley by advice of the Judges ordered those Lands should now passe also yet in Law they do not passe as some Justices hold The Lord North demised a Mannor excepting the Court Baron and perquisites c. the exception was found void in Law and the Tenant Lady Dacres would not make suite to the Court kept by the Lord North But the Lord Keeper Puckering assisted with some Judges decreed her to make suite for that it was plainly so intended A man made a gift of his goods of intent to defraud his creditors and yet continued the possession of them and took sanctuary and dyed there now his Executors having the goods were charged towards the Creditors 16. E. 4.9 So if a Lessee for years demiseth parcell of the Terme to another and covenously forfeiteth his whole Lease for any condition broken and taketh the Land back in Lease againe his Lessee shall find help in Chancery Crompton 64.65 And Stillington the Chancellor 8. E. 4.4 was of opinion that pro laesione fidei or breach of promise a man was at liberty to sue either in the spirituall Court Canonicae Injuria or else in the Chancery for the damage accrewed by the breach A man had Lands of ancient deâ—neasne in extent for debt and they were recovered from him by the sufferance of the Vouchee whereby he was ousted in this Case he shall be holpen here Morton Chancellor per Assent Bryan and Hussey Justices 7. H. 7.11 If one that is bound with another for the debt of the other payeth it at the day for fear of Arrest now if he sue his counter-bond which he hath to save him harmelesse non est damnificatus is a good Plea at the common Law against it but yet the Chancery will give order for his repayment Mich. 31.32 Eliz. And whereas such a surety paid the debt and sued the principal upon his Obligation to save him harmlesse the principall brought a Subpoena and alleadging that he having delivered goods into the hands of the surety to save him harmlesse prayed an Injunction to stay his suite but because the surety made another title to the goods the Court would not stay the suit for him 16. E. 4.9 Where Deeds and Mynuments do concern as well the defence of the Tenant for life his Title who also possesseth the Deeds as the right of another in reversion or remainder it is usuall to have them brought into this Court for the avoyding all perils and the indifferent custody of them Dixies and Hillary 40. Eliz. A Lease is made for life the remainder for life the remainder over in Fee the first
Lessee maketh waste and because he in the Fee hath no remedy by the common Law and waste is a wrong prohibited he shall be holpen in Chancery Crompton 48.6 And not every barre or stopell in Law ought also to bind in Chancery For if a legitimate daughter and her sister a Bastard do joyne in suing of their livery this ought not to barre in conscience howsoever it may estop in Law Doctor and Student 34. It is usuall in a Bill of Chancery ro object that the Case hath proper help at the common Law and 21. H. 7.41 where one assumed for 10 l. to Lands to another It was said he might have action upon his Case and not to sue in Chancery to compell him to make the Estate but these helps be divers and not the same for by the one he seeketh the Land and by the other he demandeth damages onely And therefore I see not but that the Petition in Parliament might have prevailed if it had stood upon that point onely and at this day it is taken for a good cause of dismission in most causes to say that he hath remedy at the common Law and where an action upon the Case for a Nusans and damages onely are to be recovered the party may have help here to remove or restore the thing it selfe quod est idem A Leassed lands for 21. years and let other lands at twill to B. that had lands in the same Town who makes a Lease for life to C. of his own lands and of A s. and then by Fine all is conveyed to B. he payes the rent to A. still the five years passe by the opinion of all the Judges delivered to the Lord Keeper this fine shall not Bar A. quia apparet per le payment del rent and cest case fit subscribe per Popham Andersan 12. Feb. 160 1.40 Eliz. Nota que Executor non poit estre a trust unlesse he have an especiall gift in the will and that may then be in trust otherwise the generall trust of an Executor is to pay debts and legacies and of the surplusage to account to the ordinary in pios usus 44. Eliz. 8. Iunii 1602. A woman sole takes consideration for making a Lease for 21. yeares and then marries and she and her husband made the promissed Lease at the 21. yeares end the Lessee surrenders and takes a new Lease for 21 years more the husband dyes the wife oustes the Lessee who sues in Chancery to have the first Lease continued rest for the first 21 yeares and not remedyed here the surrender being voluntary 44. Eliz. Two Joynt-Tenants the one takes the whole profits no remedy for the other except it were done by agreement or promise of account 8. Iunii 1602. 44. Eliz. A defeÌ„ not being a principall defendant might be read at a witnesse if he were examined on the plaintants party in another suit betweene other persons in Case of Kingston upon Thames 10. Iunii 1602. 