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NOtwithstanding the pra∣ctise here before this time hath been, That no Subpoena should be sued forth of the court of Chancery without a bil of complaint first exhibited: yet of late, for the ease of all suiters and subjects, it hath been thought good, that every man may have a Sub∣poena out of the same Court, without a∣ny Bill first exhibited.
And this is called a Sub poena adres∣pondendum.
This Sub paena is the leading Processe of this Court, by which the party de∣fendant against whom the complaint is intended, is summoned and required to appeare and make answer to the com∣plainant, under a certaine paine, and at a certaine day to come.
The dayes of Returne here are the u∣suall Returnes, as in the ordinary Al∣manack; or else a Sub poena may be re∣turneable at a certaine day, after any the said usuall Returnes, or the great Feast dayes, from whence the Returnes take their denomination: So that you must adde (prox') in place where cause shall require.
As, if the Feast day be to come, then it must bee Prox. futur. in unum men∣sem.
But if the Feast day be past, then it must be die Paschae in unum mensem prox futur.
And the like to other Returns, before or after other Feast dayes.
Where, note what time you have for exhibiting of your Bill after the day of Returne prefixed in your writ of Sub-p••na: If it be returneable upon a gene∣ral Returne day, as Crastin', Octabis,
Tres, Mens, &c. after such a Feast, then you have time to put in your Bill uutill the second day before noone next following, the fourth day following e∣very of the said Returnes: and you must account the Returne day, and the fourth day after it, for two of the said foure dayes.
But if the Sub-paena be returneable on such a certaine day of the month, then your Bill must be put in the second day after it before dinner.
And howsoever the Sub-paena be re∣turneable, if it bee but served on the same day whereon it is returneable, be∣fore noone, and the rising of the Court of Chancery, it is a good serving, and binds the defendant so served to an ap∣pearance with all convenient speed.
If a Sub paena be returneable on a day certaine, as on any day of the moneth, the bill not being in, the desendants At∣turney may prefer costs the next day after; and if the bill come not in the next day after costs so preferred before noone or presently after dinner, the de∣fendant is discharged with such costs as a Master of the Court taxes him.
And so in the like case for a Sub paena
that is returnable on a returne day, the next day after the fourth day is cost day, and if the bill come not in the next day at noon or presently after dinner, the defendant, having preferred his costs the day before, is discharged from atten∣dance, with his costs.
When the defendant hath so got costs, he may have a Sub paena whereby to command the complainant presently, up∣on the sight thereof, to pay the defendant or the bringer thereof, the said costs, (as aforesaid:) Which Sub-paena must be served on the Plaintiffe personally. And if the complainant doe refuse to pay the said costs accordingly, then the defendant may, upon Affidavit made that the Sub-paena for cost was served, have an Attachment directed to the Sheriffe of the County, to attach the complai∣nant therefore.
And upon returne made by the She∣riffe that the complainant cannot be found, an Attachment with Proclama∣tion may be sued forth against the com∣plainant.
And that Proclamation being like∣wise returned by the Sheriffe (as afore∣said) then a Commission of Rebellion
may be sued forth against the complai∣nant.
But on the contrary, if the complai∣nant doe put in his bill, and the defen∣dant appeareth not the next day after costs day (which costs day is usually the next day after the foure dayes upon a re∣turne is out, or if the Sub-paena be re∣turnable on a day certaine, then the next day after is costs day) then the com∣plainant upon oath made that the defen∣dant was served with a Sub-paena, may have an Attachment, and further Pro∣cesse upon the Sheriffes returnes of non est inventus.
Where note, that the party which ma∣keth oath that hee served the Sub paena: Or that the Sub-paena was served, must sweare as followeth:
That he delivered the Sub paena to the defendant.
Or he shewed the Sub paena to the de∣fendant under the seale of the Court, and delivered to him a note of the day of his appearance, or a labell of the Sub paena.
Or he left the Sub paena at the defen∣dants dwelling house or lodging, where the defendant most abideth.
Or he must sweare that he heard the
defendant confesse that he was served with a Sub-paena.
Or he must sweare that he saw ano∣ther serve the defendant with a Sub-paena.
