Observation 1.

THat to confine the Court of Chancery to hear and Deter­mine all Causes of Equity in one certain publique Place, and not elswhere, may prove a great prejudice and inconveniency both to the Court and the People, for that it may so fall out by sickness, fire, war or other casualties, that it is impossible for the Lords Commissioners or others, appointed Judges there, to continue their sitting in the same place allotted for that purpose. And in such cases before they can sit in a more safe and conveni­ent place, there must be an Act to authorize them by appointing that place which by the casualty aforesaid may be the occasion of several removals from place to place, and of several Acts for that purpose. In the Interval whereof there must certainly be a delay and fayler of Justice as to the benefit of the Court held forth to the People of this Nation: And therefore it hath been the wisdom of former Ages (in reference to their place of sit­ting) to leave it to the discretion of the Lord Chancellor, Lord Keeper and Lords Commissioners for the time being, to appoint the most convenient places as occasion required for the better access of the People to make their Complaints and Addresses; It being humbly conceived that not the formality of the place, but its conveniency, nor the manner but the matter of Equity and Right there Administred ought to be first preferred, and chiefly endeavoured by all that are concerned therein, To appoint one chief Clerk for the performing of all the things contained in this Section relating to his place, being a Work formerly done by the six Clerks, and their under Clerks in Chancery, the Masters, De­puty and Clerks of the Sub-poena Office and the Mr. Deputy, and [Page 3]Clerks of the Affidavit Office, being in all above 150. persons, may prove a great inconveniency to the People of this Nation for these Reasons.

1. It being conceived impossible for one Clerk to discharge the same with that Care and Expedition as the nature of the place requireth; for that all the number of Bills, Answers, Re­plications, and other pleadings and proceedings, and other things formerly transacted by 6. coming to the hands of one, and the entry thereof being material in point of time, Those de­lays and mistakes incident thereto may prove a great prejudice to the People.

2. That by mistakes, neglects, and other errors in the Filing and Entring of Pleadings, and other proceedings in the said Court, relating to the Practical part thereof, there must consequently arise many Differences betwixt the Parties, Plantiffs and Defen­dants, and the Clerks on both sides; and these Differences must necessarily be determined by that one chief Clerk mentioned in this Section.

And in such a Case, whether or no it is likely there will be so just, regular, and indifferent Report made of the matters to him referred (especially if the Errour relates to himself or his under Clerks by mis-entring or not entring, which frequently must fall out) as when there are 3. or more superintendent Clerks intrust­ed therein. And how is it possible for one Clerk personally to attend his Office and the Court, and File all Pleadings, take all Affidavits, and make all Sub-poena's; and yet sit to hear and certi­fie all matters to him referred, and to do all those things by him­self personally without Deputy, with that care, expedition, up­rightness and indifferency as the nature and duty of his place re­quireth, is left to the consideration of all rational men.

3. Whether such a trust vested in one person (be he never so able and honest) be not too great and large a power to the in­dangering of the Peoples Causes, and a snare laid for an honest man in consequence of time to act contrary to safe and wholsom principles; For the wisdom of all former Ages was such, that they thought not fit to make one person sole Judge of any one of the Courts of Westminster, to prevent corruption, partiality, or other indirect proceedings; for two is better then one, and [Page 4]three may do more then both: And as there are three Lords Commissioners appointed Judges of the Court, why it may not prove more safe, expeditions and convenient to the People to have three persons to enter all pleadings and keep all Records, and to certifie all proceedings of the Office, and make all reports and references, &c. is likewise left to consideration; it being far more easie and probable that one may be mistaken or corrupted then three. And the reducing of six to three will (as is conceived) much ease the People in point of Fees, and give them more sa­tisfaction and assurance of a regular and ust proceeding, then if reduced from six to one, as is proposed by this Section.

4. Whereas it is proposed by this Section, that the chief Clerk shall have such and so many under Clerks for writing and dispatch­ing of Business under him as shall be allowed by the Judges of the Court, who are also to ascertain what they shall receive for their pains out of the Fees of the chief Clerk.

It is desired to be considered, whether this course doth not tend to the Ingrossing and Monopolizing the Profit and Fees re­ceived in the said Office into the hands of one, and to make him rich by impoverishing many; for certainly when the Proposers of this Act did direct, that the Fees of the under Clerks should be al­lowed by the Judges of the Court out of the Fees of the chief Clerk, they did forget that in their Table of Fees they took up­on them to ascertain what the under Clerk shall have for his pains, and what the chief Clerk for his, which are so unproportionable and unsuitable to their respective places and imployments, That the Labourer ( viz. the under Clerk) who is worthy of his hire, shall not be able to live by his labour; and the chief Clerk (who takes the least pains and care) shall suck the fruits of other mens labours. And whereas formerly, above 100. Clerks daily labour­ed to maintain six (yet upon some more honourable considerable conditions then is proposed by the Table of Fees made by the Proposers) Now they must labour to maintain one upon such poor inferiour terms, that no Clerk of any parts or abilities to undertake Business will own such an unworthy beggerly imploy­ment; so that the chief Clerk must be contented with Brewers-Clerks, Kitchin Boys, or some such persons to undertake the dif­patch of the Peoples Business. And this one chief Clerk accord­ing [Page 5]to the Table of Fees made by the Proposers will gain twice as much by his place as any one of the present six Clerks do; which can easily be made apparent by those that sufficiently know the nature and benefit of their imployments.

Observation 2.