44. Eliz. A custome of discent in a Mannor and many other things were in controversie between the Lord and Tenants and between the Tenants themselves And in the tenth Eliz. a generall agreement made by Deed indented and a Bill in Chancery for establishing the same but no Record to be found but the Deed inrolled though all the Tenants of the said Mannor shall be stopped in the Chancery to speak against this Cac est quae le Repes del realme notwithstanding pretence was made Philips being of councell with the defendants that agreement cannot alter a custome in Law that some were infants some â—eme coverts at the time that the Lord was but Tenant in taile of which opinion was Mr. Cooke Attorney generall and Justice Gawdy 10. Iunii 1602. 44. Eliz. If a Statute be acknowledged in my name by a stranger I shall have an action of disceat against him but I shall not avoid the Statute or recognizance but if it be acknowledged by one of the same name with me I shall avoyd it by Plea 23. Iunii 1602. 44. Eliz. The opinion of the Courts is that uses may be raised by covenant for Jointures but power to make Leasses in that sort cannot passe but it may be done by Fine or transmutation of possession if the covenant be that the owner will stand seize to those uses 27. Iun. 1602. 45. Eliz. Whether Copyholders may be intailed and held that they may not by the Statute de donis conditionalibus but by the common law denante and that surrenders or plaints in nature of fines and recoveries may bar these state tayles as well in the Court Baron as at the common law if the custome have been such which is the rule in these cases 3. Feb. 1602. 45. Eliz. Administrators in nature of a guardian to an infant being Executor exhibits on his behalfe a Bill in Chancery the infant depending the suit comes of full age this abates not the Bill by the opinion of the Lord Chancellor Egerton 7 Feb. 1602. 45. Eliz. Doctor Ford by his will devised certaine lands to his wife in these words non per viam fidei coÌ„missâ—â— for which his sonne might sue her but hoping if his Son grew thrifty that at her death she would leave the remnant of these Leases to him she married Greysill but before marriage Greysill wrote unto her that she should have the disposing of those Leases at her death after the marriage Greysill sells the Leases Ford brings his suite in Chancery and had no help by the opinion of the Court 31. Maii 1. Iacob 1603. Inter Tomley and Clench It appeared by testimony of ancient witnesses speaking of 60 years before and account Books and other writings that Francis Vaughan from whom Tomley claimed was mulier and Anthony from whom Clench claimeth was a Bastard and the possession had gone with Tomley 50 yeeres In this Case the Lord Egerton not onely decreed the possession with Tomley but ordered also that Clench should not have any tryall at the common law for his right till he had shewed better matter in the Chancery being a thing so long past it rested not properly in notice de pais but to be discerned by Books and Deeds of which the Court was better able to judge then a Jury of Plough-men notwithstanding that exceptions were alleadged against those ancient writings and that for the Copyhold-land the verdict went with Clench upon evidence given three dayes before Serjeant Williams that Anthony was Mulier 31. Maii. 1. Iacob 1603. Sir Edmond Morgan married the widdow of Fortescuhe had his wives lands distrained alone by the Grantee of a rent-charge from her former Husband and therefore sued the Grantee in Chancery to take a ratable part of the rent according to the lands he held subject to the distresse and notwithstanding the Lord chiefe Justice Pophams Report who thought this reasonable the Lord Chancellor
defendant was served with a Subpoena at his suit got an attachment against the defendant whereupon he was apprehended and returned languidus It is ordered that the attachment be discharged by supersedeas the defendant paying 20 s. 6 d. to the Warden of the Fleet and the ordinary charges to the plaintant Brearton plaintant Ap Roberts defendant Anno 22. Eliz. It is informed that Coleston one of the defendants examined his own wife as a witnesse It is thereofore ordered the plaintant may take a Subpoena against her on his behalfe and if Colston will not suffer her to be examined on the plaintants party then her examination on the said Colstons party is suppressed Bent plaintant Allot and Colston defendants Anno 22. Eliz. Upon the hearing of the cause it appeared that the suit was to be releived of a promise made by the defendant to the plaintant to surrender a lease upon payment of 100 Markes by the plaintant unto him and for that the matter is meet for the common Law therefore dismissed Grevill plaintant Bowker defendant Anno 22. Eliz. The Court was informed by one Palmer that the three defendants are his servants and were served with Subpoena to be examined before the Town Clark of London who refused to be there examined because the matter is not depending in London but in her Majesties Bench and yet Attachment is gotten against them which kind of examination of witnesses this Court taketh to be unorderly and therefore ordered the Attachment be discharged Price plaintant Tench Holland and Packhouse defendants An. 