The transactions of the High Court of Chancery, both by practice and president,: with the fees thereunto belonging, and all speciall orders in extraordinary cases, which are to be found in the registers office as they are quoated by tearmes yeares & bookes. Collected by that famous lawyer William Tothill Esq; late one of the 6 clearks. And since reveiwed [sic] by Sir Ro: Holborne, bencher of Lincolns-Inne.

The Causes whereby the defendant may satisfie the Court of the said delay in an∣swer, are these, for the most part, of which the defendant must make oath, (viz.)

HEe cannot make direct answer, without sight of his Evidences or Writings which are in the Countrey.

Or he cannot answer without confe∣rence had first with some Person named in the said Bill.

Or with some Person whom the mat∣ter toucheth.

Or if the Bill be against the defen∣dant, to expresse what goods he hath of the plaintiffes, he may make oath he can∣not make perfect answer to the plain∣tiffes bill without sight and perusall of the said goods, which are in the coun∣trey: And that place in the countrey, where those goods or writings, or par∣ties live, must be above twenty miles from London, or else he must answer within eight dayes after his appearance, unlesse he get further time by order: And, if he doe make such oath, then his answer is spared till the first day of the next Terme following.

* 1.1Or that the defendant is not able to Travell without danger of his life, &c.

And if upon such oath made, the plaintiffe refuse to allow the defendant a Dedimus potestatem for taking his an∣swer in the Countrey, the Court upon motion or petition will order it; which order is to be entred in the Register, and the Affidavit filed in the Affidavit Office.

In case the defendant doe not appear, or having appeared doth not answer in his time limited, nor sheweth any of the aforesaid reasons in excuse, then an At∣tachment is awarded against him, which must be entred both in the house-book in the six Clerks Office, and in the Re∣gister, expressing the cause of the issu∣ing of the said Attachment.

But if no day be given to the defen∣dant to answer, then the defendant hath liberty to answer at any time during the Terme.

And if he doe it not within that time, hen an attachment may be sued forth gainst him of cou••se: and the same, with the cause thereof, must be entered into the Register: (viz.) That the De∣fendant appeared, and departed without answ••r.

If the Sub-paena be returnable so nere the end of the Terme, that there cannot be a day given to the defendant to an∣swer, he must at his perill answer by the same day sevennight following the day of his appearance, although it be in the Vacation: For the Chancery is alwaies open. It is Officina semper aperta.

If the Sub paena be returnable on the last returne day of the Terme it selfe, then the defendant is at liberty to ap∣apeare the first Returne of the Terme following.

But if it be a day certain, although the same be the last day of the Terme, yet the Defendant must appeare and answer by that day sevenight next following the said appearance.

Note, there are no such Sub-paenas to answer returnable immediately in Terme time.

And if the defendant make Oath that he cannot answer without Writings &c. or conference with some other person: Or if he have a Dedimus Potestatem, & Commission to make his answer he must at his perill procure his answer to be put in before the day after the first Costs day of the next Terme following, unlesse

it be Trinity Terme; and then, and in such case, it must be put in the second day after the second returne, else the complainants Attorney may, upon such default, make an attachment against the defendant, and enter the same into the Register, For that he hath not answered by the day prefixed.

Or in other case, that he appeared and departed without answer; Or otherwise that he did not returne the Dedimus po∣testatem at the day prefixed, &c. and as the cause shall require.

If a Defendant living in the Country, having a Dodimus Potestatem granted him for the taking of his answer to the Plaintiffes Bill, or his Councell finde there is cause of Plea or Demurrer, upon a motion or petition, he may have a speciall Dedimus Potestatem by Order to answer, plead, or demur; But the Commissioners upon an ordinary Dedi∣mus have no power to take any thing but an answer; And if a Demurrer be put in without Commission, the party must put the same in into the six Clerks Office in his owne person: And if the Demurrer or Plea be not put into the Paper of Pleas and Demurrers in the

Register appointed for that purpose, within eight daies after the same is put in Court, to the end the same bee argu∣ed before the Lord Keeper, as it shall fall in course after others; then the said Plea and Demurrer is over-ruled of course, and the Plaintiffe may take forth a Sub-paena against the Defendant to make a better answer, and an other for Costs, according to the Lord Keepers late Orders.

This was wont to be the course, but my Lord Keeper of late hath declared, that if a bill have cause of Demurrer he will not a bad bill good.