Note, that if the party served with any such Sub-paena doe wrong or abuse the party who served it for the serving thereof, or useth: any words of contempt or sleighting of his Majesties said Writ; upon oath made thereof, and motion thereupon, he is punishable for the same, by imprisonment in the Fleet, or other∣wise at the Lord Keepers discretion.
And if the defendant do appeare with∣in the time limited, then the complay∣nants Atturney may give unto the de∣fendants Atturney, on the said day after the costs day, a Rule, that the defendant doe make answer to the complainants Bill, by the same day seven-night then next to come. This Rule and day given, must be entred into the Register.
And if the defendant doe not answer by the prefixed day so entred; or if he doe not otherwise satisfie the Court by sufficient cause, and occasion of the de∣lay, then the complainants Atturney may take forth an Attachment against the defendent.
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.
THat the Commissioner named, is of Kinred or Allyed to the party, for whom he is named:
That he is a Master to the partie:
That he is a Land-lord unto him:
Or a Partner unto him:
Or have suite in Law with the ad∣verse partie to him, by and for whom he is named:
Or is it of Counsell, an Atturney, or a follower of the cause of the one party:
Or to whom the party is indebted:
Or any other apparent cause of par∣tiality, or siding with either party.
And it is commonly used, that either party may give exception to one, and they seldom give exception to any more then one, on either party.
And yet neverthelesse, the Complay∣nants Atturney may if the Complainant will, renew the said Commission also and give the like warning also unto the Defendant, if the Defendant renue it not.
Vpon the execution of either of
which Commissions and return whereof either of them may give to the other a Rule for publication, thus, viz. dies dat defend publicat. super Commis. junct. If the Defendant give the Rule, then thus: dies dat quer pro public. super Commis. junct.
The day so given, is one week; which being expired, and no cause shewed to the contrary, then Publication is gran∣ted; and neither party can examine any witnesses afterwards, unlesse it be by speciall order of the Court; which is never granted without an Oath made, that the party which requireth the same, nor any of them hath seen, or been made privy to any examination of any of the Witnesses formerly exami∣ned in this Court by either of the par∣ties: And some good cause be shown, ei∣ther by oath, or certificate of Commis∣sioners, why the party could not get his said witnesses examined within the time limited for their examination.
In which case, sometimes the Court giveth order to examine witnesses by a time prefixed, with this Proviso; That the party shall not in the meane time see the said former examination.
And sometimes the Court giveth Or∣der
that the said party shall examine his witnesses, to informe the conscience of the Judge only and not otherwise.
These Depositions are never publisht, but by especiall order or consent of the parties; but delivered to the Judge, sealed up by the Officer, under whose custody they doe remaine, to the end he may peruse them.
If any one be called by a Sub paena, to appeare in this Court: And upon his appearance, the Complainant or any o∣ther doth arrest him in any other court; he shall have a Supersedeas to discharge the Action, because he must have free going and free comming.
But it is not so, if the Complainant be arrested, except it be after issue is joyn∣ed, and a day is given for the matter to be heard. And the Complaynant com∣ming to the Court, with evidence to maintaine his cause, is arrested: The Court in this case shall defend him, and set him free to follow his suite.
But this is seldome seen: And hee that is Plaintiffe in the other Court, may declare, against him here Praesen∣tem in curia, if he please. See 37. Eliz.
If any one who hath Priviledge in
Chau∣cery, arrested into another Court, in a joynt-action with his Wife, for matter concerning her: Notwithstanding the Coverture, she shall not have any bene∣fit of Priviledge here. See Powles case.
The Clerkes of Chaucery are to be sued in this Court, either by Latine or English Plea.
FIrst the Commissioners shall exa∣mine no Witnesses, but such as be aged and impotent.
Item, the Complaynant, or party, who sueth forth the Commission, shall give warning by precept from the Commis∣sioners, unto the party that should take prejudice by this examination, by the space of fourteen dayes at the least, of the time, and place; when, and where the said Commissioners wil sit upon this Commission.
And the same warning being so given, the Commissioners are to be satisfied by the Oath of the party complainant, or of some other credible person that warning is given accordingly, before they shall proceed to the execution of their Com∣mission.
Item, If the party Adversant, or De∣fendant can shew before the Commis∣sioners good cause of exception, either against the witnesses produced by the complainant, or any of them, or against the Commissioners themselves; or o∣therwise, then they shall cease and for∣beare any farther execution of the com∣mission.