22. Eliz. The Earle of Huntingdon Presedent of the North signified by his Letters to the Lord Chancellor that the lands for which the Bill is exhibited were ordered for the defendant by the Counsell of the North parts where the parties dwell and land lyeth and the now plaintant upon serving his Subpoena was ordered by the councell there to surcease his suit in this Court and stand to the order of the said counsell and yet the plaintant hath procured an Attachment against the defendant therefore ordered the Attachment be discharged and the matter dismissed Harrison plaintant Harrison defendant An. 22. Eliz. The defendant demurred because he is the Lord Treasurers man and therefore ought to be priviledged in her Majesties court of Exchequer which cause of demurrer the Court allowed not for that the defend can have no priviledge unlesse it were in such a case as the plaint might have remedy in the Court of Exchequer Lewin plaintant Fawdesley defendant An. 22. Eliz. The defendant made oath the plaintant shewed him a Subpoena holding it in his own hand and said it was against him but would not let him have it or see it so that he might read it neither would he deliver him any note of his appearance nor tell him the same but took witnesse that he had served the Subpoena and about an hour after came again to the defendant saying you were desirous to see the Subpoena here it is and thereupon shewed the labell to the defendant but in such sort as he could not see the returne whereupon the defendant appearing found no Bill therefore Attachment against the plaintant for misdemeanor Mead plaintant Crosse defend An. 22. Eliz. The plaint is Grandfather on the Mothers side to whom the Lands cannot come by the death of the infant exhibiteth a Bill against the Grandfather on the part of the fathers side to have the education and bringing up of one Richard Edge an infant who is seized of an Estate Taile of Lands the remainder to the defendant and to have the disposing of the profits of the Lands But ordered with the defendant for that it appeared there were divers remainders between the defendants and the infants estate Sweetman plaintant Edge defendant An 20. Eliz. Francis plaintant Sacheverill defendant The defendant is adjudged to pay to Iohn Hide 20 s. costs he appearing upon a Subpoena to testifie on his behalfe An. 22. Eliz. The plaintant purchased Lands of the defend An. 2. Eliz And had a Recognizance then acknowledged unto him for performing Covenants of the bargaine and sale and put one in trust to get both the indenture and â—ecognizance inrolled and paid him for the same and now being evicted out of the possession of the lands came to take out a scir. fac upon the Recognizance but finds it not inrolled and therefore desireth the same might now be inrolled It is ordered that a Subpoena be awarded against the defendant to shew cause why it should not and M. Solliciter who is present at the motion is to give notice to some of his Clients who have purchased as he alleadged parcell of the lands to shew cause why it shall not be inrolled Siddenham plaintant Harrison defendant An. 22. Eli. The defendants informe that the Bill is exhibited for certaine Lands parcell of the Dutchy of Lancaster and therefore ordered that for so much it shall be dismissed Price plaintant Lloyd Owen and Read defendants Anno 22. Eliz. The matter upon hearing appeared to be for a promise wherewith the defendant chargeth the plaintant and 12 d. in money accepted upon the said promise whereupon some trials or non suits have passed it is orded that for the ending of the said matter of promise that the matter be referred to the Common Law to be tryed Sutton plaintant Erington defendant An. 22. Eliz. The defendant informed he was called upon by Subpoena dated the 8. of February and by answer saith the said Iane Piers was married the 8. of February and so at that time purchasing the Writ a woman Covert therefore the defendant is dismissed with 13 s. 4 d. costs Iane Peirs plaintant Iohn Cawse defendant Anno 22. Eliz. The defendant was in possession at the time of the Bill exhibited the plaintant entered upon him the defendant desired that either he might have an Injunction for his possession or else that the cause might be dismissed which the Court thought reasonable it is ordered the plaintant shall shew cause why it should not be granted Hill plaintant Portman defendant Anno 22. Eliz. The plaintant Thomas Hilliar exhibited his Bill against the said William Kendall that the said Thomas Hilliar was seized in Fee of two Messuages 70. Acres of Pasture Furzes and Heath in Lanlivery parcell of the Queenes Majesties Dutchy of Cornewall and thereupon a prohibition against the said Will Kendall libelling in the Spirituall Court for Tithes as Farmer to the said Batten Vicar there pretending that right of Tythes for lands holden of her Majesty as of her Dutchy of Cornewall ought to be determined in this Court and also that the said Iohn Hilliar had exhibited the like Bill and procured a prohibition out of this Court against the said Batten It is ordered a Subpoena be awarded against the plaintant to shew cause why a consultation should not be granted Hilliar and Hilliar