What the Proposers mean by Attorneys of the Court is not discovered by this Section: But I finde in the Table of Fees something allowed to them, being 10. s. and no more for what they are to do in a whole Cause; viz. 3. s. 4. d. for Filing a Bill, or entring an appearance 3. s. 4. d. at joyn­ing Issue and 3. s. 4. d. at hearing. It is humbly con­ceived, the Proposers did deal discreetly in not prescri­bing what they are to do for this 10. s. and also in leaving it to the Judges to appoint how many of them shall be allotted for this purpose; for it may so fall out that as the Proposers would have but one chief Clerk; so they will have but two Attorneys; and then an Attorneys place will be of more benefit then any one of the best Colonels pay in all the Army; But if they intend there shall be so many Attorneys in the Court as will discharge the Office and Duty of Attorneys, viz. To draw their Pleadings, Breviats, and other things needfull and fit to be perused by Coun­cel, and to direct and advise them in all their proceedings. It is not likely that they will finde any Attorney qualified for that place, that will undertake that imployment for ten shillings in a whole Cause.

And whereas it is proposed. That Clerks and Attorneys should take Oaths for the discharge of their respective places; It is much [Page 6]admired that in those times wherein so many of the Honest Con­scientious People of this Nation have written and declared against Oaths ex Officio, as illegal, arbitrary and unwarrantable, should go about now to impose the same anew. And it were well that no Sheriffs or other Officers were forced to take such Oaths, since few or none of them do or can perform the same according to the Letter and purport thereof, which may occasion a general inundation of perjury, with which the Land already mourns: The many contradictory Oaths, and other unperformed Vows and Oaths which have been taken in this Nation since the beginning of these unhappy Wars (yet so little observed) being one of the grand sins of the Nation; insomuch that we have great cause to fear that it will produce a more fearfull National Judgement and Punishment on this Land then hath hitherto befallen the Inhabitants thereof.

Observation 3.

Against this there is no Exception made by the Author, only he desires it may be considered whether the stile of the Writ be so proper to be now used as is proposed by this Section.

Observation 4.

To give way for Plaintiffs to put the names of all Defendants into one Writ, hath been formerly found inconvenient, because thereby litigious persons, and especially Paupers would take op­portunity to make a multitude of Defendants out of meer ma­lice and vexation, and rather to wrest unjust Compositions from them, then out of any just cause of suit, the same being too much practised in remote parts of this Nation, whereby many of the People to purchase their ease and quietness, and to avoid needless trouble and charges in answering vexatious troublesom persons, will rather give them something, then to be exposed to a needless Suit; For prevention whereof, the Court formerly would not suffer above three to be inserted in one Sub-poena, so that very few unless they had some colourable cause of Suit would be at the charge of taking out of more Sub-poena's then they had just cause so to do; And when it falls out that Defen­dants cannot be personally served with Billets, or live very re­mote, in such a case, the Parties Plaintiff must be unavoidably exposed to take out several Sub-poena's, to be left at their dwel­ling Houses, which is accompted good service by this System of [Page 8]the Proposers. The sealing of all the Process of the Court open, was formerly certified by the Clerks in Chancery (in obedi­ence to the orders of the former Committee for regulating the Law) as a very commendable course to avoid mistakes, and other in­conveniences: But as to the leaving of the Copy of the Bill with the Defendant, or at his house in his absence at the time of service of the Sub-poena, it may prove of little use, but rather an incon­veniency and double charge; for it may so fall out that the Plaintiff may on better advice, alter his Bill before he Files it; and who can swear that he left a true Copy of the Plaintiffs Bill with the Defendant or at his house before such Bill be Filed on Record, and examined with the Record by the party that is to leave a Copy for the Defendant (without which no contempt can issue forth against him.) And as for those that serve Sub­poena's and are imployed in business of that nature, they are for the most part illiterate persons, and Affidavits of such service may occasion many perjuries, and great troubles, expences and debates thereabouts; whereas if all Bills were first Filed in the office before a Sub-poena granted (as hath been ingeniously pro­posed by the said Clerks, the same being agreeable to the ancient wholsom course of the Court) and the Defendant to make his address to the Office for a copy under Teste, it is conceived to be a far more safe and regular course: And moreover in case a Copy of a Bill be left with the Defendant or at his house at ser­vice of a Sub-poena before the Defendant will repair to Counsel to draw his Answer, he will in all likelihood examine it with the Record it self, and have it under Teste, all which doth but increase labour and expence, and loss of time; for otherwise he doth but answer an uncertain matter, or an individuum vagum; for it may so fall out that the Record and Copy left at Service may much differ, and one word or syllable doth cause a great altera­tion; And if this course of delivering Copies of Bills, Answers and Pleadings be intended to save charges to both parties, a rea­sonable abatement of the present Fees would in all likelyhood give the Client far more satisfaction then this new invented course, the consequence whereof may probably prove very fatal and prejudicial both to the Plaintiff and Defendant.

Observation 5.

To this the Author makes no exception, so the People be not debarred of the benefit of Suit already commenced, or to be commenced in this Court before the establishment of Country Registers, and touching precedent incumbrances.

Observation 6.

That the Course prescribed in this Section for an Attachment, Proclamation, Commission of Rebellion, and Sequestration to be contained in one Process upon a Contempt, is humbly conceived to be of dangerous consequence, and more mischievous to the De­fendant then any prejudice could formerly accrew to the Plain­tiff by the ordinary course of taking out of the usual Process of Court on Non est inventus returned: For that on a false Affi­davit that the Defendants house was served, according to the Direction of this Section (which may by craft be done, and yet the Defendant never hear of it untill in contempt) The Defen­dant being a Merchant, or other person living much on his Trade or Credit, having occasion to travel beyond Sea, or unto some remote parts of the Nation, may have a Sequestration come upon his estate, and his credit and trade destroyed, and his goods wa­sted and mis-used before ever he shall hear it. Those that are conversant with the practise of the Court of Chancery, cannot but well remember, that it is frequent upon false Affidavits, or other indirect grounds, to issue contempts against many men, who upon due examination of the Business are often cleared: And it were a sad Case, that on a bare Affidavit or mistake, any of the People of this Nation, being in credit and repute, should have their Lands, Goods or Chattels attached or sequestred. And if the Course proposed by the said Clerks for an Attachment and Proclamation to be the first Process, contained in one Writ and Commission of Rebellion next, and then Sequestration, it were more safe for all parties Plaintiff and Defendant; and less dan­ger, mischief, and inconveniency would probably accrew to both by this course, then the way directed in this Section.