And the Commissioners shall certifie and returne the said causes and excepti∣ons up with the commission.
Item, If the party adversant cannot shew sufficient cause (as aforesaid) then the commissioners shall proceed to the examination of witnesses; and the party adversant or defendants shall have liber∣ty to joyne in the examination of the same witnesses, or o•• any other likewise upon Interrogatories on his behalfe (if he thinke good.)
Item, The commissioners shall certifie
in their returne of the commission, such acceptations as the defendant shall take against the proceeeding in the same Commission, and whether the De en∣dant did appear or no?
And if the Defendant did not appeare, they are likewise to certifie and return, whether Affidavit were made of the gi∣ving of warning by precept (as afore. said) or no?
THe party who prayeth Publication, shall first by himselfe, or some o∣ther, make Oath that the Depositions of the same witnesses, are necessarily to be given in evidence on his behalfe.
Item, Oath also must be made, that the same Witnesses be either dead, or so a∣ged, or impotent as they cannot travell to testifie (viva voce) without danger of life.
Item This Oath being so taken, a Ma∣ster of the Chancery must first open the Commission, and consider whether this Order before mentioned hath been ob∣served
in all points: wherein hee being satisfied, Publication is thereupon to be granted.
Provided alwayes, that no Depositions shall be given in evidence, but against those persons that were warned by pre∣cept (as aforesaid) or against their Heirs or Assignes.
And provided also, That after exami∣nation had, and taken (as a oresaid,) and after Publication had, and granted of the same examinations: The party Adver∣sant, or Defendant, shall not be admit∣ted to have any new examination on his behalfe, concerning the same matter.
Item, This Order is to be observed in case where the commission is ex parie querentis only, and it is to be engrossed in Parchment, and subscribed with the hand of the Register, and to be annexed to every of the said commissions, but not otherwise.
Fur if the Defendant joyne, then these articles shall not need.
THe Joynt-Commission is made in forme, as all other generall com∣missions to examine witnesses, Super Interrogator, ministrand, be, Adding to the end of the same these word (viz.) In perpetuam rei memoriam permansur.
This Commission ex parte, is to have these rules inserted under the Registers hand, and the Commissioners names are specially to be assigned by the Lord Keeper, or, Lord Chancellour for the time being.
MEmorandum, That all Injunctions granted for preservation of pos∣session, during the suit in the Court of Chancery, shall have this clause and condition contained in them (viz.) That the partie who prayeth possession, was in possession at the time of the Bill ex∣hibited, and certaine yeares before;
And that his interest is not determined by forfeiture, surrender, or other lawfull means,
And Bond must be put in by the party who prayeth the possession, of the pe∣nalty of ten pound, with condition that this Information aforesaid is true.
Item, That all Injunctions granted for the stay of suits at the common Law, shall have this clause and condition con∣tained in them: (viz.) That the same suit desired to be stayed, is for and con∣cerning the same matter depending in this Court, and as were begun at the Common Law, after the Bill exhibited into this Court; and that Bond be put in (as aforesaid.)
Item, That no speciall Certiorare doe passe without Bond first given, on the behalfe of the party who desireth the same; with condition that the Bill ex∣hibited containeth matter sufficient to beare a Certiorare, and that hee shall prove the contents of this Bill to be true, within fifteen dayes after the re∣turne of the Writ, according to the or∣der and course of this Court.
And that upon the granting of every Procedendo the Bond aforesaid be re∣membred to the Lord Keeper.
* 1.2It is ordered, that all Suits for no more then six acres of Land, or lesse, except the same be worth forty shillings by the year.
And all Suites for matter under the value of ten pounds, shall be dismissed this Court, for such cause only proved. And this Court shall not retaine any such: But the party who bringeth the same hither, shall pay costs to the De∣feudant, as this Court shall award.
IT is ordered, that all Processe to beare Iudgement, be returnable six or seven dayes before the day of Hearing, and not above, saving in the beginning of the Terme, when the time will not permit so long warning.
And the said Writs must he endorset on the back-side, with the very day ap∣pointed for the hearing of Iudgement. And so much for that Terme.
By the generall custome, and ancient usage of this Court, all Bils shall be re∣tainable here, in case where the Equity of the cause requireth and beareth it, and wherein the common Law doth af∣ford no reliefe, but rather pressure and rigour.
