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1 FIrst, Her Highness doth ordain, that all the Records of the said Court, of the first Fruits and Tenths, shall be hereafter pla∣ced
in the said Exchequer, and shall be of the same force and strength, as they were in the said Courts of the said first fruits and Tenths.
Item, her highness is pleased and ordaineth that there shall be in the said Exchequer, a certain Office, called the Office of the Re∣membrancer of the first Fruits and Tenths which Office, for divers and sundry great con∣siderations for and at the first erection only, shalbe exercised by two persons by her high∣ness to be nominated, which shall joyntly ex∣ercise the same office during their lives, and after the death of the Survivor of them, the said office to be exercised by one of them.
Item, That all Records belonging to the same court of the first Fruits and Tenths, shall be in the charge and keeping of the said Officer.
Item, That the said Officer shall make and deliver the true values of all spirituall promo∣tions, dignities, and benefits within the Realm of England and Wales, and other the Queens Dominions to such persons as shall sue for them, taking for the same like fees as were wont to be paid before the dissolution of the first fruits and Tenths.
Item, The same Officer shall take composi∣ions of the first Fruits of every Arch Bishop
prick, Arch-Desconry, Deanry, Prebendary, Parsonage, Vicaridge, and of every other dig∣nity, office, benefice, promotion spirituall a∣foresaid.
6. Item, The same officer to make all wri∣tings obligatory, Indentures, and all other writings concerning the same first fruits and tenths, and shall see the same sealed and deli∣vered, by the parties to the Queens highness use, and also shall make Acquittances and o∣ther discharges to such as shal pay their mony in hand without making bonds for the same, taking fees accustomed of the parties for the same.
7. Item, The said Lord Treasuror to call such persons as shall please him to his assi∣stance at the declaration of the foresaid ac∣counts, or any officer or auditor of the same Court, that to them shal be thought meet for the passing of the same accounts.
8. Item, The accountant or accountants that shall not come to determin his or their accounts in form aforesaid, his or their goods and lands shall be seised to the Queens use, no∣mine districtionis, and shall loose the benefit thereof, and that shall have the allowance of the same in discharge of his debt according to the ancient custom of the Exchequer.
9. Item, all Sci. fac. attachments, and writs of distresses for debts, or accounts concerning the premisses, shalbe made by the Treasurers Remembrancer from time to time, as to the discretion of the Court in that be half shall be thought meet and convenient, according to the ancient custom and course of the Court.
10. Item, All Letters Patents of any Man∣nors, land, tenements, or other hereditaments or concerning any annuities, pardons, or o∣ther such like, shalbe inrolled in such office of the said Exchequer, as by the discretion of the Lord Treasurer and the said Court shalbe ap∣pointed, the parties to pay fines according to the ordinance and statute in that behalf pro∣vided.
11. Item, All recognizances of payments of any farm, or any debt, of or for any part of the premisses, to be inrolled in the Remembran∣cers office, and to be taken in the open Court, when the Term is open, & if the Term be not open, then by the chief Baron, and in his ab∣lence, by any of the Barons, and by force of a Dedim. Potestat. if necessity shall require, ta∣king for every such recognizince, taken out of the court, 6 s. 8 d. only whatsoever number of persons be bound in the same, and for the entry of the same recognizance, the said Re∣membrancer
shall have, and take for his fee of and for every Recognizance of 41. and up∣wards, 3 s. 4 d and no other or more Fees to be taken for a Recognizance, whatsoever number of persons be bound in the same.
12 Item, that the said Sheriffs or other ac∣comptants shall yearly pay all such summes of money, as shal be due to anie person or per∣sons for any Annuities, Fees, pensions issueing or going out of any of the premisses according to their grants allowed and inrolled, unlesse they shall have speciall Commandement by the Court to the contrarie.
13. Item, that the Farmors, and Lesses shall be bound to the Queen, and by Recog∣nizance to performe their Covenants in their Leases in such forme, as by the Court shall be ordered.