Observation 7.

This hath dependance on the last Section, which being held inconvenient, this consequently must follow as impertinent and useless, as to what is herein before excepted against, as is humbly conceived.

Observation 8.

The Court hath already sufficiently provided in matters of this Nature, who in case the Defendant refuseth to answer, will decree the Bill pro Confesso, so that this Proposal might have been spared.

Observation 9.

By the former course of the Court, every defendant was to plead, answer, or demur within eight days after appearance, un­less the Court upon special cause appearing by Affidavit that the defendant without sight of Writing or Conference with the rest of the defendants, or by reason of sickness, or remoteness of his dwelling, or some other extraordinary reason given to the Court, who in such Cases will grant the defendant a Dedimus, or give a further convenient time, for him to answer according to [Page 13]their discretions, in which cases there is no provision made in this Section, but extraordinary rigidness in point of time: so that this general Rule cannot be admitted in all Cases without much prejudice to many defendants.

Observation 10.

To this the Author makes no exception, only desires that there may be special care taken in Commissionating faithfull and honest able Justices of the Peace, in whom the Propositors by this System do repose in many things as much power as is now intrusted in the Reverend Judges of the Law.

Observation 11.

The same Objection that was made Section fourth, touching Copies of Bills may serve for this.

Observation 12.

The Proposals of the Clerks, mentioned in Section fourth, That all Bills be first filed (wherein the plaintiff prays process) before the same be granted, will (as is conceived) prevent all preferring of costs, and all those delays, unnecessary expences, costs and trouble that formerly happened thereby, both to the plaintiff and defendant.

Observation 13.

To limit a time for arguing of all pleas and demurrers (as is conceived) tends to the forestalling the Judgement, Justice and Discretion of the Court whose practise hath been hitherto to dispatch them all in order with as much expedition as they could; but in case there be so many entred in the Books and Papers of pleas and demurrers that in ordinary courses, according to their dates and entries, they cannot be heard within the 14. days; to binde the Lords Commissioners or Judges of the Court to hear and dispatch them within that time is conceived to be too unrea­sonable an obligation which (in all probability) no Judges or Lords Commissioners will undertake to perform; And in case it fall out that a plea or demurrer come to be argued in the ab­sence of the plaintiff or defendant, and by reason thereof be ordered to stand or be over-ruled, if the party absent shew good cause why he could not attend the arguing of such plea or de­murrer, upon payment of double costs of the Court, if it go against him, the Court would not deny the re-arguing thereof, which was never yet held unreasonable by any practitioner of the Court, or other unbiassed person; it seeming unjust and unrea­sonable, that in case either party be surprized or prejudiced by non-attendance, in such cases that on payment of double costs he should not be heard therein.

Observation 14.

This is sufficiently provided for by the general and special Rules of Court made by the present Lords Commissioners for the great Seal of England, to the satisfaction of all Suitors.

Observation 15.

This course, if setled, would in all likelihood prove of very great use and benefit to the People, and prevent delays and cor­ruptions by references to particular Masters; only this is desired to be added, that there be some extraordinary punishment im­posed as well on Masters of Chancery as on all other persons that are Judges, who shall directly or undirectly take any bribe, gra­tuity or reward in any Cause, but barely their Stipends allowed by the State.

Observation 16.

This Court of entring causes and references, is conceived of good use and benefit to the People: The present Lords Com­missioners having in a good measure made provision therein: But it is likewise humbly proposed that all motions in Court be like­wise entred with the Registers, and the cause and end of the mo­tion briefly inserted; And that the same may be heard in course; which will be a means to hear and determine Causes and Mo­tions with equal dispatch; whereas now eminent Lawyers and Favourites are called by their names to move, who make some­times three or four motions in a day, and sometimes more; whereas other Councellors of good parts and abilities are forced to attend a week or more before they can be heard, the Clyent in the mean time suffering in his Cause, and the Councellor (though in no fault) suffering in his reputation. And that for prevention of mistakes in the drawing of Orders, contrary to the meaning and Declaration of the Court, it is humbly propo­sed, that the Register do take the Order of the Court Verbatim, and read it openly, that Councell on both sides may except against and settle the same in Court, according to the Direction and Declaration of the Court; and that the Register, on a good penalty, presume not to draw any Order otherwise, or add to, or diminish from his Notes without consent of parties on both sides: The Register (as the case now stands) being in a capacity [Page 18]to do great hurt and prejudice to the people of this Nation if inclined to the Cause of either party, Plaintiff or De­fendant.

Observation 17.

Against this there is nothing excepted.

Observation 18.

Against this Proposal, there is no exception made.

Observation 19.

This course is already established by the orders of the Lords Commissioners, saving the 20.s. forfeiture to the Commonwealth, which seems more reasonable (as well in this case as in other pla­ces (where such forfeitures are mentioned) to be paid to the par­ties concerned and aggrieved: And besides the extreating and levying of these petty forfeitures will stand the Commonwealth in more charge then the same will amount unto, and none will prosecute such forfeitures, since no particular benefit accrews to the prosecutors thereby.