After Publication once had the Com∣plainant may procure a day of Hearing of course, by such as one of the six Clerks as dealeth for him. And he may at the end of the Term, when the Lord Keeper setteth down the dayes of Hea∣rings, procure his hearing to be set downe amongst those assigned for the next succeeding Term.
This was wont to be ancient course of procuring of Hearings, howsoever it was lately dis-used and (as I take it) the same is now restored againe to the good contentment of al Suitors in this Court.
FOr the breach of an Injunction, this is the course commonly.
If the Contemptor doe not upon sight of the Injunction obey the same, but doth commit some Act in contempt or neg∣lect thereof, then upon an Affidavit made of the serving of the said Injunction, and of the breach thereof, then an Attach∣ment is awarded against the said Con∣temptor, &c. as in the case of Proces, before mentioned and declared, and so further Proces to common Rebellion and Serjeant at armes, &c.
Affidavits.
NO Affidavit shall be admitted or taken which shal tend to the proof or dis-proof of the Title or matter in question, or touching the merits of the cause.
Neither shall any such matter be co∣lourably inserted, in any Affidavit to be made touching the Serving of Pro∣ces.
No Affidavit shall be taken against Affidavit so far as the Master of Chan∣cery can discerne, or take knowledge, &c.
If any such be taken, the latter shall not be used or read in Court.
IN case of Contempts, granted upon force, or ill words, used upon serving of Proces, or other words of Scandall, proved by Affidavit, the party forthwith upon motion will be committed, if the words spoken deserve it.
But for other Contempts, against the Orders or Decrees of the Court.
First, an Attachment goes forth upon Affidavit made.
Then the party being taken is to be examined upon Interrogatories.
His examination is to be referred, upon motion, to one of the Masters of the Chancery.
And if upon examination, he confesse matter of contempt, he is to be commit∣ted upon the like motion.
If he confesse it not, the Adverse party may upon like motion and order exa∣mine witnesses to prove the contempt.
And if the contempt appeare upon proof, the contemptor is to be commit∣ted therefore, upon motion and order likewise.
But if the adverse party fail to prove the said contempt, or fail to put in his Interrogatories or other prosecution, then the party charged with the con∣tempt, is to be discharged upon motion with good costs.
Imprisonment upon Contempts for mat∣ters past, may be discharged of grace, after sufficient punishment: Or it may be otherwise dispensed withall in such case.
But if the imprisonment be for per∣formance of any Order of the Court in force: Then the Contemplator ought not to be discharged, except he first obey: Only, the contempt may bee suspended for a time.
NO Injunctions, Sequestration, Dis∣missions Retainer upon Dismissions, or Finall Orders, shall be granted upon Petitions.
No former Order made in court, is to be altered, crossed or explained upon any Petition: But such Orders may be only stayed upon Petition for a small
time, till the matter may be moved in court.
No Commissions for examination of Witnesses shall be discharged; Nor any examinations, or depositions of wit∣nesses shall be suppressed upon Petition, unlesse it be first referred, and Certifi∣cate be made thereupon.
INjunctions for possession or for stay of Suits after verdict, are to be presented to the Lord Keeper, or Lord Chancel∣lor, being together, with the Orders whereupon they goe forth; that his Lordship may take consideration of the Orders before he signe them.
No Injunction of any nature shall be granted, revived, dissolved, or staid upon private Petition.
No Injunction to stay Suits at the common Law, shall be granted upon Prioritie of Suite only:
Or upon the Surmise of the complai∣nants Bill only.
But upon matter confessed in the An∣swer of the Defendant.
Or matter of Record.
Or writing plainly appearing.
Or when the Defendant is in con∣tempt for not answering.
Or when the debt desired to be staid, appeareth to be old, and hath slept long.
The creditor and the debter have been dead some good time, before the Suite brought.
Where the Defendant appears not, but sits an Attachment: Or when hee doth appeare and departs without an∣swer, and is under attachment for an an∣swering: Orwhere he takes Oath, that he cannot answer without sight of Evi∣dences in the Countrey: Or absenting himselfe in one private place, or beyond Sea, and cannot be found to be served with a Sub-paena, upon Oath made, an Injunction is usually granted.