14. Item, all Warrants for leases to passe by the Lord Treasuror, and if the yearly rent of the land to be letten, shall be above the summe of forty shillings by the yeare, then the same lease to passe under the great Seale of England, and if the rent be above the value of 71. 13 s. 4 d. then every such lessee to pay the Fees of the Signet and privy Seale, as here∣to fore in like Cases hath beene accustomed; And if the land to be letten, doe passe not the
yearly rent of 40 s. then the Lease to passe the seale of the same Court of Exchequer paying 6 s. 8 d. to the Queens use, 3 s. 4 d. to the Chancellor of the said Court, and 4 d. to one appointed to Attend the seale for his Atten∣dance, and wax. And the said Leases under the value of 40 s. to be alwayes made by the Clark of the Pipe, and filed together for every yeare by themselves, and there to be inrolled within the said Office, as the said Clark of the Pipe may report the Indentures for the more surety of the parties, taking for the inroll∣ment as shall be ordered by the Court.
15. Item, the said Lord Treasuror shall not have any Authoritie to make any lease in Re∣version of any part or parcell of the premis∣ses, or of any woods, or anie Mannors in grosse for the terme of certaine yeares without the Queens highnesse speciall Warrant to him to be directed in that behalfe, and then Warrant to be made by the Lord Treasuror of England in forme aforesaid.
16. Item, the Lord Treasuror taking to him the Advice of the Chancellor, under-treasu∣ror, and cheife Baron or two of them, shall have Authoritie to assesse Fines for any Lea∣ses of any part or parcell of the premisses to
be made by the said Lord Treasuror in forme aforesaid.
17. Item, the same Officer to write, and make all manner of processe, Commissions, Entries, Books, Judgments, and decrees of the Court, with all other writings and mini∣ments whatsoever, aswell for the arrerages of such first fruits as for all Tenths, and Subsidies of the Clergie due to her highnesse heires, and Successors by such speciall persons their Sure∣ties, Farmers, and occupiers, taking therefore such Fees of the parties, as were used before the dissolution of the same Court of first fruits and Tenthes.
18. Item, all Certificats returned upon any Commission issueing out of the said Court of Exchequer concerning anie first fruits, Ten∣ths, or Subsidies aforesaid the valuation of any Ben••fice, or promotion spirituall omitted in the first Taxation or otherwise, for any mat∣ter accustomed to be determined in the said Court of the Exchequer in the charge of the said Office, and there to be ordered.
19. Item, all such Certificats as the Arch∣bishops and other Collectors of the Tenths, and Subsides of the Clergie, made against the Incumbents resusing to pay their Tenths and Subsides being exhibited before the
Court of Exchequer, and by them allowed, shall remaine in the Charge of the said office of the Remembrancer of the first fruits, and Tenths, in the place to be appointed for the same, to the end that processe may be made against such Incumbents as be in them con∣tained.
20. Item, that the same Officer shall year∣ly make a Leger of all Compositions of first fruits taken, and to be taken, wherein shall be contained the name and shire of the Benefice so compounded for, the samm, and name of the Incumbent.
AN English bil is a petition in English ex∣hibited by the plaintiff to the Lord Trea∣surer Chanceller and Barons of the exchequer in case where the plaintiff supposeth he hath right to recover the possession of lands or goods deteined from him or debts due to him or to have remedy for some other wrong done to him by the defendant that he hath noe evi∣dence nor specialty to shew forth nor can make any such proofe as is required by the strict course of the Common Law to recover
or have remedy for the same, but supposeth that it lyeth in the defendants owne know∣ledge and that he will confesse the same in his answere. And in case where the plaintiffs sued at Common Law for the possession of any lands or for any goods, chattells, Debts or o∣ther things against which he can make noe suf∣ficient defence by strict course of the Common Law but in equity and good conscience ought to be releived and get either wholly dischar∣ged or the extremity mitigated and modera∣ted and supposeth that the defendant will confesse in his answere the truth of the matter by him alledged.