In case a man be served with a Sub∣paena wherein his wife is named he be∣ing in London and his wife in the coun∣try or elsewhere, if he appeare not for her, or she answer not as well as hee, an Attachment is granted against them both though he appeare and answer for himselfe.

If shee doe not appeare, then the At∣tachment is against him and her for her not appearance.

If shee doe not answer, then against him and her for her not answering.

If a Complainant die depending the

suite, his Heire, Executor, or Administra∣tor, who hath the Interest in the thing complained for, may put in a Bill of Re∣vivor against the Defendant: or if the Defendant die, the Plaintiffe may put in a Bill of Revivor against his Heire, Executor or Administrator.

Also it is to be remembered, that if the Complainant exhibit his Bill against a man and his wife, for matter which wholly concerneth the wife, whereunto they make answer, & after answer made, the man dyeth; the Complainant can∣not proceed in that suit against the wo∣man without a Bill of Revivor, because the woman shall not be constrained to stand to that answer, which she toge∣ther with her Husband or solely (as wife unto the man) made to the Complainant, for that she was the under Coverture.

And after her husbands death (shee being seized or possessed of the thing in Controversie as in her former estate) may (if shee please) make a new answer, and shall never be bound or concluded by the answer which shee made in her Husbands life time, for that shee was then under Coverture. And yet (if shee so please) she may stand to that former answer of hers and proceed in that suite accordingly.

But if the Complainant exhibite a Bill against a Feme sole, whereunto she maketh answer, and afterwards marri∣eth, the Complainant may proceed a∣gainst her husband and her without any Bill of Revivor: and her, husband shall be bound by that answer which she made before marriage, because she shall not be admitted to take advantage of her owne act.

Where (on the contrary) if a Feme sole exhibite her bill of Complaint, whereunto the Defendant answereth, and afterwards she taketh an husband, her husband and shee shall not proceed against the Defendant, without a Bill of Revivor; because her suite is abated by her owne act, whereof the Defendant may take advantage.

And if a Man and his Wife exhite a Bill of Complaint, whereunto the De∣fendant answereth and the Man dyeth, the woman shall be at her choice whe∣ther she will exhibite a new Bill, or pro∣ceed upon the former.

Note that in Chancery you cannot serve the Wife without her husband, though the matter in question doe only concerne her, and not him.

Also, if two seized of joynt estate; or two Executors of one Testament; or two Obligers or Obligees exhibite a Bill of Complaint, whereunto the De∣fendant answereth, and one of them dy∣eth. The Survivor of them may pro∣ceed against the Defendant, without a∣ny Bill of Revivor.

And in all cases where a Bill of Re∣vivor is requisite after the said Bill ex∣hibited, and a Sub-paena served on the Defendant to that purpose: the Com∣plainant shall be in the same case, as hee for his Predecessor was, at the time when the cause of Revivor accrewed, unlesse the Defendant shall appear upon the said Sub-paena, and by way of an∣swer shew good cause to the contrary: which Cause must be, that the Com∣plainant in the Bill of Revivor, is not Heire, or Executor, nor standeth in the like case, nor have the like interest, or the like cause of Complaint, as before in the former suite.

And no other cause is to be allowed. If the Complaynant exhibite his Bill of Complaint, for Title of any Lands, not of the yearely value of forty shil∣lings: And the same be proved by Affi∣davit,

or deposed, the Defendant shall be dismissed.

Also, if the Defendant demurte to a∣ny Bill exhibited against him, or dis∣claime: the Complaynant cannot re∣ply:

For if the Defendant be called up by Sub-paena ad Rejungendum, having be∣fore made no other answer but a De∣murer or a Disclaimer, he shal have costs for unjust vexation.

But after the Defendant hath answe∣red, the Complaynant hath liberty all that Terme, and all the next Terme following that; and untill the begin∣ning of the second Terme after answer, to put in his Replication.

The next Terme after answer put in, the Defendants Atturney may give the Plaintiffe a Rule to Reply, and if hee doth not Reply, then costs are awarded, and if he give no Rule and the Plaintiffe reply not the second Terme after the Terme the Answer was put in, the Bill may be dismissed with costs by morgage or of course.

But if the Complaynants Replication be put into the Court, the Defendant can have no costs allowed unto him.

But then the Defendant may, if he•• will, Rejoyne gratis to the Replication, and enforce the Complainant to goe to Commission.

Which if the Complainant refuse, then the Defendant may have Commis∣sion to examine Witnesses on his owne part against the Complainant, and shall have the carriage thereof.