Observation 20.

To rejoyn, and joyn in Commission on notice to the Clerk and Solicitor is approved of, but not to proceed to hearing on such notice, which may prove very prejudicial to the party, in whose absence the cause may be heard for want of due notice given him thereof; especially if the party be barred of a re-hearing, as is unsafely proposed, Sect. 27.

Observation 21.

This is very well approved.

Observation 22.

This is already provided for in the Rules and Orders, establi­shed and published by the present Lords Commissioners of the Great Seal of England.

Observation 23.

This is an excellent course for the due and regular carrying of Commissions, there having been hitherto in many causes too much foul practise used in the taking of Depositions, wherein ma­ny Commissioners and Clerks on both sides, for the most part Act rather as Parties or Agents for the persons concerned, then as becometh honest indifferent persons, according to the trust repo­sed in them by the Court; so that through the indirect practise of cunning Clerks and Commissioners, meeting with persons of the other side not so skilfull, nor so ill disposed, many a good and honest cause is overthrown.

Observation 24.

This seeming benefit may prove more prejudicial to the par­ties concerned, then the charge of full Copies may amount unto; for how can Councel be instructed in the merits of the Cause without sight and perusal of Copies of all the Depositions of both fides; and how can an ignorant Countrey man judge what part of the Depositions are usefull for him, and what not, wherein some persons (taking upon them more knowledge then pro­baly they may have) out of a desire to save an inconsider­able [Page 22]charge) may destroy a good Cause; but if they will wil­fully hazard their Causes, it is fit they should abide the ill con­sequence thereof.

Observation 25.

This seems very just and equitable.

Observation 26.

This is already provided for, according as is proposed by the present Rules of the Court, so that this Section was need­less.

Observation 27.

To deny the parties to be reheard on payment of double costs, if it go against them, seems unreasonable on the grounds and reasons set forth, Section the 13. touching re-arguing of Pleas and Demurrers.

As for References and Adwards, the Court were never against them; and if the parties on both sides agree, there is an end of that difference; In which cause it is well known the Court nei­ther will, nor can meddle with it; for if both parties agree, what need they trouble the Court, which is for no other use or end then to determine those controversies which cannot be composed in an amicable way by the parties themselves. But in case an Adward be indirectly made by practise or collusion, in such cases the Court will relieve the party aggrieved, according to the truth and merits of his Cause, which hath been held a commend­able and just course. And as to that part of this Section, which relates to restraining the Judges of the Court from hearing of Councel the second time, this seems unreasonable if parties do desire it, and the Court see cause; and surely it cannot choose but give more satisfaction to the parties, and carry with it a greater countenance and power of Justice to hear Councel, if the par­ties on both sides desire it, then to deny it to either; for it hath been hitherto conceived a just complaint of the People for un­justice, in cases wherein they have been concluded, without per­mitting [Page 24]their Councel to be heard, when they had something material to offer to the Court, especially in case of new matter not offered before: Whereas otherwise to hear both sides seems but just, whilest the Judgement is still reserved in the breast of the Court, who may order increase of Costs on re-hearings as they shall see cause.

Observation 28.

This method of drawing up Orders pithily, hath been former­ly proposed by the Clerks, and if a Register draws an order contrary to the Declaration of the Court, it is but just that he should be lyable to an Action of the Case; but in case the course herein before proposed, Sect. 16. for publique reading of the Or­ders in Court be established, it will in all likelyhood prevent ma­ny miscarriages in drawing up of Orders, and will be a means to shorten causes, and avoid multiplicity of Orders, and spare the Clyent much expence.

Observation 29.

As to the first part hereof, which concerns the Register in re­lation to the Decretal Orders of the Court it is very well appro­ved of: And it were well the same course were observed on all other Orders granted in Court, as hath been before proposed, Sect. 16. And for the time and manner of signing of Decrees and Dismisses, the Author makes no objection but in the latter part, which relates to the barring of the Court from relieving any per­son for any Lands, Tenements or Hereditaments, upon any pre­tence of trust or agreement, which shall not appear in writing, &c. the Author makes no Objection against it; provided, that this extends not to precedent trusts before the establishing here­of by any Act, and before Country Registers be appointed where such trusts and agreements ought to be inrolled and entred; for the right truth is, if matters of trust and agreement, and other matters of Fact betwixt parties were reduced into writing, and inrolled, it would avoid many litigious causeless suits, and prove a speedy way of redress, and little occasion would be for the parties to make address to the Chancery in such cases, and a Law to binde the People to reduce their Acts, Deeds, Contracts and Agreements into writing inrolled, will work a great peace in the Land in reference to Law-suits, and would spare many thousand pounds a year to the people by prevention thereof, as is humbly conceived.

Observation 30.

All this Section seems very just and reasonable, and may prove of good use and benefit to the people of this Nation, if established by Authority.

Observation 31.

As to the payment of 20.s. Fine in this Section proposed to the Commonwealth, it should seem more reasonable that the same should be paid to the party aggrieved and concerned, which may be considerable in his purse, whereas if the same be cast into a publique Treasury, it will little add thereto.

Observation 32.

The course prescribed, for service of Decretal Orders in this Section, seems to be inconvenient; for since the Proposers have di­rected that all the Process of Summons shall be under the Seal of the Court, which is the first, and least considerable of all the Process issuable out of the Court: why a Decree which is the last and most considerable of all Writs should not be under Seal, is left to consideration, it being easie to counterfeit a Re­gisters hand, and if discovered, not so penal as the counterfeiting of the Great Seal of England, wherein pains of death are pro­vided for the party offending; and therefore in respect of the difficulty of counterfeiting the great Seal, and the hazard and punishment attending the same, it is held and taken to be the most safe, convenient course which strikes a terrour in the persons con­cerned, and worketh a more honourable respect to the Decree and Authority of the Court that made it, then to a bare Registers hand, which may be had for twelve pence at any time.