Every plaintiff that shall exhibite any such bill ought to be priviledged either in person as an Officer or Clerk of the Court or servant to some of them or an accomptant or Debtor to the king or otherwise or else in the cause as if that concerne the king in the inheritance, pos∣session or intrest of any lands, tithes, offices, goods, chattels or Debts wherein the plaintiff likewise pretendeth to have Interest in right of the King. or if the plaintiff besued by Eng∣lish bill or action or extent or other proces in the same Court for the same matter.
The Kings Attorney also may exhibite En∣glish Bills in the Exchequer for any matter
concerning the King in inheritance or profits and in like manner any person that findeth himselfe greived in any cause prosecuted a∣gainst him for and on the behalfe of the King or any patent by grant of the King may exhi∣bite his English bill against the Kings Attor∣ney and such others as are interested in the cause to be releived in equity. In which case the plaintiff must Attend the Kings Attorney with a Coppy of his bill and procureth him to answere the same and the Kings Attorney may call any that are interested in the Cause or any officer or others to instruct him herein touching the makeing his answer so as the King be not prejudiced thereby and his an∣swere is to be put in without oath.
The parties in every such bill between party and party must serve the defendant with pro∣ces of Snbpena or if the defendant be a Baron of Parliament spirituall or Temporall with a∣letter under the hands of the Lord Treasurer Chancellor Barons or some of them whereby he must berequired to appeare at a day certain contained in the writ or letter proces of Sub∣pena may be sued forth either before or after the Bill exhibited And if the Defendant do not appere at the day of returne of the writ then upon Affidav. made of the servinge thereof an
Atachment is made of course against him for his contempts and after an al. pl. atachment an attachment with exclamation and after that either a writ of attachment of rebellion directed to the sheriff or a Commission of re∣bellion directed to such Commissioners as the plaintiff wil name for which Commission there must be warrant of the court but when aletter is made to be sent to any Baron or Bishopps for apparance before the Bill be in and if he will not appear upon that then proces of Sub-pena must be served and upon default then proces of Contempt as aforesaid And the like course of proces is to be persued against the defendant at the suite of the Kings Attorney.
When the defendant doth appear if the Bill be not put in he may move to be dismissed with costs, whereupon the Court doth usually give three or four dayes to the plaintiff to put in his English bill or the Defendant to be dismis∣sed with costs upon a bill of costs to be Ten∣dred by him to one of the Barons to be taxed.
And if the defendant do appear upon pro∣ces of contempt he must pay costs such as the Court shall think fit according to the number of the proces that hath been prosecuted against him but the ordinary Costs in ten shillings upon each Attachment.
After the defendant hath appeared he hath eight dayes of course to make his answer to the bill and if he do that not with in that time a Rule is given of course in the Book of ap∣pearance for an Attachment within fower dayes, the defendants Attorney being called thereunto.
If the defendant do Demur upon the Bill for that neither the plaintiff nor the cause is privi∣ledged for want of sufficient matter of the bill or put in a plea in Bar of the proceeding upon the Bill, The plaintiff if he will maintaine his Bil must move the Court for a day to heare the Counsell of both sides and the Bill and Demurrer (if need be) if the Counsell do not agree in opening the matter.
If the defendant do plead any matter to bar the proceedings upon the bill (other Then matter of Record of the same Court) he must be sworne to his plea as he likewise must be sworne to his answere if he answere in the cheif of what quality soever the defendant be Except it be the Kings Attorney who an∣swereth a bill against the King or a Corporati∣tion who are sued by the name of theire Cor∣poration.
Also if the defendant doe make an insuffi∣cient answere the plaintiff must put in his ex∣ceptions
in writing and move the Court to give the defendant a day to amend or main∣taine his answere in which case if the defen∣dant be in Towne he is to take notice by the Order and to perform the same. But if he be gone before he is to be served with a Subpoena ad faciendum meliorem responsionem if his an∣swere be over ruled upon heareing or an at∣tachment made against him or an insufficient answere is to answere.