In all these cases, an Injunction may be granted, for stay of suites at the Common Law, untill the party answer, or appeare in person in Court, and the Court give further order.
An Injunction never is dissolved with∣out motion on the adverse part.
In the case aforesaid, where an Injun∣ction is to be granted, for stay of suits at
the common Law; if the like Suits be in the Chancery, either by Scire facias or by Priviledge or English Bill; then the Suit is to be staid by order of the Court, as it is in other Courts by Injunction.
An Injunction is usually granted, if the party Defendant be in Contempt, or matter confest, though after an arrest or further proceedings at Law without bringing money in Court.
Injunctions for Possession are not to be granted before a Decree, but where the Possession hath continued by the space of three yeares past before the Bill exhibi∣ted, and upon the same Title, and not upon any Title by leave or determined.
In case where the Defendant sits all the processe of Contempt, and cannot be found by the Sergeant at Armes, or resists the Sergeant, or make res∣cues, a Sequestration shall be granted of the Land in question, and if the Defen∣dant doe not render himselfe within the yeare, then an Injunction shall be gran∣ted for the Possession.
Injunctions against the felling of Tim∣ber, or plowing up of ancient Pastures, or for the maintaining of Inclosures, or the like, shall be granted according to
the circumstances of the case, but not in case, where the Defendant upon his answer, claimeth a state of inheritance, except it be where he claimeth the Land in trust, or upon some other speciall ground.
Injunctions shall be enrolled, or the Transcripts thereof be filed.
WHere any Order shall be made against the generall Rules of the Court, there the Register shal plain∣ly and expresly set downe the particular reasons and grounds, moving the Court to vary from the generall rule.
No order of the publick Court is al∣••erable upon Petition: vid. in the Title Petition.
THe Registers are to be sworne.
If any Order shall be made, and the Court not informed of the last mar∣tiall Order formerly made, no benefit shall be taken by such Order, as being granted by abuse, and surreption: And
to that end, the Register ought duly to mention the last former Order in the present Order.
No Order shall be explained upon a∣ny Petition, but only in Court as they are made, and the Register is to set downe the Orders, as they are pronoun∣ced by the Court, truly, at his perill, without troubling the Lord Keeper, or Lord Chancellour, by any private atten∣ding of him, to explaine his meaning; and if any explanation be desired, it is to be done by publick motion, where the o∣ther party may be heard.
No draught of any Order shall be de∣livered by the Register to either party, without keeping of a Copy by him: to the end that if the Order be not entred; neverthelesse, the Court may be enfor∣med what was formerly done, and not be put to a new trouble, and to the end also, that knowledge of Orders be not kept backe too long from either party, but may presently appear at the Office.
Where a cause hath been debated up∣on the hearing of both parties: and o∣pinion hath been delivered by the court; and neverthelesse, the cause referred to Treaty: the Registers are not to omit
the opinion of the Court in drawing of the Order of Reference, except the Court doe specially declare, that it is to be entred without any opinion either way.
In which case, neverthelesse, the Regi∣sters are out of their short Notes to draw up some more full remembrance of that which passed in Court to inform the Court if the cause come backe, and cannot be agreed.
The Registers upon delivery of the draught of any Order, unto the coun∣sell of either party, are not to respect the Interlineations, or alterations of the said Counsell (be the said Counsell never so great) further then as to put them in remembrance of that which was truly delivered in Court; and so to conceive the Order upon their Oath and duty, without any other or farther respect.
The Registers are to be carefull in the penning and drawing up of Decrees; and especially in matters of difficulty and weight; and therefore when they present the same to the Lord Keeper, or Lord Chancellor, they ought to give him understanding which are such Decrees of weight, that they may be read and re∣viewed,
before his Lordship sign them.
THe Decrees or dismissions made or granted in the Rolles, and those that are made in Court at Westminster on Wednesdayes or Fridays, when the Lord Keeper is not present (being drawn up) are first to bee signed by the Master of the Rols, or the Judge that sat at the hea∣ring of the cause, and then presented to the Lord Keeper to be likewise signed; which being done, then the same are to he enrolled.
NO Decrees shall be reversed altered or explained, being once enrolled, but upon Bill of Review; and no Bill of Review shall be admitted, except it be upon errour in Law, appearing in the body of the Decree, without farther ex∣amination of matters in fact or he shall shew some new matter which hath ri∣sen in time after the Decree, and not any new proof, which might have been used when the Decree was made.