And as to the Proposal which would make a decree in Chancery equivalent to a Judgement at Law, it was formerly proposed by the Clerk, and cannot but be well approved of by all un-byassed persons, since Execution of the Law is the life of the Law; And the precedent reasons that are offered for the issuing forth of Decrees under Seal of this Court will satisfie all ingenious men for the issuing forth of all Writs of Executions of Orders under Seal of this Court.

Observation 33.

This is a very strict course (as is humbly conceived) and tends to the disinabling the party against whom the decree is past to pay h [...]s Debts, or to make satisfaction to the party demandant: But to restrain him from disposing or selling of the matter de­creed seems reasonable.

Observation 34.

To restrain the Court from ordering moneys to be paid into Court without relation to the nature of the Case, may prove a great prejudice to many persons; for in case there be one or more Suits depending for profits of Lands, or other things whereunto the Plaintiffs and Defendants make several claims, and the Te­nants or others concerned, who derive an interest under the par­ties; Plaintiffs or Defendants have rents or moneys in their hands, but cannot with safety pay the same, untill the right be deter­mined; it might prove a great inconveniency to the Tenants to pay their Rents to either parties before the Court on hearing of the Cause declare to whom the right appertaineth; the pay­ment thereof in the interim, in dubious and intricate causes may occasion the parties to pay the same again, and so consequently multiply unnecessary suits, which the wisdom of former Ages hath prevented by staying the rents in the Tenants hands on good security given, to pay the same to whom the Court shall order, or else by ordering them to bring the rents, &c. into Court to [Page 30]be disposed of as the Court shall direct on mature and delibe­rate consideration had of the merits of the Cause, whereby it may appear to whom the same beiongs: And it seems unreason­able that no Fees should be paid for the paying out of the mo­ney already in Court, since the Officer that hath charge thereof hath been put to the trouble in receiving, and keeping the same, who is lyable to make satisfaction therein, if the same be imbe­zelled, and must be at the trouble and loss of times to pay the same out, and receive discharges for the same; for all which pains trouble and hazard, it seems reasonable that the Officer should re­ceive satisfaction accordingly.

Observation 35.

This is already provided for by the late Rules made by the present Lords Commissioners more expeditious and at less charge then is proposed in this Section, viz. that the party may of course without order or motion take out a Writ of Ducens tecum to bring in any writings confessed in the Defendants Answer; but in case the party on his examination and consideration had to the title set forth in his Answer do make good claim to the Writings, the Plaintiff in such case is to pay costs; which order is conceived to be a more wholsom and safe course then what is prescribed in this Section.

Observation 36.

The time limited for redemption of Lands morgaged seems ve­ry short, and too strict, and tends to the forreiting of many mens estates when Morgagers cannot raise moneys within the time prescribed by this Section for Redemption; and in case money­mongers combine together, in such cases Morgagers must either forfeit their lands at half the value, or else sell it at an extraor­dinary undervalue: And by this means no moneys can be raised by persons indebted, but on unconscionable, disadvantagious terms, which cannot but occasion a decay of Trade and Com­merce in the Nation, and either disable Creditors to pay their Debts, or else expose them to ruine by forfeitures of their E­states at great undervalues: But on the other side it seems unrea­sonable that a Morgagee shall be subject to a Bill in equity for redemption after 20. or 30. years forfeiture, and sometimes longer; and after alienation of the estate, which occasioneth many unnecessary troublesom and chargeable suits, so that a rea­sonable certain time being limited beyond which there shall be no redemption seems just and convenient, which is left to the grave consideration of those who are to Enact the same.

Observation 37.

This seems reasonable.

Observation 38. and 39.

Against which the Author offers this to consideration, that in case the Morgagee will let the Lands to a friend of his at an ex­tream undervalue; this cannot be termed properly a fraud; for any man may let out his own Lands, or what he is justly possessed of, and hath power to let and set at what Rates he pleaseth; but in case the Morgager or any other for him, or any other person offer the Morgagee, a far more considerable rent, and as good terms and securities as he was to have from another Tenant, who was to have it at an undervalue, this will render it a fraud; otherwise not; And as to the Provision made in this Section touching the oath to be taken by the Morgagee, the Morgagee may greatly damnifie the Morgager in point of Redemption, and yet take the Oath herein before directed: And it were well if course were taken to avoid the taking of oaths (which are sacred) unless in cases of necessity. And therefore it is humbly proposed, whether it were not more convenient that the value of the Lands should be inserted in the deed of morgage, accord­ing to which the Morgagee shall be lyable to an accompt at the time of redemption, who will be carefull in such a case in ascer­taining such value, which may be moderated by agreement be­fore the executing of such Deed at such Rates as the Morgagee will be contented to take the same, and give account according­ly, which course will avoid future differences, and the hazard of unsafe oaths concerning the same.

Observation 40.

Unto this the Author makes no exception. Neither doth he except against the hanging up of A Table of Fees, nor the punishments provided herein against Extortioners, &c. the same being already provided for by the present rules of the Court and the Law of the Land in such cases.

But he desires those worthy persons before they establish a Table of Fees, to consider well of the consequence thereof.