The defendant that hath dayes aforesaid either upon demurer, plea, or insufficient an∣swere if he cannot maintaine the same but that the Court doth order him to make a bet∣ter answere, he must pay such costs to the plaintiff as the Court shall think fit, if he do maintaine his demurer he is to be dismissed with costs.
If the defendant put in plea where in he plea∣deth matter of record to disable the person of the plaintiff as outlawry or the like which is no bar to the matter but a delay of proceed∣ing untill the plaintiff be inabled, to sue he must together with his plea produce the record which warranteth the same.
If the Defendant after he hath appeared and taken a copy of the Bill, findeth that he can not make answer to the same without sight of
his evidence, which are in the country far off or if there be more then one defendant, and, one or more appear, and the rest do not ap∣pear, and the defendants that do appear can∣not answer without conference with the rest that are in the country upon Affidavit made upon such or the like allegations, he may have time to answer, untill the beginning of the next Term, either in person, or by commissi∣on, as the court shall think fit.
Or if Affidavit be made, that the Defen∣dant is aged, impotent or sick, and not able to travell, he may have a commission to take his answer, and sometimes when the Defendants dwell far off, the court, in favour doth grant a commission without any Affidavit, to take their answer in the country, in all which cases where a commission is granted for the defen∣dant, the plaintiff may name one or two com∣missioners, to see the defendant sworn to his answer, & a promise must be in the commissi∣on, that the Plaintiff or his commissioners shal have notice of the day and place of execution thereof certain dayes before.
If the Defendant have matter to plead to an English bill, and be not able to come to put that in upon oath, he may by speciall order of the Court, have a commission to take his plea
and the plaintiff may proceed upon plea, as upon answer, if he think good, but if the De∣fendant have the favor to take his answer or plea, he may not after put in a demurrer.
If the matter of the bill be releived against a suit, at or in the Ecclesiasticall court, and the Defendant stand in contempt, either for not appearing or not answering, or if he de∣sire to have a commission to take his answer, the court upon the motion of the plaintiff, doth usuall stay the Defendants proceedings untill he have answered another order there∣upon taken either by injunction or order of the court.
If the Defendant be served with processe to appear to a bill and be in prison, and will not appear, or if he do appear and be in prison, and will not answer, the court doth usually order, that he shall be kept close prisoner un∣till he yeild obedience to the Court.
Quoere in the cause whether the Defendant hath appeared and will not answer (as in the Chancery & Star Chamber) the Court will de∣cree the matter against him for confessed, that were to be seen if here be any order therefore made to the contrary in any argu∣ment or debate in the matter, and what rea∣son
there should be of a contrary course in this Court.
After the Defendant hath answered (or be∣fore if there be good cause) the Court doth grant injunctions, either by quieting of pos∣sessionor, stay of suits at the common Law, and the Ecclesiasticall courts untill the hearing of the cause, also there be presidents for stay∣ing of suits in the star chamber and Chaneery and other courts of equity.
If the Defendant put in a demurrer with an answer over to the matter of the bill, the plaintiff may proceed upon that to bring the cause to hearing, and the Defendant at the hearing, may stand upon the demurrer, untill the Court do over rule that, but after the an∣swer put in, the Court will allow no excepti∣on to the Jurisdiction.
When the Defendant hath fully answered, the plaintiff may if he will go to hearing upon bill, and answer, and may move the Court to have a day of hearing appointed, and serve the defendant with processe to attend the hearing. In which case he must admit the De∣fendants answer to be true in all things, as well in that which is denyed, as that which is confessed.
