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A37456 Certain assayes propounded to the consideration of the honourable committee for regulating the proceedings at law. Whereby it is made evident that most cases now determined in Chancery and other courts of equity, may be reduced to tryall at law. To the great ease and benefit of the Commonwealth. S. D. 1652 (1652) Wing D85B; ESTC R213504 2,516 8

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CERTAINE ASSAYES Propounded to the consideration of the Honourable COMMITTEE for regulating the proceedings at Law Whereby it is made evident that most Cases now determined in Chancery and other Courts of Equity may be reduced to Tryall at Law To the great ease and benefit of the COMMONWEALTH LONDON Printed for Thomas Creake 1652. TO THE RIGHT HONOURABLE the COMMITTEE appointed for the regulating proceedings at LAW May it please your Honours TAking to consideration the great delay and charge that continually happens to the Clyent by prolix and costly suits in Equity and considering the flourishing condition of the Common Law even in the Swording times of the three first Edwards and for some good space after when few or rather no suits were determined in an equitable course and finding the inconveniency of them at this day which no man can wonder at when the Lord chiefe Iustice Fairfax in their infancy complained 21 E. 4. 232. against them and the pleaders or Counsellers that promoted them the same having been more proper for actions of the Case at Law And also observing the great care former Parliaments have used to reduce causes from Equity to Law as appeares by the Act of 27. H. 8. of transferring uses 13 Eliz. for suppressing frauds and divers others and having formerly published some Proposals in order to regulating the proceedings at Law many of which you have been pleased to take into consideration hath made me to adventure upon your clemencies this once more by submitting these second considerations to your judgements assuring my selfe that by your patronage and favouring the same with your eye and labours something may thereby be produced to the benefit of the Common-wealth and the Common Law cleared of many aspersions by the ignorant cast upon it by reason of the delato●y and costly proceedings in all Courts of Equity Which is the greatest of the ambition of him that herein is Your most humble servant and welwisher S. D. The Assayes follow 1. FIrst it is propounded that all Coppyholds be made Freehold and Commissioners may be assigned into all Counties with rules for the setting down rates between Lord and Tenant and that all Lands c. may be devisable and descendable at Common Law 2. That the execution and perfecting of all Contracts and agreements for Lands c. may be compelled at Common Law upon Action of the Case as now in Chancery with dammage onely to be taxed for the delay and that all mean Estates and privyes may be bound that are either parties to the suit or the judgement by Scire facias 3. That uses and trusts be transferred of Leases for years debts goods c. as it is now of Freeholds by 27 H. 8. with some provision that the Lessees estate may not merge in the Freehold to the prejudice of the partie 4. That Legacies may be sued for Morgagers and obligers relieved against forfeitures and Tythes recoverable at and by the Common Law as formerly proposed 5. That such proofe of Deeds c. wanting lost c. may be allowed at law as is now in equity 6. That speciall actions of the case may be brought at Law in all equitable cases according to the Lord Fairfax his advice in the 21 H. 4. 23. 7. That the states of Joyntments c. may not survive and they and coexecutors may have speciall actions of the case against each other for all Equitable injuries 8. That imperfect and deficient conveyances made upon valuable and good consideration may be allowed at Law according to the intent of the parties expressed or proved and that an action of the case may lie against the partie and his heires c. to compell them to make good the same 9. That Joint-sureties may have actions of the Case against each other for contribution and against the principall in the nature of a Writ de plegiis acquietandis to be discharged from engagements 10. That non compos mentis may have the plea in his own person 11. That wast and remedy for Rent may be had by the Purchaser against the Tenant after notice and the Reversion passe as well without as with attornment in all cases 12. That union of possession within memory and above 60 yeeres may not prevaile against usage by all the time of present memory but that prescription therein may be allowed 13. That where deeds c. belong to two or more and are kept by one in trust for the rest and not produced upon reasonable request upon trials c. charges being tendred for the defence of the common title that an action of the case may lie to recover the deeds and dammage 14. That detinue may lie for deeds c. though the date be not known and that like Action may lie for the trustor against the trustee for deeds c. and that the release or discharge of the trustee without consent of the trustor may not be valid where either the trust is expressed or known 15. That assignes of Statutes Judgements Recognizances Bonds Bils Debts c. made for valuable consideration and not for maintenance may sue the same in their own names and discharge them at pleasure and that the release or discharge of the assignor after notice shall not be valid and that if the assignor notwithstanding such notice shall sue c. garnishment shall lie and interpleading as is now used in detinue c. 16. That upon bils of discovery the Plantiffe may proceed no further then to Bill and Answer and to examine the defendant upon Interrogatories if the Case or partie desire it and then the Answers to be used at Common-law 17. That Depositions of witnesses in perpetuall memory may presently be published and used upon Trials for the ease of the Clyent where the witnesses be sick impotent far distant or doe not appeare upon due service or for other reasonable cause 18. That Costs and Damages may be given to the parties where they are staid by Injunction for delay or upon unjust or untrue surmises as was anciently as appeares by 21 E. 4. 74. and the same to be ascertained by the oath of the party or other competent witnesses 19. That Fee-farmes Heriots c. may be good in Law as they were before the Statute of quia emptores terrarum and are at this day decreed in equity 20. That in case any Court of Equity shall proceed in any cause wherein there is or shall be proper remedy at Law that then the Courts of Law m●y prohibit them as anciently and that the partie upon the prohibition may recover Costs and dammage for the vexation Lastly because the Proposer of these Assayes knoweth his own weaknesse and unworthinesse to propose any thing of this kinde and knowing how apt humane nature is to erre and to transcend its due bounds and these his Assayes being the first of this nature that hath been proposed and being willing to offer his mite at the After of so worthy a worke humbly and heartily desires the Reader that if he finde any thing herein that he conceives may be inconvenient that he will then either in private or publique make his Animadversions with his reasons or if he shall think fit to adde or propound any more rationally as it will be a very acceptible worke to the Commonwealth so it shall thankfully and heartily be subscribed to by his very humble servant S. D. FINIS