I. To a Sergeant and Barrester at Law upon a Motion, Reference, giving advice, signing Bills or Pleadings l. 1 s. 0 d. 0

Observation 1. Against this the Author makes no exception, but in case any Sergeant or Barrester, draw any Bills or Pleadings, that he may be paid Quantum meruit, or as much as the Clyent will be con­tented to give him; for that in such cases his pains may be great though his writing but small; and it seems reasonable, that whilest such an honourable degree of a Sergeant at Law is [Page 35]thought worthy to be continued, there should be some respect had towards them in point of Fees, more then is allowed to ordinary Baresters.

II. For a hearing or arguing a plea or demur— l. 1 s. 0 d. 0

Observation 2. Against this Fee the Author makes no Exception.

III. To the Masters of the Chancery for exami­ning every skin of an exemplification of a Record l. 0 s. 2 d. 3

Observation 3. This was the former Fee, and seems reasonable.

IV. For taking the Acknowledgement of a deed or recognizance to be Enrolled. l. 0 s. 0 d. 6

Observation 4. This seems reasonable:

V. To the chief Clerk for writing the Summons and filing upon the return, besides the Seal l. 0 s. 1 d. 0

VI. The like for Summons to testifie.

For the Seal of that and every other Pro­cess to the use of the Commonwealth l. 0 s. 0 d. 6

This was formerly paid.

VII. For administring an Oath— l. 0 s. 0 d. 4

[Page 36] Observation 5 6, 7. All this is sufficient, being more in a year then the profits of two of the best six Clerks places will now amount unto.

VIII. To the Attorney for the Plaintiff for filing the Bill the first Term l. 0 s. 3 d. 4

IX. The like to the Defendants Attorney for putting in the Answer l. 0 s. 3 d. 4

X. To the Attorney of either party for the Term, when issue is joyned l. 0 s. 3 d. 4

XI. To the Attorney of either party at the hearing l. 0 s. 3 d. 4

Observation 8, 9, 10, 11. This is a competent Fee, if the Attorney doth only file the Bill, and enter the appearance, &c. But it is desired to be consi­dered, who shall do the rest of the work appertaining to the Cause, and what he shall have for his pains that is to do the same.

XII. To the Examiner for Examination of every witness or upon contempt l. 0 s. 2 d. 6

Observation 12. This is also a competent Fee, and no more now paid.

XIII. To the Clerk for writing and ingrossing Depositions upon a Commission for every 12. lines, containing 10. words in a line, three pence.

[Page 37] Observation 13. This Clerk is no Officer of Court, and therefore, not so pro­per to be placed in a Table of Fees, the parties always paying him Quantum meruit, or as cheap as they can agree, who other­wise will not take that pains.

XIV. To all the Officers of the Court respectively, where they are required to subscribe their names to any thing in Eourt rea­dy written by way of Certificate 4. d. if it exceed not twelve lines with ten words in a line; if it exceed twelve lines, and under 24. eight pence, if above 24. twelve pence.

Observation 14. This will occasion unnecessary time in reckoning lines, and it were better to ascertain a Fee for subscribing Certificates of what length soever they be, long and short all of a price.

XV. For filing an Affidavit one penny, and for Copies for every twelve lines with ten words in a line two pence.

Observation 15. This is a poor Fee, and not satisfactory for the work, if done and entred as the nature of it requireth, or as it is now exactly done by the present Register: And at this rate none will dis­charge the place that is a person of worth, credit or fidelity as it ought to be done; the present Register of Affidavits, being a person of known honestie and carefulness in his place, and gains but a reasonable livelyhood thereby.

XVI. To the Register for drawing and entring every Order, not exceeding twelve lines, with ten words in a line, twelve pence; and forevery twelve lines above the first, seven pence; and for Copies of Orders for every twelve lines two pence.

[Page 39] Observation 16. At this rate, none but Chandlers-boys, Kitchin-boys, and the like, will undertake the imployment.

XVII. For drawing Decrees and Dismissions to the Attorney, for twelve lines with ten words in a line 3. d. for Intolment 2. d. and for ex­emplication 3. d. for every 12. lines with ten words in a line l. 0 s. 0 d. 3

Observation 17. This allowance will not recompence any one that will take the pains do to it; and therefore Clerks will rather turn Coblers Apprentices then work at this mean rate, which cannot finde them bread and salt.

XVIII. For a search, or reading any Order or Re­cord in Chancery l. 0 s. 1 d. 0

Observation 18. This cannot be ascertained, unless by the terms as is already paid in all Courts, or else according to the nature of the search, which may sometimes take up four or five hours, or more: where­as every Coachmans-wages is more considerable then what is proposed, in case of long searches which often fall out.

XIX. To the Cryer and Door-keeper, to each of them at the final hearing of every cause from the party that hath a Decree, for whom Dis­mission is pronounced l. 0 s. 1 d. 0

Observation 19. The Proposers have forgot those other persons that attend the Court, and ought to have allowances accordingly, either by way of sallary, or from the Clyents.

XX. For the Copy of any Record in Chancery, or other thing there filed, not before particularly exprest 2.d. for every 12. lines with ten words in a line, the party taking what party he pleaseth l. 0 s. 0 d. 2

[Page 38] Observation 20. No Officer or Clerk will attend this place at this rate, when as sometimes they make not any Copy of Record in three or four days, and the Copy may prove but short, and especially if the party may choose what part thereof he please (as indeed he might have formerly done before this Proposal) How this can recompence the pains and attendance of any honest, able, trusty man, and afford maintenance for himself and his family, is left to consideration; especially if they intend that the Plaintiff and Defendant are to deliver to each other Copies of all Bills, and other pleadings in the Cause, so that it is likely the Clerk will not have an occasion to make Copies of any pleadings in a whole Cause, unless the depositions, whereby he is tyed to con­tinual attendance, but no work or wages provided for him by this System.