If the Plaintif do not find matter confessed by the Defendant in his answer whereupon he
may proceed to hearing, without proofs, then he must reply to the same, maintaining his bil and denying and traversing the materiall points of the answer, wherein he may also add such further matter as shal be pertinent & ne∣cessary for him to prefer for the strengthning of his bill, and avoiding the Defendants an∣swer, and must serve the Defendant with process of Subpoena to rejoyn to the said repli∣cation, except the Defendant be ordered to rejoyn gratis, as sometimes that is ordered when the Defendant hath the favour to have a commission to take his answer.
When the cause cometh to hearing upon bill and answer, and the court seeth no suffi∣cient matter confessed in the answer to pro∣ceed upon, the Plaintiff may desire, that he may reply and proceed to processe, and the court allow him to do so, especially where the Kings Attorney is plaintiff for the King.
If there be more defendants then one, and they put in severall answers, the plaintiff may reply to them all in one replication, but if the cause of suit be joynt, and some of them an∣swer, and others do delay their answers, the plaintiff may not reply till all have answered, for if he do, he shall wave his proceedings a∣gainst the rest, and he cannot have a decree
against some without the others. Neverthe∣less if the causes of suit be severall the plaintif may reply and proceed to hearing with some, and after return to proceed with the rest.
When the defendant cometh to rejoyn, if here be no new matter in the replication, he is to make his rejoynder of course to maintain his answer, and it is not necessary that he should rejoin but for formality, but if here be new matter in the replication, he must rejoin specially to that, and likewise if there arise new matter in the defendants rejoynder, the Plaintiff must surjoyn, and so as long as new matter doth pertinently arise in the pleading, they must proceed with Rebutter, and sur-re∣butter, untill every point materiall be put in perfect issue.
After they are at issue, the plaintiff if he will may proceed to hearing, upon Records, and without examination of witnesses, and the Defendant nevertheless, may examine witnesses if he will in convenient time, or if there have been any former examinations in the same cause, either between the same par∣ties, or any other under whom they claim, ei∣ther in the same Court or any other, the plaintif or the defendant may move the Court and desire to have them allowed, to be used
for evidence at the hearing, in which case, the Court doth give a day to the other side, and upon hearing of both sides, do allow or disal∣low them, as is then thought fit and accor∣dingly they may prepare themselves for proofs more or lesse.
When the defendant is served with process to rejoyn, and doth not appear, the plaintiff upon Affidavit made in the Term time of ser∣ving the process (if there be no new matter in the replication) may have a commission alone if the defendant will not joyn within a certain time, and then the plaintiff may have a com∣mission to such as he shall nominate to exa∣mine his witnesse.
If both parties joyn in commission, then ei∣ther side is to name indifferent commissioners and each party to choose two of the four na∣med by the other, and the commission is to be directed to those four agreed upon, and the plaintiff is to have the carriage of the commission, and is to give fourteene dayes warning (or such other warning as is agreed upon) of the day and place of execution thereof, except there be day and place appoin∣ted in the commission, which sometimes is done by agreement of the parties or by order of the Court.
If the one side wil examin witnesses by com∣mission, and the other will not, yet he that will not examine may joyn in commission to see an indifferent examination if he will, and to that end shall have warning of a day and place.
If the Defendant make default, and do not joyn in commission at the first, yet if he come afterwards, and can shew any reasonable cause, why he did not joyn before, the Court will allow him to examin his witnesses in rea∣sonable time, or if a commission be taken out by one or both sides, and not executed, but in part executed, where there is no wilfull default in the parties, but by some other acci∣dent the execution is prevented, the Court upon motion and proof of the allegations will grant a new commission, but if either party will wilfully neglect to examin for delay, and to gain time, or to hearken and learn what hath been examined and proved on the other side, that he may the better prepare his wit∣nesses, and interrogatories for a crosse exa∣mination, in such cases the Court will give no favour to the party that shall so willingly or purposely be negligent.
In such case where the one side hath exami∣ned all his witnesses, and the other hath not,
but hath the favour to have a new Commissi∣on, that party that examined, may joyn in a new commission without charges, to see the Examination.