Neverthelesse, upon new proof which is come to light since, and after the De∣cree made, and could not possibly have
been used at the time when the Decree passed, a Bill of Review may be granted by the speciall License of the Court, and not otherwise.
Also upon a Bill of Review the party Complaynant is to put in security be∣fore one of the Masters of the Court, to stand to and performe the order of the Court, upon the hearing upon such Bill of Review,
In case of mis-casting, being a matter Demonstrative, a Decree may be ex∣plained, and reconciled by an Order without Bill of Review.
Where note, that by the word Mis∣casting, is not intended any pretended Mis-casting, or mis-valuing, but only er∣rour in the Auditing, or numbring.
No Bill of Review shall be admitted, or any other new Bill to change matter decreed, except the Decree first obtai∣ned, be performed: And if it be for Land, that the possession be yeelded: If it be for money, that the money be paid: If it be for evidence, that the evidence be brought in; and so in other cases which stand upon the strength of the Decree alone.
But if any Act be desired to be done,
which extinguisheth the parties righ at the Common Law (as making of As∣surance and Release, Acknowledging of Satisfaction, Cancelling of Records or Evidence, and the like) Those parts of the Decree are to be spared, untill the Bill of Review be determined: But such sparing is to be warranted by publicke Order made in Court.
No Decree shall be made upon pre∣tence of equity, against the expresse pro∣vision of an Act of Parliament.
Neverthelesse, if the construction of such Act of Parliament, hath for a time gone one way in generall opinion and reputation; and after by a latter judge∣ment hath bin controlled: Then Reliefe may be given upon matter of equity for cases arising before the said Judgement: because the Subject was in no default.
Imprisonment for breach of a Decree is in nature of an Execution, and there∣fore the custody ought to be straight, and the party not to have any liberty to goe abroad, but by speciall license of the Lord Keeper or Lord Chancellour being: But no close imprisonment is to be but by expresse order for wilfull and extra∣ordinary Contempts and disobedience (as hath been used.)
In case of obstinate disobedience, in the breach of a Decree an Injunction is to be granted Sub-poena of a summe: and upon Affidavit, or other sufficient proofe of persisting in contempt, Fines are to be pronounced by the Lord Kee∣per, or Lord Chancellor in open Court, and the same are to be estrated downe into the Hannaper by speciall or∣der.
In case of a Decree made for the pos∣session of Land, a Writ of Execution goeth forth, and if that be dissobeyed, then Processe of Contempt, according to the course of the Court, is to goe forth against the person unto the Commission of Rebellion; and then a Sergeant at Armes by speciall Warrant: and in case the Sergeant at Armes cannot find him, Or he be resisted, Or if he upon his commitment doe persist in his disobedi∣ence, an Injunction is to be granted for the Possession, and in case that it also be disobeyed, then a Commission is to be made to the Sheriffe, to put his adversa∣ry into possession.
Where the party is committed for breach of a Decree, he is not to be en∣larged, untill the Decree be fully perfor∣med
in all things which are to be done presently.
But if there be other parts of the De∣cree to be performed at dayes or times to come: Then he may be enlarged by order of the Court, entring into Recog∣nizance with Sureties for the perfor∣mance de futuro but not otherwise.
Where causes come to hearing in Court, no Decree bindeth any Person, who was not served with Processe ad au∣diendum judicium, according to the course of the Court.
No Decree bindeth any one that com∣meth in bona fide, by Conveyance from the Defendant before the Bill exhibited; and is made no party either by Bill or by Order.
But where her comes in Pendente lite, and while the Suit is in full prosecution, and without any colour of allowance, or privity of the Court: there regularly the Decree bindeth.
But if there were any intermission of suite, or the Court were made acquain∣ted with the Conveyance, the Court is to give order upon the speciall matter according to Justice.
Where a Decree made for a Rent to
be paid out of Land, or a summe of money to be levied upon the profits of Land; there a Sequestration of the same Land being in the Defendants hand, may be granted upon the Decree.
Where the Decree of the Provinciall counsells, or the Court of Requests or the like, are by contumacy or other meanes interrupted: there the Court of Chancery, upon a Bill preferred for corroboration of the Decrees of that jurisdiction shall give remedy.