XXI. For writing any thing to the Seal, not be­fore mentioned, for every 12. lines with ten words in a line l. 0 s. 0 d. 3

Observation 21. There is no Clerk of any parts or abilities will undertake this imployment at this mean rate.

XXII. And to the Commonwealth for the whole great Seal, the same Fees that have been ac­customed

Observation 22. This was formerly paid.

XXIII. For every Answer in writing on Petition— l. 0 s. 2 d. 6

Observation 23. This is a sufficient Fee, and but reasonable.

[Page 40] Forasmuch as some persons seem to be unsatisfied of the power and authority of the high Court of Chan­cery, to give relief to Complainants after Judgement given against them in the Courts of Common Law; which some have lately openly declared.

For publique satisfaction therein, I have thought it very usefull to recite the Case put by the late King James, concerning the power and jurisdiction of the said Court in matters of that nature, together with the Cettificate, Reasons and Resolutions of the seve­ral Learned Judges thereupon.

And whereas our Attorney General, and the rest of our learned Councel did thereupon return unto us their Certificate subscribed withall their hands, according to our commandment and direction given them by the said Letter, which Certificate followeth in these words.

[Page 44] The Case.

A. hath Judgment and Execution in the Kings Bench, or Com­mon Pleas against B. in an Action of debt of 1000. l. and in an Ejectione firm of the Mannour of D. B. complains in the Chan­cery to be relieved against these Judgements and Executions, ac­cording to conscience and equity, allowing the Judgments te be good and lawfull by the rigour and strict Rules of the Common Law; and the matter in conscience is such, as the Judges of the Common Law (being no Judges of equity) being bound by their oaths to do the Law, cannot give any remedy or relief for the same, either by errour or attaint, or by any other means.

Quest. Whether the Chancery may relieve B. in these or such like Cases, or else leave him utterly remediless and undone: And if the Chancery be restrained herein by any Statute of Premu­nire, &c. then by what Statute or by what words in any Statute is the Chancery so restrained, and conscience and equity banished concluded and damned?

Certificate. According to your Majesties commandment, we have deliberatly advised of the Case sent to us by the Lord Chan­cellor, and of the Statutes, as well those of Premunire as others, as far as we take it may concern the Case.

And for our better information herein, we have thought fit to send for, and peruse the Original Records themselves, remaining in the Tower of London of those Statutes, not only appearing up­on the Rolls of Parliament, with the Kings answers, which is the Warrant of the Roll of Parliament.

VVe have also taken into consideration as well Book-Law as divers other Acts of Parliament which may give light unto the Statutes, whereupon the question properly doth grow, together with such ancient Records and Presidents as we could finde, as well which maintain the Authority of the Chancery, as those which seem to impeach the same.

Opinion. And upon the whole matter we are all of one opi­nion, that the Chancery may give relief in the Case in question. And that no Statute of Premunire, &c. or other Statute restrain­eth the same; And because we know not what use your Majesty may be pleased to make of our opinion, either for the time pre­sent, or for the future, we are willing to give some reasons for [Page 45]the same, not thinking fit to trouble your Majesty with all those things whereupon we have grounded our selves, but selected out some principal things, which moved us to be of this opinion to the end; the same may be a fuller object of your Majesties Prince­ly Judgement, whereunto we always submit our selves.

Prescription.

And first of all, we must lay for a sure foundation that which was contained in our former Certificate, concerning the conti­nual practise by the space now of 120. years in the time of King H. 7. H. 8. E 6 Q.M. Q.E. of this Authority, and that in those times when the same Authority was managed, not only by the Bishops which might be thought less affectionate towards the Laws of the Land, but also by divers great Lawyers which could not but both know and honour the Law, as the means of their advancement, Sir Tho. Moore, the Lord Audly, the Lord Rich, Sir Richard Bacon, Sir Tho. Bromley, and Sir John Pick­ring. And further, the most of the late Judges of the Kingdom, either as Judges when they sate in Chancery by Commission, or as Councellors at Law, when they set their hands to Bills, have by their Judgements and Councel upheld the same Authority: And therefore, forasmuch as it is a true ground, that optimus legum interpres consuetudo, especially where the practise or cu­stom passeth not amongst vulgar persons, but amongst the most high and most scient Magistrates of the Kingdom: and when also the practice of the same shall lie under so heavy a pain as the Premunire; this is unto us a principal and implicite satisfaction, that those Statutes ought not to be construed to extend to this Case: And this of it self (well known) as of far more force to move your Majesty then any opinion of ours, because Kings are fittest to inform Kings, and Judges to teach Judges.

Jurisdiction.

But further out of our Science and Profession, we have thought fit these further reasons and proofs, very briefly to offer, because in case of so ancient a possession of Jurisdiction, we hold it not fit to amplifie.

Premunire.

The said Statutes upon which this question grows, are principally one whereof is a Statute of Premunire, and the other is a Sta­tute of simple prohibition.

[Page 46]That of the Premunire is the Statute of 27. E. 3. Car. 1.

And the Statute of simple prohibitions 4. H. 4. Car. 23. there be divers other Statutes of both kinds, but the Question will rest on these two, as we conceive it, for that the Statute of 27. E. 3. it cannot in our opinion extend unto the Chancery for these Reasons.

1. Out of the mischief which the Statute provides for and recites, viz. that such Suits and Pleas, against which the Statute is provided, were in prejudice and disherison of the King, and his Crown, which cannot be applied to the Chancery; for the King cannot be dis-inherited of Jurisdiction, but either by the Forreigner, or by the Subject, but never by his own Court.