As the parties may examin their witnesses before Commissioners, so they may likewise examin before the Barons in Court, such wit∣nesses as they have in town at any time before publication. and they may have process of Subpoena to bring their witnesses before the Barons to be examined, and the like process or the Commissioners Warrant to bring their witnesses before the Commissioners the names of such witnesses as are examined in Court, must be delivered by either side, to the parties or their Attornyes in Court before their exa∣mination, to the end that either side may ex∣min him if they will.
The partys that will examin witnesses, must prepare their interrogatories ingrossed in parchment to be exhibited before the Com∣missioners, the Baron before whom they will examin before any examination can be had, which interrogatories must be drawn accord∣ing to points in issue, by the bill and answer, and other pleadings, and they must not examin upon any thing that is not in the pleadings, if they do, that is to be surpressed, and there
must be no alteration of any interrogatories, nor addition of any, after the first examinati∣on, but if there be further examination that must be upon the same Interrogatories that were first exhibited, and if any examination be taken otherwise, it must be suppressed whether it be by commission or in Court, ex∣cept it be so appointed by some speciall order of the Court.
If a witness be examined of one side, and after be served with process to be examined on the other side, and do refuse to be exami∣ned, the Court will not allow his depositi∣ons to be used, because he hath shewed him∣self to be partiall.
After the witnesses be examined, there must be order for publication of their deposi∣tions, either by consent of both sides, or by motion of the one side, and a day given to the other side to shew cause why they should not be published, and the cause heard, at which day if nothing be sayd to the contrary, they are published, and the cause is to be set down afterwards for the hearing, at such time as the Lord Treasurer and the Barons shall ap∣point.
After the day of hearing is set down, the Plaintiss must serve the Defendant with pro∣cess
of Subpana, Ad audiendum judicium, returnable at a day and place appointed for the hearing, and in the mean time either party is to prepare his breviates, of his plea∣ding and proofs to instruct his counsell.
At which day the bill of causes is to be made ready and delivered to the Lord Treasurer, Chancellor, and Barons in Court, wherein the causes are to be set down in order as they were appointed, and so the Court doth call for them, as they lye in the bill, and if both sides be ready to proceed to hearing, the Plaintiffs counsell opening the materiall parts of the bill, and the Defendants counsell ope∣ning his answer, and after debating thereof on both sides, for the full opening to the mat∣ter in question the plaintiff is to make his proofs. which are to be read by his Attorney in court, and the defendant is to do the like, whereupon the Court doth judge, Secundum allegata & probata, as if there be good mat∣ter alledged, and set forth in the bill and re∣plication, and sufficiently proved there by confession of the defendant in his answer, or by witnesses, Records, or other evidence which cannot be disapproved by the Defen∣dant, the Court doth make a decree for the plaintiff, but if there be good matter set forth,
and not proved, or good matter proved, but not set forth in the pleadings, the Defendant and the cause is dismissed.
Sometimes the cause is dismissed upon ope∣ning, for want of sufficient matter, or for that it is meerly tryable at the Common Law, and sometimes when there is both matter of Law and Equity, the matter of Law is referred to a tryall at the Exchequer bar, and the equity of the cause is retained untill the hearing, and sometimes when the question is touching ac∣counts and reckonings which are intricate, the cause is referred to auditors or Merchants by Commission to examin and try the same, and to mediate and end and determin if they can, or else to certfie the Court of their doing, whereupon the Court may further proceed) or if the question be concerning the possessi∣on of any lands demanded by the plaintiff which ly intermingled and dispersed with and amongst the Defendants lands, and by reason of a long and joynt occupation cannot well be known or distinguished, the one from the other, in such case when that it appeareth to the Court that the plaintiff hath and ought to have Land so intermingled, the Court doth award a commission to the Gentry of that County where the Land lyeth, to en∣quire
the certainty thereof, and to set out, & the metes and bounds of the same, and to cer∣tifie the Court thereof, and in such like cases References and Commissions are awarded.