The Commission shall be directed to foure such persons as the Defendant shal name; or to any three or two of them, without any warning to be given to the Complainant.

But if in this case the Complainant will, he may joyne in Commission, and have the carriage of it himselfe.

And then he must name foure Com∣missioners indifferent men; and the Defendant foure more, and two being strook out on each side the Commission is made up to the foure that remaine: and the Complainant having the car∣riage of the Commission must give the Defendant fourteen dayes warning of the day and place when and where the Commission shall be executed.

This warning must be given, either by himselfe in person, or else left in

Writing, at the House or place where the Defendant doth most reside.

The Complainant in all cases of Com∣mission to examine witnesses, shall have the first choice of Commissioners, and carriage of the Commission, and if hee faile by not executing it, then the Defendant may renew it and have the carriage thereof, and give the Com∣playnant the like notice.

If a Defendant be served with a Sub-paena ad Rejungendum, and Oath be thereof made; Commissioners names being called for in the Terme time to the Defendants Atturney, and the De∣fendant refuse to joyne in Commission the second Seale after the Terme, the Complainants Atturney may make a Commission ex parte to the Complay∣nants owne Commissioners and Interes∣sers must be included in the Commission

He shall examine Witnesses, in all these cases following: (Viz.)

FIrst, upon a Bill by him preferred to examine Witnesses in perpetuall memory of the matter to command the Defendant either by himselfe, or by his Atturney to appeare immediatly; and within fourteen dayes to shew cause why the Complaynant should not exa∣mine

Witnesses ••in perpetuall memory.

And if the Defeudant doe thereupon appeare by himself, or his Attourney, and shew good cause to the contrary, such as the court shal allow, then the Complay∣nant shall not examine any witnesses in perpetuam rei memoriam, or perpetual me∣mory.

But if he doe shew no sufficient cause, nor joyne in Commission with the com∣plainant, then the Complainants At∣turney must preferre six Commissioners names to the Lord Keeper, or the court, &c. Foure of the which, or foure such other, as the Lord Keeper or the court shall appoint, shall be set downe for Commissioners; and a Commission for the Complaynant shall be made forth, and directed to the said foure Commis∣sioners, or any three, or two of them, to examine witnesses, according to cer∣taine Articles heretofore set downe in Chancery, which Witnesses are never to be published, during their lives, un∣lesse Oath be made.

That the Complainant hath some tryall wherin he should give them in evidence

That the witnesses are notable to travel to the place where the tryal should be.

Or the Party Defendant will consent thereunto.

Neither can they be given in Evidence against another, but against the party which was called, to shew cause why the said witnesses should not be examined, or some other, claiming under him by some interest which accrewed unto them, after the Bill preferred by the Complainant for the examination of witnesses.

It is also used, that either party, after the Bill is exhibited, add Answer made thereunto, may examine witnesses in court here before one of the Examiners.

But the Complainant can have no Commission to examine his witnesses, unlesse, and before the Defendant be served with a Sub-paena ad Rejungen∣dum: Which Sub-paena must be served in such manner as is before mentioned:

And then upon Affidavit made of the serving thereof, the Complaynant (if the Defendant appeare not that Term) shall have a Commission directed to foure such Commissioners as himselfe shall name, or to any three, or two of them, for the examination of witnesses on his part, against the Defendant, with∣out any warrant to be given to the De∣fendant.

Vpon the returne of the said Sub••pae. na ad Rejungendum, The Complainant may give to the Defendant a day to Re∣joyne (viz.) The same day seven-night.

By which time, if the Defendant doe not rejoyne, hee shall lose the benefit thereof.

And when that day so given to rejoyn; is past, the Complainant may give two ordinary dayes, (viz.) two Returnes, for the Defendant to produce his wit∣nesses; and then a Peremptory day:

Before which day past, if the Defen∣dant doe come in, he may have a Com∣mission to examine witnesses of course, without any motion; but he shall lose the benefit of Rejoynder: And the Complainant, if he please to joyne in the Commission, shall have the carriage of it, giving to the Defendant fourteen dayes warning of the day and place, when and where the said Commission shall be executed.

In the joyning of this Commission, the Complainant must first name one Commissioner, unto whom the Defen∣dant may give generall exception:

The Defendant must name the second; The Complainant the third; And the Defendant the fourth.

Notes

• * 1.1

  This oath be made by the So∣licitor, or some o∣other for the defen∣dant.