2. Out of the remedy which the Statute appoints, viz. that the offenders shall be warned within two moneths to be before the King and his Councel, or in his Chancery, or before the Kings Iustices of the one Bench or the other, &c. By which words it is opposed in it self, that the Chancery should give both the offence and the remedy.

3. Out of the penalty, which is not only severe but hostile, namely that the offenders shall be put out of the Kings protecti­on, which penalty altogether savours of adhering to Forreign Iurisdictions, and would never have been inflicted upon excess only of Iurisdiction in any of the Kings Courts, as the Court of Chancery is.

4. Out of the Statutes precedent and subsequent of 25. E. 3. Car. 1. and 16. R. 2. Car. 5. which are of the same nature, and cannot be applied but to forreign Courts; for the word alibi or elsewhere, is never used but where Rome is named, espe­cially before.

5. The dis-junctive in this Statute, which only gives the co­lour, viz. that they which draw out of the Realm in Plea whereof the cognizance pertaineth to the Kings Court, or of things whereof Iudgements be given in the Kings Court, or which do sue in any other Court to defeat or impeach the Iudge­ments given in the Kings Court. This last disjunctive (we say) which must go further then Courts out of the Realm which are fully provided for by the former branch, hath sufficient matter and effect to work upon in respect of such Courts, which [Page 47]though they were locally within the Realm, yet in Iurisdiction were subordinate to the Forreigner, such as were the Legats Courts and Deligates Court, and in general all the Ecclesiastical Courts within the Realm at that time, as it is expresly construed by the Iudges in 5. E. 4. fo. 6.

6. In this the sight of the Record of the Petition doth clear the doubts where the Subject supplicates to the King to ordain remedy against those which pursue in other Courts then his own against Iudgements given in his Court, which explains the word (other) to be other then the Kings Court.

7. With this agreeth notably the Book of Entry, which translates the word in other Courts, not in alia Curia, but aliena Curia.

This Statute of 27. of Ed. 3. being in corroboration of the Common Law (as it self recites) we do not finde in the Re­gister any president of the Writs of (ad jura Regia) which are framed upon these Cases that were afterwards made penall by Premunire, but onely against the Ecclesiastical Courts.

Lastly, we have not found any president at all of any condition of the Statute of Premunire of this nature of Suits in Chancery, but only two or three Bills of Indictments preferred (sed nihil inde venit) for ought appears to us. For the Statute of Hen. 4. that no doubt was made against pro­ceedings within the Realm, and not against Forraign, and therefore hath no penalty annexed; nevertheless we con­ceive that it extends not to the Chancery in the Case deli­vered for these Reasons.

1. The Statute recites where the parties are made to come up­on grievous pain, sometimes before the King himself, sometimes before the Kings Councel, and sometimes in Parliament to answer thereof anew, &c. where it appears that the Chan­cery is not named, which could not have been forgotten, but was left out upon great reason, because the Chancery is a Court of Ordinary Iustice for matter of Equity, and the Statute meant only to restrain extraordinary Commission, and such like proceedings.

[Page 48]2. This appears fully in viewing and comparing the two Pe­titions which were made the same Parliament of 4. H. 4. placed immediatly by the one before the other, the first of which was recited by the King, and the second whereupon the Statute was made, whereof the first was to restrain three ordinary pro­ceedings of Iustice, that is to say in Chancery by name, in the Exchequer, and before the Kings Councel by process of Privy Seal; unto which the King makes a Royal prudent answer in these words: The King will charge his Officers to be more spa­ring to send for his Subjects by such process then they have here­tofore been: but notwithstanding, it is not his minde that the Officers shall so far abstain, but they may call his Subjects be­fore them in matters and causes necessary, as it hath been done in the time of his good Progenitors; and then immediatly followeth the Petition, whereupon this Act now in Question was made, unto which the King gave his assent, and where­in no mention is made at all of the Chancery or Ex­chequer.

3. If the Chancery should be understood to be within the Statute, yet the Statute extends not to this Case; for the words are that the Kings Subjects after Iudgements are drawn thereof anew, which must be understood when the same matter former­ly judged is put in issue or question again; but when the case is called into Chancery, only upon point of equity there, as the point of equity was never in question in the Common Law, so the point of Law is of Fact (as it concerns the Law) is never in question in the Chancery, so the same thing is not twice in question, or answered anew; for the Chancery doth supply the Law, and not cross it.

4. It appears to our understanding by the clause of Error and Attaint in the same Statute, what Iurisdiction it was that the Statute meant to restrain, viz. such Iurisdiction as did assume to reverse and undo the Iudgement, as Errour or Attaint doth, which the Chancery never doth, but leaves the Iudgement in peace, and only meddles with the corrupt conscience of the party; for if the Chancery doth assume to reverse the Iudgement in the point adjudged, it is void as appears 39. E. 3. fo. 14.

[Page 49]We finde no presidents of any proceedings to conviction or Iudgement of any Indictment framed or grounded upon this Statute, no more then the Statute of Premunire; and the late Iudgements are contra diversa Satuta, not mentioning the par­ticular Statutes.

6. Lastly, it were a great mischief to force the Subject in all cases to seek remidy in equity, before he knows whether the Law will help him or no, which oftentimes he cannot do till after Iudgement; therefore he is to seek his remedy when he hath his hurt.

There be divers other things of weight, which we have seen and considered of, whereupon we have grounded our opinions; but we go no further then upon that we have seen; but because matter of President is greatly considerable in this Case, and that we have been attended by the Clerks of the Chancery with the presidents of that Court, and have not yet been at­tended by any Officer of the Kings Bench with any Presi­dents or Indictments, although we required them, and gave them convenient time to have attended us with their Presidents, we shall give your Majestie faithfull Accompt of them as we have done of the other; all which, &c.