If at the day of hearing the plaintiff be rea∣dy, and the Defendant maketh default affida∣vit is to be made of the serving, the Defen∣dant with process, ad audiendum judicium, and the Court will proceed to hearing, and af∣ter the plaintiffs bill be opened, the Defen∣dants answer is to be read, and the plaintiffs proofs, whereupon the Court will decree or dismisse the cause, or otherwise order that as shall seem fit but in such case the Court doth not use to make a decree absolute, but to give a day to the Defendant to shew what he can against that, at which day if he do come and endeavour to shew cause to stay the De∣cree, and thereupon the Court doth proceed, and further hearing the plaintiff may require costs for his double attendance, by reason of the Defendants default.
If the Defendant be ready at the day of hearing, and the plaintiff make default, the Court doth dismisse the Defendant with costs, except some good cause be shewed to stay that, and if that be put over till another day, the plaintiff is to pay costs to the Defendant, such as the Court shall think fit.
When the Defendant is once served with process, Ad audiendum judicium, although the cause cannot be heard at that time, or in that Term, he must attend without any more process, untill the cause be heard, so long as the cause be continued in the bill of causes; but if the plaintiff be negligent, and will not endure to procure a hearing, but desire to continue that in the bill, to keep an injuncti∣on on foot, or to stay the Defendants course at the common Law, or in any other Court, the Defendant may move for a dismission of the cause, and the injunction may be dissol∣ved, and that he may have costs.
Also if the plaintiff after answer put into his bill will delay the prosecution thereof, the Defendant may move to be dismissed with costs, whereupon the Court will find a day to shew cause.
When a cause is ready for hearing, if the plaintiff delay the prosecution, or be negli∣gent to procure a hearing, the Defendant may if he will, procure the cause to be set for hearing, and serve the plaintiff with pro∣cess, ad audiendum judicium, At which day, if the plaintiff will appear, he may proceed to hearing, but if he will not, the Defendant may be dismissed with costs, and left at Liber∣ty,
if there were any injunction or order to restrain him.
If a Defendant dye after answer put in, and before the cause be determined, the plaintiff may put in a bill of Revivor against the heir, or Executor, or Administrator of the Defen∣dant, as the case shall require, and the De∣fendant in such bill of Revivor, shall answer without oath, because his answer is to no o∣ther end but to submit himself to the former proceedings and upon his answer the former proceedings are revived, and shall stand in the same case as they did against the first De∣fendant that dyed, and the plaintiff and De∣fendant may proceed further to bring the cause to hearing, in that same manner as that should have been proceeded in, if the first De∣fendant had lived, and in like, when the plain∣tiff dyeth pendent like.
After a decree is made and past against the Defendant, if he hath other matter which was not in issue in the cause decreed, which he supposeth will be sufficient to overthrow the decree, he may exhibit a bill of Review upon that new matter, to reverse the decree, but he must perform the decree, and yeild obedi∣ence to that, and if the bill of Review do not contain good and sufficient matter, the De∣fendant
may plead the former matter, decreed in bar, of the proceedings upon the new bill, and that is not sufficient for the plaintif in the bill of Review to produce new proofs though never so good, that were not produced before, but the matter must not be such matter as was not in the issue before, and he may likewise ex∣hibit his bill of Review of error in the former proceedings.
Sometimes the principall question between the partyes is such, as admitting the truth of both sides, yet it is doubtfull in Law to whom the Right belongeth, so as the Court cannot make a decree untill the matter in Law be determined, whereupon a case in Law is to be drawn and agreed upon of both sides, and if there be any matter of fact necessary to be proved for the making of the case, witnesses may be examined upon Interrogatories for that purpose, and when the case is agreed up∣on, severall Copies must be delivered to the Lord Treasurer, Chancellor, and Barons, and is to be argued on both sides, when, and as often as the Court shall think fit, and so be determined by decree or otherwise.