Where any cause come to hearing here which hath been formerly decreed in a∣ny other of the Kings Courts of Iustice at Westminster; such Decree shall be first read and then this Court shal pro∣ceed to heare the rest of the eviden∣ces on both sides.
Decrees upon Suits brought after Iudgement, shall containe no words to make void or weaken the. Judgement: But shall only correct the corrupt con∣science of the party, and rule him to make Restitution, or to performe other acts, according to the equity of the cause.
Decrees are not to be reversed, al∣tered, or explained, being once en∣rolled, but upon Bill of Review.
Bill of Review shall not be admitted, except the Decree be first obeyed and performed.
No Bill of Review shall be put in, ex∣cept the party that prefers it, enter into Recognizance, with sureties for the sa∣tisfying of costs and damages for the Delay, if it be found against him.
NO Reference upon a Demurrer, or question touching the Jurisdicti∣on of this Court, shall be made to the Masters of the Chancery, but such Demurrer shall be heard and ruled in the Court, or by the Lord Keeper, or Lord Chancellor himselfe.
For the confirming or ratifying of a∣ny Report, No Order shall be made, without day to be given by the space of a Seven-night (at least) to speake unto it in Court.
No Reference shall be made to any Master of the Court, or any other Commissioner or Commissioners, to he are and determine where the cause is gone so farre as to Examination of wit∣nesses: Except it be in speciall cases of parties neer in blood, or of extreme poverty, or by consent.
And generally, References of the state of the cause, are to be sparingly granted; except it be by consent of the parties.
No Report shall be respect in Court, which exceedeth the warrant o•• the Order of reference which leadeth it.
The Masters of the Court are requi∣red, that by Report they doe not certi∣fie the estate of the cause; as if they would make Breviates of the Evidence on both sides, which doth little ease the Court; but that they doe it with some opinion: Or otherwise, in case they thinke it too doubtfull, to give opinion there; And thereupon they are to make such speciall Certificate, and the cause is to goe on to a judiciall hearing, with∣out respect had to the same.
If both parties consent to a Refe∣rence for the examination of Accompts
to make the Cause more ready for hea∣ring, it may be granted. But generally matters of Accompt, excepting in very weighty Causes, are not fit for the Court, but are to be prepared by Re∣ference, with this provision neverthe∣lesse: That the Causes come first to hearing, and upon the entrance into a hearing, they may receive some dire∣ction, and be turned over to be consi∣dered and prepared.
The like course of Reference is to be taken for the examination of Court Rolles upon any Customes; and the Copies shall not be referred to any one Master, but to two Masters at the least.
No Reference shall be made of the Insufficiency of any Answer, without shewing of some particular points of the defects thereof, and not upon sur∣mize of the Insufficiency generally.
If a Complainant take exception to a Defendants Answer, he must deliver his exceptions to the Defendants cou••∣sell or Attourney; and if the Defen∣dant within eight dayes amend his answer, he is to pay no costs; but if he doe not, then a Reference is to be had to a Master of the Court, and if he
re∣port the Answer insufficient, then the Complainant may take out two Sub∣paena's against the Defendant, one for twenty shillings costs, and the other to make a better answer.
Where a Trust is confessed by the Defendants answer, there needeth no farther hearing of the cause, but a Re∣ference presently to be made of the Accompts, and so they are to goe on to the hearing of the Accompts.
WHere Causes are dismist upon ful hearing, and the Dismission signi∣fied by the Lord Keeper or Lord Chan∣cellor, and inrolled, such Causes shall not be retained againe, neither shall any new Bill be admitted, except it be upon new matter, like unto the case of the Bill of Review.
In case of all other Dismissions, which are not upon hearing of the Cause, if any new Bill be brought the Dismission is to be pleaded; and after Reference and Report of the Contents of both Suits, and consideration taken of the Cause or causes of the former Dismis∣sion:
the Court shall rule and order the Retaining or Dismission of the new Bill, according to justice, and the na∣ture of the Case.