Sometimes when publication is over hastily gotten by the plaintiff before the Defendant hath fully examined his witnesses, the Court
upon affidavit by the Defendant, that neither he nor any for him hath seen the depositions of the witnesses, doth admit him to examine such witnesses, as he hath to examine.
Upon hearing of a cause, the Court doth allow Bills and answers, and other pleadings and orders and decrees of the Chancery, and other Courts, to be read for evidence, without any order of allowance, but no depositions of witnesses taken in any other Court, nor in another cause in the same Court, without speciall order.
And somtimes (but very rarely) after publica∣tion of both sides, the Court doth allow them to examine witnesses (ad informandum consci∣entiam) in which case the depositions that be taken, are not to be published but onely seen by the Court.
After a Decree is entred, that may be en∣rolled and exemplified at the instance of either party, or of any else that desire that
If the possession of any Land be decreed a∣gainst the Defendant, the plaintiff may have an Injunction directed to him, and all that claim under him, commanding him and them to remove from the possession, and to yeild the same to the plaintiff and his Assignes, and if the Defendants disobey that, the Court up∣on affidavit made thereof doth usually grant
an injunction directed to the Sheriff to re∣move him, and to put the plaintiff in posses∣sion.
If a decree be in any thing disobeyed, either by the plaintiff or Defendant, or any other by their procurement, upon affidavit thereof made, an attachment is granted against such as have disobeyed, another process of contempt untill he be brought into Court to answer his contempt, and when he doth appear, if he deny the contempt alledged against him in the affid. he must be examined upon Interrogatories, to be exhibited by the prosecutor of the con∣tempt, before one of the Barons, which must be upon the points mentioned in the affida∣vit, and he must be enjoyned by the Court, to attend and appear from day to day untill he be examined, and not to depart without li∣cense of the Court, or if the Court think fit he is to be bound by Recognizance to the same purpose. After he is examined, if he have confessed sufficient matter of contempt, the prosecutor must move the court to appoint a day to hear his examinations, at which day, both sides are to attend, and such of the exa∣minations to be read as are materiall, where∣upon if that appear to the Court, that he hath ommitted any contempt worthy to be puni∣shed,
the Court doth commit him to the Fleet and may impose a fine upon him, or not, as the case requireth, where he is to remain du∣ring the pleasure of the Court, and untill he yeild obedience, and submit himselfe to the Court to perform the decree, or enter into Recognizance to perform the same, if the Court so think fit, and he is to pay such costs to the prosecutor, as the Court shall taxe.
If the Defendant upon his examination de∣ny the contempt supposed against him, he may move the Court to be discharged with costs, whereupon the prosecutor may desire to examine witnesses to prove the contempt, ei∣ther in court, or by commission. In which case if the prosecutor take a commission, the de∣fendant may desire to joyn in commission, to see a due examination of witnesses, but not to examin any witnesses except the Court doth specially order it so, after which examination the Court doth appoint a day of hearing, at the motion of the prosecutor, or of the De∣fendant, to convict or discharge the defendant as the case shall then appeare
And the like course is held for punishing or discharging of contempts, supposed against the process of the court, if the case so require.
A Bill may be amended by order of the
Court, after the Defendant hath answered that upon payment of costs.
In all cases that are ordinary, the Court doth use to have the counsell of both sides, & thereupon to make such order as the case re∣quireth.
In every long vacation all the bills, an∣swers, Replications, Rejoynders, and other pleadings are to be taken from the common files, and all the pleadings in one cause are to be filed together with the Bill, by him that is towards the Bill, and to be entred in a booke kept for that purpose, in the title of that County, where the matter of suit ariseth, and to be numbred, and then filed, according to the number on the file for the same Coun∣ty.
In cases of extraordinary contempts, the Court doth sometimes send a Messenger or a Serjeant at Armes to apprehend and bring in the Offender.