All suits grounded upon wils Nun∣cupative, Leases paroll, or upon long Leases, that tend to the defeating of the Kings Tenures, or for the establishing of the Perpetuities; or granted upon Remainder over unto the Crowne, to defeat purchasers; Or for Brocage, or Rewards to make marriages; Or for bargain at play; or Wagers for bar∣gains for Offices, contrary to the Sta∣tute of the second of Edward 6. Or up∣on contracts for usury or Simony, are regularly to be dismissed upon motion, if they be the whole matter of the Bil; and there be no speciall circumstances to move the court to allow them a Pro∣ceeding.
And all suits under the value of ten pounds, are Regularly to be dismis∣sed.
Dismissions are properly to be pray∣ed and had, either upon hearing, or up∣on Plea unto the Bill, when the cause comes first into the Court.
But Dismissions are not to be prayed
after the parties have been at charge of examination of witnesses, except it be upon speciall cause.
If the Complainant discontinue pro∣secution, after all the Defendants have answered, above the space of one whole Terme, the cause is to be dismissed of course without motion.
But after Replication is put in, the cause is not to be dismissed without motion and order of the Court: and that motion is not to be made till four Termes after the Replication put in, and that in case there have been no proceeding after the Replication, ei∣ther by Motions, References, examina∣tion of witnesses, or the like.
For double vexation, the cause may be dismissed.
Where causes are Removed by spe∣ciall Certiorare, upon a Bill containing matter of equity; the Complainant is upon Receipt of his Writ, to put in Bond to prove his suggestions within fourteen dayes after the Receipt, which if he doe not prove, then upon certifi∣cate from either of the Examiners, presented to the Lord Keeper or Lord Chancellor, the cause shall be dismist
with costs, and a Procedendo shall be granted.
DEmurrers and Pleas which tend to the discharging of any suite, shall be neard first upon every day of Or∣ders, that the Subject may know, whe∣ther he shall need to give further atten∣dance or no.
A Demurrer is properly upon mat∣ter defective contained in the Bill it selfe: or foraigne matter.
But a Plea is of foraigne matter, to charge or stay the suit. (as)
That the cause hath been formerly dismist,
That the Complainant is out-lawed.
That the Complainant is excommu∣nicate.
That there is another Bill depending for the same cause.
Or the like.
And such Plea may be put in without Oath, in case where the matter of Plea appears upon Record, but if it be any thing which doth not appear upon Re¦cord, then the Plea must be put in upon Oath.
No Outlary shall be allowed, with∣out pleading Record Sub pede Sigilli: Nor plea of Excommunication with∣out the Seale of the Ordinary.
Where any suite appeareth upon the Bill to be of the nature of any of those which are regularly to be dismissed, ac∣cording to the Order before mentio∣ned the said Order is to be set forth by way of Demurrer.
WHere an Answer shall be certified to be sufficient, the Defendant is to pay costs.
And if a second Answer be returned insufficient in the points before certifi∣ed for insufficient, then hee shall pay double costs.
And upon the third like case, treble costs.
And upon the fourth, quadrupile costs, and then to be committed also till he shall have made a perfect and sufficient Answer and he shall be examined upon Interrogatories, touching the points defective in his Answer.
But if any Answer be certified to be
sufficient, then the Complainant is to pay costs.
No Insufficiency of Answer can be taken hold of, after Replication put in, because it is admitted for sufficient by the Replication.
An Answer to a matter charged as the Defendants own fact, must be di∣rect, without saying that It is to his re∣membrance, or as he beleeveth, if it be bid downe to be done within seven years before.
And if the Defendant doe deny the Fact then he must traverse it directly, and not by way Negative pregnant.
As if a Fact be laid to be done with divers circumstances; the Defendant may not traverse it literally as it is laid in the Bill: But he must traverse the point of substance.
So as if he be charged with the re∣ceipt of an 100. pounds he must traverse that he hath not received an 100. l or any part therof. And i•• he have received any part of it, he must set downe what part he hath received.
If a Hearing be prayed upon Bill and Answer: the Answer must be admit∣ted to be true in all points.
And a Decree ought not to be made, but upon hearing of the Answer read in Court.
Where no Counsell appears for the Defendant at the hearing, and the Pro∣cesse appears to have been served, the Answer of such Defendant is to be read in Court.
No new matter is to be contained in any Replication except it be to avoid matter set forth in the Defendants An∣swer.
This oath be made by the So∣licitor, or some o∣other for the defen∣dant.
The Pro∣cesse now is made returnable but three dayes be∣fore the hoaring.